Tuesday, April 25, 2017
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.
Thursday, April 06, 2017
Jeremy D. Morley
Does a foreign visitor or resident need to always carry a passport while in the United States?
The question arises when, for example, a foreign parent wants to visit a child who lives with the other parent in the United States and the custodial parent asks that the visiting parent deposits all passports with an attorney to prevent possible child abduction.
The issue arises because Section of the Immigration and Nationality Act requires that, “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him ….”
Thus, a visitor needs to carry a record of lawful admission, not a passport.
The federal regulations, 8 CFR. § 264.1(b), identify the prescribed alien registration documents as including the Form I-94 Arrival-Departure Record, the I-551 “green card” and the I-766 “EAD card.”
The “I-94” is the usual record of admission for a visitor. The problem is that the I-94 is now usually stamped in the passport upon entry, so that it cannot be separately held.
The solution is to print the I-94 from The Customs and Border Protection website. It then serves as the official record of admission.
Homeland Security helpfully expressly and clearly states - https://i94.cbp.dhs.gov/I94/#/home - that
"A traveler lawfully admitted (or paroled) into the U.S. may print their lawful record of admission (I-94 form) from this CBP website. If someone requests your admission information, this is the form you would provide."
Accordingly, it can be entirely appropriate for a custodial parent in such circumstances to require that all of the visitors passports be deposited with a court or an attorney prior to child visitation in order to help prevent international child abduction, and to explain that the visitor can comply with the law by printing and maintaining in his or her possession the I-94 printout.
Tuesday, April 04, 2017
by Jeremy D. Morley
Author of The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by the American Bar Association.
Here are some tips for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, whether in the United States or internationally.
In a nutshell, a Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child or another limited exception is established.
1. CHOOSE THE RIGHT REMEDY
If a child has been abducted to the United States, it might be preferable to proceed under the Uniform Child Custody Jurisdiction & Enforcement Act (adopted by all U.S. states except Massachusetts, which has adopted a prior uniform law) instead of the Hague Convention. That Act provides remedies that may be far more useful than those provided under the Hague Convention. You may also be able to proceed under one track and if that does not succeed to then proceed under the other track. But it is absolutely critical to consult first with a U.S. lawyer who understands the issues, who has lots of experience handling these matters, who can make sure that critical dates do not lapse and who can recommend the most appropriate strategy.
2. ACT FAST
An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice.
Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. Indeed, it is recommended that Hague cases be completely concluded within six weeks. A Hague case can theoretically be instituted more than a year after the abduction but a defense (or, more precisely, an exception) will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.
Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child's relocation, and to help to bolster a claim that the left-behind parent consented to the taking or retention in the first place.
Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.
Counsel should consider putting the abducting parent on immediate written and formal notice of the dire consequences, civil, criminal and financial, that the abduction will cause to that parent personally, and, possibly to others conspiring with the parent. It may be appropriate to provide an extremely short time for the abducting parent to cure the problem by returning the child. On the other hand, such notice might be counter-productive if there is a suspicion that the taking parent might hide the child.
Counsel must also decide quickly whether to bring suit in state or federal court. The International Child Abduction Remedies Act provides for concurrent jurisdiction. If a state court is chosen the respondent has the absolute right to remove the case to the federal court. Choosing the right court can make all the difference in a Hague case.
Counsel might enlist the support of the U.S. State Department's Office of Children's Issues. Such support may be particularly helpful to locate the child. It might also be useful if the left-behind parent seeks a U.S. visa to enter the United States in order to attend the trial.
Counsel might also suggest that, if there is no custody order in place from a court in the jurisdiction of the habitual residence, the left-behind parent should perhaps institute civil proceedings in those courts for such an order (or perhaps for a modification of the original order). However, this should not be undertaken without U.S. counsel conferring with counsel in the other country.
3. COMMUNICATE CAUTIOUSLY WITH THE OTHER PARTY
Hague cases can be won or lost in the emails and text messages and other communications between the parties after the abduction has occurred. People often make critical (and perhaps stupid) admissions or threats in the immediate aftermath of the removal or retention of a child, when emotions run high and when they try to intimidate or settle with the other party. Judges often rely far more on the parties’ contemporaneous written statements than their subsequent rehearsed testimony at trial. Clients must be careful! They need to consult first with highly experienced and strategic counsel.
4. CONSIDER INTERIM RELIEF
The International Child Abduction Remedies Act expressly authorizes the state or federal court handling a Hague case to order “provisional remedies” to protect the well-being of the child or to prevent the child's further removal or concealment before the final disposition of the petition.
Such an order should invariably be sought in order to keep the child in the jurisdiction pending the hearing of the Hague petition but a left-behind parent will also want to secure interim access to the child.
5. PREPARE THE FACTUAL PRESENTATION INTENSELY
Hague Convention cases are often extremely fact-intensive, particularly in the United States. They frequently hinge on the ability of one party to convince the court of matters such as the habitual residence of a child (which hinges in large part in most but not all circuits on the last shared intention of the parents); the nature of the left-behind parent’s custody rights under the foreign law (which may require expert evidence as to the terms of the foreign law); the extent to which a parent actually exercised custody rights; whether or not a parent consented to or acquiesced in a new residency; whether such consent or acquiescence was conditional; whether the child has become well settled in the new environment; whether the child was physically or psychologically abused; whether the taking parent was abused in such a way that there was an impact of the child; whether the authorities in the foreign country provided adequate protection to the children and the taking parent in the past or could do so in the future; the age and maturity level of the child, whether and why the child objects to being returned. For a court to resolve these matters it must analyze the relevant facts.
