Tuesday, January 24, 2012

Hong Kong Prenuptial Agreements

It is expected that the courts in Hong Kong will follow the lead of the English courts concerning prenuptial agreements. That opinion was reflected in the recent Hong Kong case of SA formerly known as SA v. SPH [2011] HKCFI 1649; HCMC1/2011 (10 Nov.2011).

The current state of English law on prenuptial agreements may be found in the ruling of the UK Supreme Court in Radmacher v. Granatino.

There the court ruled on preliminary matters in a divorce case between German nationals whose matrimonial residence had been in Hong Kong. The issue concerned the effect of a prenuptial agreement and also a separation agreement which the parties had executed in Germany under German law. The court recognized that the effect of these agreements in Germany was likely to be far different from their effect in Hong Kong. In Germany the agreements were likely to be enforced strictly but in Hong Kong it was likely that a court would apply the Radmacher case and would therefore not be enforced unless it were established that the agreements were “fair in all of the circumstances.”

The husband asked the Hong Kong court to stay the action in its court pending a determination of the issues by a court in Germany. The Hong Kong court agreed to do so but only because it determined that Hong Kong law would allow the wife to apply for an additional financial award in Hong Kong if the courts in Germany were to make an award that was unfair to the wife when examined under Hong Kong’s laws. Thus the wife would have “two bites of the apple.” She could argue her case in Germany and then come back to Hong Kong for a second round if she was unhappy with the result in Germany.

The review of the matter in Hong Kong would likely occur under the guidelines in Radmacher. There, the English court ruled that courts “should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” A prenuptial agreement might have “decisive weight” but must always be reviewed on a case-by-case basis for fairness.

The conclusion is that prenuptial agreements for international people based in Hong Kong may be tremendously useful but must be carefully drafted by counsel with international experience and knowledge.

Friday, January 20, 2012

Hague Abduction Convention under Threat from the European Court of Human Rights

The European Court of Human Rights (the “ECHR”) continues to attack the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), including a decision issued in December 2011.
In June 2010 in Neulinger & Shuruk v. Switzerland the ECHR ruled that the European Convention on Human Rights requires that courts may not return an abducted child to its habitual residence, even when the child’s return is mandated by the Hague Convention, unless it is first established that it is in the best interests of both the child and the child’s family to do so.
The ECHR thereby overruled thirty years of international case law, discounted the fundamental purposes of the Hague Convention of deterring international child abduction and of not rewarding international child abduction, and ensured that any Hague case that follows its precepts will be lengthy and expensive as well as often unfair to the left-behind parent who must now defend what could be almost a custody case on the taking parent’s home turf.
Notwithstanding extensive criticism of its decision the ECHR has followed the Neulinger case in more recent cases.
In Šneersone and Kampanella v. Italy (ECHR Application no. 14737/09) the ECHR applied Neulinger to override an Italian return order that had been issued after an admitted international child abduction from Italy to Latvia.
In April 2006 the child’s unmarried mother unilaterally took the parties’ son from their habitual residence in Rome, Italy to her native Latvia where she retained him. She claimed that she did so because the father was not paying child support and she could not afford to remain in Italy.
The ECHR criticized the Italian courts’ failure to consider: (a) the risk that the child’s separation from his mother might leave him with neurotic problems or an illness, (b) the father’s failure to visit his son in Latvia since 2006 or (c) whether the father’s home was suitable for a young child.
The ECHR, citing Neulinger, stated that it “must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin.”
The Court’s decision is astonishing for its failure to criticize the mother’s conduct in abducting the child in the first place and for its failure to address the fact that the Article 13(b) exception should not be invoked when the abducting parent is the one who creates the risk by refusing to return with the child. The ECHR decision endorses international parental child kidnapping and constitutes an extremely dangerous precedent.
Equally disturbing is the case of X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011.
Here the child was taken from her habitual residence in Australia to Latvia by the Latvian mother. The father in Australia commenced a Hague proceeding promptly and the Latvian court, after a hearing, promptly issued a return order. On appeal the mother asserted that the child would suffer psychologically if she were returned to Australia without her mother and supported this assertion with a psychologist’s report and she claimed that she did not have the financial resources to return there. The appeal failed in January 2009.
Almost three years later the ECHR ruled that the Latvian return order violated Article 8 of the European Convention because the Court disregarded the psychologist’s report and did not sufficiently consider “what would happen as regards the child’s material well-being if returned to Australia.”
For a full discussion of these issues see my just-published article in the IAML Law Journal, TheHague Abduction Convention: A Critique of the Neulinger Case.

Wednesday, January 18, 2012

Quebec Court Orders Return of Children to California

We are very pleased to report a successful outcome in a California – Quebec, Canada international child abduction case. We represented the father and worked with local counsel in California and in Quebec.

The Quebec Court of Appeal has just issued a judgment overturning the decision of the Superior Court in Quebec and ordering that the children must be returned home forthwith to California.

The lower court refused to return the children to their habitual residence in California on the grounds that the father had consented to the children’s move to Quebec and that there was a grave risk of harm to them if they were to return. The appeal court gave short shrift to each such defense, criticizing the trial court for having given far too liberal an interpretation to the exceptions in the Convention and insisting instead that they must be restrictively interpreted.

With respect to consent, the appeal court held that while it was reluctant to interfere with the findings of fact of the trial court, the record did not contain the required clear, positive and unequivocal of consent that the Convention requires.

With respect to grave risk, the appeal court insisted that a removing parent must not be allowed to abduct a child and then, when brought to court, complain that the child has grown used to the surroundings to which the children were abducted.