Court cannot order return of son from China, says judge

As China is not a signatory to The Hague Convention on International Child Abduction, it is not bound by procedures to expedite child custody cases across state lines.

There is no legal way to help a Port Elizabeth woman whose Chinese husband refuses to return her child to her, an Eastern Cape High Court (Grahamstown) judge has found.

Daily Dispatch report says Judge Judith Roberson gave judgment in the case of Elize Lin, who sought a court order to assist the Department of International Relations and Co-operation in its diplomatic efforts to get back her child. Roberson said there was no legal way for her to help Elize, as she and her husband Wenkang Lin – by virtue of their marriage – had shared parental responsibilities in respect of their child.

She said the only legal way for Lin to solve this problem was to get a divorce from Wenkang and have herself declared the child’s primary caregiver.

Elize has up to now said she cannot divorce her husband as she fears she might never see her child again. Roberson noted in her judgment that while on holiday in China earlier this year, Elize was forced to sign documents that, according to her husband, would have allowed the child to attend school in China. It later turned out that by signing the agreement, Elize had agreed that her mother-in-law become the ‘entrusted guardian’ to their son.

The report notes that as China is not a signatory to The Hague Convention on International Child Abduction, it is not bound by procedures to expedite child custody cases across state lines.

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