A successful Hague proceeding requires the attorney, working closely with the client, to marshal as much evidence as possible, in as many forms as possible, to support the client's position. Clients are frequently shocked that matters that to them are obvious and indisputable turn out to be disputed and to require them to produce clear and convincing proof. They may well be insulted that their word alone is insufficient to convince the court that they are truthful and that the other parent is lying.
In one case, the parents had moved permanently with their young child from the mother's native country to the U.S. Two years later, the mother took the child back to her country for a vacation and then refused to return to the States. In supporting her claim that the child was never habitually resident in the States she claimed that the original move to America had been only temporary and that she and the father had agreed that they would return to the mother's native country after a year or two. The mother had planned the move well in advance and had amassed -- and even created -- evidence that tended to support her claims. Additionally, she had removed evidence from the parties' home that would have disproved her claims.
To win the case, we interviewed neighbors, friends, family members, schoolteachers, real estate salespeople, fellow office workers and an array of other people who had had some connection with the family. We checked into any and all areas of the mother's life for anything that might indicate her intention to stay in the States. We obtained emails, notes, invoices, and other documents. We searched old household bills for evidence of the purchase of items that inferred a degree of permanency. At the hearing, the mother was shocked that her husband had collected so much written evidence to disprove her claims and undercut her credibility. The courts ultimately -- and with great reluctance, since they were going against a local national -- found in favor of our client.
Since Hague cases are tried quickly, there is usually only one chance to present the case and it needs to be done well at the very outset. An attorney must embark on a quick campaign of collecting mounds of relevant evidence to support the client's positions, and must expect the other parent to lie, cheat, and distort the facts in a desperate attempt to avoid losing the case.
Just as a current military strategy is to employ overwhelming force to create shock and awe, so too in a Hague Convention case it is often advisable to use overwhelming amounts of evidence to win the case. Such a campaign in a Hague proceeding may yield a capitulation by the other parent even before the hearing actually commences.
Hague Convention hearings sometimes take the form of "he said, she said" disputes in which each side makes verbal accusations against the other. Documentary evidence is usually far better than the mere word of one parent. Thus, if you want to claim that a parent applied for an immigration visa, you must be prepared to do more than simply have the parent tell the court that this was done. You should do whatever you can to get hold of the actual application papers that the parent signed in applying for the visa, which may mean contacting the lawyer who handled the immigration matter originally.
Emails and text messages can be invaluable sources of critical evidence, especially concerning the parents’ intentions and agreements.
While it is helpful if documents are supported by sworn statements, it is not essential. Both the Convention and the International Child Abduction Remedies Act provide that authentication of documents is not required in a Convention proceeding.
Since Hague Convention cases in the United States are often extremely fact-specific, pre-trial discovery can be extremely important and helpful, especially in order to obtain documents to use at trial and to pin down the other side’s positions. Pre-trial discovery is generally permitted in Hague cases in the United States, though rarely in other countries, but its appropriateness must be balanced against the requirement that Hague cases should be concluded quickly. It is essential to decide at the outset of a case whether discovery is really needed because it should normally be requested at the time of the initial appearance before the court or otherwise it might be waived.
7. PREPARE THE LEGAL ARGUMENT INTENSELY
Hague Convention cases raise unusual international law, foreign law and treaty law questions. They involve the courts in matters of a kind that they are usually not used to handling. In many jurisdictions the court may be entirely unfamiliar with Hague cases. Accordingly it is usually essential for the lawyers to help the court to an unusual extent. Certainly a well-reasoned memorandum of law is essential.
The matters in dispute in most Hague cases raise difficult legal issues that must be thoroughly briefed. For example, the Convention requires the left-behind parent to establish that the child was taken from the "habitual residence" and that the parent had "rights of custody" under the law of that jurisdiction. However, neither of those fundamental terms is defined in the Convention and substantial jurisprudence has grown domestically and internationally setting forth often-contradictory determinations concerning their scope and meaning.
Courts have held that, while they must determine under international law whether the left-behind parent possesses Hague Convention "custody rights," they must first examine the law of the child's habitual residence in order to ascertain the extent of the rights that such parent possesses under that law. In this regard, it is often essential to use foreign law experts to establish the existence and scope of such rights.
A Hague Convention attorney may, and often should, cite cases not only from the domestic jurisdiction but also from other jurisdictions if they support the client's position. It has become more usual to cite cases from other jurisdictions in this area of the law than perhaps in any other. Courts around the world recognize that it is best to coordinate their decisions with those of other courts internationally and, for that very reason, the Hague Conference on Private International Law has established a database of significant Hague cases from courts around the world.
8. AVOID BEST INTERESTS ANALYSIS
In representing the left-behind parent in a Hague proceeding, it is necessary to keep the court focused on the narrow issues that the Convention requires an applicant to establish and the narrow defenses that a respondent can assert. Whenever the hearing strays into any areas that might be considered as constituting an analysis of the child's best interests, the other party (usually the petitioner) should vehemently object. This may be especially “foreign” if the Hague case is brought in a state court, since Family Court judges are trained to focus on the best interests of children more than on technical legal arguments.
However, a party opposing a return should do his or her utmost to assert any and all relevant issues under the rubric of one of the defenses specified in the Convention and should be armed with case law to establish that similar claims were permitted in other cases.
9. BE FLEXIBLE CONCERNING EVIDENCE
In Hague cases evidence rules are usually somewhat relaxed, so evidence should be submitted in any possible format. Live testimony is invariably the best and normally everything should be done to get the left-behind parent into the courtroom. (An exception is if that parent would be a poor witness and his or her presence would create an opportunity for embarrassing cross-examination).
