Consent and the Hague Abduction Convention

The English Court of Appeal has just issued a significant ruling on the issue of consent in a Hague abduction case. In re P-J (Children) (Abduction: Consent), [2009] EWCA Civ 588; [2009] WLR (D) 207, dated June 23, 2009.

It frequently happens that one parent tells the other parent that the or she can take the children to live in a specific country at some point in the future or upon the fulfillment of a specified condition.

Does that count as consent if:

• The children are taken to the other country after the expiration of a considerable period of time from the date of the initial discussion; or

• The consent is retracted; or

• The taking parent covertly removes the children, knowing or apparently knowing that the other parent would object?

The Court of Appeal upheld the trial court’s order that children must be returned to Spain from Wales on the ground that although the husband had at an earlier time agreed that the mother could remove the children from their habitual residence in Spain should an attempted marital reconciliation fail, he had none the less clearly objected at the time when the children were in fact being removed, and the earlier consent was not operable.

Lord Justice Ward ruled that, as to “consent” for the purposes of art 13 of the Hague Convention, the following principles applied:

(i) Consent to removal of a child had to be clear and unequivocal;

(ii) Consent could be given to the removal at some future but unspecified time or upon the happening of some future event;

(iii) Such advance consent had, however, still to be operative and in force at the time of the actual removal;

(iv) The happening of the future event had to be reasonably capable of ascertainment, and in particular had not to depend on the subjective determination of one party;

(v) Consent, or the lack thereof, had to be viewed in the context of the realities of family life, or more precisely in the context of the realities of the disintegration of family life;

(vi) Consequently consent could be withdrawn at any time before actual removal, and if it was so withdrawn the proper course was for any dispute about removal to be resolved by the courts of the country of habitual residence before the child was removed;

(vii) The burden of proving the consent rested on the person asserting it;

(viii) The inquiry was inevitably fact-specific;

(ix) The ultimate question was a simple one, viz whether the other parent had clearly and unequivocally consented to the removal.

In the instant case, the mother knew, or suspected, that the husband would not consent, or at the least was likely to object, to the children being removed from Spain, and she had embarked on a clandestine removal; and the husband, once alerted, had clearly objected, as the mother well knew. The fact that he had formerly consented to removal in certain circumstances did not mean that he consented to the actual removal when it occurred; and consent clearly had to subsist at that time.

Japanese Child Abduction Developments

Public knowledge is beginning to grow concerning Japan’s status as one of the world’s worst havens for international parental child abduction.

The problem is tolerated by the Japanese Government because the abductors are almost exclusively Japanese nationals. In fact the Japanese Government is often a knowing participant in such abductions. Japanese consulates issue passports to Japanese mothers and their children even when courts in the United States order the mothers not to take their children out of the country and require that all passports be deposited in court.

At the Senate’s confirmation hearing on June 10^th for Kurt Campbell, the nominee for Assistant Secretary of State for East Asian and Pacific Affairs, Senator Jim Webb made a strong statement on the “frustration level” with Japanese child abductions. He asked Mr. Campbell to “get on this” immediately upon his confirmation. Mr. Campbell responded by stating that he had met with several of the families of the abducted children and he promised to raise the issue in his first meetings with his Japanese colleagues.

This follows a press conference at the U.S. Embassy on May 21^st at which diplomats from the U.S., France, Canada and the U.K. again asked Japan to sign the Hague Convention on the Civil Aspects of International Child Abduction.

Unfortunately the response of the Japanese Ministry of Foreign Affairs' International Legal Affairs Bureau was to say that, "The attitude of the government is non-involvement in civil affairs. However, with the number of international marriages and divorces rising, the possibility of signing is under consideration.” This is diplomatic language that seems to mean, “Get lost.”

Switzerland's Pattern of Noncompliance with Hague Abduction Convention

The U.S. State Department has published its 2009 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction.

The Department continues to list only one country, Honduras, as being “Noncompliant” with the Convention. Its list of “Countries Demonstrating Patterns of Noncompliance” lists seven such countries as compared to nine in 2008. Bulgaria, Ecuador, Germany and Poland have been dropped from last year’s list while Slovakia and Switzerland have been added to the list joining Brazil, Chile, Greece, Mexico and Venezuela.

The addition of Switzerland may surprise people, but will not surprise those of us who work in the field.

The Department found that:

· Switzerland demonstrated patterns of noncompliance with the Convention during FY 2008 in judicial performance and law enforcement performance.

· The USCA noted delays in the overall processing of Convention applications. For example, even though a Swiss court issued an order for return of a child to the United States under the Convention in November 2007, the order had not been enforced as of the end of FY 2008.

· Other delays have also presented serious concerns, as proceedings in lower courts often go on for weeks or months.

· Swiss courts often treat Convention cases as custody decisions, invoking the child’s “best interests” as a reason for denying return, and performing merits-based custody assessments. Such assessments are outside the purview of the Convention. See Convention, art. 16 (court deciding Convention application shall not decide merits of custody rights).

· Additionally, Swiss courts - up to and including Switzerland’s highest court, the Federal Court - often show bias toward the taking parent, especially when the taking parent is the mother. High-level Swiss officials have defended this practice. In one case (discussed in more detail in the “Notable Cases” section of this report), the Swiss Federal Court inappropriately cited the “special relationship” between mothers and young children as influencing its decision to uphold the lower court’s denial of the left-behind parent’s application for return of the child to the United States.

· The Department also observes that the Swiss authorities are reluctant to actively enforce orders granting return to the United States or access to the child by the left-behind parent. Law enforcement has not demonstrated a great deal of enthusiasm in seeking out and arresting taking parents who evade law enforcement and ignore court orders for the return of an abducted child. Law enforcement has made only cursory efforts to locate taking parent and abducted children.

· Although the USCA and the Swiss Central Authority (SCA) maintain a cooperative relationship with clear and responsive communication, effective facilitation of case monitoring, and oversight, the SCA tends to be reactionary rather than proactive in encouraging authorities to enforce orders under the Convention. The Department realizes that such encouragement can be a challenge, as the SCA’s role is that of an active facilitator. However, more active engagement on the part of the SCA would likely improve execution of law enforcement’s execution of its Convention responsibilities.

· As of the end of the reporting period, the Swiss legislature was drafting legislation that would implement a more effective application of Convention proceedings in Switzerland. The USCA hopes that this new legislation will help the Swiss authorities address the compliance problems identified in this report.

U.S. Supremes Likely to Review Judge Sotomayor’s Ruling

It is increasingly likely that the United States Supreme Court will take its first case concerning the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction. The case is Abbott v. Abbott, and the U. S. Solicitor General has recommended that the Court grant the certiorari petition. Interestingly enough the Court will essentially be required to determine whether or not to follow Judge Sotomayor’s dissenting opinion in Croll v. Croll. In that case the Second Circuit ruled in 2001 that a so-called ne exeat right (a veto on relocation of the child outside the jurisdiction) is not a right of custody under the Hague Convention. Judge Sotomayor issued a strong dissent which has been applauded by many Hague lawyers and followed in some other circuits in favor of the majority opinion in Croll. Her dissent included an analysis of the foreign case law on the topic. In the pending Abbott case the Fifth Circuit followed the majority opinion in Croll. It concluded that a Chilean order -- that granted daily care and control of a child to the mother and visitation to the father and prohibited either parent from removing the child from Chile without the other’s consent -- did not give a “right of custody” to the father. Therefore, although the mother breached the ne exeat order by bringing the children to live in the United States, the father had no standing to secure the child’s return to Chile under the Hague Convention. The Solicitor General concludes that the Fifth Circuit was wrong and cites to Judge Sotomayor’s dissent in Croll. The Solicitor General also correctly points out that, in interpreting the language of a treaty, the opinions of “our sister signatories are entitled to considerable weight,” especially when both the Convention and Congress have emphasized the importance of uniformity in interpreting the Convention, and that courts in the United Kingdom, Australia, South Africa, New Zealand, and Israel have adopted the view that a ne exeat right creates a right of custody.

