Friday, March 24, 2017
Jeremy D. Morley
On 24 February 2017, Jamaica deposited its instrument of accession to the Hague Convention on the Civil Aspects of International Child Abduction. Jamaica is the 97th Contracting State to the Convention. The Convention will enter into force for Jamaica on May 1, 2017, but it will not have effect with respect to other states unless and until such countries specifically accept Jamaica’s accession.
Jamaica has brought the Convention into domestic law by amendments to its Children (Guardianship and Custody) Act. A review of the amending statute indicates some issues that should be considered as part of the process of reviewing the acceptance of the accession by other countries.
One issue is that the legislation empowers Jamaica’s Central Authority – defined as “the Minister with responsibility for justice” – to “refuse an application” if it decides that “the application is not well founded.”
The second, and related, issue is that the legislation identifies “the Court” as the Supreme Court of Jamaica and states that the Court should make every effort to decide cases expeditiously and within six weeks, but it does not state how cases are to be brought to the court and does not explain the jurisdiction of the Court if the Central Authority has itself made a determination that an application is not well founded.
A third issue is that the legislation authorizes a refusal to return a child “where the return of the child would breach his rights under Chapter III of the Constitution of Jamaica.” Chapter III of the Constitution comprises an extremely broad listing of “fundamental rights and freedoms,” including specific provisions for the protection of freedom of movement, for protection from inhuman treatment, and for respect for private and family life, all of which could be raised as purported defenses in a Hague Convention case in Jamaica.
In any event, Jamaica’s accession to the treaty is a welcome development.
Thursday, March 23, 2017
by Jeremy D. Morley
The Hague Convention has a role to play in international child relocation cases and in cases concerning international child visitation and travel. That role will on occasion be of great significance. It also has some significance in international relocation (“move away”) cases, but that role is frequently afforded entirely inappropriate significance.
In international relocation cases, an important issue is whether or not the foreign country to which the child may be relocated will effectively enforce the orders of the U.S. court concerning access for the non-custodial, non-relocating parent.
Parents sometimes cite as a relevant factor on this issue that the country in question is -- or is not -- a party to the Hague Convention. However, the key issue is far narrower than that. The Convention is triggered as an abduction case when there has been a wrongful removal or retention within the meaning of Article 3 of the Convention. If a court in the United States permits a parent to relocate with a child to another country, the act of that parent in taking the child to the foreign country and retaining the child there is obviously not a wrongful act.
The issue in relocation cases should be whether or not the Convention, as it is actually applied in the foreign country, will enforce a left-behind parent's right of access. It must be recognized that in most cases the mere fact that a foreign country is a Hague Convention treaty partner provides no assurance whatsoever that access orders issued by a court in the United States will be recognized and enforced after the relocation has taken place.
Courts in the United States must appreciate that, once a child has been lawfully relocated overseas, their extraterritorial jurisdiction will generally be quite limited. Indeed, no other country has adopted the Uniform Child Custody Jurisdiction & Enforcement Act or any law similar to it. The American concept of exclusive jurisdiction continuing in the (American) court that issues an initial custody order, even if the child lives overseas, as long as one parent continues to live in the original state, is completely alien to almost all foreign courts.
In most countries, once a child has been relocated to such a country and is habitually resident there, the local courts will conclude that they have exclusive jurisdiction to issue a child custody order or to modify a prior foreign custody order.
It must also be stressed that the definition of “habitual residence” in force in most countries is quite different than the meaning given by most American courts. For example, in the European Union, habitual residence is treated as a question of fact, taking into account all of the relevant circumstances, and “corresponds to the place which reflects some degree of integration by the child in a social and family environment.” Mercredi v Chaffe, (Case C-497/10 PPU)  Fam 22. Under that test, a change of habitual residence is likely to occur promptly after a child is relocated lawfully to another country, particularly when the child is in school there.
