Unenforceability of Japanese Custody and Hague Abduction Convention Orders

Jeremy D. Morley*

Child custody orders are not enforced in Japan. There is merely a provision for a fine, but it is usually de minimis and rarely employed.  It does not impede a parent with physical possession of a child from denying the other parent access to the child. This is one reason (among several) why child custody is not shared in Japan and why visitation provisions are usually limited to short, periodic and often supervised meetings, unless the parents are genuinely agree to provide otherwise. There is no court-ordered international visitation in Japan and overnight visits are rarely ordered unless the parent who possesses the child willingly agrees otherwise.

In July 2017, the Supreme Court of Japan issued a ruling in a custody case between two Japanese parents living in Japan. It overturned a most unusual and provocative lower court ruling that had provided for extensive visitation time for the father. Indeed, the Supreme Court ordered sole custody for the mother and adopted her proposal to permit the father to meet the daughter only once a month, since that was frequent enough for an elementary school student and more time with her father would be unduly burdensome on a child. The case was commenced seven years earlier, during which the mother had allowed the father to meet the child only six times. The decision to permit visitation of not more than once a month, and then only for a meeting, not for an overnight visit, is normal and typical in Japan.

When Japan agreed to adopt the Hague Abduction Convention, which provides for the court-ordered return of internationally-abducted children, the Government was required t o make provision for the first time for enforcement of such orders. Accordingly, certain Japanese family lawyers worked extremely hard to draft enforcement measures that would, for the first time, lead to the enforcement of the terms of a Family Court order concerning children. However, their initial proposals were significantly diluted, and while the Diet ultimately adopted an extraordinarily lengthy enabling act bringing the Hague Abduction Convention into Japanese law, its provisions concerning the enforcement of Hague Convention return orders have proven to be unworkable.

Thus, in a case in Osaka in which the Osaka High Court ruled that four children, whose Japanese mother had abducted them from the United States, must be returned to their American father in the U.S. The father ultimately prevailed on so-called “enforcement officers” from the Nara District Court to make some efforts to enforce the return order, but when the mother refused to cooperate they declared that enforcement was not possible.  Early this year, the Osaka court reversed its original return order and authorized the mother to retain the abducted children in her sole custody in Japan.

Just a few days ago, an advisory panel to the Japanese Justice Ministry proposed that some enforcement measures beyond mere fines should be enacted in order to enforce orders in domestic custody cases, and it suggested that, after public comments, the matters could be submitted to the Japanese Diet “as early as 2018.” Whether any such law will ever be enacted is entirely uncertain. And whether any enforcement measures that are enacted will themselves be enforced in practice is even more uncertain.

In the meantime, the basic approach continues, whereby Japanese child custody cases merely “rubberstamp” the principle that whichever parent has physical possession of a child may in practice decide whether or not to allow the other parent to see their child.  And since physical possession means everything, parents who do not fully trust the other parent to return the child are necessarily reluctant to part with possession for even a day, which explains why visitation in Japan is generally limited to intermittent short supervised daytime meetings in a secure location.

* Jeremy D. Morley, an international family lawyer in New York, who works with family lawyers throughout the world. He is the author of two leading treatises on international family law, International Family Law Practice and The Hague Abduction Convention.  He frequently testifies as an expert witness on the child custody law and legal system of Japan and other countries around the world.

Chinese Recognition of Foreign Divorce Judgments

Jeremy D. Morley

It has been reported that on 30 June 2017, “for the first time in history,” a Chinese court recognized and enforced a U.S. commercial monetary judgment. Dr. Jie (Jeanne) Huang, Chinese Court Unprecedentedly Recognized and Enforced a U.S. Commercial Monetary Judgment.

The case is Liu Li v. Tao Li and Tong Wu decided by the Intermediate People’s Court of Wuhan City, in which that court found reciprocity by U.S. courts and duly enforced a default money judgment from California.

The Civil Procedure Law of China authorizes Chinese courts to enforce foreign judgments if there is a reciprocal enforcement treaty with the foreign country in question or if the courts of the foreign country in fact provide reciprocity, but always subject to a broad exception on the basis of undefined public policy. There is no relevant treaty between China and the US, Now, apparently for the first time, a court in China has found reciprocity to exist in fact with the U.S., at least in a commercial matter in which there was a fixed money judgment.

However, that does not mean that foreign divorce or custody orders will be recognized in China. A research article previously reported on two efforts to enforce U.S. divorce judgments in Chinas, neither of which was successful.  Donald C. Clarke, The Enforcement Of United States Court Judgments In China: A Research Note  Mr. Clarke reported there that, “In 1967, the Yantai Municipal People's Court rejected an application to recognize and enforce a divorce judgment from a U.S. court. In 1985, the Supreme People's Court issued a directive to the Shanghai Higher-Level People's Court (one level below the Supreme People's Court) instructing it not to recognize a U.S. divorce judgment, but instead to consider the case anew.”