If a witness cannot be brought to the courthouse, consider testimony by video conferencing or otherwise by telephone conference. As a last resort, submit affidavits.
10. USE AN EXPERIENCED ATTORNEY: IF THAT'S NOT YOU, FIND SOMEONE WHO IS
Hague Convention cases happen too fast, and too much is at stake for the client, for an attorney to learn about this area of law at the last minute. It is extremely important to locate counsel with knowledge and experience in Hague proceedings. It is also frequently valuable for a client whose child has been abducted to retain a lawyer in his or her home country who can coordinate with the Hague counsel in the country to which the child has been taken.
Many experienced Hague lawyers will assist local lawyers in handling Hague cases, and very often such teamwork is the best way forward.
Monday, April 03, 2017
Jeremy D. Morley*
1. Grenada is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
2. There are no bilateral agreements in force between Grenada and the United States concerning international parental child abduction.
3. The United Kingdom Matrimonial Causes Act 1973, including all subsequent amendments thereto, as well as England’s Family Proceedings Rules, are deemed to apply to Grenada and to be in full force and effect in Grenada by virtue of section 11 of the West Indies Associated States Supreme Court (Grenada) Act.
4. If parents are legally married they share the custody of their children. If they are not married, custody has traditionally been granted to the mother unless there are known facts of inappropriate behavior, mental or social problems.
5. Custody orders and judgments of foreign courts are not necessarily enforceable in Grenada.
6. In cases where one parent has been granted custody of a child, the other parent is usually granted visitation rights. If a custodial parent fails to allow visitation, the non-custodial parent may appeal to the court.
7. No exit visas are required to leave Grenada.
8. Prenuptial and postnuptial agreements are likely to be enforced in Grenada but only to the somewhat limited extent that they are enforced under English law. In one case, the Eastern Caribbean Supreme Court in the Court of Appeal, citing the seminal cases of MacLeod,  UKPC 64 and Radmacher,  UKSC 42, ruled that a contract executed by the parties as a postnuptial agreement could be enforced like any other contract and due to the court’s multifaceted jurisdiction, its power to review such a document was not confined to the Matrimonial Causes Act.
9. The law on the division of assets upon a divorce is based upon the provisions of Sections 24 and 25 of the Matrimonial Causes Act, particularly as interpreted by the U.K. courts in the seminal cases of White,  1 All ER 1 Miller, UKHL 24 and Charman,  EWCA Civ 503. In particular the Eastern Caribbean Court has ruled in a Grenada case that the purpose of the court’s discretionary powers in this regard is to achieve “fairness” in the financial arrangements of the parties on or after a divorce, in light of the “equal sharing” and “sharing entitlement” principles of the U.K. authorities, derived from the “basic concept of equality permeating a marriage as understood today” and the “modern, non-discriminatory conclusion” that the proper evaluation of the parties’ different contributions to the welfare of the family should generally lead to an equal division of their property unless there was good reason for the division to be unequal.”* Jeremy D. Morley is an international family lawyer in New York who works with family lawyers throughout the United States, the Caribbean and globally. 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 countries around the world, including India, Japan, China and Western Europe. He may be reached at firstname.lastname@example.org.
Thursday, March 30, 2017
Jeremy D. Morley
The High Court of Australia has upheld a trial court ruling that two teenage boys, now aged 17 and 15, who moved from Sydney to New York with their father, should be returned to Australia, even though they clearly wish to remain in New York. Bondelmonte v Bondelmonte,  HCA 8.
The parents separated in 2010. The boys then lived in Sydney with the father while their younger sister lived with the mother. In 2014, parenting orders were made, which ordered equal shared parental responsibility for the children and authorized either parent to take the children on an overseas holiday subject to certain conditions being met.
In 2015, further orders were made requiring the children to engage in a “Child Responsive Program” and the parents to be interviewed by a family consultant.
In January 2016, the two boys flew to New York with the father for a vacation. After two weeks, the father informed the mother that he had decided to live indefinitely in the United States and that the boys would remain with him.
The mother filed an application under Australia’s Family Law Act 1975 to secure the boys' return. That statute requires the court to have regard to "the best interests of the child as the paramount consideration."
In determining what is in the child's best interests, it provides that a primary consideration is "the benefit to the child of having a meaningful relationship with both of the child's parents," while an "[a]dditional considerations" includes "any views expressed by the child and any factors ... that the court thinks are relevant to the weight it should give to the child's views."
The trial court ordered the return of the boys to Australia, since the "best interests" of the children involved consideration of the children's relationships with their parents and each other, which were matters best dealt with in Australia via the mechanism established by the 2015 orders. The trial judge accepted evidence that the boys wished to remain living with the father in New York, but considered the weight of those views to be "weakened by the circumstances which have been contrived by the father." He also ordered that, if the father did not return to Australia and the boys did not wish to live with the mother, they could live either in supervised accommodation or separately with the mothers of other children.
On appeal, the father asserted that the trial court was required to look past the father's behavior in order to determine the actual opinions of the older teenage boys and what was in their best interests.
On appeal, the High Court rejected the father's contention that the trial judge had erred in discounting the boys' expressed preferences to remain in New York because he had formed an adverse view of the father's actions. The Court held that the extent to which the boys' views had been influenced by the father was relevant to the weight to be given to those views.
The High Court also rejected the argument that the trial judge was required to ascertain the boys' views as to the alternative living arrangements. It held that the Family Law Act merely required that the views which have been "expressed" by children should be considered, but that ascertaining the boys' views was not statutorily mandated. Moreover, since the statute permits parenting orders to be made in favor of a parent of a child "or some other person," the orders for the alternative living arrangements could be made in favor of the mothers of the boys' respective friends.
