Monday, December 21, 2009

Non-Resident Indians and International Child Abduction

Non-resident Indians always face the risk that, when their marriage breaks down, one spouse will run to India, often with the parties’ child or children, hoping for a better result in the Indian courts than in the American courts. Sometimes the children are used as hostage for a better financial settlement.

It is now reported that, in a case alleging parental abduction of a young child from England to India, the Supreme Court of India has ruled in favor of the left-behind parent. Anurag Mittal v. Rachana Aggarwal, Case No. 20333/2009, Supreme Court of India.

The reason that this is newsworthy is that Indian courts have in the past been reluctant to issue return orders in the case of the abduction of a child to India by an Indian parent. See for example the case of Sharma v. Sharma, Feb. 16, 2000, in which the Supreme Court of India refused to enforce a Texas custody order and required the lower Indian court to exercise custody jurisdiction even though the mother had removed the child from the family’s residence in Texas and had promptly commenced a case in India upon her arrival in that country.

The new case concerns a four-and-a-half year old girl who was born in England of Indian parents. The mother, who had also taken British nationality, took the child to India in September 2008. The mother’s father sought custody in India. The child’s father secured an order from the English High Court of Justice, Family Division in November 2008 requiring the child’s return to England. The Indian Supreme Court has ordered the child’s return to the U.K. It ruled that, “The decision has to be left to the British courts, keeping in mind the nationality of the child and the fact that both the parents had worked for gain in the UK and had also acquired permanent resident status there,'' adding that the English court had not directed handing over of the child to the father.

While the case is helpful it raises very considerable issues:

First, it has now been more than one year and three months since the abduction and the child has still not been returned from India.

Second, it is obvious that the left-behind parent has been compelled to incur very substantial legal expense in at least securing a favorable Indian order.

Third, apparently the left-behind father has not been able to see his child for the entire period of separation.

Fourth, the grounds upon which the decision was reached raise substantial questions as to their applicability to future cases, since the Court seems to leave substantial room for discretion by Indian judges in other international parental abduction cases.

Tuesday, November 17, 2009

Japan and International Child Abduction


Policy hurts Japanese nationals too

Lawyer for Christopher Savoie foresees curbs on visits 'home' with kids

By JEREMY D. MORLEY



In the debate about whether Japan should sign the Hague abduction convention, a serious consequence of Japan's failure to ratify the treaty is being overlooked. Japan's failure to sign the convention is extremely damaging to Japanese nationals living overseas, since it makes it far harder for them to bring their children to Japan for visits, and encourages them to break foreign criminal laws that prohibit international child abduction.

A key reason that Japan has not signed the treaty is that it believes the convention will help foreigners but will be of no value to Japanese citizens. That claim is not merely reprehensible, but is also entirely false.

The ordeal of my client, Chris Savoie, in losing his beloved children to Japan, has served to shine a strong light on this problem. As an international family lawyer, I have consulted with about 100 non-Japanese parents whose children have been abducted to Japan, but Chris' case is the first to have really caught the attention of the world's media.
The result is that both the public and judges in countries outside Japan are now increasingly aware that Japan:
• is a haven for international child abduction; has never ordered an internationally abducted child's return;
• has no system of shared parenting;
• does not respect foreign child custody orders;
• and has a family law system that is totally dysfunctional, at least when it comes to international relationships.
This means that if a non-Japanese parent objects to a child being taken for a visit to Japan by a Japanese parent from the parents' home in America (or another Western country), the American (or other Western) judge must now almost always bar any such visit, since there will be nothing that the non-Japanese parent could do in Japan if the Japanese parent refused to return the child. As a result, visits "home" to Japan by a Japanese mother with her Japanese-American children should no longer be permitted by American courts, since the risk is far too great that the children will be kept in Japan and never be returned.
Courts around the world are increasingly familiar with developing sensible international parenting plans for parents who live in different countries. A typical plan is that if, for example, dad is in New York and mom is in London, mom will have primary care of their children in London but the children will spend the major part of each summer holiday with dad in New York, and they will also spend either Christmas or spring vacation with dad in either city. A typical order will also provide that dad be able to speak to the kids at least four or five times a week via Skype with a webcam. Furthermore, the financial arrangements will typically be modified so that dad's child support payments are reduced because of his additional travel expenses.
Unfortunately no such arrangement could possibly work with respect to Japan, simply because Japan does not have a legal system that will enforce any part of the agreement. Japan's Family Code recognizes nothing but sole custody and makes no mention of visitation rights on the part of the noncustodial parent.
Japan's family law system, as it applies to foreign parents seeking access to their own children, seems intended to accomplish nothing except to wear out the petitioning foreign parent and to endorse the status quo in favor of the child-abducting Japanese parent. The "system" does not issue orders in contested cases, perhaps because it has no means of enforcing any of its orders. Indeed, Japan does not even have an efficient child support system within Japan, never mind on an international level.
Accordingly, U.S. and other Western courts are now basically compelled to stop international child visitation to Japan if the non-Japanese parent objects. This ridiculous result stems directly from Japan's failure to have a working family law system.
Consequently, the only way a Japanese parent will be able to take their children to visit Japan over the objections of the other parent will be by covertly removing the children. This will constitute their commission of an extremely serious crime under U.S. federal law: The crime of international parental child kidnapping is a felony in the United States punishable by three years in jail. It will typically be reported to Interpol so that an abducting parent will be subject to arrest if he or she ever travels out of Japan.
All of this means that Japan's policy is extremely damaging to Japanese parents in international marriages. Until Japan signs the Hague convention and has a system in place to give the treaty real teeth in Japan, there will be no way for a Japanese mother to take her children to Japan except with the express agreement of the non-Japanese parent, or by illegally abducting them.

