Wednesday, June 19, 2013

India’s 498a Law – The Abuse Continues

Jeremy D. Morley
In a landmark decision in 2010, Preeti Gupta v. State of Jharkhand, the Supreme Court of India lambasted the prevalent abuse of the infamous Section 498a of the Indian Penal Code law demanded that the legislature should change the law and directed that a copy of its decision be sent to the Law Commission of Indian the hope that the legislation might be amended.
The Law Commission issued a report in August 2012, calling for quite modest changes in the law. However, even those changes have not yet been enacted.
In Gupta the Supreme Court demanded that lower courts intervene to prevent the rampant consequential abuse of process, which has “led to enormous social unrest affecting peace, harmony and happiness of the society”; ruled that “most” 498a cases are filed in the heat of the moment over trivial issues without proper deliberations; asserted that many such cases are not bona fide, that many are filed with an oblique motive, and that many are filled with exaggerated or false claims; explained that these cases “can lead to insurmountable harassment, agony and pain to the accused and to his close relations” and “immense sufferings for all concerned;” and stated further that an ultimate acquittal may “not be able to wipe out the deep scars of suffering of ignominy.”
Meanwhile the abusive conduct continues. The Law Commission reported that in 2010 there were at least 340,555 cases under Section 498-A that were pending trial in various courts towards the end of 2010 and that there were as many as 938,809 people who were implicated in these cases. The reason that there were almost three times as many people accused as there were cases is that the law expressly authorizes a wife (but not a husband) to ask the police to bring charges against all of the relatives of her husband who may have participated in the alleged acts of cruelty.
We have commented previously on this law, that was well-intentioned in its enactment but which is frequently misused in India as a means of blackmailing non-resident Indian husbands.
We have testified on several occasions as an expert witness on the 498a law in courts throughout the United States and Canada.

Thursday, June 13, 2013

Japan’s Hague Abduction Convention “Guidelines”

If the article below is accurate one may ask why Japan is even bothering to pretend to comply with the Hague Abduction Convention.

The article states that if a Japanese court orders that an abducted child should be returned to the country of the child’s habitual residence the child will nonetheless not be removed from the abducting parent if that parent refuses.

I sincerely hope that the Mainichi article is inaccurate for otherwise it would mean that a Japanese return order would effectively be totally unenforceable.

June 13, 2013 (Mainichi Japan)
Top court to release guidelines after Japan paves way to join int'l child custody treaty
Japan signed a domestic procedural law on June 12 aimed at joining the Hague Abduction Convention, which establishes protocol regarding the care of children following failed international marriages.
As a result, the country's Supreme Court could release guidelines to regional courts around the country by the end of the month regarding how to approach the matter of removing children from the custody of one of their parents.
The guidelines clearly advocate that such removal pay close consideration to children's physical and emotional well-being. "Children will not be forcibly taken if it is against their will, or if their parent refuses to let them go," the procedures state.
Such ground rules will also go into effect for non-international cases, where parents are involved in disputes over child custody within Japan's borders.
The Hague Convention stipulates, as a rule, that children under age 16 who have been abducted by one parent and taken overseas must be returned to the country where they were living originally. According to the newly passed law, if the parent in Japan has not returned the children in two weeks following the issue of the court order, an enforcement officer is authorized to take the children away.
In order to avoid a negative impact upon children's physical and mental well-being, the high court orders are expected to specify that the parent must be present -- and permission received from the day care or school principal -- in cases where children are removed in a school setting; and that children may also be taken away while sleeping.
The number of domestic cases in Japan where parents do not comply with child custody court orders following divorce is on the increase, with a total of 131 such incidents last year. In such cases, the court enforcement officers have had to remove the children coercively.
While the new law paving the way toward the international Hague treaty makes it clear that the parent must be present when the child is taken away, this has not been the case with respect to disputes within Japan's borders. Here, court enforcement officers have sometimes taken children away while they were at school or traveling between school and home -- thereby causing conflict with parents.
The ground rules were compiled following meetings held in January and February of this year, where some 150 judges and court enforcement officers from around the country exchanged views on the matter. At this time, numerous participants expressed the opinion that children should, as a rule, be taken away within the home setting only. In response, the forthcoming Supreme Court guidelines are poised to include this stipulation.

Wednesday, June 12, 2013

Successes in Hague Habitual Residence Cases

Yesterday’s decision by the Second Circuit Court of Appeals in Guzzo v. Cristofano cogently restated the rules concerning the definition of the term “habitual residence” in the Hague Abduction Convention. 

My client, Ms. Cristofano, had entered into a “bi-continental marriage” with Mr. Guzzo. Both are lawyers; he in Italy and she in New York.  Their child was born in New York and spent considerable time in both countries, always with his mother. The parties ultimately negotiated and signed a separation agreement, but his signature was not notarized. It stated that the parties would separate and that the mother and child would live primarily in New York, with visitation in Italy and New York. The mother then took the child to the father’s residence in Italy and they stayed in that area for much of the next two years. Indeed the child spent much of those two years in school in Italy. Ultimately the mother and child left Italy for New York and the father promptly initiated a Hague case.

The issue in the case was whether the child was habitually resident in Italy at the time he was brought back to New York. Judge Sullivan at first instance held “No” and he dismissed the petition. Indeed, he ruled in strong language that the father’s testimony concerning a purported reconciliation was not credible.

On appeal the Second Circuit affirmed that ruling and continued the line of cases starting with Gitter that sets forth the Second Circuit rule in that regard. It affirmed that the evidence of the parents’ last shared intention was clear and controlling absent any proof of acclimatization in Italy.

I should also note that the Court relied in part on another very recent case in which one of my clients won a Hague case on the issue of habitual residence, this being the case of Hofmann v. Sender. There, the Second Circuit accepted our argument that a consent to a child’s international relocation that is implicitly or inferentially conditioned on an event that does not occur – here, the establishment of a family home in the new country – does not constitute a sufficient consent for Hague Convention purposes.