Friday, May 26, 2017

Extraordinary Delays in U.S. Hague Abduction Convention Cases

By Jeremy D. Morley
Cases brought under the Hague Abduction Convention should be heard promptly and disposed of expeditiously. Unfortunately, U.S. courts – especially some federal circuit courts and even the U.S. Supreme Court itself – do not always comply with that requirement.

The Sixth Circuit recently ruled, in a Hague case that has been pending for more than two years, that because it and the district court have permitted - and indeed caused - such extreme delays, the case must be remanded to the district court for a further examination of the issue of whether the children would face a grave risk of harm if they are returned to Mexico even though that very issue had previously been determined by the district court. The Sixth Circuit’s reason for the remand order is that both it and the district court had permitted and caused such extreme delays in deciding the case that the facts had significantly changed in the interim. Neumann v. Neumann, 2017 WL 1162926 (6th Cir. 2017).

The case was commenced in June 2015, with the father alleging that his wife had removed the children from their habitual residence in Mexico without his consent and had taken them to live in Michigan. The mother asserted the grave risk exception to the treaty, and also disputed the assertion that Mexico was the habitual residence. Not until one year later, in May 2016, did the district court decide the case. It ruled that the children should be returned to Mexico; that the children’s habitual residence had been in Mexico; and that although the father had been violent to the mother, there was no sufficient evidence that to return the children to Mexico would expose them to a grave risk of physical and/or psychological harm. The respondent then appealed to the Sixth Circuit, which granted an emergency stay of the return order. However, the Sixth Circuit did not hold oral argument until the end of December and did not render its decision until several months thereafter.

At the oral argument, the Sixth Circuit learned that the petitioner had left Mexico, was living in the United States, and might move to India. The Court eventually held that these new facts were highly significant to the conditions that the children would face if they were to be returned to Mexico, and that a further hearing on the grave risk issue was accordingly required, which will obviously cause further extensive delays as well as substantial expense. Thus, the case is still pending. Meanwhile one of the children has reached the age of 16 and so the case has been ended with respect to that child.

The Convention is very clear that speedy resolution of return applications is a central obligation assumed by all treaty partners. The preamble to the Convention states that, “The States signatory to the present Convention … Desiring … to establish procedures to ensure their prompt return to the State of their habitual residence …”

Article 1 of the Convention states that, “The objects of the present Convention are - a. to secure the prompt return of children wrongfully removed to or retained in any Contracting State.” 
Article 2 of the Convention requires Contracting States to “use the most expeditious procedures available” to implement the objects of the Convention.
Article 11 of the Convention states that, “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.” 
The Hague Conference Guide to Good Practice under the Convention, Part II – Implementing Measures repeatedly demands that states act expeditiously in such cases. In particular, the Guide to Good Practice insists that:
-“Expeditiousness is essential at all stages of the Convention process including appeals.”

-“Expeditious procedures should be viewed as procedures which are both fast and efficient.”

In Chafin v. Chafin, 133 S.Ct. 1017 (2013), the U.S. Supreme Court instructed that, Importantly, whether at the district or appellate court level, courts can and should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation. Many courts already do so.”

The International Child Abduction Prevention and Return Act of 2014, 22 U.S.C. §§ 9001–11, requires the U.S. State Department to scrutinize diligently the performance of other countries in returning abducted children expeditiously and to employ enhanced methods to cause non-complying countries to improve their performance. The statute expressly states that “[i]t is the sense of Congress that the United States should set a strong example for other Convention countries in the timely location and prompt resolution of cases involving children abducted abroad and brought to the United States.” However, the Act does not require the State Department to evaluate U.S. compliance with the treaty.

 The delays in the Neumann case are extraordinary but certainly not unique. Many Hague Convention cases in the United States are not concluded until many weeks and often several months and even years after the cases are initiated. Delays are especially prevalent at the federal appellate level.

Indeed, Abbott v. Abbott, 130 S. Ct. 1983 (2010), the first U.S. Supreme Court Hague case illustrates the problem all too well. The child, then aged 9 or 10, was allegedly abducted from Chile to the United States in August 2005. A Hague case was commenced in a U.S. District Court in Texas in May 2006. The district court rendered its decision in July 2007, a delay of 14 months. The Fifth Circuit rendered its decision in September 2008, a delay of another 14 months. The Supreme Court granted certiorari in June 2009, a delay of another 9 months. The Supreme Court rendered its decision in May 2010, a delay of another 11 months. Its decision was to remand the case for further hearings. The Supreme Court granted certiorari in June 2009, a delay of another 9 months. It ruled on the case in May 2010, a delay of another 11 months, but it merely remanded the case to the Fifth Circuit. In August 2010 the Fifth Circuit remanded the case to the original district court. The case may well have then died of its own accord, since the child had reached the age of 16.

