Thursday, April 16, 2020

Switzerland and International Child Abduction

The Hague Abduction Convention entered in force in Switzerland on January 1, 1984. The implementing legislation is the Federal Act of 21 December 2007 on International Child Abduction and the Hague Conventions on the Protection of Children and Adults. The Swiss Central Authority under the Convention is the Federal Office of Justice in Bern.
Rights of custody in Switzerland are attributed by operation of law in accordance with Article 296 of the Swiss Civil Code, under which children are under jointly-exercised parental care of their parents. The parents might be married or not, but they have to be not less than 18 years old.
highly controversial provision of the Federal Act is Section 5, which on its face unnecessarily expands the scope of Article 13(b) of the Convention. It states as follows:
Art. 5 Return and best interests of the child
Under Article 13 paragraph 1 letter b of the 1980 Hague Convention, the return of a child places him or her in an intolerable situation where:
  1. placement with the parent who filed the application is manifestly not in the child's best interests;
  2. the abducting parent is not, given all the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction or this cannot reasonably be required from this parent; and
  3. placement in foster care is manifestly not in the child's best interests.”
It is the bedrock principle of the Hague Abduction Convention is that a case brought under the Convention is not a custody case and that, unless one of the very limited exceptions is established, wrongfully-removed and wrongfully-retained children should be returned promptly to their country of habitual residence whose courts may then determine the children’s best interests.
On its face, Article 5 expressly violates that principle.
Nonetheless, Swiss jurisprudence has sensibly applied Article 5 in a restrictive manner, as is shown in two highly significant cases.
The 2012 Case
In the first such case, 5A_479/2012, IIe Cour de droit civil, arrĂȘt du TF du 13 juillet 2012children were abducted from Poland to SwitzerlandA Polish court had awarded joint parental authority of the children to the parents, with the mother to have physical custody. On the same day, the parents had entered into an agreement giving extensive rights of access to the father. The mother then left Poland with the children to live near her father in Switzerland, and cited Section 5 of the Swiss Federal Law in opposition to the father's Hague application.
The Swiss Federal Tribunal, 2nd Civil Tribunal, refused to accept the mother's claims. It pointed out that the exceptions to a return should be interpreted strictly, and that only grave risks should be taken into account, exclusive of grounds connected with the parents' educational abilities. It ruled that the mother's submissions did not demonstrate how the children's return to Poland could expose them to a grave risk of danger. The children had spent only five months in Switzerland, the mother came from Poland where she had lived from 2005 to 2012, and it was not proven that the university training she was undergoing in Switzerland was unavailable in Poland. In addition, even if she decided to remain in Switzerland, there was no reason to conclude that placing the children with the father was manifestly inconsistent with their interest.
The 2017 Case
The second case is the decision of the Swiss Supreme Court in 5A_936/2016 du 30 Janvier 2017, in which a Swiss mother had abducted two children, born and raised in England, from their habitual residence in England. Under English law, she and the English father had shared parental responsibility, but effective custody of the children was exercised solely by the mother, subject to the father's right of access, for just three hours a week, in a child protection center. The father had been prohibited from visiting the mother's home since October 2013, following repeated domestic violence in the presence of the children. 