Conditioning international child relocation on the applicant first obtaining an order from a court in the country to which the relocating parent proposes to move that mirrors the terms of the U.S. court’s order and that acknowledges that the U.S. court has continuing exclusive jurisdiction concerning all matters as to the child's custody and visitation, is entirely unworkable, because once a relocated child is habitually resident in the foreign country the courts in that country will invariably have the right and the duty under the laws and the public policy of that country to assume modification jurisdiction without regard to the demands and presumptions of an American court.
Of course, such an order of a court in the United States would be binding under the laws of the issuing state, and most likely of sister states in this country, even if the foreign court has issued a contradictory order. The U.S. orders would bind the relocating parent who has taken the child overseas and might put that parent in jeopardy, but it would be inconsequential in the foreign country and most likely in other foreign countries also.
Thus, reliance on Article 21 of the Hague Convention to ensure compliance with the visitation provisions of an order permitting international relocation may well be misplaced. Once a foreign court has assumed custody jurisdiction it will make such decisions as it deems fit about custody and access, and Article 21 will not restrain that process in the slightest.
It should be noted that the U.S. approach will be modified to accord with the worldwide standard if, as and when the United States accedes to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the “1996 Convention”). The basic principle of the UCCJEA — that the court that issues an initial custody order retains the exclusive right to modify the order so long as that state remains the residence of a parent, the child, or a person acting as a parent — is not mirrored in the 1996 Convention. Instead the Convention provides that modification jurisdiction changes with changes to the child’s habitual residence. These terms codify the practice of many countries around the world. The 1996 Convention provides that a country’s courts have custody jurisdiction whenever the child is habitually resident there (Article 5), subject to certain limitations for refugee or internationally displaced children with no habitual country of residence (Article 6), and cases of wrongful removal or retention of a child (Article 7). Another country’s authorities cannot intervene to protect a child without the express agreement of, or at the express request of, the courts of country where the child is habitually resident (Articles 8 and 9).
In 2013 the Uniform Law Commissioners promulgated a revised UCCJEA, to accommodate the 1996 Convention. The new UCCJEA contains a new Article 4 that is intended to govern cases between states of the United States and foreign countries. In such cases jurisdiction to issue — and to modify — a custody order (to be referred to as a “measure of protection”) will be based on the child’s habitual residence, which may shift over time.
Thursday, March 16, 2017
We are delighted that we helped to secure the return to California this week of a child who had been abducted to Taiwan.
Taiwan is not a party to the Hague Convention on International Child Abduction and the Taiwanese judicial system would likely not be helpful in such a situation.
We advised our client to allow us to use other measures instead, and they have now borne fruit, to our client’s great joy and relief.
Tuesday, March 14, 2017
Two international child abduction cases arrive in your office on the same day. One client leaves relieved and optimistic; the other leaves in tears. Why the disparity? The first client is Mary. A few days ago, the father of her baby visited Mary and persuaded her to allow him to take the baby to the park. He then disappeared with the child. Mary has learned that he has taken the child to his country of origin in Southeast Asia and that he intends to keep her there. Mary wants you to help her file a petition with the U.S. Secretary of State to demand her child’s return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Convention provides that children under the age of 16 who have been wrongfully removed to or retained in a country that is not their habitual residence must be promptly returned unless one of the narrow exceptions set forth in the Convention applies. It was implemented into U.S. law by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§11601-11610. The Convention is intended to restore the pre-removal status quo and to discourage parents from engaging in international forum shopping.
Courts deciding a petition for return of a child have jurisdiction to decide the merits of the wrongful removal claim, but they may not decide the merits of the underlying custody dispute. Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008). Unfortunately, you must tell Mary that, unless the country in question is Sri Lanka, she cannot take advantage of the Convention. Although the treaty is in force between the United States and about 80 other countries around the world, it is not in force between the United States and any Southeast Asian country other than Sri Lanka.
