Don't Rely on the Hague Convention for Overseas Visits

When considering whether to be concerned that the other parent plans to take a child on an overseas visit - which is normally a great benefit to a child and should generally be encouraged - it can be a huge mistake to rely merely on the foreign country's accession to The Hague Abduction Convention. 

The Convention does not operate automatically and a country's accession to the treaty does not guarantee the prompt - or even eventual- return of an abducted child. For example, one must consider the potential defenses (exceptions really) that an abducting parent might raise in a case brought under the Convention in the foreign country. Thus, if a child is 10 years old or older, one should be alert to the possibility that the child, perhaps under family pressure, will object to being sent back to the habitual residence. The Convention expressly authorizes courts to refuse to return abducted children if they are of sufficient age and maturity and independently object to being returned.

International child abduction is child abuse and prevention is far better than attempting to recover an abducted child after the fact. 

Monaco’s New Law on International Private Law

Jeremy D. Morley

On June 28, 2017 Monaco adopted a new Law on Private International Law. It sets forth the rules concerning divorce jurisdiction, authorizes spousal selection of the law to govern marital regimes, and provides rules concerning the applicable law concerning maintenance.

An informal translation of such provisions is as follows:

No. 1448 - Law on Private International Law

CHAPTER II - MARRIAGE

Section 1 - Formation of marriage

Article 32: The form of marriage celebrated before the Monegasque authorities is governed by Monegasque law.

Article 33 Subject to the provisions of Article 27, the substantive conditions of the marriage celebrated in Monaco shall be governed by the law of the State of which he is a national at the time of the marriage.

Article 34: Marriage concluded abroad in accordance with the law of the State of celebration shall be recognized as such 4/13 in the Principality, unless it is contrary to Monegasque public policy, or if it has been celebrated abroad with the clear intention of evading the provisions of Monegasque law.

Section II - The respective rights and duties of spouses

Article 35: The respective rights and duties of spouses shall be governed:

          1. by the law of the State in whose territory the spouses are domiciled or jointly separated;

          2. in the absence of domicile of the spouses in the territory of the same State by the law of the State in whose territory the spouses had their last common domicile;

          3. and, failing that, by Monegasque law. Notwithstanding the provisions of the preceding paragraph, third parties who have treated in good faith in the Principality with a spouse domiciled there may avail themselves of the provisions of Monegasque law concerning the rights and duties of spouses.

In all cases, the provisions of Monegasque law ensuring the protection of the family home and of the furnishings furnishing it are applicable when this housing is located in the Principality.

Section III - Matrimonial regime

Article 36: The matrimonial regime is governed by the law chosen by the spouses. Spouses may choose the law of the State in which they establish their domicile after the marriage, the law of a State of which one of them has the nationality at the time of the choice, the State in whose territory one of them has his domicile at the time of the election or the law of the State in which the marriage is celebrated.

The duty so designated applies to all of their property.

The provisions of this article do not derogate from the provisions of articles 141 and 1235 of the Civil Code.

Article 37: The designation of the applicable law must be written and signed by both spouses. It shall take the form provided for in the marriage contract by the designated right or by the State in whose territory the act is drafted.

This designation must be express or result from the provisions of a marriage contract in one of the forms thus provided.

The designation of the applicable law may be made or amended at any time. If it is subsequent to the celebration of the marriage, it has effect only for the future. The spouses may dispose of it otherwise, without prejudice to the rights of third parties.

The existence and validity of consent in respect of such designation shall be governed by the designated right.

The provisions of this article do not derogate from the provisions of article 1243 of the Civil Code or those of article 141 of the Civil Code.

Article 38: In the absence of an election of right, the matrimonial regime shall be governed:

          1. by the law of the State in whose territory the spouses establish their domicile after marriage;

          2. in the absence of domicile in the territory of the same State by the law of the State of which both spouses are nationals at the time of the marriage;

          3. in the absence of residence in the territory of the same State or of a common nationality, or in the case of a plurality of common nationalities, by Monegasque law.