Japan's hands-off approach to international child custody issues needs to change. It is to be hoped that President Obama discussed these matters very forthrightly with Prime Minister Hatoyama during his recent trip to Japan.
Jeremy D. Morley is an international family lawyer and the author of "International Family Law Practice." He represents Christopher Savoie, whose two children were abducted to Japan by their mother in violation of U.S. law. His Web site: www.international-divorce.com

The Japan Times: Tuesday, Nov. 17, 2009
(C) All rights reserved

Friday, November 13, 2009

People in Glass Houses...

Does the U.S. Comply with the Hague Convention?
By Jeremy Morley

The United States Congress has instructed the U.S. Secretary of State to issue annual reports evaluating the compliance by other countries of their obligations under the Hague Abduction Convention.

Valuable efforts are under way that seek to expand such oversight by agencies of the U.S. Government.

All of this naturally raises the question of the extent to which the United States is itself in reasonable compliance with the terms of the treaty.

The author, expressing his purely personal opinions, has substantial concern as to three issues. These are, (i) the length of time for Hague cases to be concluded in the United States; (ii) the enormous number of courts that have jurisdiction in Hague cases; and (iii) the lack of any legal aid scheme in the United States.

1. Expeditious Procedures
a. Treaty Requirements
Speedy resolution of return applications is absolutely essential to the operation of the Convention.
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 (http://www.hcch.net/upload/abdguide2_e.pdf) 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.”

-“Almost all aspects of implementation (e.g. the investment of adequate resources and powers in Central Authorities, the allocation of jurisdiction among courts/administrative authorities, the procedures to be followed both at first instance and on appeal, and the ready availability of appropriate advice, assistance and representation) may have a bearing on the speed with which applications are processed.”

b. The U.S. Practice
The U.S. practice does not meet the requirements of the treaty. Hague cases can take years to complete in the United States.

Abbott v. Abbott, a case now on appeal to the U.S. Supreme Court, illustrates the problem. 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. When the Supreme Court will finally render a decision, and whether that decision will end the litigation, is anyone’s guess. The child is now 14 and has lived in the United States for well over 4 years. He is now presumably mature but may well not have been at the time the case was commenced. If he objects to returning to Chile, and if he is allowed to now so advise the Court, his wishes may well prevail. In any event if the litigation is dragged out for another year or so he will turn 16 and the case at that point must automatically end.

c. What Needs To Happen
The State Department’s annual Compliance Reports are filled with complaints about the delays in the courts of other countries. Such complaints are totally appropriate. But who is evaluating the very sorry and frankly embarrassing performance of U.S. courts.

We should examine and learn from the experiences of countries which have established a good track record in this area. Most practitioners would agree that the courts in England have achieved a remarkable degree of success in handling Hague cases expeditiously, sensibly and with substantial justice.

In England, the courts have repeatedly insisted that they are bound to render decisions in Hague cases expeditiously and to complete all proceedings wherever possible within six weeks. See e.g. F (A Child) [2009] EWCA Civ 416 (19 March 2009). Appeal courts have criticized delays in Hague cases. See e.g. Re D (a child), [2006] UKHL 51, “The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed. That object is negated in a case such as this where the application is not determined by the requested State until the child has been here for more than three years.”