               Such delays are in plain derogation of the duty of the judicial and administrative authorities to returned internationally-abducted children promptly and to decide Hague cases expeditiously. The United States may well be in violation of its obligation under the treaty. Such delays certainly make it harder for left-behind parents in the United States to complain effectively of the delays in other countries in returning internationally-abducted children. People in glass houses should not throw stones.

Noncompliant Countries: The Bahamas

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 second country listed as “Noncompliant” in the report, the Bahamas:
Country Summary:
The United States and The Bahamas have been partners under the Hague Abduction Convention since 1994. In 2016, The Bahamas demonstrated a pattern of noncompliance. Specifically, the Bahamian Central Authority and the judicial authorities in The Bahamas persistently failed to implement and abide by the provisions of the Hague Abduction Convention. As a result of this failure, 50 percent of requests for the return of abducted children under the Convention have remained unresolved for more than 12 months. On average these cases have been unresolved for 42 months. The Bahamas have been cited as non-compliant since 2010.

Central Authority: The Bahamian Central Authority demonstrated a pattern of noncompliance with the Convention because of serious delays in the processing of cases and a lack of effective communication with the U.S. Central Authority regarding the resolution of cases.

Location: The competent authorities regularly took steps to help locate a child after a Convention application was filed. The average time to locate a child was seven months and two days.

Judicial Authorities: The judicial authorities demonstrated a pattern of noncompliance with the Convention through a series of decisions in cases that were not consistent with the Convention and through serious delays in deciding Convention cases. The Bahamian authorities tended to treat Convention cases as custody cases. Bahamian judges routinely requested home study evaluations and apostilles for documents supporting the Convention application. These extra requirements impeded prompt resolutions and were inconsistent with The Bahamas’ obligations under the Convention. Cases are generally pending with the judiciary for more than six years.
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 Bahamian authorities.

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

Department Recommendations: The Department will intensify engagement with the authorities to address significant issues of concern and expand public diplomacy activities related to the resolution of cases. The Department will also encourage training with judicial and administrative authorities on the effective handling of international parental child abduction cases. The Department also recommends an emphasis on preventing abductions.

Thursday, May 25, 2017

Noncompliant Countries: Argentina

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 first country listed as “Noncompliant” in the report, Argentina:
Country Summary: The United States and Argentina have been partners under the Hague Abduction Convention since 1991.  In 2016, Argentina demonstrated a pattern of noncompliance when judicial and law enforcement authorities in Argentina persistently failed to implement and abide by the provisions of the Hague Abduction Convention.  As a result of this failure, 100 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months.  On average, these cases were unresolved for 69 months.  Argentina has been cited as non-compliant since 2014.

Central Authority: The Department enjoyed a productive partnership with the Argentina Central Authority in 2016, and observed a commitment by the executive branch of the government to attempt to improve Hague performance in the country.  That said, the United States is concerned that Argentina does not resolve cases in a timely manner, and urges the Argentine authorities to take appropriate steps to address this situation.

Location: Argentina demonstrated a pattern of noncompliance with the Convention as evidenced by the failure by the competent authorities to take appropriate steps to help locate a child after a Convention application was filed.  The average time to locate a child was 14 months and 15 days.  As of December 31, 2016, there is one case where Argentine authorities remain unable to confirm the location of a child.  Argentina has failed to locate this child since 2013.  As a result, the Hague case remained stalled before the court.
Judicial Authorities: The Argentine judicial authorities demonstrated a pattern of noncompliance with the Convention due to serious delays in deciding Convention cases.  Two open cases have been before the courts for seven and six years respectively, with final resolution still pending.  Cases are generally pending with the judiciary for over four years.
Enforcement: As a result of serious delays by the Argentine judicial authorities in deciding Convention cases, the United States is not aware of any instances where law enforcement was asked to enforce a return order in 2016.
Access: In 2016, the U.S. Central Authority acted on a total of two open access cases under the Convention in Argentina.  Both cases were filed with the Argentine Central Authority.  No new cases were filed in 2016.  By December 31, 2016, one access case was resolved and one case remained open.  This remaining case was pending with the Argentine authorities for more than 12 months.
Department Recommendations: The Department will continue intensified engagement with Argentine authorities to address significant issues of concern and expand public diplomacy activities related to the resolution of cases.  The Department will also encourage training with judicial and administrative authorities on the effective handling of international parental child abduction cases.  The Department also recommends an emphasis on preventing abductions. 