Thai administrative divorce in U.S. causes major headaches

The article below describes a case in which a Thai marriage was purportedly dissolved at a Thai consulate in the U.S. Decades later the U.S. Citizenship and Immigration Services asserted that the divorce would not be recognized in the United States and demanded that the parties be deported. Although this case ultimately had a happy ending many similar cases do not. This is why international divorce cases need to be handled correctly. By AMY TAXIN Associated Press Writer 05/06/2009 CORONA, Calif.—A Thai family that faced the threat of deportation because of a 1975 divorce proceeding will not be forced to leave the U.S. after living here for nearly four decades, their lawyer told The Associated Press. Pai Ciesiolka and her two grown sons were called to a deportation hearing this year when immigration authorities refused to recognize her divorce and subsequent remarriage to an American citizen that helped them earn green cards. A U.S. Citizenship and Immigration Services official told a lawyer for Ciesiolka's family Friday that the government would drop the deportation proceedings, a day after AP inquired about the case, family attorney Carl Shusterman said. The 71-year old retiree and her children are still waiting to hear whether the government will accept their applications to become U.S. citizens, which they filed in the 1980s and 1990s. "It was a big relief, it was a big weight," said Kevin Promsiri, Ciesiolka's 41-year old son who has lived in California since he was 3. "I know it is only the first step, it has still not been resolved yet. But this deportation part is such a relief because now we can fight it without the fear of being deported." In 1971, Ciesiolka left Thailand with her two young sons to join her husband, who was pursuing a business degree on a student visa in the United States. When the couple split four years later, they went to the Thai consulate in Los Angeles to get a divorce—an administrative proceeding the consulate still offers today. "Married in Thailand, I thought you had to be divorced like a Thai," said Ciesiolka, who lives near Corona with Kevin. She remarried a Colorado man that year and returned to Thailand to introduce him to her family and apply for a green card at the U.S. Embassy in Bangkok. Once the papers were approved, she flew back to the United States and obtained green cards for her two sons. The second marriage fizzled four years later. But the family said they continued to renew their green cards every decade as required by U.S. immigration authorities and lived here legally with no problem until they applied for citizenship. Ciesiolka's elder son Andy Promsiri first applied in 1983 and never heard back. He resubmitted paperwork a decade later and was ready to take his oath of allegiance. But immigration authorities called the day before the ceremony and said there was a problem with his paperwork and he shouldn't bother showing up. "My heart was just broken," said Promsiri, now a 48-year old college financial aid adviser. After several more attempts at citizenship, the family received a formal notice in March that immigration authorities didn't recognize the consular divorce and considered Ciesiolka married to two men at the same time, making her ineligible for a green card. Jeremy Morley, a New York attorney who focuses on international family law, said problems with overseas divorces often arise when someone applies to U.S. immigration authorities for citizenship or another benefit.

England: Electronic Tagging to Prevent Re-Abduction of Child

As a means of preventing international child abduction, the English High Court has issued a consent judgment requiring that a mother be “electronically tagged” before being allowed to visit her child. Re A (A Minor) March 17, 2009.

The mother had wrongfully removed her child from England to her (unnamed) country of origin on two separate occasions. She had returned the child each time but only after the father had brought Hague Convention proceedings. The child was currently in the care of the father.

The issue before the court was whether the child should spend substantial periods of time with the mother under an interim order, pending a full “best interests” evaluation. The father was fearful that unless safeguards were put in place the mother would remove the child again.

The English legislation that adopted the Hague Convention into domestic law authorizes a court, when an application has been made under the Convention, to give “such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.”

The court approved of an arrangement whereby the mother must be electronically tagged before being able to see the child.

The office of the President of the Family Division of the High Court has devised a procedure whereby electronic tagging can be arranged through the “Tagging Team” of the National Office for the Management of Offenders (NOMS).

Electronic tagging works by monitoring the whereabouts of the person wearing a tag, but only in a specific location. The tag is monitored by a device which needs to be installed in particular premises. That device monitors the tag, and the tagging office is notified if the tagged person is either not in the premises during the relevant times or if the tag is removed.

A tagging order is required to contain the following information:

(i) The full name of the person(s) to be tagged.

(ii) The full address of the place of curfew.

(iii) The date and time at which the tagged person agrees to be at home (and any other relevant places) for the installation of the monitoring device.

(iv) A schedule of the times at which the court expects the person to be at home (or any other relevant places) so that the service can monitor compliance.

(v) The start date of the curfew and, if known, the end date of the curfew, the days on which the curfew operates and the curfew hours each day.

(vi) The name and contact details of the relevant officer to whom the service should report to if there is any breach of the above schedule or if the person appears to have removed the tag.

The Plight of the Expatriate Spouse

My article on The Plight of the Expatriate Spouse, published in the current issue of The Matrimonial Strategist is on my website and may be found at http://www.international-divorce.com/expat_plight.htm

The article contends that lawyers and judges need to do a far better job of understanding the unique circumstances of expatriates with children who moved overseas for romance or to accomodate their spouses' work assignments.

In my experience, based on counseling very many expats in family crises, when such relationships fail the "trailing spouse" is often in a desperate situation that the law often fails to accomodate.

Exit Controls

Like the United States, England has no exit controls. This means that one parent (or conceivably even a stranger) can take a child out of the country without the consent of the other parent.

The police forces in Humberside, England have announced their intention to crack down on this problem. It is a model that U.S. police forces should consider following.

Police officers working at Humberside Airport and King George Docks in Hull will check all passengers aged under 16 going through security to ensure they are traveling legitimately and not being taken out of the country illegally.

Police are reminding travelers to ensure they have all the appropriate documents with them when traveling, and those taking children abroad who are not their own should have suitable letters of consent and contact details from their parents in order to speed the process up for police checks.

Police officers at the docks and airport will check passports belonging to youngsters aged 16 and under to ensure they are traveling legitimately with the adults.Those not traveling with their parents or legal guardians will require proof of consent that the children are being permitted to leave the country without both their parents.

The police have announced that it is essential if people intend to take a friend or relative's child in or out of the country, they have written consent or supporting documents that can be verified if required by officers working at the ports. Failing to make these basic arrangements may delay travel.

Staff will use a passport reader to check outbound passengers and officers will also have access to the current child abduction list. Passports of all traveling children will also be checked against the Police National Computer wanted and missing database.

English court won't allow economic collapse to reopen divorce case financial component

The global economic collapse has had divorced clients running to their lawyers seeking to rewrite divorce settlements or overturn divorce judgments that were made when assets value were far higher. An English appeal court has just issued a key ruling on the issue of whether a court’s final judgment dividing divorcing parties’ assets can be reopened because of the impact of the current global financial turmoil on those assets. In Myerson v. Myerson, the English Court of Appeal has issued a resounding “No!” Myerson v Myerson [2009] EWCA Civ 282. The parties were divorced in London in February 2008. The wife was awarded 43% (about $16 million) in cash and real estate out of the couple's total assets of about $37 million. So the husband was left on paper with about $21 million. The problem for him was that it was all in the form of shares in a publicly traded investment company, of which he was the executive chairman. Indeed, that is what he had agreed to. Then the stock market crashed. Currently the shares are almost worthless. That’s not fair, he said. “Tough,” said the English court (in substance). Paraphrasing the language of Lord Justice Thorpe, he said in substance to the husband: “You wanted to remain captain of the ship in your company. When a businessman takes a speculative position in compromising his wife’s claims, why should the court subsequently relieve you of the consequences of your speculation by re-writing the bargain at your behest? Anyway, the market goes up and down. Unusual opportunities are created for the most astute in a bear market. Finally, I am wary of opening the flood gates to this kind of submission. Your case is dismissed.”

Hague Abduction Convention and Immigration Status

The Ninth Circuit has rendered an important decision on the Hague Convention on the Civil Aspects of International Child Abduction. Mendoza v. Miranda, (March 18, 2009).

Article 12 of the Convention provides an affirmative defense to a Hague return application if the abducting parent can show that the petition for return was filed more than a year after the wrongful removal or retention occurred, and “that the child is now settled in its new environment.” The one-year period can be “equitably tolled” in appropriate cases.

The Ninth Court overturned a district court decision that a Mexican child, whose mother had wrongfully removed her from Mexico five years earlier and who had since been residing stably in California, must be returned to her father in Mexico because her illegal immigration status barred her from being “settled” in the United States. The Circuit Court also reversed the trial court’s ruling that the mother had concealed the child so that the one year period had been tolled.

