Child Visits to Mexico

We are pleased to advise that, after a Family Court in California reviewed my lengthy and apparently persuasive expert report on the abduction risks of allowing a child’s visit to Mexico, and upon the Court then ruling that it would admit my expert testimony, the other parent’s application for an order to compel such a visit was thereupon withdrawn in Court yesterday.

St. Kitts & Nevis Divorce Jurisdiction

Pursuant to Section 3 of the Divorce Act 2005 of St. Kitts and Nevis, “The Court may hear and determine any Divorce proceedings if either spouse has been ordinarily resident in Saint Christopher and Nevis; for at least one year immediately preceding the commencement of the Divorce proceedings.”

The phrase “ordinary resident” has been interpreted by the High Court of the Eastern Caribbean Supreme Court in accordance with the  definition in Halsbury’s Laws of England as meaning, “residence adopted voluntarily and for a settled purpose as part of the regular order of life for the time being as opposed to such resident as is casual temporary or unusual.” Saxena v. Saxena, 2015.

The courts have the power to stay a divorce case on the grounds of forum non conveniens but only if the applicant adduces evidence that establishes that another available forum is clearly or distinctly available,  is more appropriate, and is the forum “with which the action has the most real and substantial connection.” Saxena v. Saxena, 2015.

Philippines’ Laws on Adultery, Concubinage and Marriage Nullity

Jeremy D. Morley

Philippines’ law criminalizes adultery and concubinage. Both are deemed “crimes against chastity” under the Revised Penal Code of the Philippines and are treated as sexual infidelity in the Family Code.

The law discriminates against wives. The crime of adultery can be committed only by a wife and her paramour. The husband need only prove that his wife had sexual intercourse with a man other than him.

The crime of concubinage can be committed only by a husband and his concubine, but it requires that the wife must prove that her husband has kept a mistress in the conjugal dwelling, or has had sexual intercourse under “scandalous circumstances” or lived together with his mistress in any other place.

The penalties are also quite different. For adultery the guilty wife and her paramour may be imprisoned for up to 6 years

For concubinage, the husband may be imprisoned for up to 4 years and 1 day, while his concubine may be merely “banished” but may not be imprisoned.

The laws work to the great disadvantage of women. There is no divorce in the Philippines and abandoned wives are often accused of adultery in order to force them to agree to their husband’s petitions to nullify the marriage. The Philippine Commission on Women reports that, “In many cases, women who are faced by these threats are forced to forego legitimate custodial claims of their children while some are forced to give up their claims over conjugal properties, assets and the like.”

Singapore Ruling on Consent in Hague Abduction Cases

Jeremy D. Morley

The Singapore Family Court, in a ruling by District Judge Low, has rendered a ruling on consent in Hague abduction cases.  The Court issued the following determination*:

“In summary, the legal principles in relation to consent that may be gleaned from the abovementioned cases are as follows:

            -Consent is not relevant to Art. 3 but to establish a defense under Art. 13(a), i.e. if a child is removed in prima facie breach of a right of custody, the removing parent has the burden of proof to justify the removal and establish that the removal was done with consent;

            -Consent must be proved on the balance of probabilities, but the evidence in support of it needs to be clear and cogent.  If the court is left uncertain, then the defense under Art. 13(a) fails;

            -The consent must be for a stay of sufficient duration or quality properly to be regarded as habitual and where the consent had been given for a purpose which has changed, the parent must have agreed to the continued stay based on the new purpose;

 

            -If there is ostensible consent and the party seeking the return of the child alleges that there are circumstances vitiating the consent, it is for that party making that claim to prove it on the balance of the probabilities;

            -Proof of deceit or dishonesty in relation to a marital aspect of the consent, going to the root of the consent, is one such circumstance that would vitiate a consent outwardly given; and

            -The court should, in summary proceedings such as Hague applications, be cautious about finding dishonest conduct without having enjoyed the advantage of hearing oral evidence.”

_______________________________

*Together with eminent Singapore counsel, Jeremy D. Morley assisted the successful defendant. 

Slovenia: International Child Abduction

                                                                     

                                    Jeremy D. Morley

We have handled, with local counsel, several international family law matters concerning Slovenia.

 

We have provided an expert report concerning the possibility of child abduction to Slovenia and issues concerning the return of children from that country.