Wednesday, May 17, 2017

Annual Hague Compliance Report Released

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 individual country information and the statistics within pertain to the 2016 calendar year. 
The report identifies 13 countries as “Noncompliant Countries,” as defined in ICAPRA.  Nine of these countries (Argentina, the Bahamas, Brazil, the Dominican Republic, Ecuador, Guatemala, Panama, Peru & Romania) are treaty partners with the United States under the Hague Convention.  Four of the noncompliant countries (India, Jordan, Nicaragua & Tunisia) are either not signatories to the Convention or are not treaty partners with the United States. 
In 2016, 230 abducted children whose habitual residence was in the United States were returned to the United States.
The majority of these (170) returned from Convention countries, while 60 returned from countries adhering to no child abduction protocols, as defined in the Act.  None were returned from bilateral procedures countries or countries having other procedures for resolving such abductions.
In 2016, the Department worked on 189 abduction cases that were resolved without the abducted children returning to the United States.  These include cases that were sent to foreign central authorities and later closed for one of the following reasons: the judicial or administrative authority complied with the Hague Abduction Convention; the parents reached a voluntary arrangement for the child to remain; the left-behind parent withdrew the application for return; the left-behind parent could not be located for more than one year; or the left-behind parent or child passed away.
Of the 189 cases, 132 involved Convention countries, and 56 involved non-Convention countries.  None involved bilateral procedures countries or countries having other procedures for resolving abductions.
The individual country data pages each include (a) a country summary; (b) a table containing data on cases open with the Office of Children’s Issues in 2015 and 2016; (c) an evaluation of the central authority; and (d) status reports on Department requests for governments to locate children, rulings by foreign judicial authorities, actions taken to enforce judicial orders, and Department recommendations.

Monday, May 15, 2017

Habitual Residence: The U.K. Interpretation

Jeremy Morley
The interpretation in the U.K. of the key term “habitual residence” in the Hague Abduction Convention and in Article 8 of the European Union’s Council Regulation (EC) 2201/2003 ("Brussels IIA")  is now fundamentally different from the interpretation of that term by a majority of the federal circuits in the United States.
Until just a few years ago, the courts in the U.K. “spoke the same language” as most U.S. courts when it came to habitual residence but the U.K. courts have more recently followed European authorities, which focus primarily on the objective facts concerning the child and far less on discerning the often competing claims concerning the intentions of the parents.
In a recent English case, EE and ME (Children) (Habitual Residence) [2016] EWHC 3363 (Fam), the judge provided a most useful summary pf the current state of the law. He stated as follows:
5. This case therefore turns on the question of the habitual residence of the children. On that matter, there has been a considerable body of case law in recent years, most importantly the decisions of the CJEU in Proceedings brought by A (Case C-523 – 07) [2010] Fam 42 and Mercredi v Chaffe (Case C-49710 PPU) [2012] Fam 22 and of the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60Re LC (Children) [2014] UKSC 1 and Re B (A Child) [2016] UKSC 4. From these cases, the principles relevant to the current application can be summarised as follows.
(1) Habitual residence is a question of fact and not a legal concept. 

(2) "The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce"
 A v A (Children: Habitual Residence), per Baroness Hale of Richmond at para 54 (vii) A gloss is "a purported sub-rule which distorts application of the rule" per Lord Wilson in Re B at para 46.

(3) The test for the determination of habitual residence should be the same under the Hague Child Abduction Convention, Brussels IIA and domestic law:
 A v A (Children: Habitual Residence), per Baroness Hale of Richmond at para 54 (iv) and (v).

(4) The test adopted by the European Court, which must be applied in cases in this country, is that habitual residence is "the place which reflects some degree of integration by the child in a social and family environment":
 Proceedings brought by A (decision), A v A (Children: Habitual Residence), per Baroness Hale of Richmond at para 54 (iii).

(5) To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration:
 Proceedings brought by A.

(6) It must be shown that the child's presence in the Member State in question is not in any way temporary or intermittent but rather of a lasting character:
 Proceedings brought by A, Mercredi v Chaffe.

(7) "The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned"
 A v A (Children: Habitual Residence), per Baroness Hale of Richmond at para 54 (vi).