Note: The author represents the father in connection with matters in New York, where the father and the boys reside. However, this summary is based solely on the language in the High Court’s judgment.
Friday, March 24, 2017
Jeremy D. Morley
On 24 February 2017, Jamaica deposited its instrument of accession to the Hague Convention on the Civil Aspects of International Child Abduction. Jamaica is the 97th Contracting State to the Convention. The Convention will enter into force for Jamaica on May 1, 2017, but it will not have effect with respect to other states unless and until such countries specifically accept Jamaica’s accession.
Jamaica has brought the Convention into domestic law by amendments to its Children (Guardianship and Custody) Act. A review of the amending statute indicates some issues that should be considered as part of the process of reviewing the acceptance of the accession by other countries.
One issue is that the legislation empowers Jamaica’s Central Authority – defined as “the Minister with responsibility for justice” – to “refuse an application” if it decides that “the application is not well founded.”
The second, and related, issue is that the legislation identifies “the Court” as the Supreme Court of Jamaica and states that the Court should make every effort to decide cases expeditiously and within six weeks, but it does not state how cases are to be brought to the court and does not explain the jurisdiction of the Court if the Central Authority has itself made a determination that an application is not well founded.
A third issue is that the legislation authorizes a refusal to return a child “where the return of the child would breach his rights under Chapter III of the Constitution of Jamaica.” Chapter III of the Constitution comprises an extremely broad listing of “fundamental rights and freedoms,” including specific provisions for the protection of freedom of movement, for protection from inhuman treatment, and for respect for private and family life, all of which could be raised as purported defenses in a Hague Convention case in Jamaica.
In any event, Jamaica’s accession to the treaty is a welcome development.
Thursday, March 23, 2017
by Jeremy D. Morley
The Hague Convention has a role to play in international child relocation cases and in cases concerning international child visitation and travel. That role will on occasion be of great significance. It also has some significance in international relocation (“move away”) cases, but that role is frequently afforded entirely inappropriate significance.
In international relocation cases, an important issue is whether or not the foreign country to which the child may be relocated will effectively enforce the orders of the U.S. court concerning access for the non-custodial, non-relocating parent.
Parents sometimes cite as a relevant factor on this issue that the country in question is -- or is not -- a party to the Hague Convention. However, the key issue is far narrower than that. The Convention is triggered as an abduction case when there has been a wrongful removal or retention within the meaning of Article 3 of the Convention. If a court in the United States permits a parent to relocate with a child to another country, the act of that parent in taking the child to the foreign country and retaining the child there is obviously not a wrongful act.
The issue in relocation cases should be whether or not the Convention, as it is actually applied in the foreign country, will enforce a left-behind parent's right of access. It must be recognized that in most cases the mere fact that a foreign country is a Hague Convention treaty partner provides no assurance whatsoever that access orders issued by a court in the United States will be recognized and enforced after the relocation has taken place.
Courts in the United States must appreciate that, once a child has been lawfully relocated overseas, their extraterritorial jurisdiction will generally be quite limited. Indeed, no other country has adopted the Uniform Child Custody Jurisdiction & Enforcement Act or any law similar to it. The American concept of exclusive jurisdiction continuing in the (American) court that issues an initial custody order, even if the child lives overseas, as long as one parent continues to live in the original state, is completely alien to almost all foreign courts.
In most countries, once a child has been relocated to such a country and is habitually resident there, the local courts will conclude that they have exclusive jurisdiction to issue a child custody order or to modify a prior foreign custody order.
It must also be stressed that the definition of “habitual residence” in force in most countries is quite different than the meaning given by most American courts. For example, in the European Union, habitual residence is treated as a question of fact, taking into account all of the relevant circumstances, and “corresponds to the place which reflects some degree of integration by the child in a social and family environment.” Mercredi v Chaffe, (Case C-497/10 PPU)  Fam 22. Under that test, a change of habitual residence is likely to occur promptly after a child is relocated lawfully to another country, particularly when the child is in school there.
Conditioning international child relocation on the applicant first obtaining an order from a court in the country to which the relocating parent proposes to move that mirrors the terms of the U.S. court’s order and that acknowledges that the U.S. court has continuing exclusive jurisdiction concerning all matters as to the child's custody and visitation, is entirely unworkable, because once a relocated child is habitually resident in the foreign country the courts in that country will invariably have the right and the duty under the laws and the public policy of that country to assume modification jurisdiction without regard to the demands and presumptions of an American court.
Of course, such an order of a court in the United States would be binding under the laws of the issuing state, and most likely of sister states in this country, even if the foreign court has issued a contradictory order. The U.S. orders would bind the relocating parent who has taken the child overseas and might put that parent in jeopardy, but it would be inconsequential in the foreign country and most likely in other foreign countries also.
Thus, reliance on Article 21 of the Hague Convention to ensure compliance with the visitation provisions of an order permitting international relocation may well be misplaced. Once a foreign court has assumed custody jurisdiction it will make such decisions as it deems fit about custody and access, and Article 21 will not restrain that process in the slightest.