 

Appeals in Hague cases in Slovenia are permitted without leave of the Court and the effect of such an appeal is to automatically suspend any return or access order pending an appeal. There is no procedure in Slovenia for an expedited procedure or special process of appeal in a Hague Convention case.

 

In one reported case a Slovenian father brought proceedings before the Slovenian authorities after his daughter’s mother moved the child to Austria and obtained a contact order but the mother successfully appealed that order. Following the remittal of the case and a number of delays due to the authorities’ inability to locate the mother, the Slovenian court eventually issued an interim order and he eventually saw her for the first time in more than nine years. However, his daughter subsequently refused to see him again and an Austrian court suspended the father’s contact rights in a decision. The European Court of Human Rights ultimately ruled that Slovenia had violated Article 8 of the European Convention on Human Rights concerning respect for private and family life. 

Thoughts on India’s Repudiation of the Hague Abduction Convention

Jeremy D. Morley

When I was in India in early September there was great hope among the legal community that India would move forward to join the community of nations in acceding to the Hague Convention on the Civil Aspects of International Child Abduction. Those hopes were dashed by the recent announcement by India’s Women and Child Development Ministry that, “We are very clear that we are not signing the Hague Convention.” India’s status as one of the world’s most significant havens for international child abduction will apparently continue unabated.

In 2009 the Law Commission of India issued a report entitled, “Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction.” At the time, the recommendation that India should sign the Convention seemed to fall on deaf ears. Meanwhile foreign criticism of India for not returning internationally abducted children grew, especially from the United States and the U.K. Indeed, the U.S. State Department determined that India “demonstrated a pattern of noncompliance by persistently failing to work with the United States to resolve abduction cases.”  As a result, the U.S. Government issued a formal diplomatic protest--a demarche--to India in May 2015 (and again in July 2016).

A sign of progress occurred in February 2016 when the High Court of Punjab and Haryana formally asked the Law Commission of India to examine whether to issue a recommendation “for enacting a suitable law for signing the Hague Convention.” The Government of India then published a draft of a proposed “Civil Aspects of International Child Abduction Bill 2016,” and in July it placed the Bill on the website of the Women and Child Development Ministry. In October the Law Commission issued a new report in which it recommended that India sign the Convention and that certain amendments to the proposed bill should be enacted.

And then everything ground to an apparent halt. The Minister of Women and Child Development stated that acceding to the Convention would not be in the interest of aggrieved women “who have been abandoned by their husbands abroad, had their passports snatched from them, been beaten up, and have somehow scraped the money and are in terrible fear, I wonder whether we should join or not.” Furthermore, she said that there are fewer instances of Indian children being abducted and taken abroad than of children being abducted to India. The Indian press is reporting that the proposed bill is likely to be “junked.”

This decision, if maintained, will put Indian nationals and persons of Indian origin living outside India at a tremendous disadvantage. Courts in the United States will likely not permit then to take children for family visits to India if the other parent objects because the Indian legal system can certainly not be counted on to return the children if they are retained in India.  It means that winning international relocation cases to India will likely be far more difficult than is the case currently. And it means that desperate India mothers (and men) who take their children to India over the objections of the other parent will be committing a serious felony under U.S. law and will likely be unable to leave India because of fear that they will arrested once an Interpol notice is circulated.

It is to be hoped that the Indian Government reconsiders what appears to be a most short-sighted decision.

Expert Evidence on Risk of International Child Abduction to Pakistan

Jeremy D. Morley has submitted expert evidence to a court in California that Pakistan does not comply with international norms concerning the return of internationally abducted children and that Pakistan is justifiably well-recognized as being a safe haven for international child abductors.

The opinion resulted in a court order that did not merely bar all travel by one of the parents with the children outside a local geographical area but also required that all visitation with the children by that parent must be supervised at all times.

Mr. Morley provided an evaluation of the risk factors as to potential international child abduction, the application of the factors to the facts of the pending case and to the balance that must be considered between the risk of abduction presented by the facts concerning a specific parent and the risk that is presented by a specific country.

The more certain it is that the country to which the child might be taken is a fully compliant Hague Abduction Convention treaty partner with an effective legal system, the more evidence is required that the individual parent is likely to be an abductor in order to justify the imposition of strong international abduction prevention measures. With respect to Pakistan, not only has that country failed to accede to the Convention but it is non-compliant with basic international norms concerning international child abduction, to the extent that the Government of the United States has deemed it necessary to issue formal diplomatic protests the Government of Pakistan.   