Article 39: The effects of the matrimonial regime on a legal relationship between a spouse and a third party are governed by the law applicable to the regime.

However, if the law of a State provides for publication or registration of the matrimonial property regime and these formalities have not been complied with, the law applicable to the matrimonial property regime may not be invoked by a spouse to a third party of the spouses or the third person has his habitual residence in that State.

Similarly, if the law of a State in which immovable property is situated provides for the formalities of publication or registration of the matrimonial property regime and the formalities have not been complied with, the law applicable to the matrimonial property regime cannot be A spouse to a third party for the legal relationship between a spouse and a third party in respect of that immovable.

The provisions of the second and third paragraphs shall not apply if the third party knew or ought to have known the law applicable to the matrimonial property regime.

Section IV - Divorce and legal separation

Article 40: Monegasque courts shall have jurisdiction to deal with divorce and legal separation:

          1. where the domicile of the spouses is in the territory of the Principality;

          2. where the last domicile of the spouses was in the territory of the Principality and one of the spouses still resides there;

          3. where the defendant spouse is domiciled in the Principality;

          4. if one of the spouses is of Monegasque nationality.

The Monegasque courts are also competent to pronounce the conversion of the legal separation into divorce when the separation of body was pronounced in Monaco.

Article 41: The law applicable to divorce or legal separation before the Monegasque courts is Monegasque law, unless the spouses request the application of the law of the State of which they have shared nationality.

The spouses may also agree before the celebration of the marriage of the application of the law of a State of which either of them has the nationality or of the law of the State in whose territory they have their common domicile.

CHAPTER III - FILIATION AND ADOPTION

Section I. - Affiliation

Article 42: In addition to the cases provided for in the general provisions of this Code, Monegasque courts shall have jurisdiction in relation to the establishment or dispute of filiation where the child or that of his parents whose paternity or maternity is sought or In the territory of the Principality or has Monegasque nationality.

Article 43: The establishment and challenge of filiation shall be governed by the law of the State of which the child is a national. The nationality of the child shall be assessed on the day of his birth or, in the event of judicial finding or dispute, on the day on which the application is lodged.

Article 44 Voluntary recognition of paternity or maternity is valid if its validity is admitted in a State of which the child or the person who made the recognition has the nationality or his domicile on the date of the latter.

Article 45: The law which governs the filiation of a child, when it arises outright of the law, determines the effect on this filiation of an act of recognition.

The law governing the first recognition of a child determines the effect on the child of subsequent recognition.

CHAPTER IV - MAINTENANCE OBLIGATIONS

Article 52: In addition to the cases provided for in the general provisions of the present Code, courts of the Principality are competent to hear all claims concerning maintenance obligations where the creditor or maintenance debtor is domiciled in the Principality or is a national of Monaco.

The Monegasque court that is competent to hear an action relating to the status of persons is also competent to hear an application relating to a maintenance obligation ancillary to that action.

Article 53: The maintenance obligation between ascendants and descendants shall be governed by the law of the State in whose territory the maintenance creditor is domiciled.

However, Monegasque law applies where the creditor cannot obtain support from the debtor under the right referred to in the preceding paragraph.

Article 54: The maintenance obligation between spouses is governed by the law governing the respective rights and duties of the spouses.

Financial measures intended to compensate for the prejudice created by the dissolution of marriage shall be governed by the law under which divorce is pronounced.

Article 55: The right of a public body to claim reimbursement of the benefit provided to the creditor in lieu of the maintenance debtor is subject to the law governing that body.

India’s Chief Justice and India’s Status as a Safe Haven for International Child Abduction

by Jeremy D. Morley

On July 8, 2017 the Chief Justice of India, Hon’ble Shri Jagdish Singh Khehar, addressed the issue of India’s failure to sign the Hague Convention on the Civil Aspects of International Child Abduction, in a speech at an All India Seminar of the International Law Association.

The Chief Justice sought to explain, and apparently to justify, India’s position by stating that it would be “disadvantageous to Indian women” for India to adopt the Convention because “there are far more cases of Indian women escaping bad marriages abroad, and returning to the safety of their homes in India; than non-Indian women who are married to Indian men, leaving India with their children.”