Appeals in England must also be lodged within 14 days of the first instance decision. Resolution of appeals is now expedited through a fast-tracking appellate procedure. Convention appeals can be scheduled for final determination within a week of the appeal being lodged, particularly when an immediate return order has been issued. The target of six weeks is for resolution of the case in its entirety, including all appeals.

Similar practices should be adopted in this country.

2. Efficient, Knowledgeable Courts
a. The Good Practice Guide
The Hague Conference Good Practice Guide strongly encourages treaty partners to provide for the concentration of Hague return cases in a limited number of courts.

The Guide correctly states that the principal advantages of such a concentration of jurisdiction would be:
-An accumulation of experience among the judges concerned; and, as a result, the development of mutual confidence between judges and authorities in different legal systems;

-The creation of a high level of interdisciplinary understanding of Convention objectives, in particular the distinction from custody proceedings;

-Mitigation against delay; and

-Greater consistency of practice by judges and lawyers.

An exception is provided for domestic systems that do not allow for concentrated jurisdiction, in which case the (weak) suggestion is that it is particularly important that judicial training or briefing be available for judges concerned in Hague proceedings.

b. The U.S. Practice
In the United States there is no concentration of Hague cases in a limited number of courts. To the contrary, the United States has several thousand separate jurisdictions, any of which may handle Hague cases. Since there is concurrent state and federal jurisdiction for a Hague case in the U.S., each county or county equivalent (of which there are reported to be 3,140 -- see http://en.wikipedia.org/wiki/County_(United_States)), and each of the 94 federal districts, has Hague jurisdiction.

The completely different backgrounds of family court judges and federal judges means that the choice of one system or the other might have a major impact on the outcome of the case.

Most judges in the United States who might be called upon to handle Hague cases have never done so previously. In this author’s experience, it is more usual than not for a judge in a Hague case to report that, “This is my first Hague case” and then to ask the lawyers to provide special support for that reason.

The “official” response to this issue will doubtless be that, (a) it is constitutionally impossible to change this system and (b) the United States solves the problem by educating the judiciary. However, it is submitted that that is entirely unsatisfactory. The Constitution does not mandate concurrent jurisdiction in Hague cases, nor does it prevent specific judges in a State or federal district from being assigned Hague cases specifically. As for training, while some training programs are supplied, there is a very clear training gap.

c. What Needs To Happen
The State Department’s annual compliance reports are replete with complaints about the poor organization of foreign courts and the lack of training of foreign judges who try Hague cases. Again, however, it seems inappropriate to criticize other countries on these issues when our own system is in many ways so poor.

The entire system as to the courts that handle Hague cases should be reviewed and reformed so that a select group of specially trained and experienced judges handle these cases. This is precisely the system that the State Department has successfully encouraged other countries to adopt.

3. Legal Aid
In the negotiations leading to the adoption of the Convention, the United States demanded that it be permitted to exclude itself from the provision in Article 26 that countries must provide legal aid to parents who apply for the return of their abducted children. The United States and several other countries have made such a reservation.

While the U.S. is legally authorized to do so its actions in this regard do not set a good example for others to follow. At an international forum on the Convention, the Australian Central Authority’s representative stated that,
“Central Authorities are well aware that the level of assistance in obtaining legal representation, and the quality of that representation, is extremely variable in Hague cases. At one end of the spectrum is the USA where the only assistance available is through pro bono lawyers who register with NCMEC to do this work for no fee or reduced fees. At the other end of the spectrum is England and Wales where all applicants are automatically provided with experienced legal representation at no cost. It is probably fair to say that the English system of legal representation is admired by other Convention countries and sets the benchmark to which others aspire.”

Instead of doing the least that it can get away with, the U.S. should surely be at the forefront of efforts to help left-behind parents secure the return of their internationally-abducted children. American parents whose children are abducted to England receive free representation by top-notch English lawyers, courtesy of the British taxpayer. But English parents receive no reciprocity when their children are abducted to the United States, which is self-evidently unfair.

Conclusions
While there is great merit to the State Department’s review of the compliance of other countries with the Hague Convention, it would serve U.S. citizens well in this regard if the United States would put its own house in proper order as to its own compliance with the terms and the spirit of the Convention.

These are of course merely the independent personal opinions of this author.

