LEGAL ACTION TO BRING THESE TWO AUSTRALIAN CHILDREN HOME
On 12 March 2019 (20 days after the children were wrongfully abducted and retained in Colombia by their mother), Robert commenced legal proceedings through the Australian Central Authority (ACA) and filed an Application for the Return of Children in accordance with the Hague Convention on the Civil Aspects of International Children Abduction for the Return of Children Wrongfully Removed from or Retained outside Australia.
On 16 April 2019, Robert’s Application was filed in Colombia with The Colombian Central Authority (ICBF).
After learning that Robert had commenced legal action to have Benny and Lucia returned to the country of their birth, Maria attempted to file for sole custody via her friends, the Family Commissioner, Gerado Miznasa and the Lawyer David Bastidas. Thankfully, as the case was already scheduled to be heard under the Hague Convention, Maria’s proceedings for sole custody in the Colombian courts in Ipiales were halted.
Following notification that the case would be heard in accordance with The Hague Convention Principles, Maria (who had independent legal advice) personally appealed to the court of Judge Hernan Rodriguez Reina for help via informal channels.
For Robert who was fighting from the other side of the world to rescue his children, and unable to return to Colombia for the hearings for fear of his own safety; the challenges of expediting the legal process were extensive. The language barrier required translations on both sides. The time difference between Australia and Colombia meant that Robert and his family were disadvantaged in terms of having the support required from the Australian Central Authority.
These challenges led to the first hearing before Judge Hernan Rodriguez Reina in Ipiales on 20 August 2019 being postponed due to no fault of Robert and his family who were desperate to have the children returned in accordance with The Hague Convention principles.
Within the legal process of the hearing, Robert submitted signed Affidavits to the court along with a large volume of supporting material referenced in the Affidavits.
Maria made one statement (the Colombian equivalent to Australian Affidavits – Doc ID – E301201 Dated 31/5/19) which has never been released to Robert or his legal representatives in Colombia or Australia although it has been requested multiple times by Robert and Australian officials.
Finally Judge Hernan Rodriguez Reina offered three possible dates for the hearing to Robert’s legal team.
The case was re-scheduled for 31 October 2019. This was again postponed by Judge Hernan Rodriguez Reina.
On 29 November 2019, after unprecedented delays, finally the first hearing took place – 9 months and 9 days (282 days) after the children’s unlawful abduction, and 8 months and 15 days after Robert, their father filed his formal Application for the Return of The Children with the Australian Central Authority.
RULING BY COLOMBIAN JUDGE HERNAN RODRIGUEZ REINA MAKES MOCKERY OF HAGUE CONVENTION
On 5 December 2019, the second hearing was finally heard by Judge Hernan Rodriguez Reina in Ipiales where the Judge handed down his ruling verbally.
On 20 December 2019, Judge Hernan Rodriguez Reina provided his written ruling in Spanish.
In January 2020 the ruling was translated into English.
A summary of Judge Hernan Rodriguez Reina’s ruling is clear – that Robert’s Australian born children, Benjamin and Lucia Clarke were illegally retained by their mother and her family in Ipiales. However, he claimed that due to the length of time that the children have been illegally retained, they are now settled in Ipiales and should remain in Colombia with their mother, Maria.
Judge Hernan Rodriguez Reina aimed to justify his ruling as follows:
That the children are now “settled” in their new home and it would be harmful to the children to remove them because it involves separation from the environment in which they live and…from their relatives and people that surround them; and,
Because the abducting mother claims she won’t return to Australia with the children therefore it would be harmful to return children to separate them from their mother.
This judgement is in deliberate breach of The Hague Convention and omits taking into account Benny’s place of birth, his Australian citizenship, his almost 4 years (from birth) of having lived in his habitual place of residence in Australia, of being raised in a safe and loving environment by his father and mother, nor his close and frequent loving contact with his law-abiding, upstanding Australian family who have provided a positive environment nor taken into account the rights of the children’s father.
Judge Hernan Rodriguez Reina’s cannot make claim that his judgement is justified due to the length of time the children have been abducted and illegally retained for 10 months by their mother, Maria Nelly Yepez Oviedo and her Colombian family.
The Hague Convention Application was filed by the father, Robert Murray Clarke on the 12 March 2019 just 20 days following the children’s illegal abduction.
Judge Hernan Rodriguez Reina judgement does not recognise the harm done to Benny by his forced separation from his father’s daily loving care and his forced alienation from his deep loving attachments to his grandparents, cousin Samantha, aunts, uncles and his many friends in Australia.
This judgement does not recognise the ongoing and lasting increased harm to Benny and Lucia caused by this unlawful parental abduction by the children’s mother throughout their childhood, adolescence & adulthood.
This judgement ignores the fact that the abducting mother is a permanent resident of Australia and has established social networks in Melbourne, Australia having lived there for 5 years.
This judgement ignores the fact that the mother of the children can return to Australia where the children have the right to be raised in safety with all the opportunities being an Australian citizen offers.
The only chance that the mother’s separation from her children would occur is if she CHOSE not to return to Australia and made a conscious choice to separate herself from the children.
Returning Benny and Lucia to Australia would not cause them harm. Every year since his birth, Benny has taken extended holidays in Colombia with his family then returned to Australia. The return of Benny and Lucia to Australia will not cause trauma to the children as it has been a common family practice to return after a long holiday in Colombia.
Should Maria return Benny and Lucia to the place of their birth and return with them, Robert and his family have committed to providing a home for Maria and the children until court orders are made in Australia.
Should Maria choose not to return with the Australian children, Robert, his retired parents and other family members have the capacity to care for and love Benny and Lucia in the country of their birth.
The ruling by Judge Hernan Rodriguez Reina is a direct breach of the principles of the Hague Convention that clearly maintains: “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”
In February 2020, Robert and his family have one chance to appeal this ruling in Colombia with a date yet to be set. The hearing is set to be heard in Pasto, near Ipiales, Maria and her family’s home community to where they have already clearly demonstrated their influence among high ranking government officials.