Tuesday, July 22, 2014

The Hague Abduction Convention in South Africa

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: South Africa

By The Honourable Mrs. Justice BelindaVAN HEERDEN, Supreme Court of Appeal, Bloemfontein, South Africa

International child abduction
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) was incorporated into South African domestic law in terms of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1997 (date of commencement 1 October 1997). From the outset, jurisdiction in Hague matters was vested only in the High Courts. Indeed, the Central Authority for South Africa is the Chief Family Advocate who has delegated her powers under the 1980 Child Abduction Convention to the Office of the Family Advocate attached to each of the High Courts which to all extents and purposes function at provincial level. The whole of the 1980 Child Abduction Convention Act was repealed by section 313 of the Children’s Act 38 of 2005 (date of commencement 1 April 2010). However, section 275 of the Children’s Act states that the 1980 Child Abduction Convention “is in force in the Republic and its provisions are law in the Republic, subject to the provisions of this Act”. The whole Convention is annexed to the Act as a schedule. Section 45(3) retains the exclusive jurisdiction of the High Courts in Hague abduction matters. Lower courts, such as children’s courts at magistrate’s court level, are therefore excluded.

The main problem with concentration of Hague abduction jurisdiction in the High Courts is that these courts have broad civil and criminal jurisdiction and do not have a special chamber dealing with family and child law in general, and Hague abduction matters in particular. Prior to 2007, this meant that there were no High Court judges with specialized training in the 1980 Child Abduction Convention to deal with such matters. In January 2007, a high level meeting took place between the Chief Justice (the head of the judiciary in South Africa), the author of this note and Lord Justice Mathew Thorpe, Head of International Family Law in the United Kingdom, to address instances of the failure of the judicial system in South Africa to achieve acceptable international standards in the management and determination of return applications brought under the 1980 Child Abduction Convention. Spearheaded by the Chief Justice, at a subsequent meeting of the Heads of Court in November 2007, the Judge- President of each High Court nominated one or more judges to assume a special responsibility for international family law cases. The intention was that the judges nominated would receive specific training to equip them better to deal with the special challenges of international family law cases. These judges would then build up a repository of experience in the management and adjudication of such cases. In exceptional circumstances preventing the nominated judge (or one of the nominated judges in High Courts with several nominees) from trying the case, the nominated judge would be available to assist the judge to whom the case was assigned. In addition, the nominated judges were to be responsible for liaison and collaboration with judges in other jurisdictions within the Global Hague Network. The author of this note was designated by the Chief Justice as the co-ordinator of the nominated first instance judges, and as the primary liaison judge for the South African jurisdiction.

This gave rise to a South African Judicial Network spanning the provincial High Courts, enabling particular judges at each High Court to apply their special expertise in Hague Abduction matters, while retaining their jurisdiction to deal with general civil and criminal cases. Apart from specific training of the nominated judges, which took place in 2008, there has been ongoing in-house training at several of the High Courts. Moreover, practice directives dealing with the urgency of Hague Abduction matters and dedicated case management of such cases have been issued at some of the High Courts. Regulations issued under the Children’s Act also cover the practical aspects required to implement the 1980 Child Abduction Convention, including a provision that proceedings for the return of a child under the Convention must be completed within six weeks from the date on which judicial proceedings were instituted in a High Court, except where exceptional circumstances make this impossible.

By and large, this informal concentration of jurisdiction in nominated High Court judges has worked well. There is, however, a need for an ongoing training of nominated judges and the speedy replacement of nominated judges who leave the High Court (usually on appointment to the Supreme Court of Appeal).

Intercountry adoption
The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (hereinafter the 1993 Adoption Convention) was incorporated into South African domestic law by section 256 of the Children’s Act and the whole Convention is annexed to the Children’s Act as a schedule. In terms of the Children’s Act, a children’s court has jurisdiction over inter-country adoptions. For purposes of the 1993 Adoption Convention, the Central Authority is the Director-General of Social Development.