Sunday, October 25, 2009

Korea Reportedly Moving Towards Signing the Hague Abduction Convention

Korea is apparently taking steps towards signing the Hague Abduction Convention.


This would be a major step forward in the prevention of international child abduction.



Korea Mulls Signing Treaty to Protect Kids


Korea is moving to sign an international treaty to protect children against parental abuse and possible abduction in cases of multi-cultural marriage breakdown.

A government source said the nation is inching closer to joining the 1980 Hague Convention on the Civil Aspects of Child Abduction.

The multilateral treaty signed by 81 countries provides a mechanism that ensures the prompt return of children taken to another country by a divorced parent seeking a court ruling in their favor.

"Korea has long been mulling the signing of the treaty to counter international custody disputes, which have been on the rise because of an increase in the number of multi-cultural marriages, and the unstable economy," the source said.

The Ministry of Justice and the Ministry for Health, Welfare and Family Affairs have been reviewing the issue.

According to U.S. Department of State officials, more than 1,000 American children were abducted and taken to a foreign country by a parent in 2008, up from 642 in 2005.

It is tough and complex to repatriate a child from countries that have not signed the pact such as Korea, Japan and the Philippines, as court rulings in previous jurisdictions can easily be overturned.

The U.S. State Department warns on its Web site over possible custody disputes with Korea.

"Custody orders and judgments of foreign courts are not enforceable directly under Korean law," it says.

By Lee Tae-hoon,10/25/09, Staff Reporter

Sunday, October 18, 2009

Japan – Leading Haven for International Parental Child Abduction


The firestorm of publicity that we generated concerning the case of my client, Chris Savoie, whose kids were abducted to Japan by their Japanese mother, has now led to an official demand by eight countries that Japan stop its practice of providing a safe haven for international child abduction.

In order to generate concern about my client's plight I appeared on the NBC Today Show twice, CBS’ Morning Show, CNN's American Morning, CNN’s Anderson Cooper, CNN’s Situation Room with Wolf Blitzer, Headline News, and a host of other shows and I was interviewed at length by newspaper reporters in the U.S. and Japan.

The interviews with the Japanese media were especially difficult because the world-views of the Japanese reporters were fundamentally different those of Western reporters. The Japanese reporters' starting position was that of supporting the wishes of a Japanese mother to return home to Japan. It was essential to provide them with the documentary evidence that showed that the mother had brought the children to the United States knowing that she would be divorcing her husband and that established that she had received a very large cash settlement in the divorce case in return for committing to stay in Tennessee with the children and allowing the father to have extensive time with the kids.

I personally have consulted with approximately one hundred left-behind parents in the United States, England, Canada and other countries whose children have been abducted to Japan by a Japanese parent (or other family member). Once they are taken there they are never returned unless the taking parent herself has a change of heart. And because the Japanese legal system does not provide for sharing of parenting time, the left-behind parent at the very best can hope to eventually see his children for a few visits of only one or two hours, only in Japan and only in a supervised courthouse room or possibly in a coffee shop with a guard posted at the entrance.

A useful result of the publicity is that judges in the United States and other countries with a desire to prevent child abduction will hopefully never again na├»vely trust that a Japanese parent’s promise to return her children after a family visit to Japan will be fulfilled or enforced.

Nonetheless, it is incumbent on lawyers representing potentially left-behind parents to help the U.S. courts by providing expert evidence in admissible form to support these claims. In seeking to restrain or enjoin travel with a child to Japan it is bad practice to fail to provide the court with such expert testimony or other admissible expert evidence. It is not good enough to rely on news reports; admissible expert evidence is required.
Below is one of many articles concerning the diplomatic effort to solve this problem.

Japan urged to settle international child custody issue

by Gilles Campion Gilles Campion Fri Oct 16, 11:24 am ET

TOKYO (AFP) – Eight countries on Friday called on Tokyo to allow divorced foreign parents access to their children living in Japan and to sign a treaty against international parental child abductions.

Justice Minister Keiko Chiba of Japan's month-old centre-left government met envoys from Australia, Britain, Canada, France, Italy, New Zealand, Spain and the United States to discuss the emotive issue.

The group urged Japan to ensure that, when an international couple divorces, the foreign parent is not denied access to the child, something that activists say has happened in thousands of cases in the country.

The long-simmering issue was thrown into stark focus when Japanese police last month arrested a US man after he snatched his two children from his Japanese ex-wife on their way to school and took them to an American consulate.