New York Appellate Courts Now Unified on Hague’s “Send versus Serve” Issue

Friday, November 4, 2016

by Rosario Vignali

New York’s appellate departments are now unified with respect to their interpretation of Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). The issue of whether Article 10(a) of the Hague Convention permits service of process by mail to a foreign country in the absence of an objection from the state of destination has now been resolved in New York. The First Department in Mutual Benefits Offshore Fund v. Zeltser, 2016 N.Y. Slip Op. 04344, earlier this year reversed itself and joined the state’s three other appellate departments in holding that service of process by mail under those circumstances was indeed permissible.

Background

For those unfamiliar with the workings of the Hague Service Convention, it is a multilateral international treaty first adopted in 1965 that allows for the service of process of legal documents from one signatory state to another without the use of more formal consular or diplomatic channels. The treaty sets up a simplified means for accomplishing service of process by requiring each signatory nation to designate a “Central Authority” to receive the documents and arrange for actual service on the targeted entity in a manner permitted under local law. Once service is completed, the Central Authority sends proof of service to the requesting party. The advantages of this system lie in its speed, its standardized forms and its relatively low costs as compared with the pre−Hague Convention methods in place to serve foreign entities. Seventy countries are now parties to the agreement.

The language of the Hague Convention treaty that beguiled New York’s appellate courts and, over the years, courts throughout the country is that found in Article 10(a) of the treaty. It reads:

Provided the State of designation does not object, the present convention shall not interfere with
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.

Some American courts, including the First Department in cases before Zeltser (see, e.g., Sardanis v. Sumitomo Corp., 279 AD 2d 225, 718 N.Y. S. 2d 66, 2001), had taken the position that the Hague Convention’s use of the phrase “to send judicial documents” as opposed to the phrase “to serve” meant that mail service of  items such as discovery demands, notices and other legal documents was permitted only after the initial service of process for jurisdictional purposes (i.e., service of a Complaint or Petition for Damages) is made through the Central Authority. BeforeZeltser, the other appellate departments in New York (the Second, Third and Fourth Departments)  along with many other courts around the country had held otherwise. Their rationale was that the Hague Convention’s drafters’ use of the word “send” was the result of poor draftsmanship and that initial mail service of the jurisdictional document was permitted so long as the destination country had not objected under Article 10(a).

Summary & Analysis

As a result of Zeltser, New York’s First Department joined the chorus of jurisdictions permitting mail service. It is now clear in New York that, where the destination state has not expressly objected to service by mail, there is no need to follow the Hague Convention’s requirements for service through a Central Authority and that service in those cases by “ordinary” CPLR means (i.e., through postal channels) is permissible.

The entire “serve” versus “send” controversy begs the obvious question: Why would a country sign onto the Hague Convention treaty and then fail to object to Article 10(a) and, in so doing, expose its citizens to ordinary mail service? Doesn’t Article 10(a) become the proverbial “exception that swallows the rule” if, in fact, it is interpreted in a way that there is no distinction made between the words “send” and “serve”? Perhaps, but recall that there are other features of the Hague Convention that remain in play – such as the need to translate the legal documents into the language of the destination country before service is accomplished. If that “service” is done by ordinary postal channels because the destination country has not objected to Article 10(a), the documents must arguably still be translated before they are dropped in the mailbox.

Let’s agree that’s better than nothing.

http://www.natlawreview.com/article/new-york-appellate-courts-now-unified-hague-s-send-versus-serve-issue

USA Says Slow Courts Put Brazil in Poor Position on Child Abduction

https://br.usembassy.gov/usa-says-slow-courts-put-brazil-poor-position-child-abduction/

In an interview with Estado newspaper, the Special Advisor for Children’s Issues said cases are left pending for too long

The US government says Brazil is not fully complying with the international standards on child abduction stipulated by the Hague Convention. The problem is the slow judicial system, the Special Advisor for Children’s Issues, ambassador Susan Jacobs, told Estado newspaper. Cases have been pending for two, three years – which is a very long time for children and for parents who are separated from them.