Before the coming into operation of the Children’s Act, section 18(4)(f ) of the then applicable Child Care Act 74 of 1983 prohibited a non-South African citizen from adopting a South African child. This effectively meant that inter-country adoptions were unlawful. In Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC), this section was declared to be unconstitutional and invalid. The Constitutional Court ruled that inter-country adoptions should proceed through the existing children’s courts, like all other adoptions. In the subsequent Constitutional Court judgment in AD & another v DW and others 2008 (3) SA 183 (CC), the court noted that, in the context of inter-country adoption, the correct route to follow would be adoption proceedings before the children’s court. As indicated above, this exclusive jurisdiction of the children’s court in respect of inter-country adoptions has now been formalised in terms of the Children’s Act.

A children’s court has a status similar to a magistrate’s court at district level, and as there are children’s courts in every magisterial district in South Africa, they are much more accessible to litigants, and much less expensive, than the High Court. While children’s courts have a specialised child law jurisdiction, this jurisdiction spans a wide range of matters involving children, including South African domestic adoptions. It is, however, generally accepted that children’s courts do have the necessary expertise and experience to ensure proper compliance with the 1993 Adoption Convention and that the concentration of jurisdiction in such courts in this regard ensures that the safeguards and procedures envisaged by the Convention are followed. Since children’s courts are found in every magisterial district throughout the country, in the region of 384 such courts exist in South Africa. Concentrated training of all presiding officers would not be possible under present circumstances.

Monday, July 21, 2014

The Hague Abduction Convention in Paraguay

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Paraguay

By María Eugenia GIMÉNEZ DE ALLEN, Judge of the Court of Appeals for Children and Adolescents, Central Department, Asunción, Paraguay

Achieving the correct application of international treaties on the international return of children raises the issue of concentrated jurisdiction, with specialisation to handle these cases. In this brief analysis, I state my opinion on the utility of concentrated jurisdiction in Paraguay.

Some facts about Paraguay
Firstly, I consider it important to provide some facts about my country, the Republic of Paraguay, in order to better assess the suitability of concentrated jurisdiction for handling cases involving the international return of children. Paraguay, according to Article 1 of its Constitution, “is a social State under the rule of law, which is unitary, indivisible, and decentralised.” Paraguay has an area of 406,752 km2, and, according to official figures from the latest census of 2012, a population of 6,672,631 inhabitants. The Judiciary of Paraguay is decentralised in 17 Judicial Districts, with a total of 39 Courts of First Instance for Children and Adolescents. These courts have exclusive jurisdiction in cases relating to the rights of children and adolescents, i.e., they are courts specialised in these matters. In summary, there are 39 judges across the country with authority to judge a case on the international return of children in the first instance, not including judges at higher judicial levels who could have jurisdiction in these matters.

Current regulation in Paraguay
Paraguay does not currently have what would be called concentrated jurisdiction, and thus the resolution of these issues would fall to any of the Judges of First Instance for Children and Adolescents. Under current regulations, the judge of the place of habitual residence of the child or adolescent has the authority to resolve a request for the international return of children, under the international legal instruments ratified by Paraguay: the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) and the Montevideo Convention of 15 July 1989 on the International Return of Children.

Training to gain expertise
The most signify cant advantage of concentrated jurisdiction in which only some judges have jurisdiction to handle cases of the international return of children, in my opinion, is the expertise they gain on this matter: obviously, the more cases they solve, the more experience they gain. However, in a small country like Paraguay, concentrated jurisdiction is not the only way to ensure the correct application of international treaties on the international return of children. With a smaller number of judges with jurisdiction in child and adolescent issues, providing them with training is not too difficult a task. It is a need that can be satisfied with ongoing training programs for the range of justice operators involved in the application of international treaties on the international return of children: not only Judges of First Instance, but also Public Defenders (Defenders of the Child), Courts of Appeals for Children and Adolescents, and the Supreme Court itself, in addition to multidisciplinary teams specialised in the area of children and adolescence.

Training by the Judges of the Network
Training in the application of international treaties involves the Judges of the International Hague Network of Judges in particular, who have the important role of contributing to the organisation and participating in training seminars where best practices on the correct application of legal instruments in this area are publicised. It is a function of the Judges of the Network to advise colleagues on jurisdiction issues in relation to international treaties and other legislation, and on existing relevant international jurisprudence, without breaching the independence of each judge in solving every dispute subject to their decision.
It can be said that Paraguay has made significant progress with the appointment by its Supreme Court of two judges as members of the International Hague Network of Judges, who are fulfilling, in practice, this important role of training and advice to fellow judges on the correct application of international instruments.