The Tennessee man, Christopher Savoie, 38, who was released Thursday, said he had tried to take his children in an act of desperation after his Japanese wife took them away from their US home and denied him access to them.

The case highlighted the common practice of Japanese courts awarding child custody in divorce cases to just one parent, usually the mother, rather than reaching joint custody agreements with parental visitation rights.

Japanese courts also habitually side with the Japanese parent in an international custody dispute -- sometimes even awarding a child's Japanese grandparents, rather than a foreign parent, the custody rights.

Japan, alone among G7 countries, has not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which obliges countries to return a child wrongfully kept there to their country of habitual residence.

"Japan is a modern country with a completely backward family law," said US lawyer Paul Wong, whose daughter was taken into the custody of his former Japanese parents-in-law after his ex-wife died of cancer.

"Japan is the only country that has never returned a child to a foreign parent of any country. Ever. It is nothing but discrimination," added Wong, who works on the issue with the US State Department.

US Ambassador John Roos said in the meeting that his country is aware of 82 child abduction cases affecting US citizens, involving 123 children, while the French delegation said it knew of 35 cases involving its nationals.

"Our priority is to preserve the children?s interests as well as their rights to grow up in a stable and safe environment, with access to both parents and both cultures," said French Ambassador Philippe Faure.

In the Savoie case, a Tennessee court found earlier this year that his former wife Noriko had kidnapped and taken to Japan their eight-year-old son and six-year-old daughter and issued an arrest warrant for her.

However, that ruling carried no legal weight in Japan.

Savoie was arrested on September 28 outside the US consulate in Japan's southwestern Fukuoka city on suspicion of kidnapping, but he was released by prosecutors on Thursday without charges being filed.

Activist groups say they hope that Japan's new government -- which took power last month after more than half a century of almost unbroken conservative rule -- will review the issue.
Chiba, the justice minister, voiced sympathy for the concern raised but said she would have to discuss the matter with other members of the government, according to participants at the meeting.

Foreign Minister Katsuya Okada said the government "is studying the possibility" of signing the Hague onvention, adding: "Personally I believe Japan should consider this proactively."

Saturday, October 03, 2009

Publication of International Family Law Practice

My book, International Family Law Practice, has now been published.

It can be ordered through West at http://west.thomson.com/productdetail/159300/40816680/productdetail.aspx

West Publishing Co. Description:

DescriptionThis title provides a practical approach for U.S. lawyers handling international family law matters. It focuses on international marriage and divorce, international prenuptial and postnuptial agreements, international divorce planning, recognition of foreign divorces, international child support and custody, international relocation of children, and international child abduction. It will also be helpful to lawyers handling international family matters globally.
Features
-Includes discussion of foreign law.
-Includes practical checklists and practice pointers throughout.
-Provides broad coverage of international family issues.

Thursday, August 20, 2009

Tagging to Prevent International Child Abduction

Time magazine has an interesting article on the technological advances in Seoul, Korea, entitled Seoul: World's Most Wired Megacity Gets More So.

Part of the article caught my eye because it has great application in preventing international child abduction:

Earlier this year, the city rolled out U–safety zones for children, a program using security cameras, a geographic-information-system platform and parents' cell-phone numbers. Participating families equip their kids with a U-tag — an electronic signature applied to a coat or backpack that allows a child to be tracked at all times. If the child leaves a designated ubiquitous-sensor zone near a school or playground, an alarm is automatically triggered alerting parents and the police. The child is then located via his or her mobile phone. The city plans to increase such zones rapidly. To some Americans, the Big Brother–ish qualities of the U-city push can be a tad unnerving. But Seoul officials point out that the U-safety-zone project is entirely voluntary, and the technologically sophisticated citizens seem to have few objections.

Since the United States does not have any exit controls, meaning that U.S. borders are totally open for people to leave and take any child with them, most court orders purporting to prevent international child abduction are far too weak.

Judges generally need to require supervised visitation if they really want to allow a potential parental child abductor to have access to a child while genuinely preventing abduction. This is a remedy that judges are often reluctant to order.

Technology might provide an answer. We would need electronic tags that would trigger an alarm if they were removed, if the child were taken anywhere out of a designated area or if the child were taken near an airport or state or international border. The alarm would need to be sent to the appropriate police authorities, as well as to the other parent, and the police authorities would need to be both authorized and required to make an immediate arrest.

