Tuesday, January 31, 2017

Russia parliament votes 380-3 to decriminalize domestic violence

Russia's parliament voted 380-3 on Friday to decriminalize domestic violence in cases where it does not cause "substantial bodily harm" and does not occur more than once a year.

The move, which eliminates criminal liability in such cases, makes a violation punishable by a fine of roughly $500, or a 15-day arrest, provided there is no repeat within 12 months. The bill now goes to the rubber-stamp upper chamber, where no opposition is expected. It then must be signed by President Vladimir Putin, who has signaled his support.

Kremlin spokesperson Dmitry Peskov told journalists that family conflicts do "not necessarily constitute domestic violence." The passage by the parliament, or Duma, reverses a ruling by the Supreme Court last year, subsequently backed by parliament, that decriminalized battery that does not inflict bodily harm, but retained criminal charges involving battery against family members. That reform is effectively reversed by Friday's vote.

Andrei Isayev of the main Kremlin faction, the United Russia, said lawmakers are “heeding the public call” by correcting a mistake they made last year. Russia is one of three countries in Europe and Central Asia that do not have laws specifically targeting domestic violence, according to The Economist.

Critics of the new measure warned it would encourage domestic violence and fuel crime.
“This bill would establish violence as a norm of conduct,” Communist lawmaker Yuri Sinelshchikov said during the debate. Women's rights lawyer Mari Davtyan told The Moscow Times that the legislative moves are dangerous and "send a message that the state doesn’t consider familial battery fundamentally wrong anymore.”

A survey this month by state-run pollster VTsIOM found 19% of Russians said “it can be acceptable” to hit one’s wife, husband or child “in certain circumstances,” the Associated Press reported. The nationwide poll by phone of 1,800 people was held Jan. 13-15. The survey had a margin of error of 2.5 percentage points.

In many ways, this reflects the thrust of an old Russian proverb: “If he beats you it means he loves you.” According to Russian government statistics from the Interior Ministry, 40% of all violent crimes are committed within the family. The figures correlate to 36,000 women being beaten by their partners every day and 26,000 children being assaulted by their parents every year.

Last year's revised law, when it took in effect in July, quickly drew opponents, notably ultra-conservative Russian lawmaker Yelena Mizulina, who called it "anti-family" and said it undermined parents' "right" to beat their children. That view was echoed at the time by The All-Russian Parents’ Resistance movement that warned on its website that "(p)arents no longer have the right to choose methods of upbringing.” Alyona Popova, activist and women’s rights advocate, lamented that this attitude is widespread in Russia, The Moscow Times reported. “Traditional, or rather archaic values have become popular again,” she said.

Even Russian police are often reluctant to get involved in domestic violence cases, which many regard as meddling in family affairs.

In November, prosecutors began investigating a police officer who took a call from a woman complaining about her boyfriend’s aggressive behavior. Instead of offering help, the officer reportedly told the woman that the police would only come if she got killed. Shortly afterward, the man beat the woman to death, the AP reported.