The Ninth Circuit insisted that the child’s current immigration status — a status similar to that of many millions of undocumented immigrants — cannot undermine all of the other considerations which uniformly support a finding that she is “settled” in the United States. Those considerations included her completion of the first through fourth grades at the same school; report cards reflecting consistently good grades and attendance and demonstrating that she has progressed well both academically and socially; the fact that she can speak, read, and write in both English and Spanish; and her enjoyment of and active participation in many after-school activities.

The Court stated that only in a case in which there is an immediate, concrete threat of removal can immigration status constitute a significant factor with respect to the question whether a child is “settled.” The judges insisted that “we see nothing in the Convention itself, in our case law, or in the practical reality of living in this country without documented status, to persuade us that immigration status should ordinarily play a significant, let alone dispositive, role in the “settled” inquiry.”

The Court pointed out that in the Mozes case it had previously held that unlawful immigration status does not preclude a finding that a child is a “habitual resident” of a country within the meaning of Article 3 of the Convention. The Court stated that it would be an odd result indeed if a child may be habitually resident, but not settled, in a country in which he does not have legal status.

Addressing the trial judge’s concern that the child and her mother were subject to deportation at any moment, the Circuit Court stated that although there are undoubtedly real risks posed by illegal status, the reality is that millions of undocumented immigrants are presently living in the United States, many of whom will remain here permanently without ever having any contact with immigration authorities. It stated that the likelihood of deportation of law-abiding aliens is small, both because of the sheer number of undocumented immigrants and because the government has set a priority to deport those with criminal records. In such circumstances it would be contrary to the Convention’s purpose of keeping a child in “the family and social environment in which its life has developed” to rely on immigration status as the basis for rejecting an Article 12 defense.

In also rejecting the trial court’s determination that the one-year period should be tolled because the mother had taken steps to conceal the child the Circuit Court ruled that the parameters for tolling that it had set in the case of Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) should be strictly construed. Under Duarte, a court may equitably toll the one-year period where two related conditions are met: (1) the abducting parent concealed the child and (2) that concealment caused the petitioning parent’s filing delay. Duarte, 526 F.3d at 570.

The Court held that since equitable tolling may permit the return of children otherwise settled in their new environment, “we adhere closely to the parameters set by Duarte so as to ensure that the Convention’s concern over uprooting children is not sacrificed to its aim of deterring child abductions.” Since there was no evidence that the mother ever hid the child’s location from the father, who sent a package to the mother’s address, the father had failed to establish that the one-year period should be tolled.

India's Notorious Section 498A: Divorce Law as Criminal Law

India’s amendments to its Criminal Procedure Code are now effective. They may ameliorate some of the harshest aspects of India’s infamous Section 498A. The newly- enacted provisions take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence up to seven years of imprisonment. Such offenses include Section 498A of the Indian Penal Code in 1983. That section makes it criminal for a husband and his relatives to subject a married woman to cruelty is which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. The problems with the law were the result of a “perfect storm” that was entirely unanticipated when the law was introduced to protect woman in 1983. The elements of the storm included:

• Extremely vague statutory language.

• A separate law that prohibited the provision or acceptance of a dowry.

• A custom that has been difficult to eradicate of a bride giving a dowry upon marriage.

• A law that may only used by women against men.

• A provision that extends criminality to any of the husband’s allegedly-participating relatives.

• A police force that is notoriously corrupt.

• A law that in the past allowed for the immediate arrest of the husband and members of his family by the police on the basis of a woman's complaint.

• A provision that the offense was non-bailable.

• A domestic relations procedure that is extremely cumbersome and in many ways unworkable.

The result has been that when a marriage breaks up the woman is often able to get her husband and many of his family members arrested by simply filing a claim of cruelty and persuading the local police to arrest the so-called wrongdoers. This is much more effective than initiating an ordinary case for divorce. In the case of non-resident Indians the process has often proved calamitous for the husband. The spouses have an argument. She runs off to India, often with the children and as many of the assets as she can grab. She immediately starts a Section 498A case in India and then sues for divorce and custody in India. The husband cannot step foot in India because he will be arrested. Meanwhile his relatives in India are clamoring for him to settle up with his wife because they have been in jail or are fearful that that will happen. The Supreme Court of India has described such conduct as “legal terrorism.” The chairperson of one of India’s State Commissions for Women has asserted that, "Many women are using 498A of the IPC (anti-dowry law) to terrorize their husbands and his families.” She called it a “cruel and wicked design to blackmail husbands and in-laws." As recently as January 31, 2009, Justice K. G. Balakrishnan, the Chief Justice of India, addressing India’s National Commission for Women, asserted that Section 498A is being “grossly misused” and that relatives not involved with a matrimonial dispute were often unfairly implicated. The U.S State Department has warned Americans that: “Furthermore, since the police may arrest anyone who is accused of committing a crime (even if the allegation is frivolous in nature), the Indian criminal justice system is often used to escalate personal disagreements into criminal charges. This practice has been increasingly exploited by dissatisfied business partners, contractors, estranged spouses, or other persons with whom the U.S. citizen has a disagreement, occasionally resulting in the jailing of U.S. citizens pending resolution of their disputes.” Let us hope that some of the worst excesses of the draconian law have now been reduced by the recent procedural changes.

Divorce, Bigamy & Naturalization

Problems arising from void or voidable marriages often do not create issues until many years after the fact and in quite expected ways.

Such was the experience of one Kanadi Mohamed Ali, an Israeli citizen whose conviction for knowingly making a false statement under oath relating to naturalization, citizenship, or registry of aliens in violation of 18 U.S.C. § 1015(a) has just been upheld by the Sixth Circuit.USA v. Ali.

Defendant married Wife #1 in Montreal, Canada. After they separated the Montreal Superior Court mailed him a “Declaration” of divorce written in French. He later claimed that he thought it was a divorce judgment but it was apparently merely a pleading in a divorce case. He then married Wife #2 in Georgia, USA. Subsequently the Montreal Superior Court entered a “Judgment of Divorce” finalizing the divorce between Ali and Wife #1 and Ali then remarried Wife #2 in Tennessee.

Seven years later Ali applied for naturalization. A question on his application form, in a section entitled “Good Moral Character,” asked, “Have you ever: . . . [b]een married to more than one person at the same time?” He answered “no”.

In a handwritten attachment to the application, Ali disclosed his marriage and divorce to Wife #1 and his second marriage to Wife #2 in Tennessee but he did not mention his first “marriage” to Wife #2. When charged with making a false statement he asserted that under Georgia and Tennessee law, his first attempted marriage to Wife #2 was void ab initio and that, therefore, he was never actually “married” to her while still married to Wife #1. The Sixth Circuit held that although the first purported marriage to the second wife was indeed void ab initio under both Georgia and Tennessee law, a truthful person would not have answered “no” to the question. Furthermore, Ali’s asserted defense would nullify all criminal bigamy laws by giving a defendant charged with bigamy a foolproof defense – that he could not have, as a matter of law, committed bigamy because his attempted second marriage was automatically void.

Seems harsh to me but it serves as a warning who take these issues too lightly. Likewise, people who obtain a Dominican divorce even though neither they nor their spouse is domiciled in the Dominican Republic often feel that they have “beaten the system” only to discover years later that they have a serious problem when they cannot establish that they are divorced and they wish to re-marry or apply for a spousal visa.