The authorities in the United Kingdom have already implemented such a scheme, although on a less sophisticated basis.
See England: Electronic Tagging to Prevent Re-Abduction of Child

Please email me with your thoughts on this topic (to jmorley@international-divorce.com)

Sunday, August 02, 2009

American parents struggle to reunite with children in Japan


Overseas custody rights: American parents struggle to reunite with children in Japan
By Charlie Reed, Stars and Stripes
Pacific edition, Tuesday, August 4, 2009


It’s been six years, three weeks and one day since Navy Cmdr. Paul Toland last saw his only child, Erika — one of 118 Japanese-American children living in Japan and cut off from their American parents. “I count every day,” Toland said. “You can’t lose track.”

Toland’s emotional tally began July 13, 2003, when he returned from work to discover his wife had surreptitiously moved out of their home in a Navy housing complex in Yokohama, Japan, taking Erika — just 9 months old at the time — with her.

Toland’s estranged wife, a native of Japan who became a U.S. citizen during their marriage, moved to Tokyo and barred him from visiting his daughter. Her actions likely would have resulted in felony kidnapping charges in the United States but were essentially protected by Japanese criminal and family laws, which do not recognize parental child abduction as a crime and do not acknowledge foreign custody orders.

But while Japanese nationals cannot be arrested for abducting their own children in Japan, foreigners in Japan would likely face criminal penalties if they attempted to take their children back, according to Jeremy Morely, a New York City-based attorney who has worked on parental child abduction cases in Japan for more than a decade.

Toland, a medical administration officer now based in Bethesda, Md., is at the forefront of a growing international debate over parental child abduction in Japan. Even after his wife died in 2007, he has been unable to gain custody of or even see Erika, who now lives with her maternal grandmother.

At the heart of the issue is Japan’s refusal to accede to the Hague Convention on the Civil Aspects of International Child Abduction of 1980. The treaty, which includes 81 countries as signatories, prevents parents from fleeing with their children to or within those countries before a court can determine custody. It protects rights of access for both parents and includes measures to safeguard victims of spousal and child abuse.

In May, the United States, the United Kingdom, France and Canada held a symposium in Tokyo and released a joint statement urging Japan to sign the Hague convention — the first such public declaration after decades of lobbying Japanese government officials behind the scenes.

But after nearly 30 years of multilateral diplomacy, Rep. Chris Smith, R-N.J., thinks a hard-line approach is now in order. In July, Smith introduced the International Child Abduction Prevention Act of 2009, which would allow for economic sanctions against countries that refuse to take action in international child abduction cases. “Japan is one of the most egregious abusers in this regard, and that’s unacceptable,” Smith said. “If we continue to allow this to happen, we will get much more of it because there will be impunity.”

U.S. State Department reports show the number of open cases of parental abductions in Japan involving American children has doubled since last year, rising from 40 cases involving 50 children to 80 cases affecting 118 children. Most cases involve Japanese mothers and non-Japanese fathers whose breakup results in the mother keeping her children away from their father in Japan.

State Department officials agree the problem is getting worse as international marriages and divorces continue to rise and more parents report their cases to the department, but they contend Japan is moving toward taking action. “They are beginning to recognize that this is an issue that sets Japan apart from [its closest allies],” said Michelle Bond, deputy assistant secretary for overseas citizens services at the State Department. Japan is the only major industrialized nation not to have signed the treaty and is behind only Mexico and India in the number of parental child abduction cases involving American children, Bond said.

Japan’s reluctance to sign the Hague treaty stems from its tradition of sole-custody divorces, Bond said, wherein one parent makes a complete and lifelong break from his or her children when a couple splits. The parent who has physical custody at the time of divorce tends to keep the children, and police will not intervene in custody cases, Bond said.

In an interview with Stars and Stripes last month, Japanese Foreign Ministry spokesman Yasumasa Kawamura said: “Japan fully recognizes that the Hague Convention is one of the most effective tools to protect children’s rights and well-being.” But a gap exists between “what the treaty requires and Japan’s social expectations based on Japan’s family relationship and legal system,” he said.

The current system isn’t working for Rick Gates, a civilian Department of Defense employee at Naha Port on Okinawa and a former Marine who first came to Japan on assignment in 1994. Gates, 38, has not been allowed to visit his two children, both American citizens, in almost a year despite having a Japanese custody order for his oldest daughter, Monami, 8.