A change in the rules
In my opinion, the implementation of concentrated jurisdiction in the Paraguayan legal system would require legislation providing for this change, as it would entail changing rules of jurisdiction laid down by the law, bearing on issues of public order.

In closing, I would like to state that concentrated jurisdiction certainly has significant advantages; however, considering the circumstances of my country (territory, population, legislation and judicial organisation), at present, the training of justice operators is the most practical way of achieving the correct application of legal instruments on the international return of children in the Republic of Paraguay.

Friday, July 18, 2014

The Hague Abduction Convention in Panama

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Panama

By Delia P. CEDEÑO, Judge of Children and Adolescents of the First Judicial Circuit of Panama, Panama City, Panama

When we speak of “jurisdiction” we are referring to the authority of each State to apply the law to resolve a dispute, definitively and irrevocably, exercised exclusively by courts composed of autonomous and independent judges.“Concentration” is a technique in the service of judicial economy – a legal approach used by the judge and recommended to the parties, in order to hear a variety of connected legal questions at a single trial.

The above leads us to note that when we refer to “concentration of jurisdiction,” it would be with the objective that international return applications are processed in certain courts in order to comply with the constitutional guarantee to directly assume the role of resolving a conflict between a requesting party and the respondent.

In Panama, since the creation of the Special Jurisdiction for Minors (by Act 24 of 1951), applications for the international return of children were in principle received at the General Secretariat of the Supreme Court of Justice by way of international warrants submitted by the Ministry of Foreign Affairs, to then be sent to the Tribunal for Minors for processing, or alternatively to the Juvenile Court (which by that time had been created), always taking into account the domicile of the child. Panama adopted the Hague Convention of 25 October 1980 on Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention), by Law 22 of 10 December 1993.

When the Family Code of 1994 entered into force, international return requests were sent directly by the Ministry of Foreign Affairs to the Juvenile Court of the domicile where the identified minor was residing with the alleged perpetrator of the wrongful removal or retention, pursuant to Article 778 of the Family Code. We can confirm that in the Republic of Panama, concentration of jurisdiction has been accomplished in order to hear requests for the return of a child since the creation of the Juvenile Court, as a special court to deal with issues concerning underage persons since 1951.

Subsequent to the entry into force of the Family Code, in 1995, Article 747 established that Special Jurisdiction for Minors would be exercised by the Supreme Court, by Superior Courts, and by the Regional Juvenile Courts.

The same law stated in Article 744 that in any proceeding which is related to a minor, the Juvenile Courts would have exclusive jurisdiction. These courts are currently called Childhood and Adolescence Courts, mandated by the modified Act 40 of 1999 (and added in Article 157 in order to establish the change in designation of these courts).

In defining the competencies of courts specialised in childhood and adolescence in Article 754 of the Family Code, it is stated that these courts have jurisdiction over disputes that are not expressly attributed to another authority, and thus by not giving this jurisdiction to another court judges for childhood and adolescence matters have concentrated jurisdiction.

In Supreme Court jurisprudence from 1997 (the case of Horna Whitehurst), the Court determined that the Childhood and Adolescence Courts, which are part of the Special Jurisdiction for Childhood and Adolescence, are competent for international return applications, which reaffirms that there is concentration of jurisdiction for this procedure.

Based on experience, we note that concentrating jurisdiction allows the taking and implementation of quick measures in order to secure the prompt return of children, as is foreseen in Article 7 of the 1980 Child Abduction Convention. At the same time, the exercise of the judicial function in these procedures is facilitated, including the hearing, judicial determination and enforcing of a decision, with the aim of protecting minors from the harmful effects that can be caused by their wrongful removal or retention, and to facilitate their safe return to their habitual residence.