Singapore Prenuptial Agreements - Important Decision

The Singapore Court of Appeal has just rendered a weighty and well-reasoned decision on the enforceability of prenuptial agreements in the case of TQ v TR, [2009] SGCA 6 (Feb. 3, 2009). The opinion is especially important for its analysis of the (substantial) weight to be given in Singapore to foreign prenuptial agreements as compared to prenuptial agreements entered into in Singapore. Traditionally Singapore has followed the English rule that prenuptial agreements are unenforceable and, as in England, that ancient and much discredited rule has given way to a principle that prenuptial agreements may be considered in a court’s determination of what is a fair result, along with a host of other factors. The Singapore Court of Appeal now holds that it will normally enforce foreign prenuptial agreements. The Singapore case concerns a prenuptial agreement between a Dutch husband and a Swedish wife entered into in the Netherlands where the parties were married before returning to their residence in London. This agreement was prepared by a Dutch civil law notary in the Netherlands. After six years of marriage the couple moved to Singapore with their children. The agreement provided that “[t]here shall be no community of matrimonial assets whatsoever between the spouses” and that “[t]he marital property regime in force between them shall be governed by Netherlands law.” The court determined that the Singapore courts should accord “significant (even critical) weight” to the terms of a prenuptial agreement between foreign nationals that is governed by and valid according to a foreign law, unless its terms violate the public policy of Singapore. Thus the court ruled (Paras. 87 and 88 of the opinion) that: “There is another specific issue that arises (and which is of particular relevance in the context of the present appeal). This relates to prenuptial agreements which have been entered into abroad and are wholly foreign in nature. It would appear to us, as a general guide (and no more), that if a prenuptial agreement is entered into by foreign nationals and that agreement is governed by (as well as is valid according to) a foreign law, then there is no reason in principle why the court should not accord significant (even critical) weight to the terms of that agreement – bearing in mind that (as we have noted) prenuptial agreements are not, generally speaking, void as being contrary to the public policy of Singapore and there is therefore no overarching public policy of the lex fori which prohibits such agreements in the first place (with, perhaps, the exception of certain prenuptial agreements relating to the custody (as well as the care and control) of children (see above at [70])). The assumption here is also that such foreign law is not repugnant to the public policy of Singapore. Such an approach will also avoid the danger of forum shopping (see, for example, Jeremy D Morley, “Enforceable Prenuptial Agreements: Their Time has Come” (2006) 36 Fam Law 772). However, such an approach is, it should be noted, confined (in the main at least) to prenuptial agreements relating to the division of matrimonial assets and it is important to emphasise that there is no blanket rule to the effect that such agreements will (even with respect to the division of matrimonial assets only) be accorded significant (let alone crucial) weight as a matter of course. Where, for example, there has been clear fraud or other indications of unconscionability, the court might even disregard the agreement concerned altogether … Much will, of course, depend on the precise facts of the particular case as well as on the expert evidence adduced (in this last-mentioned regard, it behoves the parties concerned to adduce the best and clearest evidence that they can muster; indeed, to obviate potential as well as unnecessary bias and/or confusion, an independent expert (whether appointed by consent of the parties or even by the court) might be the best way forward in such situations). The court ought not – and cannot – be utilised by any one party as a means to achieve an unjust and unfair outcome.” It is also important to note that the court confirmed that the validity of a prenuptial agreement should be governed by its “proper” law, as with any other contract. The proper law is to be determined by (in order of descending priority): (a) the express choice of the parties; (b) the implied choice of the parties; and (c) in the absence of any express or implied choice of law, by ascertaining the system of law with which the agreement has the closest and most real connection, which is presumed to be the law of the matrimonial domicile unless rebutted.

Money in misery: International marriages

The current issue of The Economist has a great article by Edward Lucas on international family law. The title is Money in misery: International marriages are crumbling with the global economy, revealing unseen pitfalls in cross-border divorce law. Good news for lawyers.

Some extracts are:

According to Jeremy Morley, an international divorce lawyer based in New York, hiding assets from a spouse is also much easier in some countries than in others. California, at one extreme, requires complete disclosure of assets. At the other extreme, Austria, Japan and many other countries require very little disclosure. A California court recently ordered a husband to pay $390,000 in costs and penalties to his wife because he did not disclose some significant financial information. In another jurisdiction, the assets could have stayed hidden.

Making wily choices about possible jurisdictions is often criticised as “forum shopping”. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery. Mr Morley says the differences between one divorce jurisdiction and another are far more than, say, playing a sporting fixture at home or away. As the table shows, totally different rules apply.

So it is understandable that a disillusioned spouse, and his or her lawyer, will try hard to get the most favourable jurisdiction. Yet that can all too easily lead to each party starting, or even finishing, a divorce in a different country. Sorting out these cross-border legal wrangles can be colossally expensive.

The full article is on The Economist website at http://www.economist.com/world/international/displaystory.cfm?story_id=13057235

Brazil's Compliance with the Hague Abduction Convention is Questioned

Karen Mazurkewich, Financial Post Published: Saturday, December 27, 2008 Francois Larivee is fighting for the return of his five-year-old son from Brazil. But being on the right side of the law is cold comfort to the 38-year-old businessman. He has won two court decisions in Brazil, and has followed The Hague Convention on the Civil Aspects of International Child Abduction to the letter of the law, but Mr. Larivee's custody battle, which has stretched over four years, shows no signs of being resolved. "It's a nightmare," says Mr. Larivee, who works in finance in Montreal and has seen his son only three times since his former partner kidnapped his son and moved back to Rio de Janeiro. "Every day you wake up you think of this," he adds. Every time I call, it takes me days to recover it's so traumatic, says Mr. Larivee. "It's sad because [my son] always asks: 'Daddy, why are you not here with me?' " Cross-border custody battles are on the rise in Canada. With more people working and travelling around the globe, there is an explosion in divorces that have an international dimension, says Jeremy Morley, who runs an international family law office in New York. "The world is getting smaller and there is mixing of different backgrounds," he adds. But with the growth of bicultural marriage comes cross-border divorce. Money and alimony is one thing, but as Mr. Larivee discovered, the worst part of separating from a spouse who no longer wants to live in the same country as you is the tragic problem of custody. In 2001, Mr. Larivee started dating Ione, a Brazilian woman who had been working five years as an architect in Montreal. Two years later, after learning she was pregnant, the couple bought a house and moved in together. But their relationship turned "tense" following the birth of their son. In January, 2004, she travelled to Brazil for an extended 12-week trip. But when she returned to Montreal two months later, their relationship fell apart. By August, Mr. Larivee had moved out, arranging visits with his young son three to four times a week. Before they even had a chance to explore custody arrangements, his ex-partner, on the ruse of taking a short trip to the U. S., fled illegally to Brazil with their son. Mr. Larivee learned of her deception only when he showed up at their former home after a long weekend and found his son's belongings were missing. Mr. Larivee called the police, but his attempts to have his son returned to Montreal -- even for a basic custody hearing -- have been thwarted. "At the time, I thought it would take a month or two to bring him back," he says. I never wanted it to be public, but now I think there is nothing to do but to turn to the media, he adds. Parental abductions are on the rise globally. The U.S. has the highest reported number of incidents in the world with 169 applications filed in 2003 -- according to the most recent statistics compiled by The Hague Abduction Convention. This represents a 13% rise since 1999. The U. S. also received 286 applications to have children returned to another country, representing a 23% rise during the same period. By contrast, Canada received 56 requests from another country seeking to have a child returned and has made 43 applications to have a child returned from another country, representing a 3% rise in cases over that four year period. The Hague convention on child abduction was drafted in 1980 to deal with the issue of parental kidnappings in cases in which the parent has rightful custody and the child in question has been taken out of the country where she/he has been residing. Since the convention was created, 74 countries have become signatories. Under the rules of the convention, the child must be returned to their country of residence within six weeks. The convention does not decide child access. Its goal is to ensure that the courts where the child was living will have the right to make that decision. Mr. Larivee's ex-partner, Ione, had been granted a custody judgment by a family court in Rio de Janeiro, claiming the father had abandoned them. Ms. Harnois had to fight to have the case extracted from family court and heard at the federal court level. By March, 2007 -- almost 2½ years after their first filing -- the federal court ruled that the child should be returned to Canada. The child could not leave until any appeals were heard. By October, 2007, the Federal court of appeal threw out Ione's arguments and demanded that the child be returned to Canada. Mr. Larivee's heart lifted as he flew to Rio to pick up his son. It was supposed to be a stealth operation, but when the court officers arrived to take custody of his son, Ione had taken the boy and fled once again. Her lawyer, however, sat parked in front of the house and informed the officers that the door was open. According to Ms. Harnois, Ione's father, who was also at home, told the officers: "Francois is a good guy, but my daughter is a lioness and she'll fight until the end; you'll never have that child." Two days later, Ione obtained a decision from the vice-president of the federal court of appeal suspending the decision to have the child removed to Canada. Not only did she get another reprieve, she's working on two more appeals -- one with the Supreme Court of Justice in Brasilia and the second at the Federal Supreme Court in Rio. She's seeking to have the previous judgments overturned. The revolving doors of Brazil's justice system have not stopped turning. Mr. Larivee's case, while unusual, is not the only one pending in Brazil. David Goldman, a father from New Jersey, has also been fighting Brazilian courts for the return of his son, Sean. In June, 2004, Mr. Goldman's wife, Bruna Bianchi Carneiro Ribeiro, travelled to Brazil on vacation with their son. The day they arrived, she called back home and informed her husband she was not returning. He has never been permitted to see his son, and a panel of five judges at the Superior Court in Brazil awarded custody to Bruna in a three-to-two decision. The Goldman case has made media headlines in the U. S., and he's gone on talk shows such as Dr. Phil to present his story. Mr. Goldman did not get the same positive court outcomes in Brazil that Mr. Larivee has had to date, but he was certain he would finally get custody of his son after learning his ex-wife, who had remarried in Brazil, had died in childbirth in August, 2008. But the case has since taken an ugly twist. In September, Mr. Goldman learned that his wife's widower, Joao Paulo Lins e Silva, ironically a family lawyer in Brazil, had filed to get Mr. Goldman's name taken off his son Sean's birth certificate and have it replaced with his own so the child could remain with him in Brazil. Mr. Silva was awarded temporary guardianship. "He's from an influential family and they are using their power and connections to make it more difficult [for me]," says Mr. Goldman who argues that his case is a basic violation of human rights. "It seems this far in Brazil, possession is nine-tenths of the law," he adds. Mr. Larivee is holding out hope that his son will one day be returned. He's burned through $150,000, and still there is no end in sight. Brazil's record on judgments on The Hague cases has been spotty. In addition to the Goldman case, a return to Israel was refused, a return to Norway was partly granted--for summer periods only -- and the outcome of another request from the U. S. remains indeterminate. Mr. Larivee has been learning Portuguese to better communicate with his growing son who's not been taught English or French, although his ex-partner is fluent in both languages. Although he hasn't seen his son much over the years, Mr. Larivee is inspired by the affection the little boy apparently holds for him. When it comes to love and custody, the Brazilian courts are not playing fair. Mr. Larivee is worried that even if he does eventually win his case, the court won't send the child back to Canada on the grounds that too much time has passed and it would not be humanitarian to remove him from the country he's grown up in. Mr. Larivee is haunted by his ordeal, yet he only shrugs when asked if there was anything he would do differently. "I've done everything I could do, everything right," he says. "Maybe, don't marry a Brazilian."