A decade later, Santa Ana dad still fights for his son’s return from Japan

http://www.ocregister.com/2017/08/29/a-decade-later-santa-ana-dad-still-fights-for-his-sons-return-from-japan/

By SUSAN CHRISTIAN GOULDING | sgoulding@scng.com | Orange County Register
8/29/17

In an alternate life, Keisuke Collins would have started high school last week as a freshman at Foothill High. But in reality, Keisuke lives an ocean away from Orange County and from the father who misses him.

In the wake of a bitter divorce, Collins’ ex-wife, Reiko, spirited their then-5-year-old to her native Japan. Officials there have made “zero attempt” to reunite father and son, he said.

Randy Collins, 56, has not spoken with the boy throughout his school career. “Not a day goes by that he isn’t on my mind,” said the Santa Ana resident.

Collins and dozens of other parents in similar situations around the country have bonded over their common cause. They share a passion for testifying before congressional hearings and for imploring politicians to take action. They share a national organization, Bring Abducted Children Home – which counts about 400 children living in Japan without access to their American parents. Mostly, however, they share heartache.

Collins’ ex-wife could not be reached for comment. The Orange County attorney who represented her in the divorce did not return requests for comment.

The last time Collins saw Keisuke was June 2008, when they spent a jam-packed Father’s Day together. They attended church, visited the Discovery Cube, grabbed a bite for lunch and played at the beach. Then Collins took the child back to his mom, expecting to see him again the following night.

But she phoned the next afternoon and said Keisuke was under the weather. Little did Collins realize she had placed the call from the Seattle airport on her way to Japan, ignoring a court order that forbade her from leaving the country with their child, he said.

“She was already gone,” said Collins, who works in mortgage lending. Thus began an expensive and fruitless legal effort to get Keisuke back.

That mission included a 2015 trip to Japan with his best friend since Westminster High School, Ta’alolo Puni Pa’u.

“My passport was flagged at the airport,” Collins said. “Police notified Reiko and kept tabs on me.”

Nine days later, he decamped without so much as a glimpse of his son.

“I was bawling my eyes out,” Collins said.

“He started out so hopeful that he at least would get to see Keisuke, but left in utter despair,” said Pa’u, a hotel executive in Dallas.

New York attorney Jeremy Morley, an expert in international family law, has represented numerous parents in Collins’ shoes. Japan, he said, takes a hands-off approach in custody disputes even when both parents are Japanese.

“Left-behind American parents have every reason to be mad at Japan,” Morley said. “Yet it’s a reflection of serious cultural differences, not malice. Japanese society regards the law as an instrument that should not interfere with the privacy of family life.”

U.S. Navy Captain Paul Toland, 50, knows too well that anger, frustration and pain.

Toland met his wife, Etsuko, while stationed in Japan. The couple welcomed daughter, Erika, in 2002.

Etsuko experienced postpartum depression and went with the baby to her mom’s home for what Toland assumed would be a brief visit. Instead, his wife cut off communication with him. Japanese courts offered no assistance, he said.

“If I’d had even an inkling that a U.S. ally could actually separate an American father from his child, I would never have let Erika out of my sight,” Toland said.

Etsuko committed suicide in 2007. Even after her death, Toland could not gain custody of his daughter. A court granted guardianship to Erika’s grandmother, who continued to block contact.

“Japan’s entire family law system is broken,” Toland said. “In a divorce, there is no joint custody. One parent — whoever happens to have possession of the child at that time — gets 100 percent parental rights. So in a sense, my daughter was orphaned when her mother died.”

Children usually stay with the mother after a divorce, Morley said, and the father has little involvement.

“A father who demands custody rights is viewed as someone disturbing family peace,” he said.

In 2014, Japan belatedly signed the 1980 Hague treaty on international child abduction. Although a positive step, Toland said, Japan continues to grant full rights to one parent regardless.

“For anything to change, Japan’s laws must change,” said Toland, now stationed in Hawaii. “Yes, there have been voluntary returns. But not one child has ever been returned from Japan through legal channels.”

U.S. Congressman Chris Smith of New Jersey champions the issue of cross-border child abduction, which he calls “child abuse.” He argues that the United States should be more assertive with Japan, “a flagrant violator.”

“When is enough, enough?” Smith said in an email. “What we need is a change in the culture of the U.S. State Department, which too often rewards its foreign service officers for appeasing countries in the name of maintaining ‘harmonious’ relations. The U.S. must show it means business when it comes to the return of our abducted children.”

The longtime congressman, who for years has worked with Bring Abducted Children Home, praises Collins as “an inspiration.”