Thursday, July 17, 2014

The Hague Abduction Convention in the Netherlands

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: the Netherlands

By Annette C. OLLAND, Senior Judge Family Law and International Child Protection at the District Court of The Hague, President of the Dutch Office of the Liaison Judge International Child Protection

Historically, the Netherlands counted 19 District Courts and each of them had jurisdiction in cases of international child abduction. Combined with the limited number of incoming International Child Abduction cases in the Netherlands (between 25 and 30 on a yearly basis), in practice this meant that a family judge in a district court would handle a few child abduction cases in a lifetime. Many district courts and individual judges, as well as other parties, thought that this was undesirable given the required specialist knowledge for these cases and their urgent nature. It was generally felt that this practice, combined with the length of the proceedings – which, including the proceedings before the Court of Appeal and before the Dutch Supreme Court, could mount up to 18 months or more – was not in the best interest of the child and it lead to a lot of criticism from several parties and institutions, including politicians.

Meanwhile, in January 2006, the Family Division of the District Court of The Hague set up a bureau, the so-called Office of the Liaison Judge International Child Protection (hereinafter:
BLIK), in order to build up and expand knowledge in the field of international family law. The direct cause for establishing BLIK was the appointment of the President and Vice-President of the Family Division of the District Court of The Hague as Liaison Judges in 2005. Their task is to facilitate contacts between Dutch judges and their foreign colleagues in pending cases involving the same minor(s) that are filed with courts in different States. BLIK soon developed into a knowledge centre and help desk for judges hearing international family law cases and a contact point for foreign judges. Thus, the Family Division of the Court of The Hague gathered specialist knowledge in the field of international child abduction and international child protection. Soon other District Courts in the Netherlands expressed their wish to be able to refer international child abduction cases to the District Court of The Hague. The District Court of The Hague was willing to hear these cases if necessary.

The criticism of the implementation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) in the Netherlands lead to the publication of a report by the Royal Commission on Private International Law that was published in August 2008, which addressed the question whether the implementation could be improved.26 The report held two recommendations. Firstly, it recommended that appeal to the Dutch Supreme Court in Hague child abduction cases should be limited to appeal in cassation on a point of law. Secondly, the Commission recommended concentrating the administration of justice at first instance and on appeal in Hague child abduction cases in one or a limited number of courts.

Inspired by this report of the Royal Commission on Private Law, the Dutch Minister for Justice declared his intention to improve the position of those directly involved with international child abduction. To this end, the Dutch International Child Abduction Implementation Act and the Dutch International Child Protection Implementation Act needed to be amended. On 1 April 2010 the preliminary draft amendment was presented to Parliament. In anticipation of this draft amendment and in response to the District Courts’ call to be able to refer international child abduction cases to the District Court of The Hague because of its specialist knowledge in the field, the Dutch Council for the Judiciary by decision of 4 February 2009 appointed the District Court of The Hague as the alternative court with the power to hear child abduction cases in addition to other District Courts. This designation meant that the other courts were able to hand over the cases of international child abduction for the whole procedure to the court of The Hague, without the consent of the parties. It turned out that the Courts referred their international child abduction cases most of the times and the Family Division of the District Court of the Hague would, from then on, handle most of the incoming International Child Abduction Cases.

The aforementioned developments finally lead to a change of the Dutch International Child Abduction Implementation Act that came into force on 1 January 2012. This amended
Act aimed to considerably speed up the return application procedure and make an end to two other undesirable situations. In short, the amended Implementation Act (among others) implied the following:
- The court of first Instance in The Hague and consequently the Court of Appeal of the Hague are competent for all incoming International Child Abduction Cases (instead of, before, 18 courts). Thus, the Family Division of the Court of the Hague and of the Court of Appeal of the
Hague have become specialised Courts, dealing with about 25 to 30 cases on a yearly basis;
- Parties can no longer appeal to the Dutch Supreme Court in Hague Child Abduction cases;
- In all cases, the child will stay in the Netherlands for the duration of the appeal in the return application proceedings.

As of 1 January 2012 the concentration of jurisdiction at first instance at the District Court of The Hague is a fact. From our experience, the benefits of concentration of jurisdiction are evident: the Family Division of our Court now has formed a team of experienced and specialised judges who handle Hague Child Abduction cases on a regular basis. Not only our judges but also our clerks and other staff are dedicated to a swift and smooth handling of these cases. The increased number of cases to be handled made it possible for the Family Division of the District Court of the Hague – in cooperation with the Ministry of Justice, the Dutch Central Authority, the Dutch Centre of International Child Abduction, the Bar and specialised family mediators – to develop and implement the so-called ‘pressure cooker procedure’, including cross-border mediation. As a result, the proceedings before the District Court, including cross-border mediation, do not take up more than six weeks.29 An appeal to the Court of Appeal may be lodged within two weeks. A hearing will take place within two weeks from the lodging of the appeal, and the Appeal Court decision will follow two weeks later. Consequently, the proceedings from the notification at and handling by the Central Authority (which should take up to 6 weeks) until the final decision of the Court of Appeal takes up 18 weeks (3x6) at the most.