California Disclosure Rules Scare Wealthy Spouses

Further evidence that California is an excellent jurisdiction for a spouse who does not have complete knowledge of the other spouses’s financial condition is supplied by the just-issued decision in In re Marriage of Straus, 2009 WL 98447 Cal.App. 4 Dist.,2009.

In that case the appellate court upheld an award of $3,000 in sanctions against the husband because he did not voluntarily respond to two letters from his wife’s attorneys seeking information about his retirement benefits.

Section 271 of the California Family Code provides that “the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”

Since the wife filed a motion to compel discovery the trial court required the husband to pay a penalty which was in excess of the amount of the legal fees that the wife had paid her attorneys to make the motion.

The appeal court ruled that, “These facts support a finding that James's conduct frustrated the policies of promoting cooperation, settlement of litigation and reduction of litigation costs that underlie section 271, because Candyce was forced to file a motion and serve discovery to obtain James's cooperation. Because section 271 allows the imposition of sanctions when a party's conduct frustrates its underlying policies, the trial court was within its discretion to impose sanctions on James.”

California’s approach to discovery, which requires litigants to voluntarily provide full access to their financial circumstances, stands in total contrast to the approach in most other jurisdictions, and especially civil law jurisdictions in other countries. It is why wealthy international spouses with a potential California divorce will often look for any possible way of avoiding the California courts, perhaps by asserting lack of jurisdiction or by rushing to file first in another jurisdiction.

Texas Court Holds that Mexico’s Legal System is Ineffective

It is unfortunate that courts are usually extremely reluctant to judge the effectiveness of other countries’ legal systems, even when such findings need to be made in international custody and visitation cases. Judges often feel great discomfort in making negative findings as to a sovereign country’s judges and courts. They may feel that they are not in a position to make fair evaluations of foreign legal systems; that they might be accused of xenophia or insensitivity to foreign ways; and that “people in glass houses shouldn’t throw stones.” However there is no way to evaluate the true risks involved in authorizing or failing to prevent international child visitation and international child relocation without evaluating the effectiveness of the foreign legal systems that will be called upon to remedy a child’s wrongful retention in a foreign country. Judicial reluctance to make the necessary decisions on these issues -- hard as the decision-making task may be -- endangers children when it results in a child being taken to a country which is unlikely to order the child’s return to the United States. In the face of strong evidence to the contrary -- which courts should encourage -- courts should not blithely assume that a foreign court will probably do the right thing when it comes to ordering the return (for example) to the United States of the child of a citizen of the country in question. In some extreme cases the U.S. State Department makes a judge’s work much easier. While for diplomatic reasons the State Department is understandably reluctant to cast aspersions on many foreign countries, it does issue critical judgments as to some of the worst offenders. Such determinations provided the basis for a Texas appeal court to uphold a decision to require supervision of all visitation between a father and his son since there was a serious risk that the father might abduct the child to Mexico. In re Sigmar, --- S.W.3d ----, 2008 WL 4816557 Tex.App.-Waco,2008. International family lawyers know all too well that it is extremely difficult, and very often entirely impossible, to get an abducted American child back from Mexico. Although Mexico is a party to the Hague Convention on the Civil Aspects of International Child Abduction it does not do what it is required to do under the terms of that treaty. In the Sigmar case the Texas court made findings as to the Mexican legal system and as to safety in that country by relying exclusively on the State Department’s published materials. These materials included the State Department evaluations of Mexico’s compliance with the Hague Convention, and its published warnings concerning travel in certain parts of the country and concerning trafficking in women and children for the purpose of sexual exploitation. In reliance on such reports the trial court made rulings, which the appeal court upheld, that Mexico: § Has no legal mechanism for the immediate and effective enforcement of a child custody order; § Has local laws or practices that would enable the father to prevent the mother from contacting the child without due cause, restrict the mother from freely traveling to or exiting from the country because of gender, nationality, or religion; and restrict the child's ability to legally leave the country when she reaches the age of majority because of gender, nationality, or religion; § Is a country for which the State Department has issued a travel warning to U.S. citizens; and § Poses a risk to the child's physical health and safety because of her specific circumstances and because of “human rights violations committed against children, including child labor and lack of child abuse laws.” As a result of those findings and in view of evidence that the father posed a risk of abduction, including the fact that the father was liquidating assets in the United States, the court required that all visitation between father and child be strictly supervised. While one may certainly applaud the willingness of the Texas courts to make blunt findings concerning a foreign country, one wishes that the trial court had asked both sides to submit evidence on the issue, rather than simply relying on the State Department’s conclusions. The State Department is not a judicial body and while its conclusions may be afforded great significance they are not the be-all and end-all when it comes to deciding whether a foreign judicial system is likely to return an abducted child promptly and effectively. Those decisions should be made by the courts after the submission of evidence for and against the proposition. The case is now on appeal to the Supreme Court of Texas.

China and International Child Abduction

We were recently asked to research the issue of potential child abduction in China and the remedies for securing the return from China of a child if the Chinese national parent kept her in that country. The results of our research were depressing.

China is not a party to the Hague Convention on the Civil Aspects of International Child Abduction (except for Hong Kong and Macau). Nor are there any signs that China is about to join the Convention or is even considering doing so.

There are no international or bilateral treaties in force between China and the United States dealing with international parental child abduction.

Furthermore it is unusual for foreign court orders to be recognized in China and that is most especially so when it comes to foreign child custody orders. Chinese law requires the existence of a treaty or de facto reciprocity in order to enforce a foreign judgment; neither exists between the United States and China. (Clarke, Donald C.,The Enforcement of United States Court Judgments in China: A Research Note (May 27, 2004).

China is also reported to have an enormous problem of domestic child abduction and child trafficking, with numerous articles on the topic printed even in the communist party newspaper, China Daily.

Finally, China has effective exit controls -- which is usually a good thing since it can prevent child abduction -- but children with Chinese passports, including dual national children, are reportedly barred from leaving China without the consent of both parents. Since that requires the consent of the allegedly abducting parent, the left-behind parent’s opportunity for self-help may be denied.