It should be noted that the U.S. approach will be modified to accord with the worldwide standard if, as and when the United States accedes to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the “1996 Convention”). The basic principle of the UCCJEA — that the court that issues an initial custody order retains the exclusive right to modify the order so long as that state remains the residence of a parent, the child, or a person acting as a parent — is not mirrored in the 1996 Convention. Instead the Convention provides that modification jurisdiction changes with changes to the child’s habitual residence. These terms codify the practice of many countries around the world. The 1996 Convention provides that a country’s courts have custody jurisdiction whenever the child is habitually resident there (Article 5), subject to certain limitations for refugee or internationally displaced children with no habitual country of residence (Article 6), and cases of wrongful removal or retention of a child (Article 7). Another country’s authorities cannot intervene to protect a child without the express agreement of, or at the express request of, the courts of country where the child is habitually resident (Articles 8 and 9).
In 2013 the Uniform Law Commissioners promulgated a revised UCCJEA, to accommodate the 1996 Convention. The new UCCJEA contains a new Article 4 that is intended to govern cases between states of the United States and foreign countries. In such cases jurisdiction to issue — and to modify — a custody order (to be referred to as a “measure of protection”) will be based on the child’s habitual residence, which may shift over time.
Thursday, March 16, 2017
We are delighted that we helped to secure the return to California this week of a child who had been abducted to Taiwan.
Taiwan is not a party to the Hague Convention on International Child Abduction and the Taiwanese judicial system would likely not be helpful in such a situation.
We advised our client to allow us to use other measures instead, and they have now borne fruit, to our client’s great joy and relief.
Tuesday, March 14, 2017
Two international child abduction cases arrive in your office on the same day. One client leaves relieved and optimistic; the other leaves in tears. Why the disparity? The first client is Mary. A few days ago, the father of her baby visited Mary and persuaded her to allow him to take the baby to the park. He then disappeared with the child. Mary has learned that he has taken the child to his country of origin in Southeast Asia and that he intends to keep her there. Mary wants you to help her file a petition with the U.S. Secretary of State to demand her child’s return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Convention provides that children under the age of 16 who have been wrongfully removed to or retained in a country that is not their habitual residence must be promptly returned unless one of the narrow exceptions set forth in the Convention applies. It was implemented into U.S. law by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§11601-11610. The Convention is intended to restore the pre-removal status quo and to discourage parents from engaging in international forum shopping.
Courts deciding a petition for return of a child have jurisdiction to decide the merits of the wrongful removal claim, but they may not decide the merits of the underlying custody dispute. Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008). Unfortunately, you must tell Mary that, unless the country in question is Sri Lanka, she cannot take advantage of the Convention. Although the treaty is in force between the United States and about 80 other countries around the world, it is not in force between the United States and any Southeast Asian country other than Sri Lanka.
Accordingly, Mary’s options are limited. She can secure a custody order from a court in her local state but that may well have no force or effect in the foreign country. She might ask for state or federal criminal charges to be brought against the father, but that might be counter-productive in deterring him from stepping foot outside his country. She might start a custody case in the foreign country but that might prove an uphill battle.
The second client is Paul. He and his wife are British nationals. They moved to your state from England with their children a few years ago. The wife took the kids on holiday to England a few weeks ago and now refuses to bring them back. Your advice will normally be to file a Hague Convention petition immediately. The Convention is in force between the United States and most countries in Europe. U.K. compliance with the Convention is excellent and the U.K. government will even pay for counsel to represent the left-behind parent. Each signatory country is required to have a Central Authority to process the petitions for return of children. Proceedings for the return of children are brought in the courts of the countries to which children have been abducted. The Secretary of State is the Central Authority in the United States. In California, but not in most other states, the local District Attorney’s Offices will help parents file Hague petitions when children have been abducted to countries where the treaty is in force with the U.S.
What will Paul need to prove in order to have the English court order the return of his children? He needs to show that the children were “habitually resident” in your state, that he has a “right of custody” under the laws of your state, and that he did not consent to the children being retained in England for longer than their holiday time.
“Habitual residence” is not defined in the Convention. Its meaning has spawned considerable litigation in cases where the children have lived in different countries. Paul will claim that he and his wife were settled with their children in your state, but his wife might tell the English court that they were in the U.S. only temporarily. In deciding the issue, courts generally look to the last shared intention of the parents as to where their family should live and the extent to which children have spent time in and become acclimatized to the jurisdiction in question. In order to establish that Paul has a “right of custody” under the law of your state, you may suggest that you will supply an expert affidavit to accompany the petition that will state that even though there is no custody order, Paul has custodial rights by virtue of being the married father of the children. You probably should recommend to Paul that he should initiate a custody case immediately in your state and seek an emergency order directing his wife to return the children.
You want to ensure that Paul does not lose the exclusive custody jurisdiction that your state has, at least as far as U.S. courts are concerned, under the Uniform Child Custody Jurisdiction & Enforcement Act. Otherwise, in six months, England could become the new “home state” for Paul’s children. Then, even though the children were returned to your state, unless the English courts were to decline jurisdiction over the custody issue, your state would not have jurisdiction under the UCCJEA.
You also need to review with Paul the possible defenses that his wife might raise in England. There are seven defenses, all of which are supposed to be construed narrowly. The first is consent. Convention, Article 13a. Did Paul agree that the children could be kept in England? The defense does not require that consent be in any specified form. And so there could be a “red light, green light” dispute about who said what to whom. Negotiations between the parents often result in statements which can unintentionally look like consent or acquiescence. However, the burden of proof will be with the wife.
The second defense is acquiescence, meaning that after the children were kept overseas Paul “okayed” that fact. Convention, Article 13a. In U.S. courts, acquiescence is difficult to establish; it requires some degree of formality. In England, the courts have a lower threshold requirement but again, as with all of these issues, the burden of proof is on the taking parent.