Soon after his divorce in early 2008, Gates said, he and his Japanese wife decided to reconcile. Though he got custody of Monami during the proceedings, he allowed her to stay with his ex-wife and his son, Kaito, 6. “I didn’t want to split the children up,” he said. “I had every belief that we were going to restore our marriage, so I didn’t push the issue of getting my daughter turned over to me.” But within a few months, Gates said, his ex-wife changed her mind about reconciling and eventually stopped him from visiting his children or even speaking to them on the phone.

Like Toland, Gates has worked with the State Department to have a third-party mediator from the embassy check on the status of his children in what is referred to as a “welfare and whereabouts visit.” Both Toland and Gates hope political pressure from Capitol Hill will finally help turn the tide in Japan.

But Morely, the New York City attorney, said congressional efforts could backfire.

“American pressure can very well be counterproductive,” Morely said. “If Japan sees the world community upset with them, that will be better than the perception that the American government is trying to bully them.”

He argues that continued diplomacy is key to not only persuade Japan to sign the Hague treaty but also to change its family legal system, which is crucial if the treaty is to function properly.

“As soon as they sign it, they’ll be in violation of it,” he said. “That’s why they haven’t signed it; they’re not set up for it.”

In many cases, “taking” parents can be arrested if they leave Japan and they often live in fear that their children will be kidnapped back from them, Morely said.

“Not signing is hurting a lot of Japanese mothers, and that fact is not yet understood in Japan,” he said. “It’s detrimental. It forces the Japanese mother never to leave the country.”


The National Center for Missing and Exploited Children knows of no successful return of a child from Japan to the United States as a result of civil ligation or criminal proceedings, said Maura Harty, senior policy director for the International Centre for Missing and Exploited Children. The two groups are sister organizations. “We hope the government of Japan will hear the collective arguments and cases being made by the international community … and modify its domestic law,” as well as become a signatory to the Hague treaty, Harty said.

Meanwhile, like scores of other parents whose children have been spirited away in Japan, Toland is essentially powerless. Still, he said, he has spent hundreds of hours in Japanese and U.S. courts and nearly $200,000 in legal fees and other expenses. “I’m not giving up on this,” said Toland, 42, who is now engaged and helping raise his fiancee’s teenage son. “I’d never give up on this. I’d never give up on my own daughter.”

Wednesday, June 24, 2009

Consent and the Hague Abduction Convention

The English Court of Appeal has just issued a significant ruling on the issue of consent in a Hague abduction case. In re P-J (Children) (Abduction: Consent), [2009] EWCA Civ 588; [2009] WLR (D) 207, dated June 23, 2009.


It frequently happens that one parent tells the other parent that the or she can take the children to live in a specific country at some point in the future or upon the fulfillment of a specified condition.


Does that count as consent if:

  • The children are taken to the other country after the expiration of a considerable period of time from the date of the initial discussion; or
  • The consent is retracted; or
  • The taking parent covertly removes the children, knowing or apparently knowing that the other parent would object?

The Court of Appeal upheld the trial court’s order that children must be returned to Spain from Wales on the ground that although the husband had at an earlier time agreed that the mother could remove the children from their habitual residence in Spain should an attempted marital reconciliation fail, he had none the less clearly objected at the time when the children were in fact being removed, and the earlier consent was not operable.


Lord Justice Ward ruled that, as to “consent” for the purposes of art 13 of the Hague Convention, the following principles applied:


(i) Consent to removal of a child had to be clear and unequivocal;


(ii) Consent could be given to the removal at some future but unspecified time or upon the happening of some future event;


(iii) Such advance consent had, however, still to be operative and in force at the time of the actual removal;


(iv) The happening of the future event had to be reasonably capable of ascertainment, and in particular had not to depend on the subjective determination of one party;


(v) Consent, or the lack thereof, had to be viewed in the context of the realities of family life, or more precisely in the context of the realities of the disintegration of family life;


(vi) Consequently consent could be withdrawn at any time before actual removal, and if it was so withdrawn the proper course was for any dispute about removal to be resolved by the courts of the country of habitual residence before the child was removed;


(vii) The burden of proving the consent rested on the person asserting it;


(viii) The inquiry was inevitably fact-specific;


(ix) The ultimate question was a simple one, viz whether the other parent had clearly and unequivocally consented to the removal.


