Thursday, March 30, 2017
Jeremy D. Morley
The High Court of Australia has upheld a trial court ruling that two teenage boys, now aged 17 and 15, who moved from Sydney to New York with their father, should be returned to Australia, even though they clearly wish to remain in New York. Bondelmonte v Bondelmonte,  HCA 8.
The parents separated in 2010. The boys then lived in Sydney with the father while their younger sister lived with the mother. In 2014, parenting orders were made, which ordered equal shared parental responsibility for the children and authorized either parent to take the children on an overseas holiday subject to certain conditions being met.
In 2015, further orders were made requiring the children to engage in a “Child Responsive Program” and the parents to be interviewed by a family consultant.
In January 2016, the two boys flew to New York with the father for a vacation. After two weeks, the father informed the mother that he had decided to live indefinitely in the United States and that the boys would remain with him.
The mother filed an application under Australia’s Family Law Act 1975 to secure the boys' return. That statute requires the court to have regard to "the best interests of the child as the paramount consideration."
In determining what is in the child's best interests, it provides that a primary consideration is "the benefit to the child of having a meaningful relationship with both of the child's parents," while an "[a]dditional considerations" includes "any views expressed by the child and any factors ... that the court thinks are relevant to the weight it should give to the child's views."
The trial court ordered the return of the boys to Australia, since the "best interests" of the children involved consideration of the children's relationships with their parents and each other, which were matters best dealt with in Australia via the mechanism established by the 2015 orders. The trial judge accepted evidence that the boys wished to remain living with the father in New York, but considered the weight of those views to be "weakened by the circumstances which have been contrived by the father." He also ordered that, if the father did not return to Australia and the boys did not wish to live with the mother, they could live either in supervised accommodation or separately with the mothers of other children.
On appeal, the father asserted that the trial court was required to look past the father's behavior in order to determine the actual opinions of the older teenage boys and what was in their best interests.
On appeal, the High Court rejected the father's contention that the trial judge had erred in discounting the boys' expressed preferences to remain in New York because he had formed an adverse view of the father's actions. The Court held that the extent to which the boys' views had been influenced by the father was relevant to the weight to be given to those views.
The High Court also rejected the argument that the trial judge was required to ascertain the boys' views as to the alternative living arrangements. It held that the Family Law Act merely required that the views which have been "expressed" by children should be considered, but that ascertaining the boys' views was not statutorily mandated. Moreover, since the statute permits parenting orders to be made in favor of a parent of a child "or some other person," the orders for the alternative living arrangements could be made in favor of the mothers of the boys' respective friends.
Note: The author represents the father in connection with matters in New York, where the father and the boys reside. However, this summary is based solely on the language in the High Court’s judgment.
Friday, March 24, 2017
Jeremy D. Morley
On 24 February 2017, Jamaica deposited its instrument of accession to the Hague Convention on the Civil Aspects of International Child Abduction. Jamaica is the 97th Contracting State to the Convention. The Convention will enter into force for Jamaica on May 1, 2017, but it will not have effect with respect to other states unless and until such countries specifically accept Jamaica’s accession.
Jamaica has brought the Convention into domestic law by amendments to its Children (Guardianship and Custody) Act. A review of the amending statute indicates some issues that should be considered as part of the process of reviewing the acceptance of the accession by other countries.
One issue is that the legislation empowers Jamaica’s Central Authority – defined as “the Minister with responsibility for justice” – to “refuse an application” if it decides that “the application is not well founded.”
The second, and related, issue is that the legislation identifies “the Court” as the Supreme Court of Jamaica and states that the Court should make every effort to decide cases expeditiously and within six weeks, but it does not state how cases are to be brought to the court and does not explain the jurisdiction of the Court if the Central Authority has itself made a determination that an application is not well founded.
A third issue is that the legislation authorizes a refusal to return a child “where the return of the child would breach his rights under Chapter III of the Constitution of Jamaica.” Chapter III of the Constitution comprises an extremely broad listing of “fundamental rights and freedoms,” including specific provisions for the protection of freedom of movement, for protection from inhuman treatment, and for respect for private and family life, all of which could be raised as purported defenses in a Hague Convention case in Jamaica.
In any event, Jamaica’s accession to the treaty is a welcome development.
Thursday, March 23, 2017
by Jeremy D. Morley
The Hague Convention has a role to play in international child relocation cases and in cases concerning international child visitation and travel. That role will on occasion be of great significance. It also has some significance in international relocation (“move away”) cases, but that role is frequently afforded entirely inappropriate significance.
In international relocation cases, an important issue is whether or not the foreign country to which the child may be relocated will effectively enforce the orders of the U.S. court concerning access for the non-custodial, non-relocating parent.