The mother relied on Article 5 of the Swiss Federal Law to oppose the father’s Hague petition and she represented that she did not wish or intend to return to England. She also asserted that she faced arrest if she returned to the U.K.
The Swiss court held that she had not established her defense. It stated the following principles:
  • The exceptions to return provided for in Article 13 of the Convention must be interpreted restrictively.
  • The abducting parent should not derive any benefit from his or her illegal behavior.
  • Only serious risks must be taken into account, to the exclusion of reasons related to the capacities of the parents, since the Convention is not intended to rule on the best interests of the child, and in particular on the question of determining which parent would be best suited to raise and care for the child.
  • The test of intolerable return to the country of origin concerns the child itself, and not the parents, which means that, depending on the circumstances, a return may lead to a separation between the child and his / her primary care provider. Such a separation does not in itself alone constitute a reason for refusal of return.
  • However, the situation is different for infants and young children, at least up to the age of two; in this case, the separation from the mother constitutes an intolerable situation. [Note – this principle is not in accordance with much of the international jurisprudence].
  • A return of the abducting parent with the child, within the meaning of Article 5, cannot, for example, be required if the taking parent is exposed to imprisonment, or if she has established very solid family relationships in Switzerland, particularly after a new marriage. However, these must be exceptional situations, in which the abducting parent cannot be reasonably required to return to the child's country of last residence for the purpose of waiting for a final judgment on parental rights. [Note – again, this principle does not accord with much of the international jurisprudence].
In applying those principles, the Court found that:
  • The children were over the age of two, so that the principle of not separating younger children from their mother did not apply.
  • The mother expressed her wish not to return to Britain, but she had not established that she would be unable to do so.
  • In particular, the risk of criminal proceedings which she might incur was insufficient, since it did not appear from the file that she would definitely be exposed to detention and that the father had declared that he had taken no steps in this direction with the criminal authorities. 
  • In any event, the criterion of intolerable return to the country of origin concerned the children and not the abducting parent. 
  • The same went for the claim (apparently clearly established) that the father would be unable to take care of the children if they were returned to Britain.
  • Those issues were for the courts in Britain to decide as part of their custody jurisdiction.
  • Even if the mother chose not to return, and even if the British courts decided that the father was unable to care for them such that they needed to be placed in an institution, this element could not constitute an intolerable situation for the two children. 
  • In any event, such a placement - if the mother decided not to return to Britain with her daughters and the father should be judgedby the English authorities, to be incapable of assuming custody of them - did not expose the children to a serious danger to their development. 
  • The only factor that could potentially apply under Article 13(b) of the Convention concerned allegations of violence. However, it appeared that in reality the return order would not be the cause of any such endangerment of the situation of the children, but only a new change in the regime of custody and access resulting from the unfounded refusal of the mother to return to England. 
  • The return order did not need to oblige them to relocate close to the father’s home, which might jeopardize the stability resulting from geographic distance. 
  • Accordingly, the Court ordered that, if the mother did not return the children to Britain within two months, the Child Protection Agency in Geneva must return the children to their father in Britain, with the assistance of the police if necessary.
* Jeremy D. Morley is a New York attorney who handles international child abduction and international child custody matters concerning the United States and Switzerland, as well as globally, but always acting as appropriate in collaboration with local counsel. 

Tuesday, April 14, 2020

See-Saws and the New U.S. Law of Habitual Residence

The Monasky Case
In Monasky v. Taglieri, 140 S. Ct. 719 (2020) the U.S. Supreme Court redefined “habitual residence” in Hague Abduction Convention cases to align with the international jurisprudence. U.S practitioners must now become familiar with the Court’s “totality-of-the-circumstances” test.
The test has been in place in the European Union for at least a decade. The Court of Justice of the European Union articulated it in 2010 in Proceedings brought by A (Case C-523/07), [2010] Fam 42, and amplified it in Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22. For some years, courts in the U.K. have followed the same approach, and it has been extensively considered, explained and applied in at least five U.K. Supreme Court cases.
