Monday, December 27, 2010

E.U. Adopts Divorce Choice of Law Regulation

On December 20, 2010 the European Union Council adopted the Rome III Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.
Article 5 allows spouses to agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws:
(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded, or

(b) the law of the State where the spouses were last habitually resident, insofar as one of them still resides there at the time the agreement is concluded, or

(c) the law of the State of nationality of either spouse at the time the agreement is concluded, or

(d) the law of the forum.

Article 8 provides that if the spouses do not agree on a choice the law that will govern their divorce and separation shall be the law of the State:

(a) where the spouses are habitually resident at the time the court is seized; or, failing that,

(b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that,

(c) of which both spouses are nationals at the time the court is seized; or, failing that,

(d) where the court is seized.

The rules are intended to provide greater certainty, predictability and flexibility, and to prevent the EU’s notorious "rush to court" that the Brussels II Regulation has encouraged.

The Regulation will apply to 14 states, these being Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Other EU Member States may join at any time. Notable “refusenik” countries are Britain, Ireland and the Scandinavian countries.

Friday, December 17, 2010

Abducted Children Returned from India

We have succeeded twice in recent weeks in securing the return to their homes in the United States of children who were abducted by a parent to India. 

The results were not accomplished through the Indian legal system, which is generally not helpful in this area. Instead we used less formal means of applying appropriate pressure to achieve the desired result.
The outcomes are evident from our clients’ unsolicited testimonials.
In one case: "Simple words cannot describe how Mr. Morley's experience and thorough knowledge in the subject of international law helped me get back my children to the U.S.A.  Now I am a very happy father enjoying every moment with my kids.  Guess what?  Now my wife and I are in the path of complete reconciliation with kids around both of us!" 
In the other case: “Thank you for informing me. …You made it possible for me…You saved my children from suffering very promptly. We can have a wonderful Christmas which I have been asking God every minute.”
It must be stressed that these positive results do not mean that a return of abducted children from India can be accomplished in most cases. There were special circumstances in both cases that made our task very much easier.
As we have frequently argued, the best way to handle international abductions to India is to prevent them from occurring in the first place. When parents argue that a child’s proposed visit to India might lead to the child being wrongfully retained there, such concerns should be given great respect.

Friday, December 03, 2010

French deal could complicate talks with Russia on international child abduction cases

Negotiations with Russia on international child abduction cases could become more complicated. There has been growing pressure on Russia to sign the Hague Convention on the Civil Aspects of International Child Abduction, but it is now reported that the European Commission is giving France the right to start negotiations with Russia on a bilateral treaty on international child abduction.

Finland has expressed great concern on this issue, since if individual EU countries negotiate one at a time with Russia there may be less pressure on Russia to sign the Hague Convention.

There have been sharp disagreements between Russia and Finland on the topic of international child abduction. These came to a head in a Finn-Russian case in 2008 and 2009. A Finnish court awarded sole custody of a child to the father. In apparent violation of that order, the Russian mother then took the child to Russia. The father was unable to secure the child’s return from Russia through judicial means and secured the help of the Finland’s Foreign Ministry. A Finnish Foreign Ministry official used a diplomatic vehicle to take the father and son back to Finland. Russia lambasted Finland for a “severe violation of Russian laws.”

Finland is eager for Russia to sign the Convention, as are many other countries, but Russia seems to prefer to handle the issue piecemeal and thereby diffuse the international pressure for it to simply sign the Convention.

Tuesday, October 26, 2010

Potential International Child Abduction to India: Canadian Court Accepts Morley Expert Opinion

The Superior Court in Ontario, Canada relied in substantial part on the expert evidence of Jeremy D. Morley as to family law in India in ruling that the father of a four-year-old child living in Ontario should not be permitted to take the child on a family visit to India. Mahadevan v. Shankar, issued October 12, 2010. The child’s mother, who has custody of the child, opposed the trip because of her concerns that the child would never return.
The Court extensively referenced Mr. Morley’s opinion on the matter in its written opinion which dismissed the father’s motion to allow this travel.  The relevant portion of the Court’s findings in relation to Mr. Morley’s expertise is as follows:
“Ms. Junger filed a detailed and helpful affidavit of Jeremy D. Morley, a New York State lawyer specializing in international family law.  Mr. Sherman did not challenge Mr. Morley’s expertise.  That affidavit unequivocally outlined the many challenges, frustrations-and indeed roadblocks-which the Applicant would face in attempting to secure V’s return if the Respondent elected not to return the child from India.
It was his ‘very firm opinion’ that notwithstanding any order of a court in Ontario, if the father retained the child, ‘it would be exceedingly difficult and perhaps impossible for the mother to secure V’s return home from India.” Any court proceeding in India to secure the child’s return would be exceedingly slow.  Indian courts do not honor Canadian custody orders.  The mother would have to spend considerable money on legal fees to try and secure the child’s return-or even have access to the child in India.  India does not comply with international norms concerning the return of internationally abducted children ‘and it is a justifiably well-recognized safe haven for international child abductors.’  India has chosen not to accede to the Hague Convention.  ‘India’s failure to sign the treaty constitutes a strong signal that it does not consider the abduction of children from other countries to be a serious matter.’  Indian courts generally do not enforce foreign custody orders.  The law in India is that foreign custody orders are merely items to consider as part of an overall de novo custody review.  International child abduction is not a crime under Indian law and no Indian legislation contains any helpful provisions to deter international child abductions.  There can be no extradition from India for international child abductions.  The court system in India is extremely slow and inefficient.  The delays are such that an abductor has ample time to create ‘facts on the ground’ in terms of getting the child sufficiently settled into life in India to justify an Indian court in ultimately deeming that it is best to keep the child in India. 
At paragraph 23 of his affidavit, Mr. Morley gives a sobering warning:
‘As a consequence of India’s failure to promptly return internationally abducted children, courts outside of India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of 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.’
While the Respondent’s lawyer did not categorically challenge Mr. Morley’s observations and warnings, Mr. Sherman suggested that any concern could be addressed by the Respondent’s offer to sign a legal document in Canada acknowledging that he would consent to the Indian court sending V back to the mother in the event of a dispute.  Given Mr. Morley’s comments about the danger of Indian courts ignoring orders signed by Canadian judges, it is unclear why Indian courts would be more likely to respect a document signed by a parent. 
And considering Mr. Morley’s warnings about India not being a signatory to the Hague Convention - warnings borne out by the cautionary tale in the Venkatesh case - there are overwhelming reasons to be concerned that if the Respondent retained V in India, there is very little the Applicant could do about it.
The Respondent’s motion is dismissed.”
The decision may be found at