Parents sometimes cite as a relevant factor on this issue that the country in question is -- or is not -- a party to the Hague Convention. However, the key issue is far narrower than that. The Convention is triggered as an abduction case when there has been a wrongful removal or retention within the meaning of Article 3 of the Convention. If a court in the United States permits a parent to relocate with a child to another country, the act of that parent in taking the child to the foreign country and retaining the child there is obviously not a wrongful act.
The issue in relocation cases should be whether or not the Convention, as it is actually applied in the foreign country, will enforce a left-behind parent's right of access. It must be recognized that in most cases the mere fact that a foreign country is a Hague Convention treaty partner provides no assurance whatsoever that access orders issued by a court in the United States will be recognized and enforced after the relocation has taken place.
Courts in the United States must appreciate that, once a child has been lawfully relocated overseas, their extraterritorial jurisdiction will generally be quite limited. Indeed, no other country has adopted the Uniform Child Custody Jurisdiction & Enforcement Act or any law similar to it. The American concept of exclusive jurisdiction continuing in the (American) court that issues an initial custody order, even if the child lives overseas, as long as one parent continues to live in the original state, is completely alien to almost all foreign courts.
In most countries, once a child has been relocated to such a country and is habitually resident there, the local courts will conclude that they have exclusive jurisdiction to issue a child custody order or to modify a prior foreign custody order.
It must also be stressed that the definition of “habitual residence” in force in most countries is quite different than the meaning given by most American courts. For example, in the European Union, habitual residence is treated as a question of fact, taking into account all of the relevant circumstances, and “corresponds to the place which reflects some degree of integration by the child in a social and family environment.” Mercredi v Chaffe, (Case C-497/10 PPU)  Fam 22. Under that test, a change of habitual residence is likely to occur promptly after a child is relocated lawfully to another country, particularly when the child is in school there.
Conditioning international child relocation on the applicant first obtaining an order from a court in the country to which the relocating parent proposes to move that mirrors the terms of the U.S. court’s order and that acknowledges that the U.S. court has continuing exclusive jurisdiction concerning all matters as to the child's custody and visitation, is entirely unworkable, because once a relocated child is habitually resident in the foreign country the courts in that country will invariably have the right and the duty under the laws and the public policy of that country to assume modification jurisdiction without regard to the demands and presumptions of an American court.
Of course, such an order of a court in the United States would be binding under the laws of the issuing state, and most likely of sister states in this country, even if the foreign court has issued a contradictory order. The U.S. orders would bind the relocating parent who has taken the child overseas and might put that parent in jeopardy, but it would be inconsequential in the foreign country and most likely in other foreign countries also.
Thus, reliance on Article 21 of the Hague Convention to ensure compliance with the visitation provisions of an order permitting international relocation may well be misplaced. Once a foreign court has assumed custody jurisdiction it will make such decisions as it deems fit about custody and access, and Article 21 will not restrain that process in the slightest.
It should be noted that the U.S. approach will be modified to accord with the worldwide standard if, as and when the United States accedes to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the “1996 Convention”). The basic principle of the UCCJEA — that the court that issues an initial custody order retains the exclusive right to modify the order so long as that state remains the residence of a parent, the child, or a person acting as a parent — is not mirrored in the 1996 Convention. Instead the Convention provides that modification jurisdiction changes with changes to the child’s habitual residence. These terms codify the practice of many countries around the world. The 1996 Convention provides that a country’s courts have custody jurisdiction whenever the child is habitually resident there (Article 5), subject to certain limitations for refugee or internationally displaced children with no habitual country of residence (Article 6), and cases of wrongful removal or retention of a child (Article 7). Another country’s authorities cannot intervene to protect a child without the express agreement of, or at the express request of, the courts of country where the child is habitually resident (Articles 8 and 9).
In 2013 the Uniform Law Commissioners promulgated a revised UCCJEA, to accommodate the 1996 Convention. The new UCCJEA contains a new Article 4 that is intended to govern cases between states of the United States and foreign countries. In such cases jurisdiction to issue — and to modify — a custody order (to be referred to as a “measure of protection”) will be based on the child’s habitual residence, which may shift over time.
Thursday, March 16, 2017
We are delighted that we helped to secure the return to California this week of a child who had been abducted to Taiwan.
Taiwan is not a party to the Hague Convention on International Child Abduction and the Taiwanese judicial system would likely not be helpful in such a situation.
We advised our client to allow us to use other measures instead, and they have now borne fruit, to our client’s great joy and relief.