Thus, from our experience, concentration of jurisdiction has lead to a considerable improvement, both in terms of quality of the decisions and in terms of duration of the proceedings.

Expats with Children: Top Tips from an International Family Lawyer

Expats with Children
… Top Tips from an International Family Lawyer[1]
By Jeremy D. Morley*
I have worked for many years counseling international parents around the world about international child custody issues.
Here are some of my “international family lawyer’s best tips” for clients with children who may move overseas. This article does not deal with financial issues except as they may relate to children issues.

  1. Before you move overseas, you absolutely must realize, understand and fully evaluate the fact that if you are in a new country with a child you may find yourself trapped there if the other parent refuses to let you take the child home. Under the Hague Convention on the Civil Aspects of International Child Abduction, you will “wrongfully remove” a child if you take the child away from his or her habitual residence in breach of the rights of custody that the other parent has under the law of the country in which the child was habitually resident immediately before the removal. What that means is that once your child is “habitually residing” in the new country, which can occur quite quickly, the other parent will normally be able to block your removal of the child from that country and if you take the child to the United States a U.S. court will normally compel you to return the child forthwith. In fact it will often be a criminal offense for you to take the child away without the other parent’s permission. Example: Angie the American and Gus the Greek (from Cyprus) moved to Cyprus with their baby. Life in Cyprus didn’t work out for Angie. In fact, she absolutely hates it there. But Gus refuses to leave and he refuses to allow Angie to take the baby back to the States to live. Since both Cyprus and the U.S. are parties to the Hague Convention, Angie will be in big trouble if she takes the child back to the States without Gus’ permission. Angie wishes she had consulted an international family lawyer before she moved overseas. Now she’s stuck there.
  1. Foreign courts, not U.S. courts, probably have jurisdiction. When you go overseas you will probably be subjecting all issues about child custody to the courts of the foreign country. There are complex rules about international custody jurisdiction under the laws of each American state – as to which you will need to consult with knowledgeable counsel – but usually the American courts will defer to the foreign courts if your family has relocated overseas. And in any event none of that usually matters to a foreign court, which is governed by the jurisdictional rules of its own legislature. In most countries, once you’re habitually residing there the local courts have jurisdiction to handle the case.
  1. Foreign law usually applies. Some people think that when they go away their American citizenship somehow travels with them and provides a cloak of protection concerning child custody matters. Usually that is absolutely wrong. You need to assume that when you are in Rome you must do as the Romans do. And when you are in Saudi Arabia, Saudi law will govern. Most countries apply their own domestic law to child custody matters, even if all of the family members are foreigners. And in the minority of countries that apply the law of the parents’ common nationality to custody issues you need to understand that the foreign court will probably have great difficulty in understanding and applying the law of your local American state and might well have great reluctance to apply it in any similar way.
  1. The law in real life is not the law on the books. Most of the laws about child custody and parental rights that are on the books in countries around the world read well. But there can obviously be all the difference in the world between the law as it is written and the law that is actually applied. China has rules about divorce jurisdiction that do not seem to be applied in cases concerning foreigners. The Japanese Civil Code has innocuous provisions about child custody that disclose nothing about how cases there are really conducted. Obtaining strategic and experienced advice about these matters is usually absolutely essential. 
  1. The Hague Convention won’t protect you.  Just because the foreign country has signed the Hague Abduction Convention does not mean that the courts there will be ready, or willing or able to help you. As stated above, the Convention may bar you from taking your child to your home country. And there are no provisions in the Convention that will help you if you are arguing with the other parent about custody matters.
  1. An American court order may not count. Just because you have a clear court order from a U.S. court that supposedly gives you protection and provides clear rules about who has the kids and at what periods of time, you’re far from guaranteed that the terms of the order will be respected overseas. The rules about recognition and modification of custody orders overseas are usually entirely different from the rules in the United States. The provisions of our Uniform Child Custody Jurisdiction & Enforcement Act are not paralleled in foreign countries. Very many countries have no requirement or practice of applying foreign custody orders. And the courts in almost all foreign countries are empowered under their own laws to modify foreign custody orders once a child is habitually resident in the foreign country, which can occur quite quickly.
  1. Beware of exit controls. The United States has no exit controls. With minimal exceptions, no one checks whether you have a legal right to remove a child. But the same is not true overseas. For example, you cannot take your child out of most South American countries without a notarized document establishing that the other parent has consented, or a local court order.
  1. Beware of visa rules. You can’t normally stay overseas or re-enter the foreign country without complying with the correct local residency requirements. This can be a terrible problem if the other parent has control of your status and therefore owns the virtual “key to the door.” Example: A Saudi father agreed that his wife could leave Saudi Arabia for a family visit to the States. She left their child temporarily in Riyadh. While she was away he divorced her in Riyadh and canceled her visa. She could never return. He had the child and she was powerless to stop it.