Accordingly, Mary’s options are limited. She can secure a custody order from a court in her local state but that may well have no force or effect in the foreign country. She might ask for state or federal criminal charges to be brought against the father, but that might be counter-productive in deterring him from stepping foot outside his country. She might start a custody case in the foreign country but that might prove an uphill battle.
The second client is Paul. He and his wife are British nationals. They moved to your state from England with their children a few years ago. The wife took the kids on holiday to England a few weeks ago and now refuses to bring them back. Your advice will normally be to file a Hague Convention petition immediately. The Convention is in force between the United States and most countries in Europe. U.K. compliance with the Convention is excellent and the U.K. government will even pay for counsel to represent the left-behind parent. Each signatory country is required to have a Central Authority to process the petitions for return of children. Proceedings for the return of children are brought in the courts of the countries to which children have been abducted. The Secretary of State is the Central Authority in the United States. In California, but not in most other states, the local District Attorney’s Offices will help parents file Hague petitions when children have been abducted to countries where the treaty is in force with the U.S.
What will Paul need to prove in order to have the English court order the return of his children? He needs to show that the children were “habitually resident” in your state, that he has a “right of custody” under the laws of your state, and that he did not consent to the children being retained in England for longer than their holiday time.
“Habitual residence” is not defined in the Convention. Its meaning has spawned considerable litigation in cases where the children have lived in different countries. Paul will claim that he and his wife were settled with their children in your state, but his wife might tell the English court that they were in the U.S. only temporarily. In deciding the issue, courts generally look to the last shared intention of the parents as to where their family should live and the extent to which children have spent time in and become acclimatized to the jurisdiction in question. In order to establish that Paul has a “right of custody” under the law of your state, you may suggest that you will supply an expert affidavit to accompany the petition that will state that even though there is no custody order, Paul has custodial rights by virtue of being the married father of the children. You probably should recommend to Paul that he should initiate a custody case immediately in your state and seek an emergency order directing his wife to return the children.
You want to ensure that Paul does not lose the exclusive custody jurisdiction that your state has, at least as far as U.S. courts are concerned, under the Uniform Child Custody Jurisdiction & Enforcement Act. Otherwise, in six months, England could become the new “home state” for Paul’s children. Then, even though the children were returned to your state, unless the English courts were to decline jurisdiction over the custody issue, your state would not have jurisdiction under the UCCJEA.
You also need to review with Paul the possible defenses that his wife might raise in England. There are seven defenses, all of which are supposed to be construed narrowly. The first is consent. Convention, Article 13a. Did Paul agree that the children could be kept in England? The defense does not require that consent be in any specified form. And so there could be a “red light, green light” dispute about who said what to whom. Negotiations between the parents often result in statements which can unintentionally look like consent or acquiescence. However, the burden of proof will be with the wife.
The second defense is acquiescence, meaning that after the children were kept overseas Paul “okayed” that fact. Convention, Article 13a. In U.S. courts, acquiescence is difficult to establish; it requires some degree of formality. In England, the courts have a lower threshold requirement but again, as with all of these issues, the burden of proof is on the taking parent.
A third defense is that the petitioner was not actually exercising his rights of custody. Convention, Article 13a. Courts require very little to disprove such a claim. Certainly if the parties were living together before the foreign trip, Paul’s wife will not prevail on this issue.
Another defense is that a return would violate the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. This defense is extremely limited. Although the U.S. has its problems, the human rights defense will not succeed in a case in which return to the U.S. is sought. Convention, Article 20.
A fifth defense is that more than one year has elapsed from the date of the alleged wrongful removal or retention, and the child is now settled in the new environment. Convention, Article 12. The existence of this defense should cause you to counsel Paul to act promptly.
A sixth defense is 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.” Convention, Article 13b. This defense will be extremely serious if the child is old enough, but the Convention leaves the exact age up to the courts. It will be up to the English judge to decide first whether Paul’s children do in fact object to being returned to your state and if so, whether the children have attained an age and maturity at which it is appropriate to take account of their views. The children will likely be interviewed by a so-called “cafcass officer” who is employed by England’s Children and Family Court Advisory Support Service. Even if the defense is established, the English court will have discretion to return the children nonetheless if the court deems it best to do so.