(8) "This is a child-centred approach. It is the child's habitual residence which is in question. It is the child's integration which is under consideration. Each child is an individual with his own experiences and his own perceptions. These are not necessarily determined by the decisions of his parents …. The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once the child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. Furthermore, where parents are separated, there may well be two possible homes in which the children can live and the children will be well aware of this. This may well affect the degree of their integration in a new environment" per Baroness Hale in
 Re LC para 62.

(9) "The modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in … limbo …. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it" per Lord Wilson in
 Re B para 45.

(10)  In identifying the point at which habitual residence was lost and gained, the court might find that:
          (a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

          (b)  the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

          (c)  were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it."
These "suggestions", made by Lord Wilson in Re B at para 46, are not intended to be glosses or sub-rules but, rather, expectations which may or may not be fulfilled on the facts of each case.

Friday, May 12, 2017

The New Divorce by Mutual Consent in France...

The New Divorce by Mutual Consent in France: Recognition and Risks of Post-Divorce Litigation in Common-Law Countries: The Examples of England and the United States
Delphine Eskenazi, admitted to the Paris and New York bars, LIBRA Avocats, Carmel Brown, Solicitor in England, Irwin Mitchell and Jeremy D. Morley, admitted to the New York bar, Law Firm of Jeremy D. Morley consider the new divorce by Mutual Consent in France and its wider implications for other countries.
Since 1st January 2017, French divorce law has been the subject of an historic reform: in the event of a global settlement between the spouses, their divorce agreement is no longer reviewed and approved in Court by a French judge.
The agreement is merely recorded in a private contract, signed by the spouses and their respective lawyers. Such agreement is subsequently registered by a French notaire, which allows the divorce agreement to be an enforceable document under French law. From a judicial divorce, the French divorce, in the event of an agreement between the spouses, has become a purely administrative divorce.
The implications and consequences of this reform in an international environment were deliberately ignored by the French legislature, with a blatant disregard for the high proportion of divorces with an international component in France.
In particular, the most important risk of this reform is that the French divorce by mutual consent may not be recognized or enforced in many foreign countries, in particular common law countries, thus significantly multiplying the risks of post-divorce litigation. From an amicable divorce to an acrimonious post-divorce, the possibilities to re-litigate have increased significantly with this new French administrative divorce.
Carmel Brown, a solicitor practising in England, and Jeremy Morley, a lawyer practising in the United States, consider these issues of recognition and post-divorce litigation, following a French administrative divorce, in their respective countries of practice. Delphine Eskenazi, a lawyer practising in France (also admitted to practise in New York), presents first the main provisions of this new French administrative divorce by mutual consent.
I. What is the New French Divorce by Mutual Consent?
A. The Lack of Control or Involvement of the French Courts
In accordance with the new article 229 of the French Civil Code, spouses who agree on the principle of the dissolution of their marriage as well as on all the consequences of such dissolution, may record their agreement in a contract, without the need to obtain the review or approval by the French courts.
The process is simple: a draft agreement is written by the parties' counsel and signed by the spouses and their attorneys together. After the expiration of a mandatory 15 days reflection period, the agreement is sent by the most diligent party to a notaire, who will register it and keep an official record. The Court will be seized by the parties to review the agreement only as an exception, in very limited circumstances if a minor child requests to be heard by the judge. 
In the absence of a review by the Courts, there is no requirement for the spouses to have any connection with France to be able to use this new method of divorce, the consequence being that certain authors consider, rightfully, that 'France will become the new Las Vegas of the divorce 1'.
The other consequence of this purely French administrative divorce is that no independent third party will ensure that the spouses have freely consented to the agreement or, that this agreement is fair and strikes the right balance between both parties' interests (in particular as regards the provisions relating to the children).
The only requirement intended to ensure the existence of the spouses' free will is the obligation for each party to have his or her own lawyer, which assumes that the lawyer will be committed to the defence of his or her client's best interests.
The lack of control by a neutral and independent third party could nevertheless allow the possibility of agreements where one party will accept a completely unfavorable agreement, even after having received proper advice from his or her lawyer, for the sake of efficiency for instance (given how long divorce litigation can be otherwise in France). 
B. The Lack of Financial Disclosure
The issue of spousal support, also called "compensatory maintenance" (prestation compensatoire) is also a symptomatic example of the difficulties raised by this reform.
Before this reform, when the divorce agreement was reviewed and approved by the Courts, and the parties had agreed that one of the parties was awarded an amount for "compensatory maintenance", there was an obligation to provide to the Court a financial disclosure through a statement of net worth (declaration sur l'honneur), prepared and signed by each party.
The new law does not provide for an obligation to exchange or attach such statement to the divorce agreement. The circulaire (which is a document published by the French Ministry of Justice to explain how the new law should be applied in practice) provides that it is recommended for the parties to exchange such statement of net worth. This recommendation does not mean however that there is a strict legal requirement, sanctioned by the Courts. Therefore, the spouses could simply proceed with the divorce agreement, without any form of financial disclosure.
C. The Lack of European Certificates
Finally, the legislator has explicitly recognized that the only certificate which will be issued by the notaire is the one provided by Article 39 of the Regulation Brussels II bis. The certificate of Article 41 of the same Regulation will not be issued. The certificates provided by the new European Regulation on Maintenance obligations will not be issued either, which means that the maintenance creditor will not be able to benefit from the facilitated form recognition provided by this regulation. 