Wednesday, October 20, 2010

Prenuptial Agreements in England

England's Supreme Court, its highest court, has today ruled in Radmacher v. Granatino, that "decisive weight" should be given to the German prenuptial agreement signed by a German heiress and her French husband. The husband had agreed that he would make no claims on Ms. Radmacher's estimated £100m fortune.

The trial court had followed established precedent that prenuptial agreements were no more than evidence of the intent of the parties. That court awarded £5 million to the husband.

The intermediate appellate court, the Court of Appeal, had then cut the award to £1 million, based upon the prenup.

The Supreme Court has now upheld the Court of Appeal, based upon its application of the overall rule of “fairness.”

As one who drafts very many international prenuptial agreements a strong word of warning is essential.

The new ruling maintains the strong role of the English courts in reviewing prenuptial agreements for fairness in a far more interventionist way than courts in most of the rest of the world.

The decision does not make prenuptial agreements necessarily binding. It directs judges to ensure “fairness” on a case-by-case basis.

The facts of the Radmacher case were far more compelling than those that will exist in the more “garden variety” of divorce cases involving parties of less wealth, less sophistication and who are less international.

The family courts in England and Wales will continue to have a very significant discretion in the area of prenuptial agreements.

Prenuptial agreements for any party or partner of a party who is English or who has a current or even a potential English (or U.K.) connection must be carefully drafted and counsel must continue to protect their clients -- and also themselves -- in this area with extreme caution and a full understanding of the nuances of current English law.

Wednesday, September 29, 2010

Resolution Condemning Japan for International Child Abduction: Full Text

Here is the full text of House Resolution 1326, passed almost unanimously by the U.S. House of Representatives today, September 29, 2010, condemning Japan's "abduction and wrongful retention" of children -- including the children of several of my clients -- and urging Japan to act "immediately" to resolve cases involving U.S. parents.
111th CONGRESS, 2d Session, H. RES. 1326
Calling on the Government of Japan to immediately address the growing problem of abduction to and retention of United States citizen minor children in Japan, to work closely with the Government of the United States to return these children to their custodial parent or to the original jurisdiction for a custody determination in the United States, to provide left-behind parents immediate access to their children, and to adopt without delay the 1980 Hague Convention on the Civil Aspects of International Child Abduction.


Calling on the Government of Japan to immediately address the growing problem of abduction to and retention of United States citizen minor children in Japan, to work closely with the Government of the United States to return these children to their custodial parent or to the original jurisdiction for a custody determination in the United States, to provide left-behind parents immediate access to their children, and to adopt without delay the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Whereas Japan is an important partner with the United States and shares interests in the areas of economy, defense, the promotion of global peace and prosperity, and the mutual protection of the human rights of the two nations' respective citizens in the increasingly integrated global society;

Whereas the Government of Japan acceded to the Universal Declaration of Human Rights that states under Article 16 (1), `Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution', and Article 16 (3), `The family is the natural and fundamental group unit of society and is entitled to protection by society and the State';

Whereas the Government of Japan acceded in 1979 to the International Covenant on Civil and Political Rights that states `States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children [Article 23]';

Whereas according to Japan's National Institute of Population and Social Security Research, 44,701 marriages between a Japanese national and a foreigner were registered in Japan in 2006, and 17,102 divorces were registered in Japan in 2006 between a Japanese national and foreigner;

Whereas since 1994 the Office of Children's Issues (OCI) at the United States Department of State had opened 194 cases involving 269 United States citizen minor children abducted to or wrongfully retained in Japan, and as of March 25, 2010, OCI had 85 open cases involving 121 United States citizen minor children abducted to or wrongfully retained in Japan;

Whereas since the signing of the Treaty of Peace with Japan (San Francisco Treaty) between the Allied Powers and the Government of Japan in 1951, the Japanese Government has never issued and enforced a legal decision to return a single abducted child to the United States;

Whereas Japan has not acceded to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), resulting in the continued absence of an immediate civil remedy that as a matter of urgency would enable the expedited return of abducted children to their custodial parent in the United States where appropriate, or otherwise immediately allow access to their United States parent;

Whereas the Government of Japan is the only G-7 country that has not acceded to the Hague Convention;

Whereas the Hague Convention would not apply to abductions occurring before the accession of Japan to the Hague Convention, requiring, therefore, that Japan create a separate parallel process to resolve the abductions of all United States citizen minor children who currently remain wrongfully removed to or retained in Japan, including the 121 United States citizen minor children who have been reported to the United States Department of State and who are being held in Japan against the wishes of their parent in the United States and, in many cases, in direct violation of a valid United States court order;