The last defense is grave risk of harm. Convention, Article 13b. In the authors’ experience, this is the most common objection and it generally provides the most difficulty. Article 13b requires the party raising the defense to establish that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” In Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996), the Sixth Circuit held that a “grave risk of harm” for the purposes of the Convention can exist in only two situations. First, if returning the child would put the child in imminent danger prior to the resolution of the custody dispute – e.g., returning the child to zone of war, famine or disease. Second, if there is evidence of serious abuse or neglect, or extraordinary emotional dependence, and if the court in the country of habitual residence is incapable of or unwilling to give the child adequate protection. Some U.S. courts have adopted more stringent tests and others more liberal tests with respect to the “grave risk of harm.” The loose language of the Convention has allowed courts in some countries to interpret the defense broadly so as to justify a refusal to return children. However, if Paul is not an abuser, he should have little to fear from this defense.
In conclusion, the identity of the country to which children are abducted from your state will play a pivotal role in shaping your strategy and in determining the likelihood that the children will be returned. Mary is unlucky that her child was apparently taken to a non-Hague country. If she had contacted you before the abduction occurred perhaps you could have sought to enjoin the abduction and taken other protective steps, particularly if she were residing in a state that has enacted the Uniform Child Abduction Prevention Act and if she were able to establish the existence of the so-called “risk factors” identified in that Act to help identify potential abductions.
Note that some states such as California have enacted their own abduction prevention statutes. The most effective such step is to require that the potential abductor have only supervised visitation with the child, but without proof of a direct threat to abduct the child, most judges are reluctant to grant such an order.
Since there are no exit controls in the United States, it is all too easy for a parent of foreign nationality to obtain travel documents for the child from his or her home country and flee overseas with the child. Paul is fortunate because not only were his children taken to a country that is a party to the Hague Convention, but also that that country is a strong enforcer of Convention rights. The U.S. State Department publishes annual reports to Congress on the compliance by U.S. treaty partners of their obligations under the Convention. The reports assert that several countries do not enforce Convention rights adequately.
Indeed, the authors believe that the State Department has been far too restrained in identifying noncompliance by certain countries. A vast array of materials and information on the Convention is now available on the Internet. These can be found via judicious use of search engines or by starting with the HCCH (Hague Conference on Private International Law) website’s Child Abduction Section found at http://tinyurl.com/cghzwe or the U.S. Department of State website’s International Parental Child Abduction Section found at http://tinyurl.com/7waq7.
Friday, March 10, 2017
A South African man and his Ukrainian fiancee have been detained in the United Arab Emirates for unlawful sex, a relative says.
Emlyn Culverwell‚ 29, and Iryna Nohai, 27, were reportedly arrested after a doctor discovered M.s Nohai, who had stomach cramps, was pregnant.
They were arrested for sex outside of marriage, which is illegal in the UAE.
Mr. Culverwell's mother has pleaded for their release, saying "the only thing they did wrong was fall in love."
South Africa's foreign ministry has said that it is not able to help the couple as this is a matter of domestic UAE law, News24 reports.
The South African government has advised the couple to get legal assistance, the BBC's Pumza Fihlani in Johannesburg says.
There was no immediate comment from the UAE government.
Mr. Culverwell and Ms. Nohai have reportedly been held since January, but news of their detention has only emerged now.
Mr. Culverwell has been working in the UAE for the past five years.
His mother Linda told News24 that the family is "trying to get messages to the two to say we love them and that they shouldn't be worried".
The couple have not yet been charged as the authorities are still carrying out tests, Mrs. Culverwell added.
If found guilty, they could face a long jail sentence.
Thursday, March 09, 2017
We are delighted that this weekend our client was able to fly back to Malaysia with his child, who had been abducted from Pakistan to Illinois, USA.