The Hague Convention applies to cases of children taken illegally to another country and kept there by one of the parents. Under the international standard, they must be returned as soon as possible to their usual place of residence, where custody will then be discussed. The main extracts from the interview follow below.

What is cooperation between Brazil and the United States in cases of child abduction like?

We have a very good relationship with Brazil’s Central Authority. We have worked in cooperation with them since Brazil signed up to the Convention. The problem is that Brazil’s judicial system is very different from ours. There are a lot of appeals. So, take a long time for cases to be resolved. Cases with Brazil are pending for three years or more. This means that parents are separated from children for that period of time. It’s very sad.

In 2011, Brazil and the United States set up a working group to deal with this issue. Have there been any results?

The working group is a very useful tool to discuss the problems we have. In that regard, it’s very positive. Unfortunately, it has not helped to speed up the processing of cases in court. As a diplomat, I believe it is important to maintain dialogue between our countries.

Do the Brazilian authorities offer any perspective on this?

We have had dialogue about several solutions. For example, judicial training. We are discussing a symposium attended by South American judges with the Hague office and also with the US for case studies. This will help people to feel more comfortable with the ideas contained in the Convention.

You have been to Argentina and now Brazil. Is there any specific point to be dealt with?

We want more cooperation to ensure the return of these children to their permanent residence. The abduction of children is very traumatic. The USA, Brazil and Argentina are parties to the Hague Convention. We want to ensure compliance with the Convention. Our Congress is very interested in this issue and passed a law two years ago. It requires that the State Department draw up an annual report on the level of compliance with the Convention. Brazil, in our view, is not in compliance because of the delays in court cases.

How does Brazil compare with other countries?

Each country is different and has its own problems. There are other countries that have delays in dealing with cases.

You mentioned Congress, and there is a problem at the moment about sending a new US Ambassador to Brazil. The appointment was being blocked as pressure over the Brann case (a boy who was living in the USA and who was brought to Brazil in 2013 by his Brazilian mother for a party and never returned).

I am happy to say that it has been resolved. We discussed it in Congress and explained our efforts in Brazil and the cooperation of the embassy here.

Have you met the Brazilian authorities?

We have had a long meeting with the Brazilian Central Authority. We are going to the Foreign Ministry, the Federal Attorney’s Office to see court authorities. We will continue the dialogue about this cooperation because there is a great interest by the State Department and Congress.

In conversation with court authorities, have you sensed a willingness to make reforms to speed up the processing of cases?

We are planning these meetings precisely to find out what kind of collaboration there may be. For example, training judges is something we do with a certain degree of frequency. The Hague Convention is quite simple. Where was the child living when they were abducted? In general, they must be returned to the jurisdiction of where they were resident to be able to go to a hearing. Sometimes it seems that Brazilian courts make decisions more about custody than on the usual place of residence.

There is confusion there.

Yes. The convention is a neutral instrument. It makes no judgment on ethnicity, gender, what the best country to raise the child is. It does not judge who the best parent to keep the child would be. It thinks of the child’s welfare and where they were resident when they were abducted.

Are you going to deal with specific cases, such as Brann or, on our side, the Heaton case?

We will try to keep the conversation more neutral, about the Convention itself. If we get a good interpretation of the Convention, the cases will be solved more easily.

Financial Cohabitation Claims Update

Jeremy D. Morley

Courts in the United States have followed differing paths concerning an unmarried partner’s financial claims arising out of their cohabitation.

The rule in New York is that a contract as to earnings and assets may not be implied in law from the relationship of an unmarried couple living together, but that such a couple are free to contract with each other in relation to personal services, including domestic or “housewifely” services, and that there is no requirement that such a contract be in writing Morone v. Morone, 50 N.Y.2d 481 (1980).

In contrast Indiana, for example, has long ruled that an unmarried partner may be entitled to relief upon a showing of an express contract or a viable equitable theory such as an implied contract or unjust enrichment. Bright v. Kuehl, 650 N.E.2d 311 (Ind. Ct. App. 1995),

Now the Indiana Court of Appeals has refused to reconsider the Indiana rule. McMahel v. Deaton, 2016 WL 477841 (Ind.App.2016).

