Posts
Jeremy D. Morley (1)
“Mirror” orders can be a
useful tool in the arsenal of lawyers who handle cases concerning international
child travel and the prevention of potential international child abduction.
Increasingly courts are
being asked to enjoin parents from taking children overseas because of a
parent’s fear that the children will not be returned. Courts must take such
applications extremely seriously, especially if a child is likely to be taken
to a country that is not a party to the Hague Convention on the Civil Aspects of
International Child Abduction, or that does not return children promptly to
their habitual residence. On the other hand it is also well-recognized that
children have an interest in seeing the world and that children with a foreign
parent should be encouraged to learn of their overseas heritage and to get to
know their distant family.
A potentially
left-behind parent’s application for an injunction is usually supported by: (a)
Expert testimony as to the practices and laws concerning international child
abduction and international child custody in the country to which the child may
be taken (2); (b) Expert testimony
as to the "red flags" or "risk factors" that research
establishes are the indicia that a particular parent might indeed abduct his or
child; and (c) Lay testimony as to any facts that establish the existence of any
and all such risk factors.
In such cases, a judge
will invariably ask a basic question: "What conditions can I include in my
order that will minimize the risk that the child will be returned?"
Unfortunately, the true answer is often "None" -- as evidenced by the
epidemic of “successful” abductions to countries such as Japan, frequently in
flagrant violation of court orders.
However, in many cases,
a useful suggestion is that the order should require the taking parent to
obtain a "mirror order" from a court in the foreign jurisdiction
before being allowed to take the child overseas.
A mirror order is one
that is issued by another court which contains the same terms as those that are
contained in the order that is being mirrored. Inherent in the mirror order
concept is the fact that the foreign court shall have the right -- and more
importantly the obligation -- to enforce the terms contained in the order,
specifically including the obligation to effectuate the prompt return of the child at the end of a designated period
of time. Equally critical is that the foreign court should not be permitted to
modify the original order.
The viability of such a
requirement varies substantially from country to country. Thus a very recent
decision of the Supreme Court of India makes it clear that the courts in India
will not allow mirror orders to be entered in child custody matters and that
they will always conduct a full plenary review of the child's best interests
(which invariably equate to a decision that the child -- who, by the time of
the ultimate decision has typically been in India for some years -- should
remain in India). (3)
It is also obvious that
a court in Japan, even in the utterly unlikely event that it were to issue a
mirror order, would not enforce the terms of any such order since its family
law system is toothless and its orders are invariably not enforced. (4)
By contrast, a country such as Australia has a custody registration system that operates in a very similar way to the system of registration of foreign custody orders in the Uniform Child Custody Jurisdiction & Enforcement Act. However, Australia is very much the exception rather than the rule. The European Union has a registration system but it applies only to orders issued by an E.U. court and the practice within Europe varies substantially from country to country.
Indeed, foreign lawyers are generally shocked and amazed when they learn of the registration provisions in the UCCJEA. In particular, they are often shocked that a U.S. court will generally have exclusive continuing jurisdiction for many years after a child has left the jurisdiction as long as one parent continues to live there.
The issue was recently
before the Court of Appeal in England. (5) Since that Court is
headed by a judge who is also that country's "Head of International Family
Law" its decisions on such issues are far less like to be parochial than
similar rulings from some courts in the United States and many other countries.
In the English case, the
child was living in Malaysia. A Malaysian court gave custody to the father, an
English national, and contact to the mother "at reasonable times".
The father then asked an English court for a mirror order so that he could
apply for a British passport for the child. However, the English court not only
issued a mirror order but it also granted the mother’s application to reopen
the entire case. On appeal, the English Court of Appeal ruled that the trial
court has been right to issue the mirror order but wrong to claim any broader
jurisdiction. It made clear that a litigant who seeks a mirror order does not
accept the jurisdiction of the court to do any more than reiterate the
provisions of the order issues by the primary jurisdiction. By definition, an
application for a mirror order cannot supplant the primary jurisdiction. The
Court ruled that if the mother wished to challenge the
order or seek specific contact she should apply in Malaysia.