In Monasky, the U.S. Supreme Court relied significantly on international caselaw in support of its decision. Judge Ginsburg explained that, “Our conclusion that a child's habitual residence depends on the particular circumstances of each case is bolstered by the views of our treaty partners. ICARA expressly recognizes ‘the need for uniform international interpretation of the Convention.’ 22 U. S. C. §9001(b)(3)(B).”
Therefore, we should expect that courts in the U.S. will be receptive to caselaw from other countries, especially common law countries, concerning the totality-of-the-circumstances test.
See-Saws in English Law
In this regard, we should be prepared to discuss see-saws. Why see-saws? Because a see-saw works as a helpful analogy.
In the landmark case of Re B (A child), [2016] UKSC 4, the U.K. Supreme Court (Lord Wilson) stated that we should expect that when a child gains a new habitual residence, he loses his old one. He continued, “The concept operates in the expectation that, Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.”
In numerous subsequent cases, the English courts have applied the see-saw analogy, which to this author seems to be both sensible and helpful.
In G-E (Children : Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] EWCA Civ 283, the Court of Appeal explained that the trial court had considered the see-saw analogy and asked the question, "When did the Australian roots come up and the English roots go down?" The trial judge had decided that the children's roots in Australia were "rather shallow" while the "central family members for the children” were each other and their mother. In contrast, the children had real ties to England even before they moved there, and those ties had grown quickly after their move so that by the relevant date the children had become "firmly integrated and had put down firm roots" in England. Their "Australian roots had come up and the see-saw had tipped. They were stable in their home, social life and schooling which was a contrast for them." Thus, they had become habitually resident in England "by a natural process of integration rather than a plan."
The English Court of Appeal ruled just a few days ago, in S (Children), [2020] EWCA Civ 515 (09 April 2020), that, “In marrying the facts to legal principle, the judge was entitled (indeed well-advised) to apply the analogy of a 'see-saw' to describe the shift of habitual residence from England to Libya. It cited with approval the trial judge’s statement that, “Whilst the 'tipping of the seesaw' was undoubtedly delayed because of the circumstances appertaining in the children's lives during the first few months of 2018 I find that the seesaw had tipped very firmly in favour of all three children losing their pre-existing habitual residence in the UK and gaining habitual residence in Libya by the time the mother made her application, by which time these children had almost no continuing link with the UK save for video contact with their mother."
See-saws v. Limbo
The see-saw idea also underlies English decisions on the issue of whether a child can be without a habitual residence. It is unusual to stay in perfect balance on a see-saw. In Re B, the courts below had held that a child who had been taken from her home in England to live in Pakistan had lost her English habitual residence even if she had not yet acquired a new habitual residence in Pakistan. Lord Wilson switched analogies and referred to the state of equilibrium between the two jurisdictions as “limbo,” which was a condition to be avoided. He held that the “modern concept” of habitual residence requires "not the child's full integration in the environment of the new state but only a degree of it," which in certain circumstances can occur quickly, making it “highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B.”
A Specific Example
Illustrating just how “pivotal” and useful the see-saw comparison is in the English law on habitual residence, the judge in AB v XY (Rev 1) [2019] EWHC 3098 (Fam) made vivid and extensive use of it. He stated:
“Surely a first-time mother who has availed herself of antenatal and postnatal care in England and lives close to her own mother, these all provide the building blocks for the child's habitual residence being in England and integrated in this environment, and if that is to be uprooted, using the seesaw analogy, then there has to be something very similar to be in place in Malta, and I find it was not. Every time the seesaw starts to pivot towards Malta, because the couple was in Malta with Z, it goes back, tips back, the mother comes back here for an appreciable period of time with the father or goes elsewhere with the child. A six-week trip to Italy, right at the end shows that really there was no integration in Malta at any stage really, to the extent that one can be satisfied to say the child became a habitual resident in Malta and lost her English habitual residence that she had gained in her first few months of her life.”
High School Physics
For these reasons, it might even be useful for U.S. family lawyers to brush up on their high school physics to be ready to discuss equilibrium, pivots, fulcrums and balance to better handle international child abduction cases.  
Jeremy D. Morley is a New York attorney who concentrates on international family law. He is English and formerly taught law at the University of Sheffield, England, and collaborates with English lawyers on international child custody matters.