Malaysia is not a party to the Hague Abduction Convention.
In conjunction with local counsel in all applicable jurisdictions, we created a strategy for our client, counseled him as to obtaining a custody order in Malaysia, helped him to locate the missing child in the USA, and worked with counsel in Illinois to register the Malaysian order in that state, to enforce the registered order despite fierce opposition, and ultimately to reunite the father with his beloved child.
These cases are very challenging and it is most encouraging when they yield a beneficial result.
Thursday, March 02, 2017
A court in Massachusetts, after hearing my expert testimony concerning the high risk of abduction of children to Japan, has issued a most “Solomonic” order, consistent with my testimony, whereby the Japanese mother is permitted to take only one of the parties’ three children for limited duration visits to Japan currently, to take two of the three children (but not both of the younger children) for visits starting in three years, and to take all of the children starting in seven years. A most sensible compromise.
Tuesday, February 28, 2017
Jeremy D. Morley
The Osaka High Court has just issued a decision in a case under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) that provides strong support for the claim that Japan does not comply with the terms of the treaty and that is, indeed, in violation of its treaty obligations.
It has not been possible until now to analyze the decisions of the Japanese courts in cases brought under the Hague Convention since they are unpublished and confidential. Such secrecy has precluded Japanese lawyers from reporting on specific cases, and has frustrated scrutiny of court decisions. However, the author has now obtained a copy of the shocking decision of the Osaka High Court in the case of Arimitsu v. Cook, issued on February 17, 2017.
This author has long asserted that the law by which Japan brought the Convention into Japanese law -- Act No. 48 of June 19, 2013, which is identified as the “Act for Implementation of the Convention on the Civil Aspects of International Child Abduction” (the “Implementing Act”) – contains provisions that inappropriately and excessively expand the so-called “grave risk exception” to the treaty. The author has also long expressed serious concerns that return orders issued by the Japanese courts would not be effectively enforced in Japan.
An analysis of the Arimitsu case indicates that the Hague Convention is unworkable in Japan under current laws and procedures and in light of the prevailing views there concerning child custody. The facts as follows: The U.S. father and Japanese mother were married in Minnesota in 1998. They had four children, all of whom were born and raised in Minnesota. In 2014, their mother took them to Japan and retained them there without the father’s consent. In August 2015, the father commenced a Hague Convention case in Japan for the return of his children to the United States. In October 2015 the Osaka Family Court ordered that only two of the four children should be returned. In January 2016, on appeal by the father, the Osaka High Court ruled that all four children must be returned. However, the return order was never implemented. Ultimately the father filed a petition seeking “direct enforcement” of the return order.
Finally, in September 2016 enforcement officers from the Nara District Court went to the place where the mother and family were living, purportedly in order to enforce the order. They failed to do so. Instead, they reported that the children had “strongly refused” to be returned to the U.S. After consulting with Japan’s Central Authority [i.e. the Ministry of Foreign Affairs of Japan, which is Japan’s designated “Central Authority” under the Convention], they declared that enforcement was not possible. Indeed, I am informed that the father attended the purported enforcement, was required to wait outside and was even then barred from seeing his children.
The mother then petitioned the Osaka High Court to nullify the pending unenforced return order. She claimed that since the prior proceedings the father had lost his home in Minnesota through foreclosure and did not have the financial resources or family support to provide a stable environment for the children in Minnesota. The Osaka court accepted the mother’s argument. It ruled that “these situations fall within the grave risk of harm for the Children under Article 28 -1-4 by harming the Children physically or mentally and by placing the Children in the unbearable situation.”
I am informed that the father’s financial challenges were primarily caused by the enormous costs of the litigation that he had brought in an effort to secure the return of his abducted children, and that the legal fees and travel and related expenses had been greatly enhanced by the deficiencies and obstacles raised by the legal system in Japan, particularly including the requirement that he attend repeated and entirely fruitless mediation sessions in Japan.