One can understand from this summary that the possibility for one of the spouses to attempt to re-open the litigation in other countries such as England or the United States, in the hope of  obtaining an additional amount for asset division or spousal support or better arrangements as regards the provisions relating to custody are significant.
Carmel Brown and Jeremy Morley detail and explain below the reasons for which such possibility could indeed exist in their respective countries of practice.
II. Will the French Divorce by Mutual Consent be Recognised in England and Wales?
A divorce granted within the European Union will almost always be automatically recognised in England and Wales, provided that it was granted in accordance with the laws of that particular member state.  Accordingly, given that the divorce by mutual consent would be prepared in accordance with the law - by a deed, signed by both parties and countersigned by the independent lawyer and a notary, it should be recognised in England and Wales.  However, it would need to be accompanied with a certified translation in the usual way.  It is fundamental however that the divorce is not a "transnational divorce", and instead, must have started and finished in France.
It is a worry that, given that a Judge will play no active role in the divorce by mutual consent, that there will be no control over the validity of the divorce agreements and this is likely to increase litigation and post-divorce disputes in France and open up the possibility of secondary litigation in England and Wales, by way of "top-ups".
If the French courts have not triggered their jurisdiction, owing to the fact that the divorce by consent is just a contract, then there is surely still the ability for another country to seize jurisdiction.
A. Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984)
England is often referred to in the media as the divorce capital of the world. It is widely known to be one of the more generous jurisdictions to wives in the world. Not only this, but the English court can, in some circumstances, order a divorce settlement even where a couple have already divorced (and received financial provision) in another country.
Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) provides the English court with a discretion to step in and make financial orders upon divorce, provided certain jurisdictional requirements are met. 
Essentially, once jurisdiction is accepted, the English court is able to make the same orders as if the divorce had been granted in England, which may include orders for maintenance, lump sum orders, property adjustment orders and pension sharing orders. Accordingly, if a party has entered into a divorce by mutual consent in France, and is genuinely dissatisfied with the settlement, possibly in circumstances where they have not had proper independent legal advice with full financial disclosure, they may seek to make an application in the English courts. This is particularly likely given that there will be no judicial control or guidance. 
The leading authority is the case of Agbaje v Akinnoye-Agbaje, [2010] UKSC 13 which held that the purpose of a Part III application was "the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England".[71]
The range of outcomes is wide and will depend on the circumstances of the case – but we may see one party after a French divorce by mutual consent seeking to re-open their financial claims in England (provided there is the requisite connection to England), notwithstanding that there has already been financial provision in a foreign jurisdiction. 
Until now, it has been significantly harder to run a successful Part III claim in England and Wales after a foreign divorce in a western country, and particularly the EU, given that Part III applications often arise after settlements in more traditional cultures i.e. those that may still treat women differently, therefore making inadequate provision.
However, that may all change given that French settlements will not be subject to judicial scrutiny and many may sign up to imbalanced and unreasonable settlements, failing to meet both the parties' and the children's needs. Practically speaking, this will clog up our court system given that the proceedings are complex, lengthy and expensive.
The English court will however be unwilling to entertain an application if it considers the French applicant is simply trying to get a "second bite of the cherry" after a financial award in France by mutual consent.
There is another unresolved relevant issue, which is whether a matrimonial award with an element of maintenance in another EU state, automatically precludes the courts of England and Wales from making a Part III maintenance order. 
Given that the European Union's Maintenance Regulation is designed to enable a maintenance creditor to easily obtain an Order that is automatically enforceable in another member state without further formalities, it seems reasonable for Part III to remain unaffected by the Maintenance Regulation.
However, the question is whether the recognition of the decisions of the other Member States merely means "recognising" that actual decision and the payer's liability or whether it allows a determination of the liability under the laws of England and Wales. The preamble states at s25 "Recognition in a Member State of a decision relating to maintenance obligations has its only object to allow the recovery of the maintenance claim determined in the decision." (Section 25 of Part III of the Matrimonial and Family Proceedings Act 1984). That said, it does appear reasonably clear, that the purpose is not to protect the payer from a Part III claim.
Although a maintenance award made in another EU state will have significant weight on whether leave is granted under Part III and in relation to the substantive application, in practice, it is likely that a prior maintenance award in another EU country would not prevent financial provision outside of the scope of the Regulation. Accordingly if a party has already obtained a maintenance award in France, a Part III application dealing with all financial matters and including maintenance, may still be on the table.
B. Children Matters and Contact
The new French legislation has unfortunately failed to deal with cases with international issues and elements and there is no method for obtaining the Certificates provided in the European Regulations (apart from Article 39 of the Brussels II bis), and a notary may not issue such certificates. 
Accordingly, the implications are vast and we lose the ability for French Orders complying with the conditions set out in Articles 20 and 40-42, to be directly recognised and enforceable in England and Wales.
The English Courts would consider it unsatisfactory for there to be conflicting Orders in existence in different states affecting children, yet this is the problem we will be faced with in circumstances where we will lose the benefits of the European Regulations.
III. Will the French divorce by mutual consent be recognized in the United States?
The extent to which courts in the United States will recognize French administrative divorces is uncertain and raises a host of interesting questions.  The issues are rendered particularly complex because of the unusual features of the divorce recognition principles that apply in the U.S., including the American concept of "divisible divorce," the imprecise nature of U.S. comity rules, the unique impact of the due process clause in the U.S. Constitution, the different statutory provisions in the 50 U.S. states, variations in judicial interpretations from state to state, and the particular jurisdictional rules as to child custody jurisdiction.