“He is tireless and will never stop fighting,” Smith said.

Indeed, Collins promised, he “will never give up.”
“Keisuke is my son, my only child,” he said.

Judicial Reliance on Morley’s Expert Report on Risks of Child Visit to China

We are pleased to report that the Superior Court in Orange County, California has expressly relied upon my expert report on Chinese family law. The Court ruled that a father who was relocating to China should not be permitted to take his child for a visit to that country, in the face of opposition by the child’s mother, because of the potential grave difficulty of securing the return of an abducted child from China.

Don't Rely on the Hague Convention for Overseas Visits

When considering whether to be concerned that the other parent plans to take a child on an overseas visit - which is normally a great benefit to a child and should generally be encouraged - it can be a huge mistake to rely merely on the foreign country's accession to The Hague Abduction Convention. 

The Convention does not operate automatically and a country's accession to the treaty does not guarantee the prompt - or even eventual- return of an abducted child. For example, one must consider the potential defenses (exceptions really) that an abducting parent might raise in a case brought under the Convention in the foreign country. Thus, if a child is 10 years old or older, one should be alert to the possibility that the child, perhaps under family pressure, will object to being sent back to the habitual residence. The Convention expressly authorizes courts to refuse to return abducted children if they are of sufficient age and maturity and independently object to being returned.

International child abduction is child abuse and prevention is far better than attempting to recover an abducted child after the fact. 

Monaco’s New Law on International Private Law

Jeremy D. Morley

On June 28, 2017 Monaco adopted a new Law on Private International Law. It sets forth the rules concerning divorce jurisdiction, authorizes spousal selection of the law to govern marital regimes, and provides rules concerning the applicable law concerning maintenance.

An informal translation of such provisions is as follows:

No. 1448 - Law on Private International Law

CHAPTER II - MARRIAGE

Section 1 - Formation of marriage

Article 32: The form of marriage celebrated before the Monegasque authorities is governed by Monegasque law.

Article 33 Subject to the provisions of Article 27, the substantive conditions of the marriage celebrated in Monaco shall be governed by the law of the State of which he is a national at the time of the marriage.

Article 34: Marriage concluded abroad in accordance with the law of the State of celebration shall be recognized as such 4/13 in the Principality, unless it is contrary to Monegasque public policy, or if it has been celebrated abroad with the clear intention of evading the provisions of Monegasque law.

Section II - The respective rights and duties of spouses

Article 35: The respective rights and duties of spouses shall be governed:

          1. by the law of the State in whose territory the spouses are domiciled or jointly separated;

          2. in the absence of domicile of the spouses in the territory of the same State by the law of the State in whose territory the spouses had their last common domicile;

          3. and, failing that, by Monegasque law. Notwithstanding the provisions of the preceding paragraph, third parties who have treated in good faith in the Principality with a spouse domiciled there may avail themselves of the provisions of Monegasque law concerning the rights and duties of spouses.

In all cases, the provisions of Monegasque law ensuring the protection of the family home and of the furnishings furnishing it are applicable when this housing is located in the Principality.

Section III - Matrimonial regime

Article 36: The matrimonial regime is governed by the law chosen by the spouses. Spouses may choose the law of the State in which they establish their domicile after the marriage, the law of a State of which one of them has the nationality at the time of the choice, the State in whose territory one of them has his domicile at the time of the election or the law of the State in which the marriage is celebrated.

The duty so designated applies to all of their property.

The provisions of this article do not derogate from the provisions of articles 141 and 1235 of the Civil Code.

Article 37: The designation of the applicable law must be written and signed by both spouses. It shall take the form provided for in the marriage contract by the designated right or by the State in whose territory the act is drafted.

This designation must be express or result from the provisions of a marriage contract in one of the forms thus provided.

The designation of the applicable law may be made or amended at any time. If it is subsequent to the celebration of the marriage, it has effect only for the future. The spouses may dispose of it otherwise, without prejudice to the rights of third parties.

The existence and validity of consent in respect of such designation shall be governed by the designated right.

The provisions of this article do not derogate from the provisions of article 1243 of the Civil Code or those of article 141 of the Civil Code.

Article 38: In the absence of an election of right, the matrimonial regime shall be governed:

          1. by the law of the State in whose territory the spouses establish their domicile after marriage;

          2. in the absence of domicile in the territory of the same State by the law of the State of which both spouses are nationals at the time of the marriage;

          3. in the absence of residence in the territory of the same State or of a common nationality, or in the case of a plurality of common nationalities, by Monegasque law.

Article 39: The effects of the matrimonial regime on a legal relationship between a spouse and a third party are governed by the law applicable to the regime.