The Chief Justice further endorsed recent decisions by the Supreme Court of India determining that courts in India should entertain full (and obviously extremely lengthy) analyses of the “best interests” of children abducted to India, which as he explained had deviated from “the earlier approach of the Supreme Court, wherein the minor child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country.”

It is most unfortunate that his speech underscores -- and purports to justify -- India’s well-deserved reputation as a safe haven for international child abduction.

The portion of his speech addressing the Hague Convention was as follows:

• “In India, the idea that a parent can abduct his or her own child, seems culturally unacceptable. Further, to bring the criminal law of kidnapping or abduction into family fights, is to accelerate a hostile situation, which would directly impact the welfare of the concerned child.  A violent marriage, an abusive marriage, a marriage causing a sense of deep hurt… entail differing degrees of distrust and suspicion, these impact even the sense and sensibility of the child.  Courts are put in a difficult situation, while deciding custody issues, between different levels of distrust and finding a safe haven, for a child with the singular option… to develop hatred towards one of the parents within the boundaries of the custodial parents’ place of residence.
• The Hague Convention, which at present has 95 signatories, aims to protect children from the harmful effects of international abduction by a parent, by encouraging the prompt return of the abducted child, to the country of habitual residence.  And to organize or secure, the effective rights of access to the child.  Custody and visitation matters, it is felt, should generally be decided by the proper court, in the country of the child’s habitual residence.
• The Convention on the Rights of the Child of 1989, also reflects the need to come together for protection of the child, and for every aspect related to children’s welfare. Though, this Convention has not delved into the details pertaining to child custody, as have been dealt by the Hague Convention of 1980, it weaves an overall matrix with regard to child rights, proposing cooperation at the global level. The Convention recognises the right of the child, to live with his or her parents, and the need for judicial determination – in case of separation of parents.  The issues’ sensitivity requires States to be obligated, to maintain personal and direct relations with both parents, and thereby, protect and honour the rights of children. The Convention on the rights of the child, calls upon States to promote conclusion of bi-lateral and multi-lateral agreements, and to take measures for combating illicit transfer of children – to locations beyond a child’s habitual residence.  The Convention also requires the States to make arrangements, for the return of children to the country of the child’s habitual residence.
• After India became a party to the Convention on the Rights of the Child, concerted efforts have been made in India, to deal with various aspects of child welfare. Positive outcome can be witnessed in legislations like the Juvenile Justice Act (2015), the Protection of Children from Sexual Offences Act (2012), the Prohibition of Child Marriage Act (2006), the Commissions for Protection of Child Rights Act (2005)… and so on.  But in terms of existing laws in the area of child custody, the legislative activity has been limited to the domestic sphere like the Hindu Marriage Act, 1955; the Hindu Minority and Guardianship Act,1956 and the Guardians and Wards Act, 1890.
• India has not ratified the Hague Convention for multiple reasons – including the prime one, that it is disadvantageous to Indian women, as there are far more cases of Indian women escaping bad marriages abroad, and returning to the safety of their homes in India; than non-Indian women who are married to Indian men, leaving India with their children.  In 2009, the Law Commission of India, headed by former Supreme Court Judge, had submitted a report recommending, that the government ratify the Hague Convention.  In February 2016, the Punjab and Haryana High Court while dealing with a child custody issue, asked the Law Commission of India, to resubmit its recommendations to the Government, with its recommendation to sign the Hague Convention. Based on these recommendations, the Women and Child Development Ministry in June 2016 issued a draft of the Civil Aspects of International Child Abduction Bill, 2016 (and a notice on the bill, No. CW-I-31/59/2016-CW-I of June 22, 2016) which reflected the provisions of the Hague Convention, and would pave the way for India’s accession to it.
• The Law Commission of India has also recently proposed some modifications in the above-mentioned Bill, and re-named as – “The Protection of Children (Intercountry Removal and Retention) Bill, 2016”. This Bill seeks to address the violation of custody, or access rights by providing for a full-fledged framework.  This Bill also provides for constitution of a Central Authority, which will have a major role in discovering the whereabouts of the removed/retained child, and in securing the return of the child, and also, in provisioning for legal aid.  It also proposes to empower the High Court to determine the issue of return of the child, despite lapse of sufficient time.  At the same time, on certain grounds – like objection by the child, or exposure of child to grave risk etc. the return of the child can be denied. 
• As of now the void is being taken care of by the Indian judiciary. The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare of the child, and not the rights of the parents under a statute.’ In 1998 in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, the Supreme Court held, that since India was not a signatory to the Hague Convention, it could decide the question of child custody on the merits of the case keeping in view the principle of best interest of the child.  This judgment was a departure from the earlier approach of the Supreme Court, wherein the minor child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country. The Supreme Court in Mausami Moitra Ganguli vs. Jayanti Ganguli AIR 2008 SC 2262 held, that ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’.  Recently in Surya Vadanan v. State of Tamil Nadu AIR 2015 SC 2243 the Supreme Court again pronounced the principles that needed to be kept in mind while dealing with inter-country removal and return. These involved the recognition of the principle of ‘comity of courts and nations’ along with the principle of ‘best interest and welfare of the child’.  Though governmental efforts have gained momentum in the recent past to fully realize the obligations laid under Article 11 of the UN Convention on the Rights of the Child, the courts in India are consistently trying to guard the best interests of the child.        
• It has been claimed that if India becomes a signatory State to the Hague Convention, it will lead to a less complicated and a more efficient process… in addressing the issue of wrongful removal or retention of children.”