A. Recognition of the "Bare" Divorce
American courts will normally recognize foreign court divorce judgments under the doctrine of comity if one spouse was domiciled in the foreign country when the case was commenced, meaning that it was the place of the spouse's true, fixed, permanent home and principal establishment, and to which, during any absence, the person intends to return. But recognition may nonetheless be refused if the foreign legal system was partial or unfair or if the judgment was procured by duress or fraud.
There are very few reported cases in the U.S. concerning non-judicial divorces. It is likely that U.S. courts will follow the general principle that a divorce regularly obtained according to the laws of the country where at least one spouse is domiciled will usually be recognized as effectively dissolving the marriage. In a case in Hawaii, a decision to recognize a Taiwanese administrative divorce was recently upheld on appeal, and foreign administrative divorces were likewise recognized in some immigration cases.
However, the new French procedures authorize administrative divorces even if neither spouse is domiciled in France or even connected to France. Therefore, it is submitted that there is a great likelihood that a French administrative divorce of spouses who were both not domiciled in France will generally not be recognized in the United States.
An exception to this principle may well apply in New York, whose courts have long recognized foreign "bilateral" consent divorces, such as Dominican judicial divorces where one spouses flies there for a weekend with a power of attorney signed by the other party, even though neither was domiciled there. However, courts elsewhere in the U.S. have refused to follow the New York rule.
Another exception will be likely to apply to prevent a spouse from contesting a divorce if he or she has relied on the divorce in order to obtain any kind of benefit or advantage. However, that would not preclude a third party, such as the U.S. immigration authority, from refusing to recognize the divorce
B. Recognition of the Financial Consequences of the French  Divorce
In order for a U.S. court to recognize the financial component of a foreign divorce decree, each party must have had a significant connection to the foreign country, or have been served with process in that country or have submitted to the foreign court's jurisdiction. This element will presumably be satisfied in the case of French administrative divorces since the consent of both parties is required for the divorce.
However, subsequent and serious problems may well arise if a party has second thoughts about the financial terms, and seeks to have them set aside in a court in the United States.  Any such effort will benefit from the fact that the French procedures do not require in an compulsory way any prior financial disclosure.
Courts in the U.S. will normally not reopen the financial issues that have been determined in a foreign divorce case unless there is clear proof of fraud or duress, as long as the foreign court had jurisdiction over the marriage and personal jurisdiction over the defendant. A U.S. court will normally not even allow a party to make claims about assets that were not considered by the foreign court unless it is clearly established that the foreign court had no power to consider those assets.
However, administrative divorces may well be treated differently, since they are based on the mere agreement of the parties and they require no judicial oversight. U.S. courts will likely apply to such divorces the more flexible and liberal principles that they have developed concerning the avoidance of spousal settlement agreements leading to a judicial divorce. In general, U.S. courts may set aside a financial settlement agreement at the request of a spouse who establishes that his or her consent was procured by undue influence or in some jurisdictions merely because the result is unfair.
In reviewing the financial provisions of a French administrative divorce the relevant factors will certainly include whether or not, before entering into the French agreement, the complaining spouse had adequate knowledge of the relevant financial facts, received full and frank financial disclosure, adequately understanding what was being agreed to and the consequences of entering into the agreement, and had separate and independent legal representation. The attitudes of courts in different U.S. states to such claims will vary from state to state, based on the specific case law that has been developed in each such state concerning the avoidance of divorce settlement agreements, the specific provisions of any governing local legislation and the attitudes of local judges.
C. Recognition of the Child Custody Elements of the French Divorce
American courts will certainly not recognize any portion of a French administrative divorce that deals with the custody of children except to the extent that the statutory jurisdictional rules of the local U.S. state are satisfied.
Each U.S. state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA"), except Massachusetts which has adopted a prior but similar statute. In very broad terms, it provides that a child's "home state" – meaning the state or foreign country where the child has lived for the past six months - has exclusive jurisdiction to issue an initial child custody order and has continuing exclusive jurisdiction neither the child not either parent lives in that state or country.
This means that if, for example, a French administrative divorce were to purportedly settle custody issues concerning a child who does not live or has not lived in France, the custody terms would almost certainly be unenforceable in the United States. 
D. Support Provisions
Significant problems will arise in the U.S. concerning the enforcement of the child support and spousal support provisions of a French administrative divorce. The Uniform Interstate Family Support Act, adopted throughout the U.S., provides measures to enforce "support orders" issued by other U.S. states or by most foreign countries. However, the term "support order" is defined as "a judgment, decree, or order, or directive" that has been "issued by a tribunal," meaning "a court, administrative agency, or quasi-judicial entity." Since the support terms of a French administrative divorce will not be in the form of a judgment, order or the like issued by a "tribunal," it may well be especially difficult to enforce such provisions in the U.S. 
The enforceability of French administrative divorces in the United States and in England will raise a host of complex and interesting legal issues. Full disclosure of such issues to parties who have a connection to a common-law country is strongly recommended.
In summary, these changes in France are likely to have various and quite large-scale implications in other countries, in particular in countries such as the United States and England and Wales, which are based on a very different legal culture.
We are hopeful that the comments of practitioners are noted and the necessary and appropriate changes are made.