All of this means that U.S. courts should be most reluctant to sanction trips to China by dual national children accompanied by a Chinese national parent if the other parent raises genuine and well-founded fears that the child may not be returned.

Jeremy Morley

English Court OKs Post-Nups, Landmark Case

Congratulations to our victorious client, Rod MacLeod, to whom we rendered extensive advice from afar throughout his long-standing divorce case in the courts of the Isle of Man and then in the Judicial Committee of the Privy Council.

The case has resulted in a landmark decision today in favor of our client by the Privy Council, which ruled – for the first time – that post-nuptial agreements are enforceable under English law.

The Judicial Committee of the Privy Council is the court of final appeal for the overseas territories and Crown dependencies, and for some Commonwealth countries.

England’s Daily Mail summarized the facts as follows:

The ruling comes after a millionaire businessman appealed to the Judicial Committee of the Privy Council over a series of agreements before and during his marriage which set out his wife's share of a £13.8million-pound fortune.

Roderick MacLeod, 64, a U.S. businessman living in the Isle of Man, and his wife Marcia, 42, agreed a 'pre-nup' when they married in 1994 in Florida.

The agreement was amended twice during their ten-year marriage which produced five sons.

After their 2004 divorce Mr MacLeod offered his wife about £1million on the basis of their post-nuptial agreement, then he changed his offer to putting about £1.25million in a trust fund for their sons. An Isle of Man court ruled that Mrs MacLeod should receive the extra money in a lump sum.

But yesterday the Privy Council overturned that decision, ruling that there were no circumstances to justify changing the couple's post-nuptial agreement.

Courts currently take 'pre-nups' into account but they are not legally binding. However, as they become more popular, there is pressure for them to be given more force.

So where does this leave prenuptial agreements in England? They are “taken into account” and may be a significant factor in a divorce case to the extent that the English judge feels that it is proper to do so, depending on the circumstances of the case.It also means that if a prenuptial agreement is renegotiated and revised after the parties marry, it will likely be enforced.

With respect to post-nuptial agreements, Baroness Hale said that:

“We must assume that each party to a properly negotiated agreement is a grown up and able to look after him- or herself. At the same time we must be alive to the risk of unfair exploitation of superior strength. But the mere fact that the agreement is not what a court would have done cannot be enough to have it set aside.”

Respectfully, that same argument applies just as much to agreements made before marriage as it does to agreements made after marriage. Indeed, people may well have far more negotiating strength before entering the state of matrimony than after they have married and changed their circumstances. Nonetheless, even as the Court modified the law as to post-nuptial agreements, it left it to Parliament to make the appropriate changes to the law concerning prenuptial agreements.

So how should one advise betrothed international couples with an English connection who wish to know whether a prenuptial agreement is advisable and under whose laws it should be executed? The answer is that they are still in a somewhat murky legal environment as to which experienced and strategic international family law counsel should be consulted.

Irish court: 6-year old to be heard in Hague Abduction Case

An Irish court has ruled in a Hague Abduction Convention case that a child of just six years of age should be heard by the Court in determining whether to return the child to his habitual residence in another (unnamed) European Union country. N. -v- N. [hearing a child], [2008] IEHC 382. Ms Justice Finlay Geoghegan held that the issue as to whether or not the Court should give a child an opportunity to be heard is a separate and distinct issue from the appropriate weight, if any, to be given by the Court to the child’s views in determining any substantive issue in the application for the return of the child. The judge also insisted that the views of the child could be significant not only for the purposes of Article 13 of the Convention – which gives the Court a discretion to refuse to order the return of the child “if it finds 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” – but also in applying Article 12. Article 12 is the provision according to which the Court makes the summary order for return. The Court found that a child’s views “on everyday matters as to the circumstances in which he was living before he came to Ireland, or his wishes as to his future care including what should happen on return” might be taken into account by a Court by seeking appropriate interim undertakings when making the order for return pursuant to Article 12 of the Hague Convention. The ruling was a consequence on several particular aspects of Ireland’s position with respect to the Hague Convention. The first is that as an EU member an Irish court in a Hague case is subject to EU Council Regulation (EC) No. 2201/2003 (the “Revised Brussels II Regulation”). Article 11(2) of the Regulation reverses the burden of proof as to hearing a child in a Hague case concerning an alleged abduction from another EU country. It provides that, “When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.” Second, Article 11(3) of the Brussels Revised Regulation requires that, “the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.” That requirement of great speed makes it far more workable to hear a child and determine the child’s maturity after such a hearing instead of having a psychologist interview the child and prepare a report on the child’s maturity. Third, the Brussels Regulation “seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union” which provides that “Children shall have the right to such protection and care as is necessary for their wellbeing. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.” Finally, the Irish court cited English authority for the proposition that Article 12 of the United Nations Convention on the Rights of the Child must be applied in Hague cases. That article provides that: “1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” In Re. D. (Abduction: Rights of Custody) [2006] U.K.H.L. 51, Baroness Hale in the English House of Lords, stated that, “Although strictly this only applies to cases within the European Union (over half of the applications coming before the High Court), the principle [that a child should be heard] is in my view of universal application and consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child. It applies, not only when a ‘defence’ under article 13 has been raised, but also in any case in which the court is being asked to apply article 12 and direct the summary return of the child - in effect in every Hague Convention case. It erects a presumption that the child will be heard unless this appears inappropriate. Hearing the child is, as already stated, not to be confused with giving effect to his views.” It must be stressed that the Irish court repeatedly emphasized that one should not confuse the issue as to the weight to be attached to a young child’s views with the issue as to whether the child should be given an opportunity to be heard. “In general, the weight to be attached to views expressed by a six year old as to the country in which he would like to live will be less than that to be attached to the views of say a fifteen year old for, inter alia, the reasons submitted by counsel for the father.” This author is most concerned that, notwithstanding the caveat stressed by the Irish and English courts, the trend of allowing increasingly young children to “testify” to the issue of their preferred country of residency may well undermine the Hague Convention. While English or Irish courts may weigh the issues dispassionately, practitioners in this field know that courts in many countries refuse to return children who have been abducted by a local national parent if there is even a plausible reason to do so. Allowing very young children to testify on these issues provides an easy way out for many judges who would prefer not to have to send children back to their habitual residence.

Romania Child Abduction & Divorce Law

We have added new pages to our web site for Romania. One is on ROMANIA: INTERNATIONAL CHILD ABDUCTION and the other is on ROMANIA: DIVORCE LAW.

Israel Amends Its Divorce Law

Israel has made a significant amendment to its divorce law.

In Israel divorce is in the exclusive hands of the rabbinical courts for all Jewish Israelis – and that will continue to be the case. The amendment is to the 1973 Spousal Property Relations Law which permitted the civil family court to divide the spouses’ assets only after the rabbinical courts had granted a get (religious divorce).

Proponents of the amendment argued that the 1973 law tempted husbands to refuse to grant their wives a get so that the assets, generally in the husband's name, would not be divided between them. The division of assets also gave the husband a means to “blackmail” his wife as a condition for granting the get. The amendment will now allow for the division of spousal property prior to divorce in cases where divorce proceedings last more than one year or if it is proven that a marriage is in irretrievable breakdown, and in cases of domestic violence.

When the Knesset voted to enact the amendment last month, Prof. Ruth Halperin-Kaddari, Director of Bar-Ilan University's Rackman Center for the Advancement of the Status of Women -- who played a leading role in the promulgation of the amendment -- said that, “The Knesset has taken a major step forward in promoting women's status in Israel today. This is a day of celebration for women in Israel, for the advancement of gender equality and for the advancement of human rights in Israel.”

At a conference at Bar-Ilan University this week, Prof. Halperin-Kaddari expressed concern that rabbinical courts might attempt to fight the legislation. The administrative head of the rabbinical courts, Rabbi Eli Ben-Dahan, said that he was concerned that rabbinical courts will be unable to convince one of the sides to agree to divorce after all the property matters have been decided. He said that he was also concerned that if property matters could be settled quickly, there would be no chance to persuade the sides to reconsider the divorce. Finally he argued that secular couples, unlike religious couples, would not bother to finalize the divorce with a get once the property matters had been decided.