Monday, January 30, 2017

India Debates the Hague Abduction Convention

Jeremy D. Morley
The debate swirls in India as to whether or not that country should accede to the Hague Abduction Convention.  When I was in India in September it appeared that the consensus of leading members of the legal community there was that India should, and would, sign the treaty, and would thereby join most of the world’s leading countries in that regard. However, since that time there has been a strong backlash which has delayed -- and perhaps entirely derailed -- that process.
The stated concern of those who wish to block India’s accession is that Indian women who are in bad and perhaps abusive foreign marriages should “naturally” be allowed to take their children “to safety” back home to India. See for example the article in today’s Hindustan Times entitled, It would be disastrous for India to sign the Hague convention on child abduction.”
Such arguments overlook the fact that protection for parents and children against abuse is generally available in the countries in which they actually reside; that allegations of abuse may be exaggerated or invented; that the courts in the countries of the children’s residency have the jurisdiction to permit the relocation of the children to India if that is in the best interests of the children; that fathers as well as mothers have a fundamental right to parent their children; and that it is a fundamental human right of children to have both parents in their lives.
The concerns that are now being expressed in India parallel those that were raised in Japan before that country ultimately signed the treaty, effective April 2014. However, it is to be hoped that if India chooses to sign the Convention it will do so without unnecessarily diluting its provisions as Japan did.
A compromise was ultimately reached in Japan whereby the Enabling Act pursuant to which the Convention was brought into Japanese domestic law provided for a significant expansion of one of the exceptions to the treaty. Specifically, Article 28 of Japan’s Enabling Act converts the so-called “grave risk” discretionary exception into a full and complete defense and it substantially expands the grounds of the defense. For example, Japanese courts may consider such factors as whether 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.” In my opinion, the expansion of what was intended to be an extremely limited and narrow discretionary exception into a broad defense that in many ways requires a determination of the child “best interests,” violates the provisions of the treaty.
An extremely beneficial consequence of Japan’s accession to the treaty is that the number of reported abductions of children to Japan has significantly declined. On the other hand, one of the adverse and unintended consequences of the expanded exception into an extremely broad defense is that it necessarily discourages courts in the United States (or other country of habitual residence) from authorizing a Japanese parent to take children to Japan for a visit children’s visits to Japan, in the face of objections by a potentially left-behind parent, because of concern that it will be all too easy for the taking parent to retain the children in Japan. The same consequence will surely result if India follows a similar path.
Meanwhile the debate in India continues. It is well-recognized that India is a safe haven for international child abduction. Unfortunately it appears that that will continue to be the case for the foreseeable future.

Tuesday, January 24, 2017

Notes on International Child Abduction to Nicaragua

Jeremy D. Morley

1.      Nicaragua is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. However, the United States is not partnered with Nicaragua under the Convention. There are no bilateral agreements in force between Nicaragua and the United States concerning international parental child abduction.
2.      The State Department has determined that Nicaragua is a “Non-Convention Country” that has “Demonstrated a Pattern of Noncompliance” within the meaning of the International Child Abduction Prevention & Return Act, because with respect to calendar year 2015, because “Fifty percent or more of the total abduction cases are unresolved abduction cases as defined by the Act” and “Nicaragua persistently failed to work with the United States to resolve abduction cases in 2015.”
3.      While the Nicaraguan Central Authority previously cooperated with the Department in efforts to resolve cases of children abducted to Nicaragua from the United States, that cooperation stopped in early 2016 when the Nicaraguan government asked the Department to communicate with the Ministry of Foreign Affairs instead. In the spring 2016, U.S. Embassy Managua delivered a diplomatic note to the Nicaraguan Ministry of Foreign Affairs requesting Nicaragua’s assistance with two international parental child abduction cases.
4.      Upon release of the 2016 Annual Report, U.S. Embassy Managua delivered a demarche to the Government of Nicaragua noting that the Department had cited Nicaragua in the report as demonstrating patterns of noncompliance
5.      The U.S. State Department reports that:
·         The Government of Nicaragua is authoritarian, limits freedom of expression and peaceful assembly, represses internal dissent, and monitors and responds to perceived threats to authority.
·         In 2015 there was also widespread corruption, including in the police, Supreme Court of Justice and other government organs.
·         Nicaraguan authorities may physically or electronically monitor, detain, and question private U.S. citizens concerning their activities, including contact with Nicaraguan citizens, especially related to topics as varied as the proposed interoceanic canal, elections, and criticism of the Government of Nicaragua. 
·         There are severe penalties in Nicaragua for domestic violence, psychological abuse, and non-payment of child support.
·         The government-controlled legal system can result in prolonged detentions of U.S. citizens without charges or due process. 
·         In 2015, although the law provides for an independent judiciary, the judicial system did not function independently. The law requires vetting of new judicial appointments by the Supreme Court of Justice, a process unduly affected by nepotism, personal influence, or political affiliation. Once appointed, many judges submitted to political and economic pressures that compromised their independence. NGOs complained of a delay of justice caused by judicial inaction and widespread impunity, especially regarding family and domestic violence and sexual abuse. Authorities occasionally failed to respect court orders.
·         In 2015, while the government resolved some property claims during the year, it regularly failed to enforce court orders with respect to seizure, restitution, or compensation of private property. Enforcement of court orders was frequently subject to nonjudicial considerations. Members of the judiciary, including those at senior levels, were widely believed to be corrupt or subject to political pressure.
·         Demonstrations occur frequently throughout the country; in the past, these have turned violent.  Avoid demonstrations and exercise caution around large gatherings.
·         Violent crime occurs throughout Nicaragua. Vehicle burglaries, pick-pocketing, and occasional armed robberies occur in store parking lots, on public transportation, and in open markets like the Oriental and Huembes Markets in Managua. Street crime is also common in Puerto Cabezas, Bluefields, and the Corn Islands.  Police presence is extremely limited outside of major urban areas, including on the Pacific Coast and Nicaragua’s Caribbean Coast. Due to the Caribbean Coast’s geographical isolation, we have limited ability to provide emergency services to U.S. citizens there.   
·         All travel by U.S. government personnel to the Northern and Southern Caribbean Coast Autonomous Regions must be pre-approved due to crime and transportation safety concerns.
·         The legal system operates arbitrarily, which can result in prolonged detentions of U.S. citizens without charges or due process. 
·         In many instances, police and prison authorities have ignored or significantly delayed implementing judicial orders. 