In the instant case, the mother knew, or suspected, that the husband would not consent, or at the least was likely to object, to the children being removed from Spain, and she had embarked on a clandestine removal; and the husband, once alerted, had clearly objected, as the mother well knew. The fact that he had formerly consented to removal in certain circumstances did not mean that he consented to the actual removal when it occurred; and consent clearly had to subsist at that time.

Tuesday, June 16, 2009

Japanese Child Abduction Developments

Public knowledge is beginning to grow concerning Japan’s status as one of the world’s worst havens for international parental child abduction.


The problem is tolerated by the Japanese Government because the abductors are almost exclusively Japanese nationals. In fact the Japanese Government is often a knowing participant in such abductions. Japanese consulates issue passports to Japanese mothers and their children even when courts in the United States order the mothers not to take their children out of the country and require that all passports be deposited in court.


At the Senate’s confirmation hearing on June 10th for Kurt Campbell, the nominee for Assistant Secretary of State for East Asian and Pacific Affairs, Senator Jim Webb made a strong statement on the “frustration level” with Japanese child abductions. He asked Mr. Campbell to “get on this” immediately upon his confirmation. Mr. Campbell responded by stating that he had met with several of the families of the abducted children and he promised to raise the issue in his first meetings with his Japanese colleagues.


This follows a press conference at the U.S. Embassy on May 21st at which diplomats from the U.S., France, Canada and the U.K. again asked Japan to sign the Hague Convention on the Civil Aspects of International Child Abduction.


Unfortunately the response of the Japanese Ministry of Foreign Affairs' International Legal Affairs Bureau was to say that, "The attitude of the government is non-involvement in civil affairs. However, with the number of international marriages and divorces rising, the possibility of signing is under consideration.” This is diplomatic language that seems to mean, “Get lost.”

Tuesday, June 09, 2009

Switzerland's Pattern of Noncompliance with Hague Abduction Convention

The U.S. State Department has published its 2009 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction:

The Department continues to list only one country, Honduras, as being “Noncompliant” with the Convention. Its list of “Countries Demonstrating Patterns of Noncompliance” lists seven such countries as compared to nine in 2008. Bulgaria, Ecuador, Germany and Poland have been dropped from last year’s list while Slovakia and Switzerland have been added to the list joining Brazil, Chile, Greece, Mexico and Venezuela.
The addition of Switzerland may surprise people, but will not surprise those of us who work in the field.

The Department found that:

· Switzerland demonstrated patterns of noncompliance with the Convention during FY 2008 in judicial performance and law enforcement performance.

· The USCA noted delays in the overall processing of Convention applications. For example, even though a Swiss court issued an order for return of a child to the United States under the Convention in November 2007, the order had not been enforced as of the end of FY 2008.

· Other delays have also presented serious concerns, as proceedings in lower courts often go on for weeks or months.

· Swiss courts often treat Convention cases as custody decisions, invoking the child’s “best interests” as a reason for denying return, and performing merits-based custody assessments. Such assessments are outside the purview of the Convention. See Convention, art. 16 (court deciding Convention application shall not decide merits of custody rights).

· Additionally, Swiss courts - up to and including Switzerland’s highest court, the Federal Court - often show bias toward the taking parent, especially when the taking parent is the mother. High-level Swiss officials have defended this practice. In one case (discussed in more detail in the “Notable Cases” section of this report), the Swiss Federal Court inappropriately cited the “special relationship” between mothers and young children as influencing its decision to uphold the lower court’s denial of the left-behind parent’s application for return of the child to the United States.

· The Department also observes that the Swiss authorities are reluctant to actively enforce orders granting return to the United States or access to the child by the left-behind parent. Law enforcement has not demonstrated a great deal of enthusiasm in seeking out and arresting taking parents who evade law enforcement and ignore court orders for the return of an abducted child. Law enforcement has made only cursory efforts to locate taking parent and abducted children.

· Although the USCA and the Swiss Central Authority (SCA) maintain a cooperative relationship with clear and responsive communication, effective facilitation of case monitoring, and oversight, the SCA tends to be reactionary rather than proactive in encouraging authorities to enforce orders under the Convention. The Department realizes that such encouragement can be a challenge, as the SCA’s role is that of an active facilitator. However, more active engagement on the part of the SCA would likely improve execution of law enforcement’s execution of its Convention responsibilities.

· As of the end of the reporting period, the Swiss legislature was drafting legislation that would implement a more effective application of Convention proceedings in Switzerland. The USCA hopes that this new legislation will help the Swiss authorities address the compliance problems identified in this report.