The decision of the Osaka High Court to reverse its prior return order on the ground of so-called “grave risk” to the children on the theory that that the father had suffered financial reverses subsequent to the abduction serves merely to highlight the inherent deficiencies in the Japanese system concerning the Hague Convention. All such problems stem from the fact that there is no substantial public support in Japan for the idea that when parents separate they should each have a continuing role in parenting their children.
Japan signed the Convention in 2013 only because of international pressure from the United States and other countries, particularly after Christopher Savoie – one of my many clients whose children were abducted to Japan and never returned – was jailed in Japan when trying to return his children. There was considerable opposition to the treaty within Japan, driven primarily by a substantial concern that Japanese mothers might have to remain in a foreign country with their children after the breakdown of an international marriage, particularly if they had suffered abuse, had no social or governmental support or were in financial difficulty. I witnessed and participated in such debates directly, particularly at a seminar at the Japanese Ministry of Foreign Affairs and subsequently when questioned by Japanese Diet and Consular representatives in New York. Ultimately, a compromise was reached whereby Japan’s implementing legislation contained an extremely significant expansion to the grave risk exception.
Article 13 of the Hague Convention provides that a requested State is not bound to order the return of an abducted child if there is a proven grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The key elements of Article 13 (b) are that (1) the risk must be “grave;” (2) that it must be a grave risk to the child, rather than to the taking parent; and (3) that even if the grave risk is established it merely gives the court the right, in its discretion – but not the obligation – to choose not to return the child. The authoritative “Perez-Vera” report of the legislative history of the Convention appropriately warns that “a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention." Accordingly, courts throughout the world have held that the “grave risk” exception must be interpreted narrowly.
In sharp contrast, Article 28 of Japan’s Implementing Act inappropriately expanded the scope of the grave risk exception in several significant respects. It converted a merely discretionary exception into a mandatory defense. It also required the courts in Japan to consider a series of additional “circumstances” whenever the defense is asserted. The first such circumstance requires the court to consider whether there is “a risk” (but not a grave risk) that the child would be subject to “violence” if returned to the state of habitual residence. The definition of violence includes “words” as well as “deeds” and “physical or psychological harm.” This emphasis on mere risk directly contradicts the treaty language. The second circumstance that a Japanese court must consider is if there is “a risk that the respondent [meaning the taking parent] would be subject to violence etc. by the petitioner in such manner as to cause psychological harm to the child, “in the state of habitual residence.” Again, the term “risk” is used in derogation of the express treaty limitation to a “grave risk” and the second circumstance permits the focus to be on “violence, etc.,” i.e. “words and deeds” used against the respondent if they would cause mere consequential psychological harm to the child. I understand that, most unusually in such cases and notwithstanding the broad definition, the mother testified that there had been no domestic violence by the father,
The third special element that a Japanese court must consider in a Hague case is, “Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.” This “circumstance” is entirely beyond the scope of the Convention. In inviting the consideration of any factors that merely “make it difficult” for her to raise the child in the habitual residence, the Japanese law opened the door for a Japanese mother to complain about the challenges of being away from her home, her family and her friends in a foreign country, without the financial and healthcare support that the Japanese state provides to single mothers, and being required to share access to the child with someone that she does not like or trust. It was upon this circumstance that the Osaka court relied in the Arimitsu case.
A separate and momentous problem with Japanese implementation of the Hague Convention is that there is quite simply no effective enforcement of Hague return orders, as the Arimitsu case firmly establishes. The issue is not particular to Hague Convention orders. The fact is that orders of the Family Courts are generally unenforceable in Japan. The parties are expected to follow such decisions voluntarily but, surprising as it may be to Western ears, there is no effective enforcement mechanism to compel compliance in Japan with Family Court orders. It was for this reason that the Implementing Act contained extensive terms that, for the very first time in Japan in the context of family law, make provisions for potential enforcement of court orders, but only in Hague Convention cases. However, those provisions have proven entirely unworkable. While it appears that there have been one or two actual cases, such as the Arimitsu case, in which a Japanese court actually issued a return order against a Japanese parent, there has not been one reported case in which such a return order was actually enforced after a parent’s refusal to comply.