Tuesday, January 17, 2017

Notes on Kuwait, Child Custody and Child Abduction

By Jeremy D. Morley
1.            Family and personal status law in Kuwait is governed by religious courts. In Kuwait the Sunni and Shi’a have their own court chambers to handle such matters in accordance with their own jurisprudence. In the case of Sunni Muslims, the Sunni chamber of the Family Court in Kuwait will apply the Maliki or the Hanbali interpretation of Islamic law. The Kuwaiti legal system is based on Islam and is codified into an “Islamicized” code as to marriage, divorce and child custody. 

2.                  The governing laws that apply in child custody cases in Kuwait are the Kuwaiti Constitution and the Kuwaiti Personal Status Law. Article 2 of the Constitution is entitled “State Religion” and it provides that “The religion of the State is Islam, and the Islamic Sharia shall be a main source of legislation.” Such laws are all based on concepts of gender appropriateness, age appropriateness and personal “morality.”

3.                  Pursuant to the Personal Status Law of Kuwait, the Father is generally the legal guardian of the child, while the mother usually has physical custody of children up to a certain age. Article 209 of the statute states that the person with the most right to guardianship of a minor is the father, followed if he is unfit by the father’s father and the male relations in the other of inheritance.  

4.                  Article 192 of the Personal Status Law provides that, “The non-Muslim hadina [person who has residential custody] of a Muslim child shall be entitled to its custody until it starts to understand about religion, or until it is feared that it may become familiar with a faith other than Islam, even if it does not understand about religion. In all cases, such a child shall not remain with such a hadina after it has reached five [now 7] years of age.”

5.                  Pursuant to Article 190 of the Personal Status Law a mother’s claims of custody over her children will be barred if she is shown to lack the necessary fitness and moral character, considered in accordance with Islamic principles of submission to her husband and her personal sexual and other conduct, such as whether she lives with a non-Muslim or has or has had a relationship outside marriage with a man.

6.                  The U.S. State Department Human Rights Country Report on Kuwait states that, “In the event of a divorce, the law grants the father custody of children of non-Muslim women who fail to convert.” 