However, if the law of a State provides for publication or registration of the matrimonial property regime and these formalities have not been complied with, the law applicable to the matrimonial property regime may not be invoked by a spouse to a third party of the spouses or the third person has his habitual residence in that State.

Similarly, if the law of a State in which immovable property is situated provides for the formalities of publication or registration of the matrimonial property regime and the formalities have not been complied with, the law applicable to the matrimonial property regime cannot be A spouse to a third party for the legal relationship between a spouse and a third party in respect of that immovable.

The provisions of the second and third paragraphs shall not apply if the third party knew or ought to have known the law applicable to the matrimonial property regime.

Section IV - Divorce and legal separation

Article 40: Monegasque courts shall have jurisdiction to deal with divorce and legal separation:

          1. where the domicile of the spouses is in the territory of the Principality;

          2. where the last domicile of the spouses was in the territory of the Principality and one of the spouses still resides there;

          3. where the defendant spouse is domiciled in the Principality;

          4. if one of the spouses is of Monegasque nationality.

The Monegasque courts are also competent to pronounce the conversion of the legal separation into divorce when the separation of body was pronounced in Monaco.

Article 41: The law applicable to divorce or legal separation before the Monegasque courts is Monegasque law, unless the spouses request the application of the law of the State of which they have shared nationality.

The spouses may also agree before the celebration of the marriage of the application of the law of a State of which either of them has the nationality or of the law of the State in whose territory they have their common domicile.

CHAPTER III - FILIATION AND ADOPTION

Section I. - Affiliation

Article 42: In addition to the cases provided for in the general provisions of this Code, Monegasque courts shall have jurisdiction in relation to the establishment or dispute of filiation where the child or that of his parents whose paternity or maternity is sought or In the territory of the Principality or has Monegasque nationality.

Article 43: The establishment and challenge of filiation shall be governed by the law of the State of which the child is a national. The nationality of the child shall be assessed on the day of his birth or, in the event of judicial finding or dispute, on the day on which the application is lodged.

Article 44 Voluntary recognition of paternity or maternity is valid if its validity is admitted in a State of which the child or the person who made the recognition has the nationality or his domicile on the date of the latter.

Article 45: The law which governs the filiation of a child, when it arises outright of the law, determines the effect on this filiation of an act of recognition.

The law governing the first recognition of a child determines the effect on the child of subsequent recognition.

CHAPTER IV - MAINTENANCE OBLIGATIONS

Article 52: In addition to the cases provided for in the general provisions of the present Code, courts of the Principality are competent to hear all claims concerning maintenance obligations where the creditor or maintenance debtor is domiciled in the Principality or is a national of Monaco.

The Monegasque court that is competent to hear an action relating to the status of persons is also competent to hear an application relating to a maintenance obligation ancillary to that action.

Article 53: The maintenance obligation between ascendants and descendants shall be governed by the law of the State in whose territory the maintenance creditor is domiciled.

However, Monegasque law applies where the creditor cannot obtain support from the debtor under the right referred to in the preceding paragraph.

Article 54: The maintenance obligation between spouses is governed by the law governing the respective rights and duties of the spouses.

Financial measures intended to compensate for the prejudice created by the dissolution of marriage shall be governed by the law under which divorce is pronounced.

Article 55: The right of a public body to claim reimbursement of the benefit provided to the creditor in lieu of the maintenance debtor is subject to the law governing that body.

India’s Chief Justice and India’s Status as a Safe Haven for International Child Abduction

by Jeremy D. Morley

On July 8, 2017 the Chief Justice of India, Hon’ble Shri Jagdish Singh Khehar, addressed the issue of India’s failure to sign the Hague Convention on the Civil Aspects of International Child Abduction, in a speech at an All India Seminar of the International Law Association.

The Chief Justice sought to explain, and apparently to justify, India’s position by stating that it would be “disadvantageous to Indian women” for India to adopt the Convention because “there are far more cases of Indian women escaping bad marriages abroad, and returning to the safety of their homes in India; than non-Indian women who are married to Indian men, leaving India with their children.”

The Chief Justice further endorsed recent decisions by the Supreme Court of India determining that courts in India should entertain full (and obviously extremely lengthy) analyses of the “best interests” of children abducted to India, which as he explained had deviated from “the earlier approach of the Supreme Court, wherein the minor child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country.”

It is most unfortunate that his speech underscores -- and purports to justify -- India’s well-deserved reputation as a safe haven for international child abduction.

