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.