English Prenuptial Agreements

A critical case on English prenuptial law is currently being heard by the Judicial Committee of the Privy Council, which is the highest appeals court for UK overseas territories including the Isle of Man, where the parties live.

The current state of the law in England is that prenuptial agreements are considered as just one factor in determining a resolution of the financial claims of divorcing parties. The Law Lords in the pending case might decide to give prenuptial full legal recognition, thereby bringing England into line with most of the rest of the world.

The last time the Law Lords looked at the issue was in 1929, when they ruled that binding prenuptial contracts would contravene public policy. Obviously the world has changed dramatically since that time.

See my article on this topic at http://www.international-divorce.com/england_-_prenuptial.htm

It is possible that the court will prefer to leave the issue to Parliament. The English Law Commission is currently consulting on the issue but its recommendations are unlikely to be issued until 2012.

Stay tuned for further developments.

Disclosure: I am advising the husband in this case.

Australia's Child Custody Law, International Relocation and International Child Abduction

This editorial (see below) in Australia’s Courier-Mail criticizes the provisions in Australia’s recently-amended Family Law Act that call for equal shared parenting orders. The article is totally on target. However it does not address another unexpected consequence of the new law, which is that it has made it even harder than before for an expat parent in Australia to receive permission to relocate with the children from Australia back to her country of origin her marriage has ended. In turn, this appears to have created a surge in international parental child abduction cases out of Australia. It has certainly produced great unhappiness and trauma for many expat moms in Australia who find themselves stranded with their children in Australia, far from their home country, family and friends, after their relationship with their Aussie husband or partner has ended. Tug-of-love orders risk to children November 13, 2008 Courier-Mail CHANGES to the Family Law Act, broadly welcomed in their intention to ensure equal shared parenting orders when they were introduced in 2006, are creating unforseen difficulties including emotional trauma for the children of broken families. A particular aim of the revised laws was to end an era of ambiguity which seemed to favour mothers over fathers in custody orders. Although judges had the discretion to give both parents equal decision-making powers, this was not often reflected in practice. In most cases decisions rested with the resident parent, generally the mother. The new laws embrace a presumption of equal responsibility under which both mother and father have an equal role in decisions such as education and health -- except when violence or abuse can be demonstrated. The practical repercussions of hostile broken marriages were never envisaged. The 50-50 orders mean young children in particular compartmentalise their lives: one set of friends and sometimes a different day care and extra-curricula interests when they live with one parent; another set when they live with the other. Anecdotal psychological evidence is that children in 50-50 care risk developing higher levels of sadness, anxiety, clinginess and other mental health problems. Ideologically based changes widely believed at the time to have merit have instead, by this application, changed the focus from the best interests of the child to assuaging the self-interests of two adults whose relationship has often developed into bitterness and refusal to communicate. The Courier-Mail's series this week on legal issues affecting Australian families has chronicled the concerns of lawyers, a former Family Court judge, psychologists and parents when the tug-of-love factor becomes the prevailing influence. Former judge Tim Carmody, SC, who has returned to the private bar after serving the Family Court for five years, said the onus to apply equal shared parenting orders was part of his reason for resigning. The 5 per cent of couples who continued to trial after filing for child custody constituted the most hostile of partnership breakdowns. Yet under the Family Law amendment, judicial orders for these couples must apply a presumption that equal shared responsibility is in the best interests of a child and consequently, a judge must "favourably" consider a further order that a child spend equal time with each parent. Whatever happened to the case-by-case judgments where the focus was on the best interests of the child rather than restricting a judge's options if everything else is equal? Family law is complex; designed to confront the most complicated of personal relationships. It has evolved since the introduction of no-fault divorce laws in 1975. The most recent changes were well intentioned but shared parenting was never meant to focus on mothers and fathers. In the face of mounting evidence of constraints on common sense and the emergence of uncooperative parenting arrangements, the changes deserve a fresh look designed to ensure the best interests of the child are paramount.

Jamaica Acceding to Hague Abduction Convention

The Jamaican Cabinet has reportedly approved Jamaica's accession to the Hague Convention on the Civil Aspects of International Child Abduction, 1980.

Jamaica joins Bahamas, St. Kitts & Nevis and Trinidad & Tobago as Caribbean countries who have acceded to the treaty.

The Convention will not be in force with the United States until the U.S. accepts Jamaica’s accession to the treaty.

An aside about gossip

My daughter at college is suddenly most impressed with the press that I have been receiving. Not that I'm referring to quotes in The Economist or the Times of London -- mention of which received a bored "Oh Great! What else is up?" -- but to the current issue of OK! Magazine, the place for "hot celebrity gossip and photos." The quote has me very boringly saying that, "They need to decide who is going to have primary residential custody and the other parent will get significant visitation," as well as making some other fascinating (?) observations. But my quote is right underneath a picture of Madonna with her son throwing a tantrum and on the next page is a great shot of Angelina Jolie. "That's so cool!" my daughter breathlessly announced. And I'm positioned between Madonna and Angelina; Guy's there too but he'll be out of the way soon.

British Court rules Islamic Law Dscriminatory

The Independent,23 October 2008 Britain's highest court has criticised Islamic law for discriminating against women after a case in which a mother was forced to flee the Middle East for Britain to protect her son from his abusive father.

In a 5-0 ruling, the law lords said that there was no place in sharia for the equal treatment of the sexes. It would be a "flagrant breach" of the European Convention on Human Rights for the Government to remove a woman to Lebanon, where she would lose custody of her son because of sharia-inspired family law.

The woman, known as EM, came to the UK in 2004 with her son when he was eight. She has had sole custody of him since his birth because of her ex-husband's violence. She left Lebanon because its laws automatically award fathers custody of children from the age of seven.

Lord Hope of Craighead said that the right to non-discrimination was a core principle in the protection of human rights. "Sharia law as it is applied in Lebanon was created by and for men in a male-dominated society... There is no place in it for equal rights," he said.

Sharia was the product of a much-observed religious and cultural tradition, "but by our standards the system is arbitrary because the law permits of no exceptions to its application... It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women."

Yesterday's decision reversed rulings by the Court of Appeal, the Asylum and Immigration Tribunal and the Home Secretary that returning EM to Lebanon with her son would not violate her right to family life.

The human rights groups Liberty and Justice intervened in the case. Liberty's legal director, James Welch, said: "How can the Government speak of equal treatment in one breath and seek to deport mother and child to face separation... in another? The law lords have rightly upheld basic protections which must be available to us all."

EM had obtained, in the Islamic Court in Lebanon, a divorce from her husband, who reportedly ended her first pregnancy by hitting her in the stomach with a heavy vase. She had been awarded physical custody of her son until his seventh birthday.

Lord Carswell said: "The House is applying the domestic law of this country, as it is bound to do... We are not passing judgment on the law or institutions of any other state. Nor are we setting out to make comparisons, favourable or unfavourable, with sharia law."

Eric Metcalfe, of Justice, said: "This isn't a case of British law versus Lebanese law or Sharia law. This is simply a victory for basic fairness and a useful reminder for anyone who doubts the value of the Human Rights Act 10 years on."