A third defense is that the petitioner was not actually exercising his rights of custody. Convention, Article 13a. Courts require very little to disprove such a claim. Certainly if the parties were living together before the foreign trip, Paul’s wife will not prevail on this issue.
Another defense is that a return would violate the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. This defense is extremely limited. Although the U.S. has its problems, the human rights defense will not succeed in a case in which return to the U.S. is sought. Convention, Article 20.
A fifth defense is that more than one year has elapsed from the date of the alleged wrongful removal or retention, and the child is now settled in the new environment. Convention, Article 12. The existence of this defense should cause you to counsel Paul to act promptly.
A sixth defense is that the child “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Convention, Article 13b. This defense will be extremely serious if the child is old enough, but the Convention leaves the exact age up to the courts. It will be up to the English judge to decide first whether Paul’s children do in fact object to being returned to your state and if so, whether the children have attained an age and maturity at which it is appropriate to take account of their views. The children will likely be interviewed by a so-called “cafcass officer” who is employed by England’s Children and Family Court Advisory Support Service. Even if the defense is established, the English court will have discretion to return the children nonetheless if the court deems it best to do so.
The last defense is grave risk of harm. Convention, Article 13b. In the authors’ experience, this is the most common objection and it generally provides the most difficulty. Article 13b requires the party raising the defense to establish that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” In Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996), the Sixth Circuit held that a “grave risk of harm” for the purposes of the Convention can exist in only two situations. First, if returning the child would put the child in imminent danger prior to the resolution of the custody dispute – e.g., returning the child to zone of war, famine or disease. Second, if there is evidence of serious abuse or neglect, or extraordinary emotional dependence, and if the court in the country of habitual residence is incapable of or unwilling to give the child adequate protection. Some U.S. courts have adopted more stringent tests and others more liberal tests with respect to the “grave risk of harm.” The loose language of the Convention has allowed courts in some countries to interpret the defense broadly so as to justify a refusal to return children. However, if Paul is not an abuser, he should have little to fear from this defense.
In conclusion, the identity of the country to which children are abducted from your state will play a pivotal role in shaping your strategy and in determining the likelihood that the children will be returned. Mary is unlucky that her child was apparently taken to a non-Hague country. If she had contacted you before the abduction occurred perhaps you could have sought to enjoin the abduction and taken other protective steps, particularly if she were residing in a state that has enacted the Uniform Child Abduction Prevention Act and if she were able to establish the existence of the so-called “risk factors” identified in that Act to help identify potential abductions.
Note that some states such as California have enacted their own abduction prevention statutes. The most effective such step is to require that the potential abductor have only supervised visitation with the child, but without proof of a direct threat to abduct the child, most judges are reluctant to grant such an order.
Since there are no exit controls in the United States, it is all too easy for a parent of foreign nationality to obtain travel documents for the child from his or her home country and flee overseas with the child. Paul is fortunate because not only were his children taken to a country that is a party to the Hague Convention, but also that that country is a strong enforcer of Convention rights. The U.S. State Department publishes annual reports to Congress on the compliance by U.S. treaty partners of their obligations under the Convention. The reports assert that several countries do not enforce Convention rights adequately.
Indeed, the authors believe that the State Department has been far too restrained in identifying noncompliance by certain countries. A vast array of materials and information on the Convention is now available on the Internet. These can be found via judicious use of search engines or by starting with the HCCH (Hague Conference on Private International Law) website’s Child Abduction Section found at http://tinyurl.com/cghzwe or the U.S. Department of State website’s International Parental Child Abduction Section found at http://tinyurl.com/7waq7.
Friday, March 10, 2017
A South African man and his Ukrainian fiancee have been detained in the United Arab Emirates for unlawful sex, a relative says.
Emlyn Culverwell‚ 29, and Iryna Nohai, 27, were reportedly arrested after a doctor discovered M.s Nohai, who had stomach cramps, was pregnant.
They were arrested for sex outside of marriage, which is illegal in the UAE.
Mr. Culverwell's mother has pleaded for their release, saying "the only thing they did wrong was fall in love."
South Africa's foreign ministry has said that it is not able to help the couple as this is a matter of domestic UAE law, News24 reports.
The South African government has advised the couple to get legal assistance, the BBC's Pumza Fihlani in Johannesburg says.
There was no immediate comment from the UAE government.
Mr. Culverwell and Ms. Nohai have reportedly been held since January, but news of their detention has only emerged now.
Mr. Culverwell has been working in the UAE for the past five years.
His mother Linda told News24 that the family is "trying to get messages to the two to say we love them and that they shouldn't be worried".
The couple have not yet been charged as the authorities are still carrying out tests, Mrs. Culverwell added.
If found guilty, they could face a long jail sentence.
Thursday, March 09, 2017
We are delighted that this weekend our client was able to fly back to Malaysia with his child, who had been abducted from Pakistan to Illinois, USA.
Malaysia is not a party to the Hague Abduction Convention.
In conjunction with local counsel in all applicable jurisdictions, we created a strategy for our client, counseled him as to obtaining a custody order in Malaysia, helped him to locate the missing child in the USA, and worked with counsel in Illinois to register the Malaysian order in that state, to enforce the registered order despite fierce opposition, and ultimately to reunite the father with his beloved child.
These cases are very challenging and it is most encouraging when they yield a beneficial result.
Thursday, March 02, 2017
A court in Massachusetts, after hearing my expert testimony concerning the high risk of abduction of children to Japan, has issued a most “Solomonic” order, consistent with my testimony, whereby the Japanese mother is permitted to take only one of the parties’ three children for limited duration visits to Japan currently, to take two of the three children (but not both of the younger children) for visits starting in three years, and to take all of the children starting in seven years. A most sensible compromise.