Tuesday, March 14, 2017
Two international child abduction cases arrive in your office on the same day. One client leaves relieved and optimistic; the other leaves in tears. Why the disparity? The first client is Mary. A few days ago, the father of her baby visited Mary and persuaded her to allow him to take the baby to the park. He then disappeared with the child. Mary has learned that he has taken the child to his country of origin in Southeast Asia and that he intends to keep her there. Mary wants you to help her file a petition with the U.S. Secretary of State to demand her child’s return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Convention provides that children under the age of 16 who have been wrongfully removed to or retained in a country that is not their habitual residence must be promptly returned unless one of the narrow exceptions set forth in the Convention applies. It was implemented into U.S. law by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§11601-11610. The Convention is intended to restore the pre-removal status quo and to discourage parents from engaging in international forum shopping.
Courts deciding a petition for return of a child have jurisdiction to decide the merits of the wrongful removal claim, but they may not decide the merits of the underlying custody dispute. Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008). Unfortunately, you must tell Mary that, unless the country in question is Sri Lanka, she cannot take advantage of the Convention. Although the treaty is in force between the United States and about 80 other countries around the world, it is not in force between the United States and any Southeast Asian country other than Sri Lanka.
Accordingly, Mary’s options are limited. She can secure a custody order from a court in her local state but that may well have no force or effect in the foreign country. She might ask for state or federal criminal charges to be brought against the father, but that might be counter-productive in deterring him from stepping foot outside his country. She might start a custody case in the foreign country but that might prove an uphill battle.
The second client is Paul. He and his wife are British nationals. They moved to your state from England with their children a few years ago. The wife took the kids on holiday to England a few weeks ago and now refuses to bring them back. Your advice will normally be to file a Hague Convention petition immediately. The Convention is in force between the United States and most countries in Europe. U.K. compliance with the Convention is excellent and the U.K. government will even pay for counsel to represent the left-behind parent. Each signatory country is required to have a Central Authority to process the petitions for return of children. Proceedings for the return of children are brought in the courts of the countries to which children have been abducted. The Secretary of State is the Central Authority in the United States. In California, but not in most other states, the local District Attorney’s Offices will help parents file Hague petitions when children have been abducted to countries where the treaty is in force with the U.S.
What will Paul need to prove in order to have the English court order the return of his children? He needs to show that the children were “habitually resident” in your state, that he has a “right of custody” under the laws of your state, and that he did not consent to the children being retained in England for longer than their holiday time.
“Habitual residence” is not defined in the Convention. Its meaning has spawned considerable litigation in cases where the children have lived in different countries. Paul will claim that he and his wife were settled with their children in your state, but his wife might tell the English court that they were in the U.S. only temporarily. In deciding the issue, courts generally look to the last shared intention of the parents as to where their family should live and the extent to which children have spent time in and become acclimatized to the jurisdiction in question. In order to establish that Paul has a “right of custody” under the law of your state, you may suggest that you will supply an expert affidavit to accompany the petition that will state that even though there is no custody order, Paul has custodial rights by virtue of being the married father of the children. You probably should recommend to Paul that he should initiate a custody case immediately in your state and seek an emergency order directing his wife to return the children.
You want to ensure that Paul does not lose the exclusive custody jurisdiction that your state has, at least as far as U.S. courts are concerned, under the Uniform Child Custody Jurisdiction & Enforcement Act. Otherwise, in six months, England could become the new “home state” for Paul’s children. Then, even though the children were returned to your state, unless the English courts were to decline jurisdiction over the custody issue, your state would not have jurisdiction under the UCCJEA.
You also need to review with Paul the possible defenses that his wife might raise in England. There are seven defenses, all of which are supposed to be construed narrowly. The first is consent. Convention, Article 13a. Did Paul agree that the children could be kept in England? The defense does not require that consent be in any specified form. And so there could be a “red light, green light” dispute about who said what to whom. Negotiations between the parents often result in statements which can unintentionally look like consent or acquiescence. However, the burden of proof will be with the wife.
The second defense is acquiescence, meaning that after the children were kept overseas Paul “okayed” that fact. Convention, Article 13a. In U.S. courts, acquiescence is difficult to establish; it requires some degree of formality. In England, the courts have a lower threshold requirement but again, as with all of these issues, the burden of proof is on the taking parent.
A third defense is that the petitioner was not actually exercising his rights of custody. Convention, Article 13a. Courts require very little to disprove such a claim. Certainly if the parties were living together before the foreign trip, Paul’s wife will not prevail on this issue.
Another defense is that a return would violate the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. This defense is extremely limited. Although the U.S. has its problems, the human rights defense will not succeed in a case in which return to the U.S. is sought. Convention, Article 20.
A fifth defense is that more than one year has elapsed from the date of the alleged wrongful removal or retention, and the child is now settled in the new environment. Convention, Article 12. The existence of this defense should cause you to counsel Paul to act promptly.