Friday, April 10, 2020

How to Draft a Prenuptial Agreement for an International Couple

by Jeremy D. Morley
          You are asked to prepare a prenuptial agreement between spouses of different nationalities, who have different prior countries of residencyassets in various international locations and future plans to relocate to one or more countries. Where do you start? And how do you protect yourself?
          It is difficult enough preparing a prenuptial agreement for wealthy or potentially wealthy people when you only have to take into account the law of one jurisdiction. It is far harder and riskier when multiple jurisdictions come into play.
          The following are some basic principles that the author has developed from handling a large variety of international prenuptial agreements over many years:
  1. This is a highly specialized area. There is much more risk for the family law practitioner who agrees to handle an international agreement than is the case with conventional prenuptial agreements. These matters are tricky, and they require great care. Do not handle international prenuptial agreement matters unless you have experience or are collaborating with an international family lawyer who handles them regularly.
  1. Ensure that one lawyer is both the “general” in charge of the entire process, the chief coordinator among the various lawyers in different jurisdictions that will be working on the prenuptial project, and the primary (or sometimes the sole) liaison with the client. If one lawyer is not clearly in charge there will probably be great confusion, lawyers will be tempted to jostle for a larger role than might be appropriate, the client will receive conflicting advice and important issues might never be addressed.
  1. Do not take on the process of drafting an international prenuptial agreement unless you are prepared to work with foreign counsel, to understand foreign law, to become familiar with different legal concepts as they may apply to your client's circumstances and to work in an environment in which there are no clear-cut rules or procedures in which you may often feel compelled to consult your malpractice policy.
  1. Make it clear to the client that, for example, you are admitted to practice only in Jurisdiction A (or perhaps A and B); that while you may have a little familiarity with Jurisdiction C, you are not admitted to practice there; that anything that you might say about the law of that jurisdiction is strictly subject to the client's confirmation with local counsel; that you have no familiarity with the laws of Jurisdictions D, E, and F; and that you will endeavor to find out what you can about the laws in those jurisdictions but you will need to rely on local counsel and that it is local counsel's advice upon whom the client will ultimately be relying. Back this up with a letter to the client and notes to your file.
  1. Obtain written authorization from the client to engage the services of local family lawyers in other jurisdictions for the purposes of advising as to the laws and procedures of their own jurisdictions.
  1. Be clear on client confidentiality when you hire a foreign lawyer. The rules vary considerably.
  1. Secure funding to cover all of the anticipated legal charges. It is critical to know that you may be responsible for the legal fees of lawyers you ask for help in foreign jurisdictions.
  1. Find out what fees each lawyer charges and how the lawyer expects to be paid. In some countries, fees are fixed by local law. You should establish a workable billing schedule. Foreign lawyers may not be accustomed to including a description of work performed in connection with billing. Some foreign attorneys may expect to be paid in advance. Others may demand payment periodically and refuse to continue until they are paid. Request an estimate of the total hours and costs of doing the work. Be clear who will be involved in the work and the fees charged by each participant.
  1. When reviewing foreign law, be careful to understand the terms that your foreign local lawyers use. For example, foreign terms might be translated into English as “marital property,” “custody,” “ownership,” and “commingled” but the terms might well have completely or even subtly different meanings in the foreign jurisdiction which could seriously impact the way that a contract is interpreted. Become familiar not only with the law as it is written in the foreign jurisdiction but the law as it is actually applied and as it might apply to your particular client if the prenuptial agreement were brought before the courts in that jurisdiction. In this regard, it is critical to determine how much discretion is afforded to a judge in the foreign jurisdiction to rewrite specific provisions or to take any action other than strictly applying the law concerning prenuptial agreements.
  1. Check out the conflict of laws issues. Be alert to the fact that a contract executed in one jurisdiction might in any particular jurisdiction be governed by another jurisdiction's law. You may even need to consider “renvoi” rules (perhaps for the first time since cramming in law school for a Conflicts exam) insofar as another court that applies its own law to a prenuptial agreement might include its laws on the conflict of laws, which might require the court to apply the laws of another jurisdiction.
  1. Make it clear to the client that you are not an oracle and that you cannot predict the future. Therefore, you do not know what the law will be in any particular jurisdiction, even including your own, in the future and how it might be applied by the courts in any such jurisdiction. Likewise, you cannot possibly advise as to how a judge in any part of the world, even in your home jurisdiction, will interpret such loose terms as “fair,” “unfair,” “unconscionable,” and “needs [of a spouse]” as they are used in governing legislation in many jurisdictions and sometimes in the body of specific agreements. Furthermore, you should point out that courts might apply nebulous theories of “public policy” with which to judge prenuptial agreements. Consequently, you are unable to guarantee that the prenuptial agreement will be enforceable at the time in the future when a court in your own jurisdiction or in a foreign jurisdiction might look at it.
  1. Inform the client that you do not know where the client and his or her spouse might reside in the future, where their children, if any, might be located and where either or both of them may in the future have assets or do business. All of these factors may have an enormously significant bearing on the enforceability of their prenuptial agreement.
  1. Some jurisdictions still do not enforce prenuptial agreements. England traditionally held them to be against public policy, but now provides that they will normally be afforded great respect (whatever that might mean!). Other jurisdictions have rules that make it easy for a court to invalidate a prenuptial agreement. In some such situations, it is also good practice to consider whether the parties should sign so-called “mirror agreements” that contain essentially the same terms as the primary agreement but are executed in accordance with the local law and are to come into effect only if the primary agreement is not recognized by a local court.
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We work globally, always in collaboration with local counsel as appropriate.

Thursday, April 09, 2020

The Need for International Prenuptial Agreements

by Jeremy D. Morley
          International people who plan to marry should always consider entering into a prenuptial agreement drafted by experienced international family law counsel. While there are many benefits of prenuptial agreements for conventional marriages, the benefits may be far greater for international people. A key benefit for international people is that a prenuptial agreement may drastically simplify a future divorce that might otherwise be extremely complex.
          Divorce laws remain local and parochial. Even though many of us live global lives, divorce requirements and procedures vary a lot from country to country. So do the substantive laws about dividing assets, spousal maintenance and child support. And the laws about prenuptial agreements and marriage contracts differ considerably from country to country, as do the attitudes of courts. Outside of the European Union, there is generally no comprehensive body of international law that governs the application of local law to international personal relationships.You just cannot assume that a “prenup” that is currently valid in the place of the marriage or the place of current residency will be equally valid in other places that might have jurisdiction over your divorce in the future.
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 In our office, we receive numerous inquiries from potential clients around the world concerning enormously complex multi-jurisdictional issues that would have been far simpler to handle if the parties had entered into a prenuptial agreement when they were married.
 A related challenge is that many prenuptial agreements are drafted by counsel who do not have experience in handling and planning for issues that may arise if clients or their spouses have more than one country of residence or assets in different countries.
 A well-written prenuptial agreement, that is drafted properly with potential international enforcement in mind, will simplify almost everything about the financial elements of many of these cases. This can make the divorce process faster and cheaper, less stressful for both parties and much less painful for the party with assets to protect.