Friday, December 29, 2017

Japanese Supreme Court Upholds Refusal to Return Abducted Children

                           by Jeremy D. Morley
By decision dated December 21, 2017 the Supreme Court of Japan has upheld the decision of the Osaka High Court to dismiss the petition under The Hague Abduction Convention to return four children who were abducted to Japan by their Japanese mother from their home in Minnesota in 2014, where they were born and had always lived.
I have previously discussed the case in detail and have explained that it supports the claim that the Hague Abduction Convention is fundamentally unworkable in Japan. See my article at:
Nonetheless there was some hope that the Supreme Court would correct the problem, at least for the four children in question and their left-behind father. However, the Court has now dismissed the appeal and has ordered that the children will not be returned to the United States.
I will provide an analysis of the ruling shortly.  

Friday, December 15, 2017

International Prenuptial Agreements for “Mail Order Brides”

by Jeremy D. Morley
International prenuptial agreements – meaning prenuptial agreements between people who are from different countries or who might relocate to another country – are always tricky because they raise issues about two or more different legal systems and two or more different cultures.  They generally require expert input from lawyers with substantial experience in international matters, especially international prenuptial agreements.

Such agreements are most especially difficult – and precarious – if between wealthy and older men and younger and impoverished foreign brides. 

Two very recent cases – one in Australia and the other in New Hampshire, USA – exemplify the danger. 

In the New Hampshire case, my client, from Ivanovo, Russia, the famous “city of brides,” met her husband, a wealthy and substantially older New Hampshire businessman, through a Russian Bride’s website. The Court found that she was living in harsh conditions in Russia, had few assets, and was desperate to leave. She quit her job in Russia soon after they met (due to a request by her future husband). He then paid her modest support until she was able to move to join him in the United States, obtained a fiancĂ©e visa for her, and booked her flight to the States. About two weeks before the date of her move to live in New Hampshire he sent an English version of a proposed prenuptial agreement to her (even though her English language skills were rudimentary at that time), which was drafted by his New Hampshire lawyer. She received a version translated into Russian just a few days before the flight and about a week after she arrived in New Hampshire she went with her fiancĂ© to his lawyer’s office, where she signed the one-sided agreement. She did so without any legal advice and with little or no awareness of what she was agreeing to.

The Court found that “the enforcement of the Prenuptial Agreement, under these circumstances, would be so unfair as to shock the conscience of the Court” and it must be invalidated because of its unconscionability.

In the Australian case, Thorne v. Kennedy, the parties (identified by pseudonyms) met online. Ms. Thorne, an Eastern European woman then aged 36, was living overseas and had no substantial assets. Mr. Kennedy, then aged 67, was a wealthy Australian property developer. A few months after they met online, Ms. Thorne moved to Australia to marry Mr. Kennedy. About 11 days before their wedding, Mr. Kennedy told Ms Thorne that they were going to see solicitors about signing an agreement. He told her that if she did not sign it then the wedding would not go ahead. Ms. Thorne was represented by an independent solicitor who advised her that the agreement was drafted solely to protect Mr. Kennedy's interests and that she should not sign it. Ms Thorne understood the advice to be that the agreement was the worst agreement that the solicitor had ever seen. She relied on Mr. Kennedy for all things and believed that she had no choice but to enter the agreement. She signed the agreement four days before their wedding. It contained a provision that, within 30 days of signing, another agreement would be entered into in similar terms, and therefore a post-nuptial agreement substantially identical to the pre-nuptial agreement was signed.

The case ultimately went to the High Court of Australia, the supreme court in that country. It upheld the trial court’s decision that the agreements should not be enforced but with a slightly different rationale.  The trial judge had determined that the agreements were invalid for having been signed under duress. The High Court held that the more apparent basis for setting aside the agreements was that the husband had engaged in unconscionable conduct. A majority of the judges also held that the agreements should be set aside on the grounds of “undue influence,” which was preferable to the trial judge’s characterization as “duress.” 

The two cases make it abundantly clear that special factors arise in international prenuptial agreement cases where there is a clear difference in the power positions of the respective parties. An appropriate motto might be, “Old Rich Western Guys Beware.” A better motto is “Follow the Advice of an Experienced International Family Lawyer.”