Country Report: Mexico

The U.S. State Department has just issued its 2017 Annual Report on International Parental Child Abduction under the International Child Abduction Prevention and Return Act (ICAPRA). The following is the Country Summary and related information for Mexico:

Country Summary: The United States and Mexico have been partners under the Hague Abduction Convention since 1991, and the United States has by far more abduction cases annually with Mexico than with any other country. Consequently, more cases have been resolved than with any other partner. In 2016, the Department noted serious concerns with a lack of communication from the Mexican Central Authority and identified shortcomings with respect to location efforts.

Central Authority: The Mexican Central Authority communication with the U.S. Central Authority decreased significantly in 2016. Due to this lack of communication, left-behind parents were not always updated on the status of their applications in a timely manner. In light of the concerns about communication, both central authorities agreed to improve information exchanges in 2017.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2016, 25 abduction cases were resolved through voluntary means.

Location: In 2016, Mexican law enforcement improved on its efforts to locate missing children. In some cases, however, the competent authorities did not take swift action to locate a child after filing a Convention application. The inability to locate the children was the root cause of most unresolved applications. The average time to locate a child was 15 months and ten days. As of December 31, 2016, there are 41 cases where the Mexican authorities were seeking to locate abducted children.

Judicial Authorities: First-instance courts generally decided Convention cases in a manner that was timely and consistent with the Convention. Delays were often related to the amparo, a constitutionally-based injunction that suspends the effects of a lower court’s decision.

Enforcement: Decisions in Convention cases in Mexico were generally enforced in a timely manner. However, two cases were pending for more than 12 months and law enforcement was unable to execute the return orders. In total, there were eight cases that were unresolved for more than 12 months (accounting for seven percent of the total cases filed with the FCA) and law enforcement failed to locate a child or enforce a return order.

Access: In 2016, the U.S. Central Authority acted on 21 open access cases under the Convention in Mexico. Of these, 12 cases were opened in 2016. Ten access cases were filed with the Mexican Central Authority, including four that were filed initially in 2016. By December 31, 2016, five cases (24 percent) were resolved and seven cases were closed for other reasons. By December 31, 2016, nine access cases remained open. No cases were pending with the Mexican authorities for more than 12 months.

Department Recommendations: The Department will intensify engagement with the Mexican authorities to address issues of concern. The Department also recommends an emphasis on preventing abductions.