The portion of his speech addressing the Hague Convention was as follows:

• “In India, the idea that a parent can abduct his or her own child, seems culturally unacceptable. Further, to bring the criminal law of kidnapping or abduction into family fights, is to accelerate a hostile situation, which would directly impact the welfare of the concerned child.  A violent marriage, an abusive marriage, a marriage causing a sense of deep hurt… entail differing degrees of distrust and suspicion, these impact even the sense and sensibility of the child.  Courts are put in a difficult situation, while deciding custody issues, between different levels of distrust and finding a safe haven, for a child with the singular option… to develop hatred towards one of the parents within the boundaries of the custodial parents’ place of residence.
• The Hague Convention, which at present has 95 signatories, aims to protect children from the harmful effects of international abduction by a parent, by encouraging the prompt return of the abducted child, to the country of habitual residence.  And to organize or secure, the effective rights of access to the child.  Custody and visitation matters, it is felt, should generally be decided by the proper court, in the country of the child’s habitual residence.
• The Convention on the Rights of the Child of 1989, also reflects the need to come together for protection of the child, and for every aspect related to children’s welfare. Though, this Convention has not delved into the details pertaining to child custody, as have been dealt by the Hague Convention of 1980, it weaves an overall matrix with regard to child rights, proposing cooperation at the global level. The Convention recognises the right of the child, to live with his or her parents, and the need for judicial determination – in case of separation of parents.  The issues’ sensitivity requires States to be obligated, to maintain personal and direct relations with both parents, and thereby, protect and honour the rights of children. The Convention on the rights of the child, calls upon States to promote conclusion of bi-lateral and multi-lateral agreements, and to take measures for combating illicit transfer of children – to locations beyond a child’s habitual residence.  The Convention also requires the States to make arrangements, for the return of children to the country of the child’s habitual residence.
• After India became a party to the Convention on the Rights of the Child, concerted efforts have been made in India, to deal with various aspects of child welfare. Positive outcome can be witnessed in legislations like the Juvenile Justice Act (2015), the Protection of Children from Sexual Offences Act (2012), the Prohibition of Child Marriage Act (2006), the Commissions for Protection of Child Rights Act (2005)… and so on.  But in terms of existing laws in the area of child custody, the legislative activity has been limited to the domestic sphere like the Hindu Marriage Act, 1955; the Hindu Minority and Guardianship Act,1956 and the Guardians and Wards Act, 1890.
• India has not ratified the Hague Convention for multiple reasons – including the prime one, that it is disadvantageous to Indian women, as there are far more cases of Indian women escaping bad marriages abroad, and returning to the safety of their homes in India; than non-Indian women who are married to Indian men, leaving India with their children.  In 2009, the Law Commission of India, headed by former Supreme Court Judge, had submitted a report recommending, that the government ratify the Hague Convention.  In February 2016, the Punjab and Haryana High Court while dealing with a child custody issue, asked the Law Commission of India, to resubmit its recommendations to the Government, with its recommendation to sign the Hague Convention. Based on these recommendations, the Women and Child Development Ministry in June 2016 issued a draft of the Civil Aspects of International Child Abduction Bill, 2016 (and a notice on the bill, No. CW-I-31/59/2016-CW-I of June 22, 2016) which reflected the provisions of the Hague Convention, and would pave the way for India’s accession to it.
• The Law Commission of India has also recently proposed some modifications in the above-mentioned Bill, and re-named as – “The Protection of Children (Intercountry Removal and Retention) Bill, 2016”. This Bill seeks to address the violation of custody, or access rights by providing for a full-fledged framework.  This Bill also provides for constitution of a Central Authority, which will have a major role in discovering the whereabouts of the removed/retained child, and in securing the return of the child, and also, in provisioning for legal aid.  It also proposes to empower the High Court to determine the issue of return of the child, despite lapse of sufficient time.  At the same time, on certain grounds – like objection by the child, or exposure of child to grave risk etc. the return of the child can be denied. 
• As of now the void is being taken care of by the Indian judiciary. The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare of the child, and not the rights of the parents under a statute.’ In 1998 in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, the Supreme Court held, that since India was not a signatory to the Hague Convention, it could decide the question of child custody on the merits of the case keeping in view the principle of best interest of the child.  This judgment was a departure from the earlier approach of the Supreme Court, wherein the minor child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country. The Supreme Court in Mausami Moitra Ganguli vs. Jayanti Ganguli AIR 2008 SC 2262 held, that ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’.  Recently in Surya Vadanan v. State of Tamil Nadu AIR 2015 SC 2243 the Supreme Court again pronounced the principles that needed to be kept in mind while dealing with inter-country removal and return. These involved the recognition of the principle of ‘comity of courts and nations’ along with the principle of ‘best interest and welfare of the child’.  Though governmental efforts have gained momentum in the recent past to fully realize the obligations laid under Article 11 of the UN Convention on the Rights of the Child, the courts in India are consistently trying to guard the best interests of the child.        
• It has been claimed that if India becomes a signatory State to the Hague Convention, it will lead to a less complicated and a more efficient process… in addressing the issue of wrongful removal or retention of children.”