In its earlier case it specifically held that, “[t]o recover under the theory of implied contract, the plaintiff is usually required to establish that the defendant impliedly or expressly requested the benefits conferred” and that “[a]ny benefit, commonly the subject of pecuniary compensation, which one, not intending it as a gift, confers upon another who accepts it, is an adequate foundation for a legally implied or created promise to render back its value.” Id. (citations omitted).

It further held that, “[t]o prevail on a claim for unjust enrichment, a plaintiff must establish that a measurable benefit has been conferred on the defendant under such circumstances that the defendant’s retention of the benefit without payment would be unjust” and that “[p]rinciples of equity prohibit unjust enrichment of a party who accepts the unrequested benefits another provides despite having the opportunity to decline those benefits.”

In the latest case, it upheld a finding that a man had been unjustly enriched when his 17-year cohabitation with his former girlfriend ended. The woman had provided monetary and other contributions during their cohabitation, cleaned the gutters, painted the house, cleaned the toilets, cooked, and was the primary caretaker of the parties' son. The value of her earnings was 30% of the man’s earnings, and the court awarded her approximately 30% of the parties' combined assets.

Interview with Jeremy Morley: Local Father Desperate After Son is Reportedly Taken to Russia

By Rachel Yonkunas

Published: September 22, 2016, 4:36 pm

QUEENSBURY, N.Y. (NEWS10) — A Queensbury man is raising awareness to a growing global issue of International Child Abduction. It happens when a child is wrongfully taken and held in another country by a parent.

Unfortunately, it’s not uncommon.

Corey McKeighan shares custody of his son Xavier with his mother who is from Russia.

What was supposed to be a mother and son three week trip to her country, has McKeighan worried he will never get his son back.

Xavier is bright and full of energy. He just turned 4 on Monday.

“He was the best kid in the world. He was happy, he was funny.”

His ex-wife agreed to return on September 16th.

“The day before they were supposed to return, she had called me and said, ‘We’re not coming back and you’ll never see us again.'”

In a panic, McKeighan contacted the U.S. State Department, FBI, and congressional leaders. They are working with the foreign government to resolve this case that they say is international child abduction.

“It’s a gigantic problem,” International Family Law Attorney Jeremy Morley said.

Morley has worked on hundreds of these types of cases. In Russia, it is difficult because our countries are not in a treaty relationship.

“We know that the Russian legal system is unpredictable. What I would do in a case like this is start the process by making contact with the taken parent and advising the taken parent of how dangerous their intended course of conduct is.”

Xavier was diagnosed with autism and his routine and treatment is back home in New York.

His father is still waiting to give his son a card for his 4th birthday.

“The first thing I would do is sing, ‘Who Let the Dogs Out’ with him because that’s one of our favorite songs,” Corey said. “I feel like I keep hitting walls. I just keep seeing him in my heart and in my mind. It pushes me nonstop ever day, just trying to do what I can.”

A U.S. State Department official says:

“We are aware of the reports regarding an international parental child abduction case.  Due to privacy considerations, we decline to provide additional details.

One of the Department’s highest priorities is the welfare of U.S. citizens overseas. This is particularly true for children, who are among our most vulnerable citizens.  The Bureau of Consular Affairs, along with our Embassies and Consulates, works with parents and foreign governments to try to resolve these difficult cases. Generally speaking, in cases involving international parent-child abductions a U.S. Embassy or Consulate can facilitate contact with local authorities, provide information on local judicial and law enforcement processes, offer a list of attorneys and translators, and issue passports or other travel documents as appropriate under U.S law.”

McKeighan has created a Facebook Page to raise awareness of this global issue in the hopes of bringing Xavier back home to the United States.

http://news10.com/2016/09/22/local-father-desperate-after-son-is-reportedly-taken-to-russia/

JDM Speaking at Paris Bar Association Event, 9/20

Jeremy will speak in Paris at the Paris Bar Association on Tuesday morning, Sept. 20th, together with Delphine Eskenazi (Libra Avocats in Paris) and Sophie Rodrigues (French Ministry of Justice). 

The theme of the event is a Comparison of French and U.S. Practices concerning International Child Abduction:

Details are at https://www.linkedin.com/pulse/enl%C3%A8vement-denfants-et-d%C3%A9placement-illicite-pratiques-eskenazi?trk=hb_ntf_MEGAPHONE_ARTICLE_POST

La French-American Bar association (FABA) organise le mardi 20 septembre de 8 h 30 à 10 h 30 à la Maison du Barreau une conférence relative aux enlèvements et déplacements illicites d’enfants, et spécialement dédiée aux pratiques comparées France/États-Unis. Ce sont deux heures qui seront validées au titre de la formation continue obligatoire des avocats.