7.                  In Kuwait, foreign custody orders are merely items to consider as part of an overall de novo custody review. Custody orders and judgments of foreign courts are not enforceable in Kuwait if they potentially contradict or violate local laws and practices

8.                 If a woman obtains custody in Kuwait it will merely be what is often described as “captive custody,” meaning that she will be prohibited from traveling with the child out of Kuwait without her ex-husband’s or the court’s permission. An integral component of guardianship in Sharia law is that the child must reside in the same location as the guardian even if another person has residential custody. Article 195 of the Personal Status Law specifically provides that the hadina (custodian as to residency) may not remove the child from the area of the guardian’s residency without his express permission.

9.                  Travel bans may be imposed by the Kuwaiti government or by private citizens against Kuwaitis and non-Kuwaitis, including U.S. citizens, if there are claims concerning matters such as unresolved financial disputes. Such bans prevent the individual from leaving Kuwait for any reason pending resolution of the dispute.

10.              Kuwait has not acceded to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence. Kuwait has chosen not to adopt the treaty, even though it has been adopted by 95 other countries, including Islamic countries such as Morocco, Turkey and Turkmenistan.

11.              There can be no extradition from Kuwait for international child abduction, since there is no extradition treaty between the U.S. and Kuwait.

Friday, January 13, 2017

Notes on International Child Abduction and the Philippines

1.      Although the Philippines has acceded to the Hague Abduction Convention, the Convention is not in force between the United States and the Philippines because the United States has not accepted the Philippines’ accession. Articles 38 and 39 of the Convention provide that the treaty will not enter into force between an existing Contracting State and a newly acceding State unless and until the existing state expressly accepts the accession of the new state.

2.      When a country accedes to the Convention, the U.S. State Department reviews the new signatory’s domestic legal and administrative systems to determine whether the necessary legal and institutional mechanisms are in place for it to implement the Convention and to provide effective legal relief under it. If it determines that a country has the capability and capacity to be an effective treaty partner, the State Department declares its acceptance of the accession by depositing a written instrument with the Hague Permanent Bureau. Only then does the Convention enter into force between the United States and the acceding country. The State Department posts these details on its website and the Permanent Bureau maintains a current status list on its website.

3.      Currently, the United States has not accepted the Philippines as a treaty partner. As a result, the Convention cannot be invoked in the case of abductions of children from the United States to the Philippines, or from the Philippines to the United States.

4.      There are no bilateral arrangements between the United States and the Philippines concerning the return of abducted children.

5.      In July 2016 the State Department issued its Annual Report on International Parental Child Abduction for the year 2015. The State Department reported that, “During 2015, the Philippines did not adhere to protocols with respect to international parental child abduction.” It also reported that, “During 2015, the Department had 23 reported abductions to the Philippines relating to children whose habitual residence is the United States. Of those, seven were newly reported during the calendar year. By December 31, 2015, no cases had been resolved, as defined by the Act, and five reported abductions had been closed. By December 31, 2015, 18 reported abductions remained open.”

6.      There can be no extradition from the Philippines for international child abduction from the United States, since there is no extradition treaty between the U.S. and the Philippines.

7.      Courts in the Philippines are not required to enforce foreign custody orders. There is no system in the Philippines of registration of foreign custody orders or enforcement of foreign custody orders. The Philippine courts will also take into consideration child custody decrees issued by foreign courts but there is no obligation that requires them to do anything more than “consider” such decrees.

8.      The courts in the Philippines have jurisdiction under the law of the Philippines to deal with all matters concerning the custody of children who are in the territory of the Philippines, regardless of the continuing jurisdiction of a foreign court.

9.      Article 213 of the Family Code of the Philippines provides that, “In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” Article 213 takes its bearing from Article 363 of the Civil Code, which reads:

Art. 363. In all questions on the care, custody, education and property of children, the latters welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

While the rule mandating sole custody of a child to a mother (except in exceptional cases) ends when the child is seven, the strong bias in favor of the mother continues after that age.