1. See Alexandre Boiché, in the French family law Journal, AJ Famille, January 2017.

Friday, May 05, 2017

Expert on International Aspects of Family Law of China

Jeremy D. Morley has been well recognized as an expert on the international aspects of the family law of China.
-His opinions are based on the knowledge and extensive experience that has gained concerning Chinese family law matters from handling numerous cases concerning China. He has consulted with many clients whose country of origin or current or prior residency is China or whose spouse or (former) partner is a Chinese citizen or resident.  Such consultations have usually concerned international family law issues that have related to China, most particularly including international child custody and international child abduction. They have frequently required him to consult with lawyers in China and to conduct extensive research as to the family laws of China. He has provided expert reports and testimony concerning the laws and practices of China as to international child custody matters.
-May 3, 2017: Both sides in a California case stipulated today to the submission to the court of my expert report on the risks of child visitation to China.
-From a Global Times article on The terrifying reality of international custody disputes:
“According to Jeremy D. Morley, a New York-based family lawyer and author of The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer, this is one reason which makes China an inviting destination for international childhood abduction.
‘There is often a legal vacuum that encourages one parent to take children away from the other, and to deprive the children of access to the other parent," Morley says. "It not only hurts foreign parents [if the Chinese partner takes the child to China], it also hurts Chinese parents living in China because if the other parent takes their child to a foreign country from China, the courts in that foreign country are unable to order the child's return to China under the terms of the convention.’"
-From a court ruling of the DeKalb, Georgia County Superior Court:
“I also have to balance that with the facts provided by Mr. Morley--who the Court gives great weight to his testimony—that China has not signed or become a part of the Hague Act, and therefore sending the child, a United States citizen to China, would strip this court of jurisdiction and would prevent this court from protecting one of its citizens.  The Court, therefore, would lack the power to act, lack the power to protect, and that is certainly not in the child’s best interests…The fact is if the child does go to China, and if the mother indicated that she did not want the child to return to America, then from what the Court has heard from Mr. Morley, whom the Court has given great weight, the child may not be returned to the United States.  China has an unreliable system, and the Court has to take that into consideration.”