  1. Beware of local laws. In many countries a parent’s conduct that may be acceptable in the United States may be frowned upon or even criminal elsewhere and engaging in any activities that could be deemed to be inappropriate could adversely affect your rights to custody or even access to your child. Example: A client’s husband accused her of adultery – and worse -- in Dubai. Knowing the extreme seriousness of the charges in the UAE, we recommended that she leave Dubai that night without her young child, who was in the husband’s possession. (We later used other methods to help retrieve her child).
  1.  If you make a deal with your husband or wife that you’re going overseas just for a trial and that you’ll return if it doesn’t work out – Get it in writing! Verbal agreements always seem to be forgotten when things blow up. But also know that even a written agreement may not work. A foreign court handling your child custody case may well state that it doesn’t care what your deal with was with the other parent; it must only consider what it thinks is best for the child.
  1. Before leaving home, you should hope and plan for the very best. But you also need to be prepared for the very worst. So if you are a “trailing spouse,” consider the following:
-Don’t sell the house. If you maintain an address in the States it will be easier to claim that you maintained your home as your permanent residence. Certainly it will indicate that it continues to be your “domicile” (the place you live in indefinitely, which remains as your domicile even if you move temporarily to another place). Having a place to return to will also make your case a lot stronger if you need to prove that your kids should be allowed to move “back home.”
-Keep your contacts with your job. Prepare for the day when you may want to re-enter the job market back home. Perhaps you can even continue to do some work even while overseas.
-Keep your network of friends and family at home. Stay in touch with them. Visit them if possible.
  1. If you’re overseas and are “planning” to get divorced, be as strategic as possible. Plan your moves. Consult with someone who really understands the big picture in these cases. Figure out where it’s best for you to be at the time you tell your soon-to-be-ex that it’s all over. You may need to move yourself, the kids, the soon-to-be-ex and the marital assets to another place before you break the news that you want out of the marriage. And don’t leave without the evidence. It’s very frustrating when a client tells me a story of the other spouse’s gruesome physical abuse and shameless hiding of marital assets and, when I ask for the evidence, I’m told that it was all left behind in the foreign country before the client came back home. Intelligent planning, with strategic professional advice, is the key.
  1. If you’re feeling stuck overseas and have children with you, don’t just bolt for the (airplane) door with the kids and run “back home” to the States. Plan things out first. If you take the kids you may be guilty of international child kidnapping. You could even be arrested at the airport before you leave. If you make it to the States, you may well be forced by an American court to return your child – and then, to completely add insult to injury, you’ll probably have to pay your spouse’s legal fees and travel expenses as well as your own. Then, when you return overseas, your case will be heard in the foreign court, where you will be branded as an international child abductor. Consult with knowledgeable international family law counsel sooner, rather than later.
  1. On the other hand, if it’s your spouse who’s feeling unhappy and upset and who may “do a runner” back home, there are lots of things that you should be doing in advance. Some are pretty obvious: Be kind; be understanding; and don’t stay out all night with the guys or gals from the office. Other tips are not so clear, and whether you implement them depends very much on the circumstances. Hide the passports. Befriend her travel agent, who may tell you if she’s making an airline reservation. Consult her friends. Suggest counseling. Have a plan to call the police and alert the border guards if you discover that she has taken the kids.
  1. If you’re overseas and pregnant, and not 100% confident that you’ll always want to live in the overseas country, consider very seriously getting out of there now. If your baby is born overseas, whether in Sweden or Saudi Arabia, the child’s “habitual residence” for purposes of the Hague Convention will likely be Sweden or Saudi Arabia – and that can create terrible problems if you want to take your baby “back home.”
  1. Don’t assume that the local authorities won’t help. So many times, expats feel that the local social welfare agencies won’t understand and that they will automatically side with the other spouse who is a citizen. In fact, in many countries the support services are excellent and you should try them. Plus, an American court in a Hague Convention case won’t accept your defense that returning a child to the foreign country will put the child in grave risk of harm unless you can show that the foreign support services are unable to provide the needed protection.
  1. Consult with an experienced international family lawyer. You need to plan strategically but you cannot do that without knowing the basic facts. Local family lawyers may not be your best bet. There is just so much wrong information out there about these issues. It is absolutely shocking how many clients have previously been given poor advice that is often not only mistaken but also damaging. An experienced international family lawyer, who consults with local lawyers as appropriate, can give you much more objective “big-picture” advice and, most critically, can assist you in creating the best strategies.
* Jeremy D. Morley may be reached at 212-372-3425 and through his website, www.international-divorce.com. Jeremy has written the leading treatises on international family law. He consults on international family law matters with clients around the world, always working with local counsel as appropriate.  