Whereas the Hague Convention provides enumerated defenses designed to provide protection to children alleged to be subjected to physical or psychological abuse in the left-behind country;

Whereas United States laws against domestic violence extend protection and redress to Japanese spouses;

Whereas there are numerous acknowledged cases, such as the Jade and Michael Elias case, of Japanese consulates located within the United States issuing or reissuing travel documents of dual-national minor children in violation of United States court orders restricting travel and in violation of United States Federal criminal parental kidnapping statutes;

Whereas there are numerous cases in which the actions of the Government of Japan evidence a disregard of United States law and jurisdiction, other cases show indifference to the United States and customary international jurisprudence in the area of family law, which overwhelmingly reflects the worldwide preference for the resolution of parenting disputes by negotiated joint custody;

Whereas Japan's existing family law system does not recognize joint custody nor actively enforce parental access agreements for either its own nationals or foreigners, there is little hope for minor children to have contact with the noncustodial parent in violation of internationally recognized and protected rights;

Whereas there exists no due process within the Japanese family court system for the redress of such disputes, and the existing system has no recognized process to enforce a custody or parental access order from outside of Japan or within it, without the voluntary cooperation of the abducting parent or guardian;

Whereas the Government of Japan has repeatedly claimed to foreign governments that parental child abduction is not considered a crime in Japan despite the fact that Article 3 of the Japanese Penal Code does indeed make it a crime for a Japanese citizen to abduct a child and move the child across national borders, even if the child is moved to Japan;

Whereas the Government of Japan has refused to prosecute an abducting parent or relative criminally when that parent or relative abducts the child into Japan;

Whereas according to the United States Department of State's April 2008 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, abducted children are at risk of serious emotional and psychological problems and have been found to experience anxiety, eating problems, nightmares, mood swings, sleep disturbances, aggressive behavior, resentment, guilt, and fearfulness, and as adults may struggle with identity issues, their own personal relationships, and parenting;

Whereas left-behind parents may encounter substantial psychological, emotional, and financial problems, and many may not have the financial resources to pursue civil or criminal remedies for the return of their children in foreign courts or political systems;

Whereas Erika Toland was abducted in 2003 from Negishi United States Navy Family housing in Yokohama to Tokyo, Japan, by her now deceased mother and is being held by her Japanese maternal grandmother, while being denied access to her father since 2004;

Whereas Melissa Braden was covertly abducted from her home in 2006 by her mother to Japan in violation of previous Los Angeles Superior Court orders giving both parents access to the child and prohibiting international travel (travel to Japan) with the child by either parent and has since been denied any contact with her father;

Whereas Kai Hachiya was abducted in 2006 to Japan by his father, who had been found by a court of competent jurisdiction to have physically and mentally abused Kai's mother who had been awarded sole custody in the State of Hawaii, and as a result, Kai has had limited contact with his mother;

Whereas Isaac and Rebecca Savoie were abducted in 2009 to Japan by their mother in violation of a Tennessee State court order of joint custody and Tennessee statutes, and have been denied any access or communication with their father, despite their father having been awarded sole custody of them by a United States court;

Whereas Karina Garcia was abducted to Japan in 2008 by her mother, who was ordered by the United States courts to return Karina to the care of her sole custodian father in the United States, but the order to return of the child has not been granted even though the sole custody order had been recognized by the Osaka High Court;

Whereas United States citizen minor children who have been abducted to Japan are being deprived of their United States heritage;

Whereas, on October 16, 2009, the Ambassadors to Japan of Australia, Canada, France, Italy, New Zealand, Spain, the United Kingdom, and the United States, all parties to the Hague Convention, called upon Japan to accede to the Hague Convention and meanwhile to identify and implement measures to enable parents who are separated from their children to establish contact with them and to visit them;

Whereas, on January 30, 2010, the Ambassadors to Japan of Australia, France, New Zealand, the United Kingdom and the United States, the Charges d'Affaires ad interim of Canada and Spain, and the Deputy Head of Mission of Italy, called on Japan's Minister of Foreign Affairs, submitted their concerns over the increase in international parental abduction cases involving Japan and affecting their nationals, and again urged Japan to sign the Hague Convention;

Whereas the Governments of the United States and the French Republic have recently established bilateral commissions with Japan's Ministry of Foreign Affairs to share information on and seek resolution of outstanding Japanese parental child abduction cases;

Whereas the bilateral commission is limited by the fact that it does not currently include Japan's Ministry of Justice, which has jurisdiction over family law;

Whereas Japan's Justice Minister Keiko Chiba said upon her appointment that she is determined to show that Japan `is very proactive' in adopting international protocols and conventions that are the `international standard'; and

Whereas it is critical for the Governments of the United States and Japan to work together to prevent future incidents of international parental child abduction to Japan, which damages children, families, and Japan's national image with the United States: Now, therefore, be it

Resolved, That--

(1) the House of Representatives--

(A) condemns the abduction and retention of all minor children being held in Japan away from their United States parents in violation of their human rights and United States and international law;

(B) calls on the Government of Japan to immediately facilitate the resolution of all abduction cases, to recognize United States court orders governing persons subject to jurisdiction in a United States court, and to make immediately possible access and communication for all children with their left-behind parents;

(C) calls on the Government of Japan to include Japan's Ministry of Justice in work with the Government of the United States to facilitate the identification and location of all United States minor citizen children alleged to have been wrongfully removed to or retained in Japan and for the immediate establishment of a protocol for the resolution of existing cases of abduction, interference with parental access to children, and violations of United States court orders;