Country Report: Mexico

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information for Mexico:

Country Summary: The United States and Mexico have been partners under the Hague Abduction Convention since 1991, and the United States has by far more abduction cases annually with Mexico than with any other country. Consequently, more cases have been resolved than with any other partner. In 2016, the Department noted serious concerns with a lack of communication from the Mexican Central Authority and identified shortcomings with respect to location efforts.

Central Authority: The Mexican Central Authority communication with the U.S. Central Authority decreased significantly in 2016. Due to this lack of communication, left-behind parents were not always updated on the status of their applications in a timely manner. In light of the concerns about communication, both central authorities agreed to improve information exchanges in 2017.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2016, 25 abduction cases were resolved through voluntary means.

Location: In 2016, Mexican law enforcement improved on its efforts to locate missing children. In some cases, however, the competent authorities did not take swift action to locate a child after filing a Convention application. The inability to locate the children was the root cause of most unresolved applications. The average time to locate a child was 15 months and ten days. As of December 31, 2016, there are 41 cases where the Mexican authorities were seeking to locate abducted children.

Judicial Authorities: First-instance courts generally decided Convention cases in a manner that was timely and consistent with the Convention. Delays were often related to the amparo, a constitutionally-based injunction that suspends the effects of a lower court’s decision.

Enforcement: Decisions in Convention cases in Mexico were generally enforced in a timely manner. However, two cases were pending for more than 12 months and law enforcement was unable to execute the return orders. In total, there were eight cases that were unresolved for more than 12 months (accounting for seven percent of the total cases filed with the FCA) and law enforcement failed to locate a child or enforce a return order.

Access: In 2016, the U.S. Central Authority acted on 21 open access cases under the Convention in Mexico. Of these, 12 cases were opened in 2016. Ten access cases were filed with the Mexican Central Authority, including four that were filed initially in 2016. By December 31, 2016, five cases (24 percent) were resolved and seven cases were closed for other reasons. By December 31, 2016, nine access cases remained open. No cases were pending with the Mexican authorities for more than 12 months.

Department Recommendations: The Department will intensify engagement with the Mexican authorities to address issues of concern. The Department also recommends an emphasis on preventing abductions.

Country Report: Egypt

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information for Egypt:

Country Summary: Egypt does not adhere to any protocols with respect to international parental child abduction, and left-behind parents of children abducted to Egypt have limited options to resolve their cases. Voluntary Agreements are the primary means for obtaining the return of children from Egypt. In 2003, the United States and Egypt signed a Memorandum of Understanding (MOU) to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. While Egypt was cited for non-compliance in the 2016 report, last year Egypt expanded its engagement with the United States under the existing MOU, and worked with the Department of State to resolve more abduction cases. During 2016, resolutions increased to four times the number of the previous year reflecting a pattern of improvement.

Significant Developments: During 2016, Egyptian authorities engaged extensively with the United States to review methods for resolving cases, and expressed interest in expanding cooperation between our two countries. Egypt's Ministry of Foreign Affairs was an active interlocutor regarding abduction issues and pressed for creation of a new inter-ministerial committee to consider Egypt’s possible ratification of the Hague Abduction Convention. Officials from the Ministry of Foreign Affairs and the Justice Ministry met frequently with U.S. Embassy staff in Cairo to discuss individual abduction cases. Egyptian authorities successfully mediated in one case to facilitate a U.S. father’s access to his sons in Egypt.

Central Authority: In 2016, the competent authorities in Egypt worked closely with the United States to discuss improvements to the resolution of pending abduction cases. However, the options for resolving these cases under Egyptian law are limited. Successful mediation by a subcommittee of the Ministry of Justice resulted in voluntary agreements in some cases. We believe this subcommittee has the capacity to expand its role in this regard and could play a greater role in providing left-behind parents with information regarding possible legal remedies in Egypt.

Voluntary Resolution: In 2016, four abduction cases were resolved through voluntary means.

Location: The Department of State did not request assistance with location from the Egyptian authorities.

Judicial Authorities: While some abduction cases were resolved by the Egyptian courts, the lack of clear legal procedures for addressing international parental child abduction cases under Egyptian law made it very difficult for Egypt to address these cases.

Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Egyptian authorities. Department

Recommendations: The Department will continue to encourage Egypt to join the Convention and expand public diplomacy activities related to the Convention. The Department also recommends an emphasis on preventing abductions.

Country Report: Colombia

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information for Colombia:

Country Summary: The United States and Colombia have been partners under the Hague Abduction Convention since 1996. Colombia was cited for non-compliance in the 2015 and 2016 reports.