Cette conférence sera animée par Jeremy Morley, avocat Newyorkais qui a récemment publié à l’AJ famille un article sur l’enlèvement d’enfants aux États-Unis (AJ fam. 2016. 253), Delphine Eskenazi, avocate parisienne qui a codirigé, avec Alexandre Boiché, au sein de cette même revue, le dossier « Divorce dans le monde » (novembre et décembre 2015), et Sophie Rodriguez, adjointe au chef du bureau du droit de l’Union, du droit international privé et de l’entraide civile (Ministère de la Justice / Direction des affaires civiles et du sceau).

• Informations pratiques

8h30 – 9h :  petit déjeuner de

9h– 10h30 : Conférence / Questions

Lieu : Maison du Barreau, Salle Gaston Monnerville, 2-4 rue de Harlay, 75001 Paris

• Contact et inscription

Merci de bien vouloir RSVP en écrivant à l’adresse suivante : infoparis@faba-law.com

Et pour toute question, écrire à l’adresse : infoparis@faba-law.com

Child Visits to Israel

Jeremy D. Morley*

When parents are separated and one wants to take a child to visit Israel, the other parent often worries that the child will not be returned, especially if the taking parent is Israeli or has expressed a desire to live in Israel. Such concerns should not be brushed aside. Obviously, if the taking parent is, for example, a homesick expat Israeli or a Jew who yearns to make aliyah to Israel or a person whose own parents live in Israel, the concerns of many left-behind parents will normally be greatly enhanced.

Both Israel and the United States are parties to the Hague Convention on the Civil Aspects of International Child Abduction. This treaty requires that children who are wrongfully retained away from the country of their habitual residence must normally be promptly returned to that country. Israel Indeed, any lawyer handling international child custody cases will be well aware that many of the major U.S. decided cases on the Hague Convention are cases with a significant Israeli connection. 

However, the Convention does not work automatically and children are often not returned. The left-behind parent must establish certain matters before the court in the foreign country and the taking parent may rely on any of the six exceptions (sometimes described as defenses) to the Convention. Hague cases are invariably stressful to both parents, and they can be extremely expensive.

Furthermore, some parents may take advantage of some of the unique features of the Israeli legal system once they have successfully taken a child into Israel. In particular, they may obtain a “stop” order that will prevent a child from being taken out of the country. Such orders are routinely issued and they incentivize a parent who wants the child to remain in Israel – either because of a belief that it would be better for the child to live there or in order to create leverage over the other parent in financial or child custody negotiations - to delay the custody case for as long as possible.

If the taking parent commences a custody case in an Israeli Family Court, such an order may even be issued ex parte (without notice to the other party) and transmitted immediately to the border police at all airports and border crossings. Or if the taking parent commences a divorce case in a religious court in Israel, a stop order may be issued by that court.

It can be difficult, expensive and nerve-wracking to try to overturn a stop order. It often provides powerful leverage to the taking parent who might be using such tactics with the left-behind parent.

We often work with parents in the United States who want to prevent their children from being taken to Israel because of such concerns or who want to create the strongest possible documentation and court orders that will authorize visits on terms that will drastically minimize the risk. There are various steps that can and should be taken to substantially reduce the risks.

_________________

*Jeremy D. Morley is a New York lawyer who handles international child matters globally, working always with local counsel as appropriate. He frequently handles complex and highly charged U.S.-Israeli child custody matters. He is the author of the American Bar Association book, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers. He may be reached at jmorley@international-divorce.com

JDM Speaking at Beverly Hills Bar Association Event: 9/28

 

A lively conversation about the issues facing both international and family law practitioners in our global society. The speakers will discuss international visitation, child relocation, and the Hague convention as well as providing tips on strategic international divorce. Speaker: Jeremy Morley  Premier International Family Law Attorney Moderators: Jennifer Riemer, CFLS  Walzer Melcher LLP Malcolm McNeil, Partner, Arent Fox focusing on International Litigation