(D) calls on the Government of Japan to establish immediately a protocol and timetable to amend its Civil Code to allow for enforceable rights of parental access and communication between minor children and their divorced or separated parents including parents who are not Japanese citizens;

(E) calls on the Government of Japan to review and amend its consular procedures to ensure that travel documents for minor children are not issued in violation of United States court orders;

(F) calls on Japan to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction without delay and to promptly establish judicial and enforcement procedures to facilitate credibly the immediate return of children to their habitual residence and to establish protocols for the organization of rights of international parental access; and

(G) calls on the President of the United States and the Secretary of State to seek immediately to identify credibly all United States citizen minor children who have been wrongfully removed to and who are retained currently in Japan and to raise the issue of abduction and wrongful retention of those United States citizen minor children in Japan with Japanese officials and domestic and international press; and

(2) it is the sense of the House of Representatives that the United States should--

(A) recognize the issue of child abduction to and retention of United States citizen minor children in Japan as a central foreign policy issue of paramount importance to the United States within the context of its bilateral relationship with Japan;

(B) work with the Government of Japan to enact consular procedures and legal agreements to prevent parental abduction to and retention of United States citizen minor children in Japan;

(C) encourage the Government of Japan to adopt the policy of not issuing duplicate passports when a United States judge has restricted a child's travel or ordered the surrender of passports and to otherwise require notarized signatures from both parents before issuing a passport to a child;
(D) review its advisory services made available to United States citizens from the Department of State, the Department of Justice, and other government agencies to ensure that effective and timely assistance is given to United States citizens in preventing the incidence of wrongful retention or removal of minor children and acting to obtain the expeditious return of their children from Japan;
(E) review its advisory services made available to members of the United States Armed Forces, particularly those stationed in Japan by the Department of Defense and the United States Armed Forces, to ensure that effective and timely assistance is given to them, including providing legal assistance in preventing the incidence of wrongful retention or removal of minor children and acting to obtain the expeditious return of their dependent children from Japan at the conclusion of their tour of duty in Japan;
(F) call upon the Secretary of Defense to include the issues of child abduction and the protection of members of the United States Armed Forces and their families stationed abroad in any current or future status of forces agreement;
(G) call upon the Secretary of State to enact immediately a Memorandum of Understanding with the Government of Japan to establish a bilateral protocol with procedures to address immediately any parental child abduction or access issue reported to the United States Department of State; and
(H) urge the Department of State to include international child abduction and Japan's actions regarding abductions as a human rights violation under its Country Reports on Human Rights Practices.

Thursday, August 12, 2010

More on Neulinger & Shuruk v. Switzerland

David Hodson on International Family Law


Swiss clockmakers fail to tell the time: ECHR allows abduction after many delays

David HodsonThere is much controversy across the child abduction world, between Europe and non-European countries, following a decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Neulinger & Shuruk v. Switzerland (Application no. 41615/07) handed down on 6 July 2010. A Swiss couple moved to Israel and the child was born in 2003. The mother was anxious that the father had become involved in an extremist sect. In June 2005 the mother abducted the child to Switzerland. In May 2006 an Israeli court declared the child's habitual residence was in Israel. The litigation moved to Switzerland and over the next couple of years there were orders for return, then findings of harm if the child was returned and many appeals. Eventually the matter reached the ECHR which after preliminary investigations and reports in 2009 has just made its decision. And it appears very surprising.
In summary, it ruled that the European Convention on Human Rights concerning the integrity of family life, especially Article 8, overcomes the Hague Abduction Convention. It decided the ECHR was appropriate to consider if a domestic court in applying and interpreting the Hague Convention has secured Article 8 rights. Accordingly it would look at the best interests of the child at the present time rather than at the abduction or the return order of the Swiss courts. Timing was crucial. Several years had elapsed since the abduction, in good part through litigation, and the child was now well settled in Switzerland. A return was not ordered. So the expectations of almost automatic return in the Hague Convention came secondary to the European Convention on Human Rights.
Understandably this decision has created much consternation, especially outside Europe which is not a party to the Human Rights Convention. Jeremy Morley, one of the world's leading international family lawyers, practising from New York, has rightly drawn attention to the decision and the concern from outside Europe that a different course of action will now proceed in Europe in contrast to the conventional Hague approach. Internet chatroom cynicism to the decision is predictably that it shows that abduction pays. My colleague, Carolynn Usher, one of the world's leading and most experienced child abduction lawyers, has however contrasted the approach of the UK and some other countries in mostly adhering to the requirements in the Brussels Regulation (BIIr) for a six-week resolution including appeals, which in practice is extended to all Hague cases. The true failure in this case was that of the Swiss legal system to deal expeditiously.
The controversy over the decision will continue. What cannot be controverted is that some countries, including within the EU, take an unacceptably long time to deal with child abduction litigation including appeals. As a consequence, the life of the child has genuinely moved on. The answer is not to criticise the European Court of Human Rights. The real answer is to have a system which enforces and penalises those countries who are so slow to return abducted children as to work against the best interests of children.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on  The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

Book Review!