Tuesday, February 28, 2017
Jeremy D. Morley
The Osaka High Court has just issued a decision in a case under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) that provides strong support for the claim that Japan does not comply with the terms of the treaty and that is, indeed, in violation of its treaty obligations.
It has not been possible until now to analyze the decisions of the Japanese courts in cases brought under the Hague Convention since they are unpublished and confidential. Such secrecy has precluded Japanese lawyers from reporting on specific cases, and has frustrated scrutiny of court decisions. However, the author has now obtained a copy of the shocking decision of the Osaka High Court in the case of Arimitsu v. Cook, issued on February 17, 2017.
This author has long asserted that the law by which Japan brought the Convention into Japanese law -- Act No. 48 of June 19, 2013, which is identified as the “Act for Implementation of the Convention on the Civil Aspects of International Child Abduction” (the “Implementing Act”) – contains provisions that inappropriately and excessively expand the so-called “grave risk exception” to the treaty. The author has also long expressed serious concerns that return orders issued by the Japanese courts would not be effectively enforced in Japan.
An analysis of the Arimitsu case indicates that the Hague Convention is unworkable in Japan under current laws and procedures and in light of the prevailing views there concerning child custody. The facts as follows: The U.S. father and Japanese mother were married in Minnesota in 1998. They had four children, all of whom were born and raised in Minnesota. In 2014, their mother took them to Japan and retained them there without the father’s consent. In August 2015, the father commenced a Hague Convention case in Japan for the return of his children to the United States. In October 2015 the Osaka Family Court ordered that only two of the four children should be returned. In January 2016, on appeal by the father, the Osaka High Court ruled that all four children must be returned. However, the return order was never implemented. Ultimately the father filed a petition seeking “direct enforcement” of the return order.
Finally, in September 2016 enforcement officers from the Nara District Court went to the place where the mother and family were living, purportedly in order to enforce the order. They failed to do so. Instead, they reported that the children had “strongly refused” to be returned to the U.S. After consulting with Japan’s Central Authority [i.e. the Ministry of Foreign Affairs of Japan, which is Japan’s designated “Central Authority” under the Convention], they declared that enforcement was not possible. Indeed, I am informed that the father attended the purported enforcement, was required to wait outside and was even then barred from seeing his children.
The mother then petitioned the Osaka High Court to nullify the pending unenforced return order. She claimed that since the prior proceedings the father had lost his home in Minnesota through foreclosure and did not have the financial resources or family support to provide a stable environment for the children in Minnesota. The Osaka court accepted the mother’s argument. It ruled that “these situations fall within the grave risk of harm for the Children under Article 28 -1-4 by harming the Children physically or mentally and by placing the Children in the unbearable situation.”
I am informed that the father’s financial challenges were primarily caused by the enormous costs of the litigation that he had brought in an effort to secure the return of his abducted children, and that the legal fees and travel and related expenses had been greatly enhanced by the deficiencies and obstacles raised by the legal system in Japan, particularly including the requirement that he attend repeated and entirely fruitless mediation sessions in Japan.
The decision of the Osaka High Court to reverse its prior return order on the ground of so-called “grave risk” to the children on the theory that that the father had suffered financial reverses subsequent to the abduction serves merely to highlight the inherent deficiencies in the Japanese system concerning the Hague Convention. All such problems stem from the fact that there is no substantial public support in Japan for the idea that when parents separate they should each have a continuing role in parenting their children.
Japan signed the Convention in 2013 only because of international pressure from the United States and other countries, particularly after Christopher Savoie – one of my many clients whose children were abducted to Japan and never returned – was jailed in Japan when trying to return his children. There was considerable opposition to the treaty within Japan, driven primarily by a substantial concern that Japanese mothers might have to remain in a foreign country with their children after the breakdown of an international marriage, particularly if they had suffered abuse, had no social or governmental support or were in financial difficulty. I witnessed and participated in such debates directly, particularly at a seminar at the Japanese Ministry of Foreign Affairs and subsequently when questioned by Japanese Diet and Consular representatives in New York. Ultimately, a compromise was reached whereby Japan’s implementing legislation contained an extremely significant expansion to the grave risk exception.
Article 13 of the Hague Convention provides that a requested State is not bound to order the return of an abducted child if there is a proven grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The key elements of Article 13 (b) are that (1) the risk must be “grave;” (2) that it must be a grave risk to the child, rather than to the taking parent; and (3) that even if the grave risk is established it merely gives the court the right, in its discretion – but not the obligation – to choose not to return the child. The authoritative “Perez-Vera” report of the legislative history of the Convention appropriately warns that “a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention." Accordingly, courts throughout the world have held that the “grave risk” exception must be interpreted narrowly.
