The Central Authority for Australia is the Attorney Generals Department. I have written to them three times in recent months wanting answers to my questions. Amongst some of those questions, I asked whether they thought that bringing a child back to a country with no home to go to, no financial help, no entitlement to benefits, no recognised residential status (temp visa) and having to live off charity was a tolerable or intolerable situation? I asked why they didn't liaise with other government departments to ensure we would be provided for and why didn't they liase with the Family Courts to assist our cases on our return were fast tracked through the system.
I got a lengthy reply from the Attorney General, who appreciated the circumstances in my case were indeed difficult, however, he states that they applied the law of the HC by the letter and had no responsibility to ensure the welfare of myself or my son, only the requirement to get us back here. He reiterated that my defence of intolerable situation was to be argued in the courts of the UK (or whichever country applies) and if I wasn't happy with the outcome in the UK then I should have appealed. Great information now, especially when I didn't have money for the original court case let alone an appeal - the average parent doesn't have the sort of money that these legal cases cost. Anyway, the purpose of this posting is to remind you that the Central Authority in the requesting country DOES NOT CARE IN THE LEAST. The Attorney General re-iterated that the child is being sent back to THE COUNTRY from which is was legally removed or retained, NOT THE PERSON. In relation to the event of returning a child to an intolerable situation he quotes
'the courts will consider this defence if raised, and will take into consideration the availability of adequate arrangements that can be made by the government authorities for the protection of children and abducting parents on their return'.
In my instance, the judge at my hearing at the Royal Courts of Justice made no enquiries into what arrangements the government of Australia would do to assist me, and in my case, they could/would do nothing. At that time I was unaware of the complexities of the HC and exactly how much a lack of entitlement to benefits and housing would cause an intolerable situation. In hindsight, I should have appealed.
Stacey, my case at the RCJ was heard on 22 July 2005 before Mrs Justice Baron (my case no. was FD05P00900). My defence of intolerable situation was ignored. My family wrote to Mrs Justice Baron last year highlighting all of the problems I faced having been sent back to a country that would not provide for us or give us housing and the fact that we were living on charity. This letter was acknowledged by the courts and we were told it had been passed on to some other person higher up in the system. However, we never got any further reply.
Please let your solicitor know exactly what lack of money, accommodation, support etc you will be going back to and if possible ask if they can use my case as a stated case of what an intolerable situation can be. Ask for the courts in the UK to get assurance from the Spanish authorities that they will provide for you and give you financial assistance (I doubt they will be able to do this). The problem is, the courts of the requested country just assume that you will be looked after when you get returned, but as in my experience, this is simply not the case. It is imperative that your appeal goes ahead. Solicitors with expertise in this field are very hard to come by as this is not general run-of-the-mill family law.
I hope all of this makes sense, but courts have to realise that intolerable situations do include being homeless and having no money to buy basic necessities. A child being moved from hostel to hostel does not provide a stable environment, which Jessica has at the moment.
Good luck next week, Rebecca xx