Book Review – “International Family Law Practice” by Jeremy Morley
Jeremy Morley’s book is aimed mainly at US family lawyers whose work, either frequently or occasionally, involves international elements.  It is not only an important resource for such US lawyers, but it is also a very helpful introduction to international issues for family lawyers from other countries, especially where US elements are involved.
The author says that his intention is “to provide an extremely practical approach to handling international family law matters in collaboration with family lawyers in local and distant jurisdictions”.  It does just that.  It is written in a very digestible and user -friendly way.   The readable style makes it is easy both to read through a whole chapter on a particular subject, and to drill down to a particular sentence or paragraph to extract a specific piece of information.   
I particularly like the way the book is interspersed with  practical information, advice and tips, which I expect will be especially helpful to those who practice this area of the law infrequently.  The author is concise and makes frequent use of bullet points to illustrate practical points and tips, for instance in the form of checklists, information required, competing considerations and basic principles to be applied.
The author’s considerable experience in the international family law field is abundantly apparent throughout the book.  He manages to simplify and put into bite size chunks complex areas of law and competing considerations so that they are easily understandable and readily digestible.
The book focuses on two main areas.  The first is international marriage and divorce and the second is that of children.  The first area includes chapters dealing with foreign pre and post-nuptial agreements including drafting considerations where there is a foreign element or prospect of future international relocation; and chapters on international divorce planning and the recognition of foreign country divorces.
The children chapters cover international child support issues, international custody and international relocation.  The final chapters deal with international child abduction including both Hague and non-Hague convention cases and also the prevention of child abduction.
From the non-US lawyer’s viewpoint, the book is not only a guide to some of the more important family laws and principles in other international jurisdictions (although of course it does not deal with any treaties or conventions between Countries other than the US), but it is also very useful for the practical information, guidance and tips it provides – many of which are as applicable to family lawyers around the world as they are to US lawyers.
William Massey
Farrer & Co LLP
to purchase:

Thursday, July 29, 2010

Non-Hague International Child Abductions from Britain

This map, prepared by the U.K.'s Foreign & Commonwealth Office, shows those non-Hague countries with the highest numbers of new British child abduction cases. The countries are Pakistan, India, Russia, N. Cyprus, Nigeria, Malaysia, Thailand, the Phillippines, Ghana and the UAE.

Thursday, July 22, 2010

Australia - An Intelligent Ruling on International Child Visitation

I had the great pleasure of lecturing in Tokyo this week on the Hague International Child Abduction Convention on a panel with The Hon. Justice Victoria Bennett of the Family Court of Australia.
She was most impressive in discussing her insistence on sensible decision-making in international custody and abduction cases.
A quick internet search of her name led me to one of her recent decisions in an international case, discussed in the article below, which confirms her application in practice of an intelligent and practical approach to tricky international child custody cases.

Judge orders Spanish lessons for children
BELLINDA KONTOMINAS, Sydney Morning Herald,April 22, 2010
A COURT has ordered that an Australian mother enrol her children in Spanish classes to learn the culture and customs of their father's homeland.
Family law experts say the decision is highly unusual, but consistent with changes to laws emphasising cultural factors when considering what is in the best interest of a child when parents separate.
The woman, known in court documents as Ms Quang, met the man in Spain in August 2004 and they had plans to settle in Australia. But by October 2006, when their Spanish-born daughter was 16 months old and their son was about to be born, their relationship had broken down.
It was agreed that if the woman returned to live in Australia with their two children, she would allow them to spend two months each year with their father in Spain.
But she later refused to fly the children to Spain, claiming she had signed the agreement under duress and the children would experience separation anxiety away from her care.
During a Family Court hearing the mother was described by the judge as ''fearful and desperately sad at the prospect of having to return to Spain with the children''. The father was adamant that his children would not know him properly until they had stood on Spanish soil and ''benefit[ted] from his rich family life.''
The mother would consider taking them to Spain if the father first developed a relationship with them in Australia.
The father had never met his son and the only contact he had had with his children since the separation was by webcam and telephone, the court heard.
Justice Victoria Bennett accepted that if the children spent a long time without their mother ''the bottom would fall out of their worlds''.
Justice Bennett ordered they remain living with her in Victoria and that for the next three years, the father visit them there for three weeks, gradually increasing the time he spent with them on each occasion.
She also ordered they learn the language and customs of their father's culture.
A senior lecturer in law at the University of Wollongong, John Littrich, said he had not heard of such an order in 13 years in practice. The court had found an effective way to maintain the cultural link between the children and their father so he did not become more of a stranger to them, he said.
A professor of law at Sydney University, Patrick Parkinson, said it was a smart and ''creative'' decision.

Tuesday, July 13, 2010

A Momentous and Disturbing Ruling in Europe on the Hague Abduction Convention

Jeremy D. Morley

The Grand Chamber of the European Court of Human Rights (the “ECHR”) has issued, just days ago, a major decision that – at least at first blush – appears to have an extremely significant impact on the interpretation and application of the Hague Abduction Convention within Europe and may well lead to a major split between the way that Convention is interpreted and applied within Europe versus the rest of the world. The case is Neulinger & Shuruk v. Switzerland (Application no. 41615/07).

The ECHR has now ruled, in essence, that those provisions in the European Convention of Human Rights concerning the integrity of the family – and, in particular, Article 8 which gives everyone the right to respect for family life – trump the provisions of the Hague Abduction Convention.

The European Court stated that it should not normally review whether a domestic court has correctly decided whether or not a parent who has abducted a child has established that returning the child to the habitual residence would create a grave risk of harm to the child within the meaning of Article 13 of the Hague Convention. However, it also ruled that it is competent to determine whether a domestic court, in applying and interpreting the Hague Convention, has “secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child's best interests.” It then found that there is a broad consensus in support of the idea that in all decisions concerning children, their best interests must be paramount.

Applying those principles, the Court stated that it was required to consider the best interests of the child at the current time, rather than at the time of the abduction or the time of the Swiss courts’ return order. Since several years had been consumed by appeals the child had now been living for some years in Switzerland, had become well settled there and his father had since remarried in Israel and no longer seemed so interested in this child. Accordingly it was best not to send him back to the habitual residence from which he had previously been abducted.