Significant Developments: As of January 1, 2016, a procedural change limited the number of times a Convention case can be appealed. Prior to this change, some cases were delayed by numerous appeals.

Central Authority: The United States and the Colombian Central Authority have a strong and productive relationship that facilitates the resolution of cases under the Convention.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2016, one abduction case was resolved through voluntary means.

Location: The competent authorities regularly took appropriate steps to help locate a child after a Convention application was filed. On average, it took less than one week to locate a child.

Judicial Authorities: Judicial processes caused delays in some cases during 2016.

Enforcement: Decisions in Convention cases in Colombia were generally enforced in a timely manner.

Access: In 2016, the U.S. Central Authority acted on a total of two open access cases under the Convention in Colombia. Of these, one case was opened in 2016. While no cases were resolved by December 31, 2016, one was closed for other reasons. By December 31, 2016, one access case remained open. No cases were pending with the Colombian authorities for more than 12 months. Department

Recommendations: The Department and the Colombian Central Authority will continue the effective processing and resolution of cases under the Convention.

Michigan’s Child Custody Law Concerning International Children Violates Fundamental Principles of Human Rights

Jeremy D. Morley

In 2013, Michigan enacted a law that provides that, unless both parents expressly consent, “a parenting time order shall contain a prohibition on exercising parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.”

Prior to its enactment I opined that although the proposed legislation was a well-intended effort to prevent international child abduction, it was poorly drafted and overly simplistic. Specifically:

          -Not every country that is a party to the Hague Convention complies with the terms of the treaty. Thus, the U.S. State Department’s most recent Annual Report on International Child Abduction identifies ten countries that are “noncompliant” with the treaty.

          -Not every country that is a party to the Convention has been accepted by the United States as a treaty partner. For example, although Russia and the Philippines are parties to the treaty they are not U.S. treaty partners with respect to it.

          -Not every country that has failed to sign the treaty will fail to return abducted children. For example, even before it acceded to the Convention, Singapore had established an excellent record of returning internationally-abducted children.

I further explained that the statute would apparently bar the relocation of a child to any non-Hague country. It could therefore preclude a court from allowing an abandoned and impecunious foreign parent who is a victim of extreme domestic violence to return to her home country with her child. 

A recent decision of the Michigan Court of Appeals, Elahham v. Al-Jabban, 2017 WL 942997 (Court of Appeals of Michigan, 2017), highlights the problem. In that case, the appeal court upheld an award of sole custody of a child’s the father in Michigan that was based solely on the fact that the mother lived with the child in Egypt, which is a non-Hague country.

The trial court did not consider the best interests of the child. The award of custody to the father was based solely upon a strict interpretation of the Michigan statute barring the issuance of an order giving any parenting time to any parent in any non-Hague country.

Although the father had apparently claimed that the child had been taken to Egypt without his consent, the child had lived in Egypt for a considerable period of time. However, none of these issues were considered. The Court of Appeal simply ruled that, “the trial court correctly concluded that it could not award physical custody of the minor child to plaintiff because the statute precludes the court from granting parenting time in a country that is not a party to the Hague Convention, unless the other parent agrees in writing.”

It is now well established that it is a basic human right of both parents and children that the “best interests of the child” standard should be a primary consideration in all actions taken concerning children, including actions by social welfare institutions, courts, administrative authorities, and legislative bodies. Unfortunately, the Michigan law, as has now been interpreted by the Michigan Court of Appeal, operates in derogation of that standard.

Indeed, the Uniform Child Custody Jurisdiction and Enforcement Act expressly provides that U.S. courts are not obliged to treat a foreign country as if it were a U.S. state of the United “if the child-custody law of a foreign country violates fundamental principles of human rights.” Applying that provision, a court in the state of Washington has previously ruled -- based on my expert evidence that the child custody law of Egypt is based on arbitrary rules of age, gender and religion, rather than on the best interests of children -- that Egyptian custody laws  violate fundamental principles of human rights.

But the same principle surely applies with equal force to Michigan’s own child custody law. Instead of making a decision based on the best interests of the child, the Michigan Court of Appeals has now ruled that custody of a minor child who is located in another country will be based exclusively on the issue of whether or not that country has signed the Convention. Such a mandate is arbitrary and capricious and is in plain violation of the human rights of the child and of the parent who is deprived of custody.

Country Report: China

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information for China:

Country Summary: China does not adhere to any protocols with respect to international parental child abduction.

Central Authority: In 2016, the competent authorities in China periodically declined to communicate or work with the Department of State to resolve pending abduction cases. The Ministry of Foreign Affairs was slow to respond to a diplomatic request for assistance with the resolution of existing cases. Moreover, authorities did not discuss the larger issue of international parental child abduction nor address remedies for left-behind parents in general.

Location: The Department of State did not request assistance with location from the Chinese authorities.