In sharp contrast, Article 28 of Japan’s Implementing Act inappropriately expanded the scope of the grave risk exception in several significant respects. It converted a merely discretionary exception into a mandatory defense. It also required the courts in Japan to consider a series of additional “circumstances” whenever the defense is asserted. The first such circumstance requires the court to consider whether there is “a risk” (but not a grave risk) that the child would be subject to “violence” if returned to the state of habitual residence. The definition of violence includes “words” as well as “deeds” and “physical or psychological harm.” This emphasis on mere risk directly contradicts the treaty language. The second circumstance that a Japanese court must consider is if there is “a risk that the respondent [meaning the taking parent] would be subject to violence etc. by the petitioner in such manner as to cause psychological harm to the child, “in the state of habitual residence.” Again, the term “risk” is used in derogation of the express treaty limitation to a “grave risk” and the second circumstance permits the focus to be on “violence, etc.,” i.e. “words and deeds” used against the respondent if they would cause mere consequential psychological harm to the child. I understand that, most unusually in such cases and notwithstanding the broad definition, the mother testified that there had been no domestic violence by the father,
The third special element that a Japanese court must consider in a Hague case is, “Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.” This “circumstance” is entirely beyond the scope of the Convention. In inviting the consideration of any factors that merely “make it difficult” for her to raise the child in the habitual residence, the Japanese law opened the door for a Japanese mother to complain about the challenges of being away from her home, her family and her friends in a foreign country, without the financial and healthcare support that the Japanese state provides to single mothers, and being required to share access to the child with someone that she does not like or trust. It was upon this circumstance that the Osaka court relied in the Arimitsu case.
A separate and momentous problem with Japanese implementation of the Hague Convention is that there is quite simply no effective enforcement of Hague return orders, as the Arimitsu case firmly establishes. The issue is not particular to Hague Convention orders. The fact is that orders of the Family Courts are generally unenforceable in Japan. The parties are expected to follow such decisions voluntarily but, surprising as it may be to Western ears, there is no effective enforcement mechanism to compel compliance in Japan with Family Court orders. It was for this reason that the Implementing Act contained extensive terms that, for the very first time in Japan in the context of family law, make provisions for potential enforcement of court orders, but only in Hague Convention cases. However, those provisions have proven entirely unworkable. While it appears that there have been one or two actual cases, such as the Arimitsu case, in which a Japanese court actually issued a return order against a Japanese parent, there has not been one reported case in which such a return order was actually enforced after a parent’s refusal to comply.
As a result of such issues, the U.S. Department of State reported in its current 2016 Annual Report on International Parental Abduction -- which was submitted to Congress as required by the U.S. International Child Abduction Prevention and Return Act -- that it had determined that Japan was one of just two “Convention Countries That Have Failed to Comply with One or More of Their Obligations under the Hague Abduction Convention.” The State Department explained that: “In 2015, Japan failed to comply with its obligations under the Hague Abduction Convention in the area of enforcement of return orders. A Japanese court issued the first Convention return order to the United States in early 2015. Authorities attempted, but were unable to effectuate enforcement of the court order by December 31, 2015, exposing what may be a systemic flaw in Japan’s ability to enforce return orders.”
However, in a follow-up “Action Report” the State Department reported in October 2016 that matters had improved because as of July 2016 “a Japanese court compelled the return of four U.S. citizen children to the United States.” That report was absolutely wrong. As discussed, not only was the order never enforced but it was ultimately reversed based on facts that should not have formed the basis of the grave risk exception and which were in any event created as a direct result of the failure of the Japanese system to return the children expeditiously as the Hague Convention mandates.
The fundamental problem in Japan is the cultural, historical and societal context. Family matters have traditionally have been outside the province of the legal system in Japan. Custody is almost always determined by the parties themselves or through self-help. Customarily, when parents separate, only one parent – now usually the mother, although it was once usually the household of the father - has sole custody of the children and the other parent has no significant access to them. Whoever has physical possession of a child generally keeps possession of the child and that, in fact, translates into custody. If one parent takes a child and that parent or that parent’s family has possession and control of the child, the legal and social system will not interfere. Indeed, any demand by a non-custodial parent for extensive visitation with a child is generally seen as being an inappropriate interference with family peace, and is often considered to be abusive. In any event, since Family Court orders are effectively unenforceable, custodial parents are often understandably apprehensive of unsupervised visitation.
There is also a cultural bias in favor of raising Japanese children in Japan. While international marriages have increased, they have primarily been marriages of men to Japanese women. This was the focus of the debate in Japan concerning the Convention. The critical concern there was that Japanese mothers in foreign countries would be abandoned and mistreated by their Western husbands and Western courts, cut off from financial support, and virtually imprisoned in foreign countries away from their Japanese family, friends, language and culture. It was exactly in order to allow Japanese women who return to Japan after the breakdown of an international marriage to stay in Japan with their children that a very substantially-expanded “risk” defense was included in the Implementing Act. Without that protective measure Japan would not have adopted the Convention.
Some of my colleagues in Japan had hoped that Japan’s adoption of the Hague Convention would encourage further discussion there about the benefits of a sharing of parental involvement in the lives of children after the parents separate, and that other changes in the family law would follow. However, while there has been some change, there has not been a general shift in the view that, after a divorce, one parent is better than two. Visitation is now a little more common but it is still primarily dependent on parental agreement and even then is usually only occasional and is often supervised. I have never heard of any case in which any Japanese court has ever ordered visitation outside Japan. In any event, any such order would be unenforceable.
In conclusion, the Arimitsu case should serve as a warning. While the Family Court’s reversal of the return order will perhaps be overturned on appeal, the devastation of family life resulting from the unremedied abduction has already occurred. The children have lived for the last 2 ½ years of their lives away from their birthplace and habitual residence and away from their father. The legal system in Japan has failed them and their father and has rewarded the mother’s abduction and her refusal to follow the orders of a Japanese court. Unfortunately, this was completely predictable. Japanese society has never been committed to the goals of the Convention. The implementing legislation and the lack of meaningful enforcement mean that it remains impossible for a left-behind foreign parent who faces the determined opposition of the Japanese abducting parent to secure the return of his abducted child from Japan.
Jeremy D. Morley is an international family lawyer and the author of “The Hague Abduction Convention.” He handles many international child custody cases that concern Japan. His website is www.international-divorce.com