Lawyers bringing
applications to enjoin children's foreign travel, and lawyers opposing such applications,
need to tailor their presentations and their proposals to the specific laws,
procedures, customs and practices concerning international family law,
international child custody and international child abduction of the specific
country or countries that the child is to visit or may be taken to.(6)
Thus, it is important to
understand that merely because an American court conditions an event upon a
foreign mirror order, the foreign court might not have jurisdiction to issue
any such order. That situation arose in Danaipour v. McLarey (7) in which a district court in Massachusetts acted
on the mistaken assumption that a Swedish court would provide a stipulated
mirror order but in fact the Swedish court refused to do so.
Another critical factor
is that once a child is taken into a foreign country it may be extremely
difficult to bring a child home because of the stringent exit controls that
many countries have that require the written consent of both parents or a sole
custody order to remove a child. This is particularly the case with South
American countries. Even if a U.S. court issues the requisite order it may have
no effect in a foreign country or, even if ultimately effective, the lack of a
local court order might cause significant border delays.
Some examples of issues
that have arisen in my office concerning mirror orders are the following:
-A client was legitimately worried that a child
would be retained in Bermuda if the father took him to visit his family there.
Upon our advice, the client negotiated a strong New York consent order that
specified that New York had continuing exclusive jurisdiction, that contained a
host of other protective clauses and that permitted a visit to Bermuda only if
a mirror order were first obtained. Subsequently, the father asserted that he
had been unable to obtain the requisite mirror order from the Bermudan courts.
As a result the Family Court authorized a visit without the mirror order. We
successfully obtained from the Appellate Division, First Department an
emergency order barring the scheduled visit.
-Our client settled an action under the Hague
Abduction Convention by agreeing to limited and supervised visitation between
the father and the child in Quebec, Canada, conditioned on the child’s prompt
return to New York. We insisted that a mirror order be obtained from the Quebec courts before any visit
could occur. Again, the father reported difficulty on obtaining the required
order, which led to a delay in the scheduled visitation. Only when the mirror
order was in place did visitation in Canada successfully occur.
-In many cases I have suggested, as part of my
written expert evidence or expert trial testimony, that a mirror agreement
would be futile because the family law system of the foreign country could not
be relied on to enforce the mirror order. For example, I recently so testified
as to China.
-In other cases I have testified that a mirror
order might be a good idea because it would provide useful additional security
for the prompt return of the child if the parent taking the child for an
overseas visit were to keep the child overseas and because the family law
system in such country is reliable and effective (e.g. I have so testified as
to Italy and Hong Kong).
In conclusion, mirror
agreement requirements may be useful depending on the circumstances. But they
may also be counter-productive if they induce a false sense of security. They
should never be requested or opposed except by counsel having full knowledge
and understanding of international family law.
(1). Jeremy D. Morley, a member of this
newsletter’s Board of Editors, concentrates on international family law. He may
be reached at 212-372-3425. He is the author of the treatise, International
Family Law Practice. His websites are www.international-divorce.com and
www.internationalprenuptials.com. His blog is www.international
familylawfirm.com.
(2). Thus the author has provided such
evidence as to many such countries including India, Japan, Colombia, China,
Taiwan, Egypt, Italy, Hungary, Saudi Arabia, Mexico, Venezuela, the United Arab
Emirates, Jordan and Mexico.
(3). Majoo v. Majoo, [2011] INSC 515.
(5). W v W (Minor) (Mirror Order) [2011]
EWCA CIV 703.
(6). An example of a critical factor that
is often overlooked is that a visit to one country may permit an easy visit to
another country. Thus, once a child is in any European country that is within
the "Schengen Zone" the child may be taken to any other such country
without passing through any passport control.
(7). 286 F.3d 1 (1st Cir. 2002).