Forced Marriage is a Crime Against Humanity

We have just read the appeal judgment of the Appeals Chamber of the Special Court for Sierra Leone in a case entitled Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu http://www.sc-sl.org/AFRC.html For international family lawyers the judgment is significant in that the court ruled that forced marriage constitutes a crime against humanity. The case arose out of a coup d’etat in Sierra Leone in 1994, spearheaded by the three defendants who were the leaders of the “Armed Forces Revolutionary Council,” which led to horrific atrocities. The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. The Court’s Trial Chamber had convicted the defendants of crimes against humanity, war crimes, and other serious violations of international humanitarian law, but had dismissed charges arising out of evidence of mass forced marriages. The reason for the dismissal was that the Prosecutor had not demonstrated that forced marriage was a non-sexual crime, and was different from the crime of sexual slavery. On appeal, the Appeals Chamber focused on other aspects of forced marriage, especially its patriarchal and coercive nature, the physical and psychological toll that it exacted from its victims, and the exclusivity that assumed the "bush wives" were mere property of their rebel "husbands". The court ruled that: “The trial record contains ample evidence that the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime. There is substantial evidence in the Trial Judgment to establish that throughout the conflict in Sierra Leone, women and girls were systematically abducted from their homes and communities by troops belonging to the AFRC and compelled to serve as conjugal partners to AFRC soldiers. They were often abducted in circumstances of extreme violence, compelled to move along with the fighting forces from place to place, and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the “husband,” endure forced pregnancy, and to care for and bring up children of the “marriage.” … The Trial Chamber findings also demonstrate that these forced conjugal associations were often organised and supervised by members of the AFRC or civilians assigned by them to such tasks. A “wife” was exclusive to a rebel “husband,” and any transgression of this exclusivity such as unfaithfulness, was severely punished. A “wife” who did not perform the conjugal duties demanded of her was deemed disloyal and could face serious punishment under the AFRC disciplinary system, including beating and possibly death.” The Appeals Chamber determined that forced marriage is a crime against humanity under the Nuremberg Charter, which lists several specific crimes against humanity and then, in Article 6(c), includes "Other inhumane acts" as a residual provision intended to punish acts that are comparable in nature. The Chamber defined “forced marriage” as “a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.” It concluded that “society's disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread and systematic attack against the civilian population is adequately reflected by recognizing that such conduct is criminal and that it constitutes an "Other Inhumane Act" capable of incurring individual criminal responsibility in international law.”

Forced Marriage Law in Britain

Britain has initiated a concerted effort to stem the number of forced marriages in that country. A new law – the Forced Marriage (Civil Protection) Act 2007– will come into force there next month. A “forced marriage” is one in which a party is married without his or her consent or against his or her will. It is still practiced in South Asia, the Middle East, and Africa, as well as within migrant communities from such areas in Europe and the United States. Most involuntary spouses are women.

The British law allows civil courts to issue restraining orders – known as forced marriage orders -- to stop forced marriages from occurring and to protect victims. The subject of an order can include any person who aids, abets or encourages the forced marriage. Interested third parties, such as counselors or teachers, may apply themselves for court permission to intervene on behalf of victims who are too fearful to seek help on their own.

The orders can contain such provisions as a court finds appropriate to prevent a forced marriage or to protect a victim of forced marriage from its effects, and may include confiscation of passports or restrictions on contact with the victim.

A marriage can be considered forced not merely on the grounds of threats of physical violence to the victim, but also through threats of physical violence to third parties (e.g. the victim's family), or even self-violence (e.g. marriage procured through threat of suicide.)

The British law does not criminalize forced marriage, because of the fear that victims—even those subjected to the worst abuse—would be unwilling to see their parents prosecuted. However, a person who violates a forced marriage order is subject to contempt of court and may be arrested.

Fifth Circuit's Hague Abduction Convention Ruling

The Fifth Circuit has followed the Second Circuit’s ruling in Croll v. Croll and has ruled that a “ne exeat” right does not constitute a “right of custody” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction. (Abbott v. Abbott, handed down on September 16, 2008).

The case concerned a British father and American mother who lived with their child in Chile. When the parents separated the Chilean courts awarded sole custody to the mother with visitation rights to the father and entered a subsequent order (the “ne exeat order”) prohibiting the child’s removal from Chile by either parent without their mutual consent. The mother concededly breached that order by taking the child to Texas and keeping him there without the father’s consent and without notice whilst the parties were in the midst of disputes over visitation and other issues.

The Hague Convention provides the remedy of return of a child only if the child’s removal or retention from its habitual residence breached “rights of custody attributed to a person.” The Fifth Circuit was required to determine whether to follow the three federal appellate courts that have determined that ne exeat orders and statutory ne exeat provisions do not create “rights of custody” under the Convention (Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948 (9th Cir. 2002); Croll v. Croll, 229 F.3d 133, 138–39 (2d Cir. 2000)) or whether to follow the Eleventh Circuit which has reached the opposite conclusion. (Furnes v. Reeves, 362 F.3d 702, 719 (11th Cir. 2004)). The Eleventh Circuit’s view has received further support in the First Circuit in Whallon v. Lynn, 230 F.3d 450, 458 n.9, 459 (1st Cir. 2000) and Croll has been criticized in most of the academic literature.

The Fifth Circuit also noted that the Furnes court had “catalogued” the foreign opinions on the issue, noting that courts in the United Kingdom, Australia, South Africa, and Israel have held that ne exeat rights do constitute “rights of custody” under the Hague Convention, while Canadian and French courts have reached the opposite conclusion. Furnes, 362 F.3d at 717–18.

The decision of the Fifth Circuit is that it follows the majority rule. It held that:

“We find persuasive Croll’s reasoning that the Hague Convention clearly distinguishes between “rights of custody” and “rights of access” and that ordering the return of a child in the absence of “rights of custody” in an effort to serve the overarching purposes of the Hague Convention would be an impermissible judicial amendment of the Convention. We hold that ne exeat rights, even when coupled with “rights of access,” do not constitute “rights of custody” within the meaning of the Hague Convention. The Hague Convention provides a remedy of return only for a parent who holds “rights of custody.” The father in this case did not hold such rights.”

RUSSIA: “Lawful” Child Kidnapping

The article below in today's Daily Telegraph illustrates the grave dangers that may arise when children visit Russia:

An 11-year-old British girl has been left stranded in Russia after her biological father obtained a Court Order preventing her from leaving the country until she is 18.

Victoria Osborne, who was visiting her grandmother in Saratov with her mother Tatiana, was prevented from boarding a plane home despite neither of them being given notice of the Order. Officials told her that her natural father, Colonel Yuri Gladkikh, had obtained the Order which under Russian law allows divorced parents to block their children leaving the country until they are 18. It was designed to help separated parents with access to their children.

Victoria's stepfather, Patrick Osborne, 52, is now preparing for a legal battle to bring her home to Winchester, Hants. It is believed that they are in negotiations with Colonel Gladkikh over the ownership of a flat in Saratov.

He said: "We know it is not going to be easy, but we are determined to get our family back together. This order came totally out of the blue. When we go over there to see Tatiana's family Mr Gladkikh knows exactly where we are because his mother lives in the same village."

Mr Osborne, a Civil Engineering lecturer at Southampton University, said the first he knew about the situation was last Thursday when his wife telephoned him in tears from the airport. He said: "She was crying her eyes out saying that they couldn't get out of the country. She is getting increasingly distressed and it's going to get harder and harder the longer it goes on for her. Vicka is a confident, happy girl and she is dealing with this as best she can. It is unbelievable that any parent, however far-removed from daily upbringing, would deny his child the right to a good education, access to her home and friends. This is totally immoral."

Mrs Osborne, 34, and Colonel Gladkikh split up eight years ago. She married Mr Osborne three years later after they met while he was working in Russia.Although his wife and step daughter are British citizens the pair travelled on Russian passports, making them subject to the country's law.Mrs Osborne is free to leave the country but said she will not return without Victoria, who was due to start secondary school yesterday. Mrs Osborne said she separated from Colonel Gladkikh in January 2001 and divorced him in October 2002.

“This is a terrifying ordeal and we are completely devastated. The possibility that Vicka will be forced to remain here, away from her friends and family, for the rest of her childhood is very scary for her," she said. "When we first went to see him (Colonel Gladkikh) he said Vicka should be near him in Russia. He said she could stay with her grandmother where he could visit her.” She claimed he later told her he would lift the order if she voluntarily gave up registration on the £35,000 flat they own, where Victoria was born, so that he could sell it. She said she was prepared to do that after receiving written guarantees he would not go back on his word.

She added: “Quite simply, it's blackmail. Vicka is trapped here and she feels so betrayed to be used like an object of trade. It is immoral. To think he is a high ranking officer in the Russian army, trusted with defending the country, and this is how he treats his child.”

Speaking from Saratov, Mrs Osborne, who is carrying out research at Birmingham University to improve cultural understanding between Britain and Russia, said: "We are absolutely devastated. Had we known about this restriction we would never have gone to Russia this summer. It's a catastrophe. Our family is broken apart and Vicka is not at school. She was so much looking forward to it. This is a betrayal by her biological father."

The family could face a lengthy court battle if the order is not voluntarily withdrawn by Mr Gladkikh.They have sought help from the British Embassy in Russia but have been told there is little they can do as they were travelling on Russian passports.

Daily Telegraph, Sept. 4, 2008