Wednesday, December 13, 2017

SLOVAK VIOLATION OF HAGUE ABDUCTION CONVENTION: Using Court Delays and other Judicial Devices to Block the Return of Abducted Children

by Jeremy Morley 
It is of the essence of the Hague Abduction Convention that cases brought under it should be handled and concluded expeditiously. The target of six weeks set forth in the Convention itself is made even more specific in the Brussels II bis Regulation governing abductions within the European Union. Unfortunately, lengthy judicial delays often occur, sometimes by reason of the abductor’s strategic litigation ploys and in some cases because of courts are overburdened or possibly negligent.

In some such cases the judicial delays then provide the purported basis for courts to overturn prior orders that children should be returned to the countries from which they were abducted.

That occurred in the infamous decision of the Osaka High Court earlier this year in the case of Arimitsu v. Cook. In that four children were abducted to Japan from Texas in 2014. The Osaka Court ruled in 2016 that the children should be returned. The authorities then failed and refused to implement the court order, and the Osaka court ultimately overturned the return order on the ground that circumstances had meanwhile changed sufficiently to require it to do so. See my article, Japanese Violation of the Hague Abduction Convention.

For similar reasons, the European Court of Human Rights has just ruled in the case of Mansour v. Slovakia (judgment dated November 21, 2017) that the Slovak Republic violated a left-behind father’s human rights in failing to return children abducted from Ireland.

The parties, both Slovak nationals, lived throughout their marriage in Ireland, where their two children were born and always lived. The mother took the children to the Slovak Republic in early 2011 and refused to return them. The father promptly brought suit under the Brussels II bis Regulation and the Hague Convention and succeeded in winning a return order from the Bratislava I District Court and after the mother’s appeal from the Bratislava Regional Court. The return order was enforceable in July 2011, but it was never enforced. 

The father applied for judicial enforcement of the order in February 2012, but the proceedings were stayed because the mother had lodged a request – ultimately unsuccessful - with the Prosecutor General for an extraordinary appeal against the order. 
A series of further appeals and litigation claims were then made by the mother. The mother had commenced proceedings for custody of the children in the Slovak Republic and an interim order issued in that case provided the pretext for another District Court to overturn the return order. The father applied to the Constitutional Court to reinstate the return order and that Court ultimately ruled in 2014 that the father’s rights had been arbitrarily and improperly violated by the District Court’s decision.

Thereafter the enforcement proceedings resumed before the Regional Court, which heard the case in August 2015. It acknowledged that it was bound by the Constitutional Court’s judgment. However, regarding the considerable length of time that had elapsed, it deemed it necessary to assess afresh all the circumstances decisive for the enforcement of the return order, such as the children’s whereabouts, their health, and the possibility of their returning to Ireland. It therefore quashed the District Court’s decision under appeal and remitted the matter to it for re-examination.

In April 2016 the District Court again declared that enforcement of the order was impermissible. It relied on medical reports concerning the children’s health, a psychological report referring to negative consequences for them if they were separated from the mother and an opinion from a court-appointed guardian about the stable family environment they had while living with their mother. It also took into account the children’s wish to stay with their mother and her new husband, their social ties in Slovakia (where they had been residing since January 2011), and the applicant’s lack of contact with them while in Slovakia.

The father then brought another case to the Constitutional Court which ultimately ruled that the father’s rights had again been violated. It found that the District Court had proceeded with the matter for more than four years (inefficiently) and that it was precisely the passage of time which had led the District Court to dismiss enforcement of the return order. It reproached the District Court for the inadequate way it had dealt with the mother’s procedural requests. It further stressed the particular nature of the enforcement of such return orders and pointed out that they required prompt and efficient decision-making that was in accordance with international standards.

Further extensive court proceedings then elapsed in the Slovak Republic, but to no avail - the children are apparently still in the Slovak Republic, where they will presumably remain.

For obvious reasons, the European Court has now ruled that the Slovak Republic’s conduct has been deficient and in violation of human rights. It has held that, “The enforcement courts, by a wrongful application of the substantive law and because of the excessive length of the proceedings, which moreover took place in a legal framework allowing for the use in a problematic way of an extraordinary remedy, enabled the issue of the return of the applicant’s children to the country of their habitual residence effectively to be resolved in an unendorsed and unsupervised way by the passage of time, rather than by a judicial decision.”