Thus, the European Court has subordinated Article 13(b) of the Hague Convention to Article 8 of the European Convention and has thereby, at least in this author’s initial reading of the opinion, undercuts decades of jurisprudence within Europe to the effect that the Hague Convention is intended to have children returned very promptly to their habitual residence except if one of the very narrow and limited exceptions is established.

To a Hague Convention lawyer this ruling is shocking. Indeed, it now appears that courts within Europe may be required to conduct custody evaluations before internationally-abducted children are returned to their habitual residence.

Since the rest of the world is not a party to the European Convention on Human Rights there is likely to be a sharp division between the way that European countries handle international abduction cases as compared to non-European countries.

In a recent case the Ninth Circuit reiterated the fundamental principle that has long been applied in almost all Hague Abduction Convention countries that, “The Hague Convention seeks to deter parents from abducting their children across national borders by limiting the main incentive for international abduction-the forum shopping of custody disputes… A court that receives a petition under the Hague Convention may not resolve the question of who, as between the parents, is best suited to have custody of the child.. .With a few narrow exceptions, the court must return the abducted child to its country of habitual residence so that the courts of that country can determine custody.” Cuellar v. Joyce, 596 F.3d 505 (9th Cir. 2010).

However, Europe has apparently now embarked on quite a different course.

Wednesday, June 30, 2010

The Supreme Court and the Hague Abduction Convention

This article by Jeremy D. Morley appears in the July 2010 issue of The Matrimonial Strategist.

When Global Families Fail by G.M. Filisko

This article appears in the July 2010 issue of the ABA Journal

Christopher Savoie got the kind of telephone call that terrifies a parent on Aug. 12, 2008. The school where his two young children attended classes wanted him to know that they had not shown up that day. But Savoie’s first thought was not that Isaac and Rebecca had been victimized by some stranger. Instead, he rushed over to his ex-wife’s home not far from his in the Nashville, Tenn., suburbs. “The first thing that came to mind was murder-suicide,” he says. “It was a horrible thing to imagine. I’d had no contact with her in two days, and that wasn’t normal.”

Savoie found his ex-wife’s house empty and the blinds drawn. That’s when another explanation for the children’s disappearance began to worry him.

For months, Savoie had been telling people—including the judges overseeing the couple’s divorce—that he feared his ex-wife, Noriko, would quietly slip away with their children to her native Japan, whose domestic relations laws don’t provide for joint parental custody. But, he says, “Everybody had been assuring me, saying, ‘You’re too neurotic.’”

Savoie, the managing partner of a mediation firm, tried to reach his ex-wife, but his calls went unanswered—until he dialed from a number Noriko wouldn’t recognize. “My-father-in law picked up and said, ‘Don’t worry. The kids are here with us,’” Savoie recounts. “I said, ‘What?’ I blacked out. I was in a fetal position screaming and crying. The anger also came out: Why didn’t they believe me that this could happen?” Frustrated with what he describes as intransigence toward his parental interests, Savoie traveled to Japan in September 2009, where he tried to re-abduct his children while they were walking to school. He was detained by Japanese police and later released. The children were released to their mother. Savoie, now a student at the Nashville School of Law who wants to work in the child abduction field, says he won’t give up on trying to see his children. “My ex-wife doesn’t allow any contact with the children at all,” he says. “I haven’t spoken to them since I saw them dragged off by the Japanese police. But you don’t lose hope as a parent.”


Savoie’s dilemma typifies yet another byproduct of globalization. There is nothing new about people from different parts of the world meeting, mating and sometimes breaking up. But in today’s world of multinational business and easy international travel, the odds of pairing up with someone from a different country and culture are higher than they ever were—and so are the chances that such a relationship may end in a breakup, along with the myriad legal battles that often go with it.

Divorces already are fraught with emotion, anxiety and often animosity, but experts say they can become even more combustible when the potential for culture clash is added to the mix, especially if the parties believe the laws of their home countries will better protect their interests.

“Where cultures have both different dispute resolution procedures and different social and family norms, those come into play,” says Jana Singer, a professor at the University of Maryland School of Law in Baltimore. “The more difference there is between and among cultures, the more potential there is for conflict if a family finds itself unable to resolve a dispute.”

And when someone is put in the predicament of, for instance, a Christopher Savoie, it can be easy to view another country’s laws as essentially unfair to noncitizens.

“We’re talking about people who are legitimately concerned they may never see their children again if they’re taken to a country that doesn’t recognize U.S. judgments or is biased in favor of its own nationality or religion,” says Jeremy Morley, a solo practitioner in New York City who represents Savoie in his custody dispute.

“In addition, enforcing financial orders in another country may be complex, expensive and often impossible,” says Morley, who co-chairs the International Family Law Committee in the ABA Section of International Law. “There’s no coordination between legal systems, and the laws don’t mesh. Enforcement is then often an issue because laws are applied differently in different cultures.”

Cases in which one parent takes children out of the United States in violation of a court order or over the objections of the other parent are on the rise. In 2009, there were 1,135 such reported cases involving 1,621 children, up from 749 cases in 2007 and 642 cases in 2006, according to a U.S. State Department report issued this year.

But before a child abduction occurs, there typically has been a marriage between people from dif- ferent countries, often accompanied by the execu tion of a prenuptial agreement, followed by a contentious international divorce.

“There are many issues about prenups when an international couple marry, including under whose laws their prenup should be governed,” Morley says. “The prenups I work on are significantly more complex than a marriage between ‘locals.’ Then there’s the huge issue of divorce. Where do we get divorced, and who will recognize the divorce?”