When: Wednesday, September 28, 2016, 6:00 pm to 8:30 pm Where: Westside Tavern - Westwood Room (Directions, Parking is Complimentary)

$97 - Members who pay in advance* $297 - Non BHBA Member Who Pay In Advance ($25 more for each at the Door)

Interested in Membership? Try it Free, No Commitment, for 30 days

Malcolm McNeil, Esq. & Albert S. Golbert, Esq. | International Law Committee Chairs Brian Lepak, CFLS & Adam Philip Lipsic, CFLS | Family Law Section Chairs Ellyn J. Stein, Esq. & Debra S. Frank, Esq. | Program Co-Chairs     To Attend & Register, follow the below link:

https://www.bhba.org/index.php/component/jevents/icalrepeat.detail/2016/09/28/487/-/from-beverly-hills-to-notting-hill-divorce-abroad-and-what-you-should-know

Japan and the Hague Abduction Convention: An Update

Jeremy D. Morley[1]

Japan adopted the Hague Abduction Convention with effect from April 1, 2014. Before then, its reputation as a safe haven for international child abduction was almost universal. Japan yielded to international pressure by signing the Convention but its compliance with the treaty is questionable.

A few cases have been initiated in Japan under the Convention. Unfortunately decisions in Hague cases in Japan are not being officially reported, are private and are not accessible.

The U.S. State Department has reported that in 2015 there were no court-ordered returns of children from Japan, and that there were three voluntary returns. In one case, although a Japanese court ordered a child’s return to the United States, the order was not enforced.

Custody orders in family law cases in Japan are unenforceable. It is regarded as beyond the function and responsibility of the State to interfere with the privacy of family life. Accordingly, the drafters of Japan’s Act for Implementation of the Convention on the Civil Aspects of International Child Abduction had to create enforcement processes for the first time in Japan. This explains in part why the Implementing Act is unusually long.

However, the provisions concerning enforcement did not succeed in the only case reported by the U.S. State Department in which a court in Japan issued an order that a child should be returned to the U.S. The State Department has stated that, “In 2015, Japan failed to comply with its obligations under the Hague Abduction Convention in the area of enforcement of return orders. A Japanese court issued the first Convention return order to the United States in early 2015. Authorities attempted, but were unable to effectuate enforcement of the court order by December 31, 2015, exposing what may be a systemic flaw in Japan’s ability to enforce return orders.”  

Another extremely serious concern is that Article 28 of Japan’s Implementing Act expands the scope of the Article 13(b) exception in several significant respects.

Although the Convention provides that “grave risk” is not an absolute defense, but merely provides a court with a right, in the exercise of the court’s discretion, to choose not to return the child to its habitual residence, the Japanese law eliminates that discretion.

The Japanese law also adds three “circumstances” that a court “shall consider” whenever the grave risk defense is asserted. These are:

          i.        The first such circumstance is that courts are directed to consider whether there is “a risk” (but not a grave risk) that the child would be subject to “violence” if returned to the state of habitual residence, and defines violence to include “words” as well as “deeds” and “physical or psychological harm.” This emphasis on mere risk directly contradicts the treaty language.

        ii.        The second circumstance is if there is “a risk” that the taking parent “would be subject to violence etc. by the petitioner” in the state of habitual residence. However, the language of the Convention limits the scope of the grave risk exception to a risk to the child, not to a parent of the child.

      iii.        The third special element that a Japanese court must consider in a Hague case is, “Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.” However, this “circumstance” is entirely beyond the scope of the Convention.

Finally, I understand that all access cases are being submitted to the regular Family Courts pursuant to the regular procedures for custody cases and that the mediation that is required to be conducted in such cases is the regular mediation process rather than the expedited mediation that has been set up for Hague return cases. Unfortunately, mediation in family cases in Japan is generally, in my experience, extremely unhelpful, time-consuming and onerous for non-Japanese litigants. Accordingly, parents with access claims are generally extremely disappointed that their plight has not been improved.

All in all, there is grave cause for concern.

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[1] Jeremy D. Morley is an international family lawyer in New York who works with family lawyers throughout the United States and globally. He is the author of two leading treatises on international family law, International Family Law Practice and The Hague Abduction Convention.  He frequently testifies as an expert witness on the child custody law and legal system of countries around the world, including India, Japan, China and Western Europe. He may be reached at jmorley@international-divorce.com.