Unfortunately, the European Court had no power to order a return of the children. All it could do was to issue a judgment that determines that a violation of the European Convention on Human Rights had occurred and to order the Slovak Republic to pay some nominal funds to the father.

Thus, although the legal systems of the Slovak Republic and the European Court devoted a massive amount of resources to the case, a totally unjust result ensued. Indeed, the Slovak legal system was itself a key actor in a successful scheme to retain abducted children in the Slovak Republic in violation of the Hague Convention as well as the E.U. Regulation in violation of the fundamental rights of children to be with their father and of a father to be with his children. 

Monday, December 11, 2017

Indian Supreme Court Rules that Indian Family Life is Better

                                                                                         Jeremy D. Morley
Upon re-reading the recent decision of the Supreme Court of India in Gupta v. Gupta -- which endorsed a father’s abduction of a child from the United States to India on the primary basis that the child had been living in India since the abduction for 2½ years while the judicial proceedings were pending in India (see my article at it is most disconcerting to read that the Supreme Court seemingly ruled that Indian family life is inherently superior to family life in the United States. 

Specifically, Justice Amitava Roy explained the Court’s decision that the child should remain in India with the father’s family by stating, in part, that, 
As has been claimed by the appellant, the child is growing in a congenial environment in the loving company of his grand-parents and other relatives. He has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.” 
Thus, in a judgment that is presumptively binding in child custody cases on all lower courts in India, the Indian Supreme Court appears to have ruled that it is inherently preferable for a child to live in India with a loving extended family than for that child to live in the United States with his loving mother (upon whom no negative aspersions were cast in the judgment) and his younger brother. 

Friday, December 08, 2017

Supreme Court of India Endorses International Child Abduction

by Jeremy D. Morley
The Supreme Court of India has just issued a final judgment, dated December 6, 2017, in a case entitled Gupta v. Gupta, in which, in my opinion, the Court expressly endorsed international child abduction. Although the child’s left-behind mother had applied for habeas corpus promptly after her husband abducted the child from Virginia, USA, 2½ years then elapsed before the Supreme Court finally ruled on the case. Relying on that passage of time, during which it presumed that the child had become settled in India, it ruled that it was in the best interests of the child to stay in India in the sole custody of his father.  

The facts as stated by the Court are as follows: The parties were of Indian origin and had married in India in 2010 but they had lived throughout their marriage in Virginia, USA. Their two children were both born in Virginia and had always lived in Virginia. They were U.S. citizens. The parents separated in 2014 in Virginia, with the children remaining with the mother in the marital residence. The father then employed what the Supreme Court described as “a nefarious strategy” to abduct the older child to India in early 2015. 

The mother promptly filed an emergency motion in a Virginia court and obtained a temporary order giving sole custody of the child to her and ordering that the child be returned forthwith to Virginia.

A few days later, the father started a custody case in the High Court in New Delhi. The mother promptly appeared in that case and applied for a writ of habeas corpus to deliver the child to her so that she could return him to the USA. Almost a full year later, the High Court ruled in favor of the mother on the ground that the judicial comity required it to respect the right of the courts in the USA to make decisions concerning the welfare of the child. 

The father appealed to the Supreme Court which permitted the child to remain in India pending the determination of the appeal. After more than 1½ years, the Supreme Court of India finally issued its ruling. It held that the child should stay in India in the sole custody of the father. 

The basis of its decision was that the child had been in India for the previous 2½ years with his father and that the High Court ruling was not based on a plenary evaluation of the child’s best interests.  The Court ruled that since the father was “the biological father” of the child, “his custody of the child can by no means in law be construed as illegal or unlawful” (even though the father’s conduct as described in the judgment was apparently felonious under U.S. federal law (18 U.S.C. 1204)).

The Court determined that “there is no convincing material on record that the continuation of the child in the company and custody of the [father] in India would be irreparably prejudicial to him.”
The child was apparently in a congenial environment in the loving company of his grand-parents and other relatives in India, was in a reputed school “and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.” While a court has the power to return a child summarily, “immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise.” Here, “a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years.” It was therefore “imperative that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.”
It ultimately ruled that the child ought to continue in the sole custody, charge and care of the father. It made no provision for any sharing of custodial responsibility and no provision for any access by the mother, whether in India or in the USA.
The ruling should serve as an extremely strong warning to potentially left-behind parents around the world that India is a safe haven for international child abduction.