Because the financial outcome in a divorce can vary greatly in different national judicial systems, parties often race to the courthouse to lay claim to jurisdiction in their favored country. “There are a lot of attempts at—and these are legitimate and not illegal—forum shopping in international divorces,” according to Stephen J. Cullen, a principal at Miles & Stockbridge in Baltimore who heads the firm’s family law and private clients group. “A lot of people try to avoid getting divorced in London. It’s so expensive, and the awards can be so high because solicitors’ and barristers’ fees are enormous, even compared with our fees in this country. In addition, in the United Kingdom, usually the loser pays all. The American view is usually you bear your own fees and costs.”

Parties also rush to court to gain advantages in child custody and support matters. “There may be a race to try to get an injunction before a child is taken out of a country,” Morley says. “In addition, if the case is handled in another jurisdiction, support judgments may never be enforced and awards that are rendered by other countries may be totally different from those rendered here.”

Similar legal systems or common cultural backgrounds don’t necessarily reduce conflicts over domestic relations law. Cullen points to domestic partnerships as a prime example. “The United States has a hard enough time among the states on domestic partner issues, and America is somewhat behind in that field,” he says. Meanwhile, “All 27 countries in the European Union have to recognize gay marriage under the European Convention on Human Rights.”


As more domestic relations cases become international in nature, treaty law is playing a more important role in governing how they are resolved.

“Inevitably there have to be more international agreements,” says Morley. “They’re really hard to accomplish and enforce. But it’s far better to have an agreement than no agreement at all.”

The first of these agreements to be widely adopted is the Hague Convention on the Civil Aspects of International Child Abduction (PDF). The convention was negotiated by members of the Hague Conference on Private International Law, whose current membership encompasses 69 nations, including the United States, and the European Union (rep resenting its 27 member nations). The language of the child abduction convention was finalized in 1980, and the convention went into force in 1983. The United States became a party to the convention when the U.S. Senate ratified it in 1988. The convention is in force in 82 nations, although they are concentrated primarily in Europe and the Americas. The convention’s scope is rather limited. Its primary purpose is to expedite the return of a child under the age of 16 to the country of his or her “habitual residence” if the child was wrongfully removed from that country. Under the convention, a removal is “wrongful” if it is in breach of “rights of custody”—whether by law or court order—as long as they were being exercised at the time of the removal or if they would have been exercised but for the removal. Substantive jurisdiction over custody matters remains with the member states.

In 1993, members of the Hague Conference concluded the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (PDF). The adoption convention is in effect in 81 countries. The U.S. Senate ratified the convention in 2008. The convention establishes minimum standards for intercountry adoptions without creating uniform law for the ratifying states. Its primary purpose is to assure that adoptions take place in the best interest of the child and protect the child’s fundamental rights as outlined by the U.N. Convention on the Rights of the Child, which entered into force in 1990.

“One of the major concerns of the convention was to make sure adoptions were carried out with ethical transparency and that reliable procedures were in place to avoid problems of trafficking of children,” says Ann Laquer Estin, a professor at the University of Iowa College of Law in Iowa City whose focus is international family law. “It’s clear there is some percentage of cases where the processing before the adoption occurs isn’t proper, and there’s sometimes outright kidnapping to make children available for intercountry adoption.”

More recently, the Hague Conference drafted the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (PDF), along with a protocol for laws applicable to maintenance obligations (PDF). A key purpose of the convention is to facilitate recognition and enforcement of support and maintenance decisions outside the jurisdiction in which they were issued. The treaty was signed by the United States on the day it was adopted, although it still needs Senate ratification to have effect in this country. No other countries have signed the treaty.

The child support convention could be a boon for parents in the United States seeking to enforce support and maintenance orders in foreign jurisdictions, says Morley. “Here in the United States, support jurisdiction is where the debtor is located,” he says. “Almost the entire world has the opposite, where there’s jurisdiction where the creditor is located. Bridging that gap has been very tough, and the treaty is the result of years and years of intense negotiation. The United States is in the forefront of getting others to join that convention, but we’re the only country to have signed it.”


The growing structure of international treaties addressing international family law issues was given a boost on May 17 when the U.S. Supreme Court issued a ruling in Abbott v. Abbott (PDF) that reinforces key provisions of the child abduction convention. In 1992, Timothy Abbott, a British citizen, married Jacquelyn Vaye Abbott, a U.S. citizen, in the United Kingdom. The couple was living in Hawaii when their son A.J.A. was born in 1995. They were living in Chile when they separated in 2003. A Chi lean court awarded Jacquelyn custody and Timothy visitation. Later, the court issued an order prohibiting either parent from removing A.J.A. from Chile without the other parent’s consent. In 2005, while legal proceedings were still pending in Chile, Jacquelyn left the country with A.J.A.; a private detective hired by the father located her in Texas.

At that point, both parents initiated legal actions in the Texas courts. Jacquelyn sought full power to determine their son’s place of residence, while Timothy requested an order for her to show cause why he shouldn’t be allowed to return to Chile with A.J.A. After the state court denied Timothy’s requested relief, he turned to the federal courts, but he was unsuccessful, both in district court as well as the 5th U.S. Circuit Court of Appeals at New Orleans. The Supreme Court granted a writ of certiorari last year and heard arguments in January.
In deciding Abbott, the court focused on the meaning of a key term in the child abduction convention. The convention states that the removal of a child is wrongful where it is in breach of a parent’s “rights of custody” under the law of the country in which the child regularly resided. The Chilean court granted the mother and father a joint right to decide their child’s country of residence, known as a ne exeat right. The question that the U.S. Supreme Court addressed was whether that right articulated by the Chilean court is the equivalent to a right of custody under the convention. The answer is yes, the majority decided in the Supreme Court’s 6-3 ruling in favor of Timothy Abbott.

