Wednesday, July 26, 2006

Custody orders not respected internationally; Children abducted overseas

The news story below demonstrates why it is so important for the courts to listen to parents who are concerned that their children may be taken to countries that do not respect custody orders issued by the courts of the countries from which children are taken.

The article concerns the abduction of a child to Syria and explains that the reason for the problem is that Syria is not a member of the Hague Convention on the Civil Aspects of International Child Abduction. However, it is extremely important that courts do not fall into the trap of believing that merely because a country has agreed to the terms of the Hague Convention its courts will comply with their Hague Convention obligations. Many countries do so – but many countries that are parties to the Hague Convention do not comply with their treaty obligations.

Clash between Islam and West strands children in embassy

By Rohan Minogue Jul 25, 2006, 3:32 GMTAmsterdam - Two children have spent the past month in the Dutch embassy in Damascus, caught in a tug-of-love between their Syrian father and Dutch mother and between two conflicting concepts of family law.

Ammar, 13, and Sara, 10, are being cared for by the diplomats, and a teacher has been specially flown in to tend to their schooling, but they lack the normal context of family and friends that others their age have as a matter of course.Ammar celebrated his birthday under these conditions on July 12. According to his mother, Janneke Schoonhoven, he is 'desperate' to mark his next birthday at home in Oude Pekela in the northern Netherlands.

In the view of the Dutch authorities the father, Hisham al-Hafez, abducted the children in August 2004 under the pretext of taking them to the Paris Disney World. He is officially registered as having taken the children illegally.
Syrian officials see things differently: al-Hafez is the father and has the right to decide how and where they are brought up.

Schoonhoven prompted her children to run away while on a visit to them. She gave them a map with directions on how to reach the embassy days before they ran away from their grandparents' Damascus home on June 26.

'They have had a really difficult time of it, otherwise they would not have taken such a big step as to run away,' she told a Dutch television programme.'They were really desperate. Negotiations are continuing at a high level, but it is not easy, because there are completely different laws in Syria.'

Al-Hafez, 51, sees the situation very differently. Both he and the children were 'suffering psychologically,' he told Deutsche Presse- Agentur dpa.
He has called for their immediate release, saying they are 'in a real prison' and complaining that while their mother was speaking to them daily by phone, he was being denied contact.Al-Hafez said that after he and Schoonhoven divorced in 1997, she had custody of the children until she married again and gave birth to twins in 2000. Schoonhoven is unable to afford to bring up four children, he says.
The issue is a 'purely personal one,' Al-Hafez believes, and he accuses embassy staff of 'kidnapping' his children.

The children have now written both to the Dutch queen, and the press has taken up their cause, backing the mother to the hilt.'Queen Beatrix, could you please help us??? Or the prime minister? Help us please. Mama wants us back, papa want us back, but we want only to go to mama and to our family and friends in the Netherlands,' the letter reads according to the version published by the Telegraaf newspaper.
The Algemeen Dagblad has begun a readers' campaign to mark a month since the children went to the embassy.

'Send your personal wish to Sara and Ammar,' the newspaper urges its readers, providing an address and assuring them the letters will get to their destination.
Within hours, dozens of messages had been posted on its website, universally praising their courage and hoping that they will soon be united with their mother.
But Dutch legal experts hold out little hope for the discussions proceeding between top diplomats on both sides.

Syria has not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction that took effect in 1983. Around 80 countries are participants, but the vast majority of them are Western nations.

The Dutch Justice Ministry registered 75 cases involving a total of 105 children being taken out of the country by one parent in 2005 alone.While almost half of these cases were resolved, in the 16 cases where the children were taken to a Muslim country, no solution has yet been found.

Given the irreconcilable conflict between Dutch and Syrian family law, Sara will in all probability celebrate her next birthday - she turns 11 on August 1 - in the company of Dutch diplomats in Damascus.

© 2006 dpa - Deutsche Presse-Agentur

Thursday, July 20, 2006

International Relocation of Children

Our article, International Relocation of Children: American and English Approaches, by Jeremy D. Morley and James H. Maguire, has been published in International Family Law.


Monday, July 10, 2006

India: Safe Haven for International Child Abduction

For several reasons, India has become a safe haven for child abductors.

First, India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence.

Second, the court system in India is extremely slow so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justidy an Indian court in ultimately deeming that it is best to keep the child in India.

Third, the law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However recent decisions of courts in India have changed that rule and have held that foreign custody orders are merely items to consider as part of an overall custody review. Thus in a decision dated March 3, 2006 the Bombay High Court at Goa refused to issue a writ of habeas corpus on behalf of a British mother from Ireland whose eight-year-old daughter had allegedly been abducted to Goa by the child’s American father. The High Court dismissed the mother’s application on the ground that normal custody hearings should be undertaken and completed in Goa.

Fourth, no Indian legislation sets forth helpful law on this issue.

As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.

Thus in Katare v. Katare, 125 Wn. App. 813, 105 P.3d 44 (Wash. 2004) the Court of Appeals in Washington State upheld in relevant part the trial court’s ruling in a case involving an American mother and an Indian father. The trial court held that it was not convinced that there was a serious threat that the father would abduct their children to India. However, the potential consequences of any abduction to India were severe and “irreversible.” Accordingly the court was warranted in imposing severe limitations on the husband's residential time with the children, including strict restrictions on the locations of such visitation, surrender of his passport, notification of any change of his citizenship status, and prohibition of his holding or obtaining certain documents (i.e. passports, birth certificates) for the children.