10.  The courts in the Philippines are extremely backlogged and are subject to extreme delays.

11.  Once a custody case is commenced in the Philippines, a travel hold concerning the Child will normally be in place in that country. The Philippines Government advises that, “A minor who is the subject of ongoing custody battle between parents will not be issued a travel clearance unless a Court Order is issued to allow the child to travel abroad with either one of his/her parents or authorized guardian. The family shall be responsible to notify the Bureau of Immigration to include the name of the child/ren in the watchlist of minors travelling abroad. It is therefore the Bureau of Immigration’s responsibility to ensure that no child under the watchlist order leaves the country.”

Tuesday, January 10, 2017

Slovakian Noncompliance with the Hague Abduction Convention

Jeremy Morley
The European Court of Human Rights has determined, in the case of the abduction of three children from their habitual residence in Maryland to Slovakia, that the Slovakian legal system failed to protect the left-behind father’s rights and that Slovakia failed to comply with the obligation of our treaty partners to return abducted children promptly. Frisancho Perea v. Slovakia.
The case illustrates all too well the problems that arise from lax enforcement of Hague Convention rights, as well as from a lack of exit controls.
The father commenced his Hague Convention case in Slovakia within two months of their abduction by his wife. A Slovakian court granted his application promptly. The wife appealed and lost. The father then sought judicial enforcement. However the wife brought an appeal to the Slovakian Constitutional Court on the issue of the enforceability of the return order. That court eventually remanded the case to the trial court which then held numerous proceedings. Meanwhile the wife took the children from Slovakia to Hungary thereby rendering the Slovak proceedings moot.
The European Court ruled -- several years later -- that Slovakia had violated Article 8 of the European Convention on Human Rights, which declares that each citizen has the right to respect for family life, by failing to apply the Hague Abduction Convention effectively.
Unfortunately the European Court’s powers were limited to a requiring payment of a small fine.

Tuesday, January 03, 2017

A Possible Child Visitation Law in Japan

Jeremy D. Morley
In Japan, if the parent who does not have physical possession of a child is allowed to have visitation with the child it will generally be limited to a few hours a month and be strictly supervised – usually in the courthouse, a police station or a lawyer’s office – if there is even slight acrimony between the parents. Family court orders concerning visitation are essentially unenforceable.
Court-ordered international visitation is entirely unprecedented and to my knowledge has never been ordered by any Japanese court, although I have worked on many cases in which a non-Japanese parent has requested it.
The Japanese press is now reporting that a group of legislators in Japan is preparing to submit a bill to the Diet “to ensure that children can continue seeing both parents in the event of their divorce.”
The leader of the “Parents and Children’s Network” has welcomed the proposal but has suggested that the prospective legislation “should stipulate standards for visitations so children can promptly receive the love of both parents” after divorce.
However, the notion that children should visit the non-custodial parent (usually the father) is quite controversial in Japan. The proposed legislation will surely face strenuous opposition.
Indeed, a women’s rights group leader immediately opposed the idea of visitation, claiming that, “If the bill makes it a prescribed course for children to see (the parent who does not have custody), it will hamper the recovery from damage caused to their bodies and minds, and risk their safety.” She reportedly stated further that, “Even if children were not directly victimized by physical violence, they can suffer indirectly by seeing the violence one parent has used on the other, and hearing verbal abuse.”
While a law might perhaps be enacted, whether it will actually be meaningful and enforceable is a totally different issue. (Likewise, Japan’s belated adoption of the Hague Abduction Convention was extremely controversial and was implemented only by means of an implementing law that has major loopholes and tremendous enforcement challenges).
In my field of international family law, the situation is completely unsatisfactory. It means that a non-Japanese parent whose ex-spouse has the parties’ children in Japan cannot see his children unless the Japanese parent chooses to permit him to do so. If she does permit it, the visitation will invariably be no more than occasional, will be strictly supervised and will occur only in Japan. And for cultural reasons this sad state of affairs is seen as completely normal, and indeed appropriate, in Japan.