Thursday, April 27, 2017

Israel: Which Courts Handle Hague Abduction Convention Cases?

From the article by Judge Benzion Greenberger, District Court of Jerusalem, Israel, in the 2014 edition of The Judges’ Newsletter:

“Regarding Hague Convention cases, these are heard in Family Court, and all Family Court judges are qualified to hear them. Thus, while there is no specific concentration vis-√†-vis Hague cases, these are heard by a relatively limited number of judges in the country who specialize in family law, and who are therefore better qualified to be involved in this complex area of the law. A recent development worthy of note in this regard is the administrative decision of the Chief Judge of Jerusalem District Court, in which three-judge panels hear appeals from the Jerusalem Family Court, to empanel a specialized three judge panel for Hague Convention appeals specifically, and on which panel will sit the judge representing Israel in the Hague Convention Judges Network. This model has yet to be adopted in other districts in the country, but this promising development is a further indication of the trend toward concentration in Israel to date.”

Tuesday, April 25, 2017

Bahrain’s King Orders Formation of Legislative Committee to Review Unified Family Law

Manama – King of Bahrain Hamad bin Isa Al Khalifa issued on Sunday a Royal Order to form a legislative committee to review the new unified family law expected to be issued in the kingdom.
The Royal Order 24/ 2017 directed that the committee be formed of Supreme Council for Islamic Affairs called Legislative Committee to review the family draft law. Article One stated that the Legislative Committee consists of ten clerics of both Sunni and Shi’ite sects.
It added that the committee will hold its meetings at the headquarters of the Council. Whereas, Article Three specifies that the committee will consider the family draft law, its provisions and to ensure they are in accord with Islamic law.
Article Four states that the Legislation and Legal Opinion Commission will undertake the responsibilities of the committee’s secretariat. In addition, Article Five stipulates that the committee will submit a report to the Royal Court on its findings and recommendations with regard to the draft referred to it, and that the committee’s work ends immediately after the issuance of the family law in conformity with the constitutional procedures.
The Royal Order will take effect from the date of its issuance and its publication in the official gazette.
The bill is composed of 149 articles and governs personal status and family matters such as marriage, divorce and custody and covers the rights of men and women from both the Sunni and Shiite sects, the two main components of the Bahraini society.
The law will contribute to consolidating the stability of the Bahraini family, safeguarding its entity and boosting its significant importance in the diversified community and its pivotal role in sustainable development, according to the ministry of Justice, Islamic Affairs and Endowments.
The ministry began studying the proposal submitted by the Shura Council to the Cabinet to issue a unified family law in the light of studies based on realistic issues and actual needs and in consultation with the Supreme Judicial Council.
The ministry stated that it aspires for cooperation with the legislative branch to move ahead with the unified family law in compliance with the provisions of Article Two of the Constitution that stipulates that “Islam is the State’s religion and Islamic Sharia is the main source of legislation.”
Article Five of the Constitution stipulates that “the family is the basis of the community, formed on the basis of religion, moral ethics and love of the homeland and its legal entity is preserved by law that strengthens its bonds and values under the umbrella of which motherhood and childhood are protected,” the ministry added.
MP Abdul Halim Murad explained that in 2009 a family bill was introduced but rejected by Shi’ites. He believes that the law has been overanalyzed and the objections were political.
Murad added that with the absence of a law that gives women their rights, Bahraini women are treated unfairly.
Dalal al-Zayed, a member of the Arab Parliament and the Shura Council of Bahrain, said that the anticipated law will unite both Sunni and Shi’ite sects. Zayed is one of the MPs who proposed the new law.
She said that in 2009, a draft-law was approved by Sunnis and rejected by the Shi’ites who were represented back then by the now dissolved al-Wefaq Association. Accordingly, courts would apply clear laws and jurisdictions for Sunnis following the Sunni version, and juristic deduction for Shi’ites.
Zayed added that human rights associations and Supreme Council for Women are demanding the establishment of clear and unified family laws.
Five members of both sects of the Shura Council, the upper chamber of the dual parliament, submitted the unified family law bill that aims to improve the legal status of women regardless of their sect.
The bill was referred to the government, which in turn, should review it and present it to the Legislation and Legal Opinion Commission for amending its articles. It will then be referred again to the government which will present it to the parliament, and after that it will be sent once more to the Shura Council. If approved, the family bill will be submitted to the king to issue a decree of the new law.