[1] This copyrighted article may be reproduced, in unabridged form if full credit is given to the author and if the asterisked information about him is fully included, but not otherwise.

Wednesday, July 16, 2014

The Hague Abduction Convention in Israel

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Israel

By Judge Benzion GREENBERGER, District Court of Jerusalem, Israel

The concept of “Concentration” as it applies to the Hague Convention posits that there is an obvious advantage for each Member State to “concentrate” the judicial jurisdiction to hear Hague cases in a particular, specialised, court or courts within its country-wide judiciary, thus developing a cadre of judges with mastery of Hague Convention jurisprudence, and thereby improving, if not guaranteeing, the professionalism and the quality of the Hague decisions emanating from that country. Of equal importance, a specialised bench will be more sensitive to and aware of Hague jurisprudence developments in other countries as well as its own, and this will in turn contribute to increasing uniformity in the corpus of Hague judgments worldwide.

In Israel, the above advantages of concentration have long been recognised in the field of Family Law generally, as expressed in the adoption of the Family Courts Act of 1995, which established the Family Courts in the various districts of the country. Prior to the passage of this important legislation, judicial jurisdiction regarding the various aspects of family law litigation was bifurcated among various courts: cases regarding the various aspects of family law, including, of course, cases involving children, were heard in the Juvenile Court, Magistrate’s Court, District Courts, and even the Supreme Court (habeus corpus motions), depending on the particular subject matter of the case; and alongside all of the above, the Rabbinical Courts possess concurrent jurisdiction in many matters relating to family law disputes.

The establishment of the Family Courts in Israel concentrates the original jurisdiction relating to all family law matters in specialised courts, empanelled in each district in the country, thereby adopting the principle “one family one judge” as the appropriate judicial approach to all family law matters. Of particular importance is the statutory requirement, unique to Family Courts, that in addition to the general requirements for eligibility to appointment to the bench, judges appointed to the Family Courts must have acquired professional experience and knowledge in the particular field of Family Law as a prerequisite to their appointment.

Regarding Hague Convention cases, these are heard in Family Court, and all Family Court judges are qualified to hear them. Thus, while there is no specific concentration vis-à-vis Hague cases, these are heard by a relatively limited number of judges in the country who specialise in family law, and who are therefore better qualified to be involved in this complex area of the law.

A recent development worthy of note in this regard is the administrative decision of the Chief Judge of Jerusalem District Court, in which three-judge panels hear appeals from the Jerusalem Family Court, to empanel a specialized three judge panel for Hague Convention appeals specifically, and on which panel will sit the judge representing Israel in the Hague Convention Judges Network. This model has yet to be adopted in other districts in the country, but this promising development is a further indication of the trend toward concentration in Israel to date.