A sixth defense is that the child “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Convention, Article 13b. This defense will be extremely serious if the child is old enough, but the Convention leaves the exact age up to the courts. It will be up to the English judge to decide first whether Paul’s children do in fact object to being returned to your state and if so, whether the children have attained an age and maturity at which it is appropriate to take account of their views. The children will likely be interviewed by a so-called “cafcass officer” who is employed by England’s Children and Family Court Advisory Support Service. Even if the defense is established, the English court will have discretion to return the children nonetheless if the court deems it best to do so.
The last defense is grave risk of harm. Convention, Article 13b. In the authors’ experience, this is the most common objection and it generally provides the most difficulty. Article 13b requires the party raising the defense to establish that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” In Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996), the Sixth Circuit held that a “grave risk of harm” for the purposes of the Convention can exist in only two situations. First, if returning the child would put the child in imminent danger prior to the resolution of the custody dispute – e.g., returning the child to zone of war, famine or disease. Second, if there is evidence of serious abuse or neglect, or extraordinary emotional dependence, and if the court in the country of habitual residence is incapable of or unwilling to give the child adequate protection. Some U.S. courts have adopted more stringent tests and others more liberal tests with respect to the “grave risk of harm.” The loose language of the Convention has allowed courts in some countries to interpret the defense broadly so as to justify a refusal to return children. However, if Paul is not an abuser, he should have little to fear from this defense.
In conclusion, the identity of the country to which children are abducted from your state will play a pivotal role in shaping your strategy and in determining the likelihood that the children will be returned. Mary is unlucky that her child was apparently taken to a non-Hague country. If she had contacted you before the abduction occurred perhaps you could have sought to enjoin the abduction and taken other protective steps, particularly if she were residing in a state that has enacted the Uniform Child Abduction Prevention Act and if she were able to establish the existence of the so-called “risk factors” identified in that Act to help identify potential abductions.
Note that some states such as California have enacted their own abduction prevention statutes. The most effective such step is to require that the potential abductor have only supervised visitation with the child, but without proof of a direct threat to abduct the child, most judges are reluctant to grant such an order.
Since there are no exit controls in the United States, it is all too easy for a parent of foreign nationality to obtain travel documents for the child from his or her home country and flee overseas with the child. Paul is fortunate because not only were his children taken to a country that is a party to the Hague Convention, but also that that country is a strong enforcer of Convention rights. The U.S. State Department publishes annual reports to Congress on the compliance by U.S. treaty partners of their obligations under the Convention. The reports assert that several countries do not enforce Convention rights adequately.
Indeed, the authors believe that the State Department has been far too restrained in identifying noncompliance by certain countries. A vast array of materials and information on the Convention is now available on the Internet. These can be found via judicious use of search engines or by starting with the HCCH (Hague Conference on Private International Law) website’s Child Abduction Section found at http://tinyurl.com/cghzwe or the U.S. Department of State website’s International Parental Child Abduction Section found at http://tinyurl.com/7waq7.
Friday, March 10, 2017
A South African man and his Ukrainian fiancee have been detained in the United Arab Emirates for unlawful sex, a relative says.
Emlyn Culverwell‚ 29, and Iryna Nohai, 27, were reportedly arrested after a doctor discovered M.s Nohai, who had stomach cramps, was pregnant.
They were arrested for sex outside of marriage, which is illegal in the UAE.
Mr. Culverwell's mother has pleaded for their release, saying "the only thing they did wrong was fall in love."
South Africa's foreign ministry has said that it is not able to help the couple as this is a matter of domestic UAE law, News24 reports.
The South African government has advised the couple to get legal assistance, the BBC's Pumza Fihlani in Johannesburg says.
There was no immediate comment from the UAE government.
Mr. Culverwell and Ms. Nohai have reportedly been held since January, but news of their detention has only emerged now.
Mr. Culverwell has been working in the UAE for the past five years.
His mother Linda told News24 that the family is "trying to get messages to the two to say we love them and that they shouldn't be worried".
The couple have not yet been charged as the authorities are still carrying out tests, Mrs. Culverwell added.
If found guilty, they could face a long jail sentence.
Thursday, March 09, 2017
Malaysia is not a party to the Hague Abduction Convention.
In conjunction with local counsel in all applicable jurisdictions, we created a strategy for our client, counseled him as to obtaining a custody order in Malaysia, helped him to locate the missing child in the USA, and worked with counsel in Illinois to register the Malaysian order in that state, to enforce the registered order despite fierce opposition, and ultimately to reunite the father with his beloved child.
These cases are very challenging and it is most encouraging when they yield a beneficial result.
Thursday, March 02, 2017
A court in Massachusetts, after hearing my expert testimony concerning the high risk of abduction of children to Japan, has issued a most “Solomonic” order, consistent with my testimony, whereby the Japanese mother is permitted to take only one of the parties’ three children for limited duration visits to Japan currently, to take two of the three children (but not both of the younger children) for visits starting in three years, and to take all of the children starting in seven years. A most sensible compromise.