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(vi) Consequently consent could be withdrawn at any time before actual removal, and if it was so withdrawn the proper course was for any dispute about removal to be resolved by the courts of the country of habitual residence before the child was removed;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

Tuesday, June 02, 2009

U.S. Supremes Likely to Review Judge Sotomayor’s Ruling

It is increasingly likely that the United States Supreme Court will take its first case concerning the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction.

The case is Abbott v. Abbott, and the U. S. Solicitor General has recommended that the Court grant the certiorari petition.
Interestingly enough the Court will essentially be required to determine whether or not to follow Judge Sotomayor’s dissenting opinion in Croll v. Croll.

In that case the Second Circuit ruled in 2001 that a so-called ne exeat right (a veto on relocation of the child outside the jurisdiction) is not a right of custody under the Hague Convention. Judge Sotomayor issued a strong dissent which has been applauded by many Hague lawyers and followed in some other circuits in favor of the majority opinion in Croll. Her dissent included an analysis of the foreign case law on the topic.

In the pending Abbott case the Fifth Circuit followed the majority opinion in Croll. It concluded that a Chilean order -- that granted daily care and control of a child to the mother and visitation to the father and prohibited either parent from removing the child from Chile without the other’s consent -- did not give a “right of custody” to the father. Therefore, although the mother breached the ne exeat order by bringing the children to live in the United States, the father had no standing to secure the child’s return to Chile under the Hague Convention.

The Solicitor General concludes that the Fifth Circuit was wrong and cites to Judge Sotomayor’s dissent in Croll.
The Solicitor General also correctly points out that, in interpreting the language of a treaty, the opinions of “our sister signatories are entitled to considerable weight,” especially when both the Convention and Congress have emphasized the importance of uniformity in interpreting the Convention, and that courts in the United Kingdom, Australia, South Africa, New Zealand, and Israel have adopted the view that a ne exeat right creates a right of custody.