The majority opinion written by Justice Anthony M. Kennedy emphasized the importance of finding uniform meanings for terms in the child abduction convention. “That a ne exeat right does not fit within traditional notions of physical custody is beside the point,” wrote Kennedy. “The convention defines ‘rights of custody,’ and it is that definition that a court must consult. This uniform, text-based approach ensures international consistency in interpreting the convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil law tradition.”

Kennedy’s opinion also noted that the court’s decision reinforces the purpose of the convention. “Inter national law serves a high purpose when it underwrites the determination by nations to rely upon their domestic courts to enforce just laws by legitimate and fair proceedings,” Kennedy wrote. “To interpret the convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial cases.”

Cullen, who wrote an amicus brief in Abbott with Miles & Stockbridge associate Kelly Powers on behalf of the Hague Conference, is enthused by the Supreme Court’s ruling. “Now we have the highest court in this land emphasizing how important this treaty is, what a scourge on our society child abduction is, and how this remedy is to be construed very liberally,” Cullen says. “It’s great that we have a bright-line clarity that a ne exeat order, which is used by courts in this country all the time, is a right of custody.”

Law professor Singer, however, is more reserved in her judgment of the decision. “Both the majority and the dissent made some very valid points,” she says. “The majority looked primarily at the words of the treaty and found that the text defined rights of custody broadly, and that was consistent with the drafters’ report to define the scope of the treaty broadly.” But as the dissent written by Justice John Paul Stevens (with Justices David H. Souter and Clarence Thomas concurring) points out, that broad interpretation gives essentially the same powers to parents with rights of access to the child as those held by parents with rights of custody.
“The problem with the majority’s decision is that it eviscerates that distinction,” Singer says. “By operation of law, the rights of access have been converted into rights of custody under the majority decision, and that’s problematic.” As a result of the Abbott majority’s broad interpretation, Singer says, “this decision makes the treaty more applicable in more cases. It expands the treaty’s reach.”


Even as international treaties relating to family law grow in reach and credibility, they are not a cure-all—at least not yet—for the many difficult issues that can arise in a family law dispute that crosses national boundaries. As the Supreme Court’s decision in Abbott shows, one ongoing issue is how to achieve some semblance of uniform interpretation of treaty language by the courts of various member nations.
“Even where there’s a fairly well-defined international framework, enforcement isn’t always a given,” Singer says. “Since there’s no international child custody court, there are issues about whether a country will live up to its obligations. Even countries that have signed treaties, when they’re faced with cases involving one of their citizens, sometimes may favor their own citizens.”

Further difficulties arise from the fact that some nations—or even entire regions—have not ratified one or more of the international family law conventions. Generally, the conventions have effect only in nations that have ratified them. Neither the child abduction convention nor the international adoption convention has been ratified by China, India, Russia or many countries in Africa and the Middle East.

Japan has not ratified the treaties either, which helps explain the difficulties Savoie has encountered in his efforts to contact his children after his Japanese ex-wife took them to her homeland. Savoie also must contend with Japan’s distinct approach to family law. Under traditional Japanese law, a child may be a member of only one family, Morley says. “When a child is born, the child’s name is placed upon a family register called a koseki,” he says. “It’s of key significance in the life of people in Japan.” When Japanese citizens marry, they create their own koseki and have their own legal status as a family, according to Morley. If they divorce, children are assigned to one parent’s family; the Japanese koseki system simply has no mechanism for sharing children between two families. Reflecting that custom, Japan’s civil code has no provisions for shared custody or visitation.

Morley adds, “There’s an enormous problem in Japan of a lack of understanding and suspicion of foreigners. In the real world, there’s little chance a foreigner will get custody of a child instead of a Japanese person.”
There are barriers in other regions, as well, to adopting the uniform approach to family law matters embodied in the conventions. “In the Muslim world, Shariah law is pre-eminent and has particular rules about the assignment of custody of children to one parent or another based on their gender or age,” Morley says. “Most Middle Eastern countries aren’t part of the Hague Convention because they feel it’s not consistent with Shariah law. I’ve represented people who have lost their children to countries there, and it’s very hard to get the kids back, and often impossible.”

Morocco, which is predominantly Muslim, announced in March that it would become the first country in North Africa to sign the adoption convention, but experts in the field don’t necessarily view the action as the start of a trend in that region. “With Middle Eastern countries, eventually there will be progress, but there are always going to be certain things that stand in the way,” says Robert G. Spector, a professor at the University of Oklahoma College of Law in Norman and a vice-chair of the ABA International Law Section’s International Family Law Committee. Some U.S. lawyers give clients blunt advice if they are dealing with family law matters that involve countries outside the reach of international treaties. “Sometimes people come to me and say, ‘My spouse wants to take my child to this country for a holiday, and I want to know if I’m allowed to keep that from happening,’ ” says Marcia M. Maddox, founding partner of the Maddox Law Firm in Vienna, Va. “Once you get into a country that’s not a signatory to the Hague Convention on abduction, I tell them, ‘No, don’t let that happen. Take the child’s passport, whatever you have to do.’ If these couples are having marital problems, the spouse isn’t going to see the child again.”

Despite the difficulties, many experts are confident that the process for dealing with international family law cases is headed in the right direction, but they also caution that patience will be a virtue for people working in the field. “This is a long-term process,” Spector says. “Negotiating and working on international treaties of any kind, and family law in particular, isn’t for those who need instant gratification.”