Posts
By Jeremy D. Morley
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| Wǔxīng Hóngqí ("Five-starred Red Flag") |
1.
China does not comply with international norms concerning
the return of internationally abducted children.
2.
China has failed to
adopt the Hague Abduction Convention and has failed to enter into any bilateral
arrangement with the United States to return abducted children.
3.
There can be no extradition from China for international
child abduction, since there is no extradition treaty between the U.S. and
China.
4.
In most cases, a left-behind parent’s only potential remedy
if a child is taken to and wrongfully retained in China is to search for the
child him / herself, while seeking the assistance of the Chinese police, and
then, if the child is successfully located, to initiate a new plenary case for
custody of the Child in China. However, it is often relatively easy for
abducting parents to conceal their location with a child in China for extensive
periods of time. Child kidnapping is rampant in China.
5.
The Chinese courts generally refuse to handle family cases
concerning foreigners or concerning parties who are not registered as domiciled
in China.
6.
The courts in China are not required to enforce foreign
custody orders and they do not do so. There is no system in China to register
foreign custody orders or enforce foreign custody orders. China has entered
into treaties with some countries concerning the enforcement of commercial
judgments, but they do not extend to family matters.
7.
There is no law in China similar to the Uniform Child
Custody Jurisdiction & Enforcement Act in the United States concerning the
recognition of the continuing and exclusive jurisdiction of the courts of
another country. The U.S. system whereby a court retains exclusive modification
jurisdiction even after a child has become habitually resident in another
country is alien to China.
8.
Any court proceeding in China concerning custody of or
access to an abducted child will likely be unpredictable and difficult.
9.
China does not have any legal mechanism to apply for or
issue urgent or emergency orders in family law cases.
10.
It is usual in China for the custody of a child to be
awarded to one parent only.
11.
Visitation
rights are extremely limited in China, typically
being limited to a
daytime visit once a month. There is no
precedent for any equal sharing of custodial time or for the issuance of a detailed time-sharing
arrangement that would provide for the non-residential parent to spend substantial
periods of time with the child.
12.
It would be unprecedented for a Chinese court to order that a child should be relocated
to a foreign country. Nor is there any realistic likelihood that a Chinese
court would compel a Chinese parent to allow permit the Mother to have any
visitation outside China.
13.
It is difficult to
enforce child custody orders issued by a Chinese court. The enforcement
procedures that exist in China can easily be thwarted, so that enforcement can
easily be delayed for extended periods of time or permanently. It is a fundamental principle of Chinese law and culture that the state should not normally
interfere in private family life.
14.
Judges in China are not independent. They are state
employees responsible to the Chinese Communist Party. In 2017 the President of China’s Supreme People’s Court denounced
judicial independence as a false Western idea and insisted that the Chinese
judiciary is subordinate to the Chinese Communist Party.
15.
There is a high level of corruption in the Chinese legal
system. The U.S. State Department reliably and authoritatively reports that in
China, “[c]orruption often influenced
court decisions, since safeguards against judicial corruption were vague and
poorly enforced. Local
governments appointed and paid local court judges and, as a result, often
exerted influence over the rulings of those judges.”
16.
Courts in England and in Hong Kong have confirmed that
foreign custody orders are unenforceable in China and that cross-border child
abduction into China is without any meaningful remedy.
17.
If a parent abducts a child to China and retains the child
in China, the left-behind parent will normally have grave difficulty in enforcing
any rights concerning the child.