Judicial Authorities: The United States is not aware of any abduction cases brought before the Chinese judiciary in 2016.

Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Chinese authorities.

Department Recommendations: The Department will continue to encourage China to accede to the Convention and expand diplomacy activities related to the Convention. The Department also recommends an emphasis on preventing abductions.

Country Report: Pakistan

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information for Pakistan:

Country Summary: During 2016, Pakistan did not adhere to any protocols with respect to international parental child abduction. While Pakistan acceded to the Convention in 2016, it is not a treaty partner with the United States. As a result, there is no formal mechanism for resolving cases under the Convention at this time. Pakistan was cited for non-compliance in the 2015 and 2016 reports.

Significant Developments: In December 2016, Pakistan acceded to the Hague Abduction Convention, and the Convention entered into force on March 1, 2017. The United States is engaged in discussions with the Pakistan government regarding partnering under the Convention. Central Authority: The United States and the competent authorities in Pakistan had regular and productive discussions on the best ways to resolve pending abduction cases under Pakistani law, and the Pakistani government took steps to resolve such cases.

Voluntary Resolution: In 2016, three abduction cases were resolved through voluntary means.

Location: The Department of State did not request assistance with location from the Pakistani authorities.

Judicial Authorities: The United States is not aware of any abduction cases brought before the Pakistani judiciary in 2016.

Enforcement: Custody decisions made by Pakistani courts were generally enforced in a timely manner.

Department Recommendations: The Department will continue to engage with Pakistani government officials regarding potential partnership. The Department also recommends an emphasis on preventing abductions.

Noncompliant Countries: Tunisia

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information from the thirteenth country listed as “Noncompliant” in the report, Tunisia:

Country Summary: Tunisia does not adhere to any protocols with respect to international parental child abduction. In 2016, Tunisia demonstrated a pattern of noncompliance. Specifically, the competent authorities in Tunisia failed to work with us to successfully resolve open cases. As a result of this failure, 50 percent of requests for the return of abducted children have remained unresolved for more than 12 months. On average these cases have been unresolved for more than 4 years. Tunisia has been cited as non-compliant since 2014.

Central Authority: In 2016, the competent authorities in Tunisia worked closely with the United States to discuss ways to improve the resolution of pending abduction cases. Nonetheless, none of the pending abduction cases were able to reach resolution through the Tunisian legal system in 2016. Moreover, the competent authorities repeatedly failed to reply to requests from the Department of State to explain Tunisia’s system of law regarding IPCA cases.

Location: The Department of State did not request assistance with location from the Tunisian authorities.

Judicial Authorities: While some abduction cases were adjudicated in favor of the U.S. citizen left-behind parent, the lack of clear legal procedures for addressing international parental child abduction cases under Tunisian law makes it very difficult for Tunisia to address these cases successfully.

Enforcement: Judicial decisions in IPCA cases in Tunisia were not enforced unless the taking parent voluntarily complied with a local court order. Moreover, there were two cases (accounting for 100 percent of the cases filed with the FCA) where Tunisian law enforcement authorities have failed to enforce a court order for over two years.

Department Recommendations: The Department will continue its efforts to persuade Tunisia to accede to the Convention. The Department also recommends an emphasis on preventing abductions.

Noncompliant Countries: Romania

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information from the twelfth country listed as “Noncompliant” in the report, Romania:

Country Summary: The United States and Romania have been partners under the Hague Abduction Convention since 1993. In 2016, Romania demonstrated a pattern of noncompliance. Specifically, the law enforcement authorities in Romania persistently failed to implement and abide by the provisions of the Hague Abduction Convention. For example, in one case the authorities have failed to enforce a return order that was issued in 2011. Romania has been cited as non-compliant since 2015.

Central Authority: While the United States and the Romanian Central Authority have a cooperative relationship, periodic delays in the processing of cases and inconsistent communication impacted the timely resolution of Convention cases.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2016, one abduction case was resolved through voluntary means.

Location: The competent authorities took appropriate steps to help locate a child after a Convention application was filed. On average, it took less than one week to locate a child. In one case, however, the children disappeared after the initial location effort and it took the authorities several months to locate them.

Judicial Authorities: The judicial authorities of Romania routinely reached timely decisions in accordance with the Convention.

Enforcement: Judicial decisions in Convention cases in Romania were not enforced unless the taking parent voluntarily complied with a return order. In addition, if the child expressed a desire to remain with the taking parent, authorities were not able to enforce judicial decisions in Convention cases.

Access: In 2016, there were no open access cases.

Department Recommendations: The Department will intensify engagement with the Romanian authorities to address significant issues of concern and expand public diplomacy activities related to the resolution of cases. The Department also recommends an emphasis on preventing abductions.