How International Laws Can Leave A Parent 'Stuck' In A Foreign Country

by Summer Worsley
A sad girl looking in the distance
Aliaksandr Liulkovich / Getty

Amy Bottomley is a 30-year-old British woman who is “stuck” in Australia. As the parent of a half Australian child, she’s legally unable to leave the country with her son until he’s at least 18. She has no permanent residency visa and no work visa. Since she isn’t eligible for unemployment benefits either, she finds herself unable to independently support herself and her child, relying instead on financial help from family and friends in the UK.

In her own words, she’s “living in poverty, in a first-world country.”

Amy herself can go back to the UK any time she likes, but her son, Rome, will be unable to join her. And in an increasingly globalized world, the number of international families is on the rise. And so are ordeals such as Amy’s.

What is keeping Amy from returning home with her son?

The international law that keeps Amy and her son in Australia is The Hague Convention. Or in its full version, the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

This treaty is the primary agreement covering international parental child abduction. It also sets out access rights for parents who live in a different country to their child. Signed by 82 countries, all EU, Australian, and North American nations are signatories.

The law works based on the notion of “habitual residence.” Habitual residence simply means the country in which the child normally lives. The tricky part is that habitual residence is not clearly defined by the treaty itself. Each member state has the freedom to apply differing factors and time periods when deciding when and if habitual residence has been established.

How can it affect international families?

The world is increasingly globalized and we’re more mobile than ever, moving around the world living and working in different countries. This increased mobility means that more families have mixed nationalities and home countries.

When break-ups and divorces occur, separating the family unit is tough. But in international families, it’s even tougher. Often one parent wishes to return “home” to their support network of family and friends. According to data from GlobalARRK, a support network and charity working with “stuck” parents, this parent is the predominantly the mother. However, once a child’s habitual residence is established, it’s tougher still. Parents aren’t free to remove a child from a signatory country without consent from the other parent.

In one case, habitual residence was said to be established in only 43 days. Critics of the convention note that the law doesn’t take into account short-term relocations or trial periods.

What happens when things go wrong?

Sometimes the “stuck” parent has no recourse to access public funds or a work visa. Like Amy Bottomley, they become unable to support themselves and their child, let alone fight lengthy and costly court cases. Some parents have even been deported without their kids. Others have found themselves living in homeless shelters. All while fighting for the right to leave the country with their children. Family law courts and immigration law courts in a given country don’t always share information either.

Some Hague cases involve varying levels of domestic violence and, alarmingly, there is no specific mention of domestic violence in the treaty. Instead a parent trying to get away from an abusive ex-partner isn’t treated any differently. In one heartbreaking case, a young mother fled the UK for Australia with her children. Fearful for her life, she was still returned to the UK under the Hague. Not long after her return she was stabbed to death by her ex – in front of her children.

Why do we need the Hague Convention?

Despite cases such as those mentioned above, we need this Convention. Without it, the number of children torn away from a loving and involved parent could rise. There would be no recompense, and little respect for the best interests of the child. The law is, after all, designed to protect children. It avoids interrupting their life and their relationship with their other parent.

Yet there are some serious fall-outs for parents who find themselves in situations such as Bottomley’s. In many Hague cases, it seems that individual circumstances are not considered. Nor is the fact that happy primary caregivers generally equal happy children.

What can you do if you are “stuck?”

GlobalARRK is a charity helping to support parents in these situations. They’re working towards changing the parameters of the Hague Convention. Founded by a group of “stuck” moms, they provide help and emotional support to parents in over 35 countries.