Wednesday, September 17, 2008

Fifth Circuit's Hague Abduction Convention Ruling


The Fifth Circuit has followed the Second Circuit’s ruling in Croll v. Croll and has ruled that a “ne exeat” right does not constitute a “right of custody” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction. (Abbott v. Abbott, handed down on September 16, 2008).

The case concerned a British father and American mother who lived with their child in Chile. When the parents separated the Chilean courts awarded sole custody to the mother with visitation rights to the father and entered a subsequent order (the “ne exeat order”) prohibiting the child’s removal from Chile by either parent without their mutual consent. The mother concededly breached that order by taking the child to Texas and keeping him there without the father’s consent and without notice whilst the parties were in the midst of disputes over visitation and other issues.

The Hague Convention provides the remedy of return of a child only if the child’s removal or retention from its habitual residence breached “rights of custody attributed to a person.” The Fifth Circuit was required to determine whether to follow the three federal appellate courts that have determined that ne exeat orders and statutory ne exeat provisions do not create “rights of custody” under the Convention (Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948 (9th Cir. 2002); Croll v. Croll, 229 F.3d 133, 138–39 (2d Cir. 2000)) or whether to follow the Eleventh Circuit which has reached the opposite conclusion. (Furnes v. Reeves, 362 F.3d 702, 719 (11th Cir. 2004)). The Eleventh Circuit’s view has received further support in the First Circuit in Whallon v. Lynn, 230 F.3d 450, 458 n.9, 459 (1st Cir. 2000) and Croll has been criticized in most of the academic literature.

The Fifth Circuit also noted that the Furnes court had “catalogued” the foreign opinions on the issue, noting that courts in the United Kingdom, Australia, South Africa, and Israel have held that ne exeat rights do constitute “rights of custody” under the Hague Convention, while Canadian and French courts have reached the opposite conclusion. Furnes, 362 F.3d at 717–18.

The decision of the Fifth Circuit is that it follows the majority rule. It held that:


“We find persuasive Croll’s reasoning that the Hague Convention clearly distinguishes between “rights of custody” and “rights of access” and that ordering the return of a child in the absence of “rights of custody” in an effort to serve the overarching purposes of the Hague Convention would be an impermissible judicial amendment of the Convention. We hold that ne exeat rights, even when coupled with “rights of access,” do not constitute “rights of custody” within the meaning of the Hague Convention. The Hague Convention provides a remedy of return only for a parent who holds “rights of custody.” The father in this case did not hold such rights.”

Friday, September 05, 2008

RUSSIA: “Lawful” Child Kidnapping

The article below in today's Daily Telegraph illustrates the grave dangers that may arise when children visit Russia:

An 11-year-old British girl has been left stranded in Russia after her biological father obtained a Court Order preventing her from leaving the country until she is 18.

Victoria Osborne, who was visiting her grandmother in Saratov with her mother Tatiana, was prevented from boarding a plane home despite neither of them being given notice of the Order. Officials told her that her natural father, Colonel Yuri Gladkikh, had obtained the Order which under Russian law allows divorced parents to block their children leaving the country until they are 18. It was designed to help separated parents with access to their children.

Victoria's stepfather, Patrick Osborne, 52, is now preparing for a legal battle to bring her home to Winchester, Hants. It is believed that they are in negotiations with Colonel Gladkikh over the ownership of a flat in Saratov.

He said: "We know it is not going to be easy, but we are determined to get our family back together. This order came totally out of the blue. When we go over there to see Tatiana's family Mr Gladkikh knows exactly where we are because his mother lives in the same village."

Mr Osborne, a Civil Engineering lecturer at Southampton University, said the first he knew about the situation was last Thursday when his wife telephoned him in tears from the airport. He said: "She was crying her eyes out saying that they couldn't get out of the country. She is getting increasingly distressed and it's going to get harder and harder the longer it goes on for her. Vicka is a confident, happy girl and she is dealing with this as best she can. It is unbelievable that any parent, however far-removed from daily upbringing, would deny his child the right to a good education, access to her home and friends. This is totally immoral."

Mrs Osborne, 34, and Colonel Gladkikh split up eight years ago. She married Mr Osborne three years later after they met while he was working in Russia.Although his wife and step daughter are British citizens the pair travelled on Russian passports, making them subject to the country's law.Mrs Osborne is free to leave the country but said she will not return without Victoria, who was due to start secondary school yesterday. Mrs Osborne said she separated from Colonel Gladkikh in January 2001 and divorced him in October 2002.

“This is a terrifying ordeal and we are completely devastated. The possibility that Vicka will be forced to remain here, away from her friends and family, for the rest of her childhood is very scary for her," she said. "When we first went to see him (Colonel Gladkikh) he said Vicka should be near him in Russia. He said she could stay with her grandmother where he could visit her.” She claimed he later told her he would lift the order if she voluntarily gave up registration on the £35,000 flat they own, where Victoria was born, so that he could sell it. She said she was prepared to do that after receiving written guarantees he would not go back on his word.

She added: “Quite simply, it's blackmail. Vicka is trapped here and she feels so betrayed to be used like an object of trade. It is immoral. To think he is a high ranking officer in the Russian army, trusted with defending the country, and this is how he treats his child.”

Speaking from Saratov, Mrs Osborne, who is carrying out research at Birmingham University to improve cultural understanding between Britain and Russia, said: "We are absolutely devastated. Had we known about this restriction we would never have gone to Russia this summer. It's a catastrophe. Our family is broken apart and Vicka is not at school. She was so much looking forward to it. This is a betrayal by her biological father."

The family could face a lengthy court battle if the order is not voluntarily withdrawn by Mr Gladkikh.They have sought help from the British Embassy in Russia but have been told there is little they can do as they were travelling on Russian passports.

Daily Telegraph, Sept. 4, 2008

Thursday, September 04, 2008

Jersey, Channel Islands Case Favors Spouse with Offshore Trusts

The Royal Court in Jersey, Channel Islands has issued a key ruling in favor of a wealthy Indian jewelry magnate with substantial assets in offshore trusts, in a case known as Mubarak v Mubarak. The Court ruled that assets held in offshore trusts could be released to ex-spouses only if the trustees had the power to do so.

The Financial Times (article dated September 3 2008) suggests that wealthy business people may now be more encouraged to exploit Jersey and other tax havens in an attempt to shield themselves from big money divorce payouts.

The Jersey case followed more than seven years of litigation in England – described by the English courts as “notorious” and “Titanic” -- culminating in a decision of the Court of Appeal last year in which that Court vehemently criticized the husband’s conduct and upheld a large award against him. However the Jersey court has now allowed the husband to avoid many of the consequences of the English award

In recent years the courts in England have issued several judgments in favor of ex-spouses who were married to wealthy spouses with assets in offshore trusts. However the Jersey ruling shows that without the cooperation of the courts in the offshore jurisdictions the divorce rulings in favor of ex-spouses might not be worth all that much.

The Jersey case could lead more business people to put their money in so-called tax havens such as the Channel Islands, the Isle of Man and Britain’s Caribbean overseas territories in an attempt to ring-fence their wealth from divorce settlements.