As a result of such issues, the U.S. Department of State reported in its current 2016 Annual Report on International Parental Abduction -- which was submitted to Congress as required by the U.S. International Child Abduction Prevention and Return Act -- that it had determined that Japan was one of just two “Convention Countries That Have Failed to Comply with One or More of Their Obligations under the Hague Abduction Convention.” The State Department explained that: “In 2015, Japan failed to comply with its obligations under the Hague Abduction Convention in the area of enforcement of return orders. A Japanese court issued the first Convention return order to the United States in early 2015. Authorities attempted, but were unable to effectuate enforcement of the court order by December 31, 2015, exposing what may be a systemic flaw in Japan’s ability to enforce return orders.”
However, in a follow-up “Action Report” the State Department reported in October 2016 that matters had improved because as of July 2016 “a Japanese court compelled the return of four U.S. citizen children to the United States.” That report was absolutely wrong. As discussed, not only was the order never enforced but it was ultimately reversed based on facts that should not have formed the basis of the grave risk exception and which were in any event created as a direct result of the failure of the Japanese system to return the children expeditiously as the Hague Convention mandates.
The fundamental problem in Japan is the cultural, historical and societal context. Family matters have traditionally have been outside the province of the legal system in Japan. Custody is almost always determined by the parties themselves or through self-help. Customarily, when parents separate, only one parent – now usually the mother, although it was once usually the household of the father - has sole custody of the children and the other parent has no significant access to them. Whoever has physical possession of a child generally keeps possession of the child and that, in fact, translates into custody. If one parent takes a child and that parent or that parent’s family has possession and control of the child, the legal and social system will not interfere. Indeed, any demand by a non-custodial parent for extensive visitation with a child is generally seen as being an inappropriate interference with family peace, and is often considered to be abusive. In any event, since Family Court orders are effectively unenforceable, custodial parents are often understandably apprehensive of unsupervised visitation.
There is also a cultural bias in favor of raising Japanese children in Japan. While international marriages have increased, they have primarily been marriages of men to Japanese women. This was the focus of the debate in Japan concerning the Convention. The critical concern there was that Japanese mothers in foreign countries would be abandoned and mistreated by their Western husbands and Western courts, cut off from financial support, and virtually imprisoned in foreign countries away from their Japanese family, friends, language and culture. It was exactly in order to allow Japanese women who return to Japan after the breakdown of an international marriage to stay in Japan with their children that a very substantially-expanded “risk” defense was included in the Implementing Act. Without that protective measure Japan would not have adopted the Convention.
Some of my colleagues in Japan had hoped that Japan’s adoption of the Hague Convention would encourage further discussion there about the benefits of a sharing of parental involvement in the lives of children after the parents separate, and that other changes in the family law would follow. However, while there has been some change, there has not been a general shift in the view that, after a divorce, one parent is better than two. Visitation is now a little more common but it is still primarily dependent on parental agreement and even then is usually only occasional and is often supervised. I have never heard of any case in which any Japanese court has ever ordered visitation outside Japan. In any event, any such order would be unenforceable.
In conclusion, the Arimitsu case should serve as a warning. While the Family Court’s reversal of the return order will perhaps be overturned on appeal, the devastation of family life resulting from the unremedied abduction has already occurred. The children have lived for the last 2 ½ years of their lives away from their birthplace and habitual residence and away from their father. The legal system in Japan has failed them and their father and has rewarded the mother’s abduction and her refusal to follow the orders of a Japanese court. Unfortunately, this was completely predictable. Japanese society has never been committed to the goals of the Convention. The implementing legislation and the lack of meaningful enforcement mean that it remains impossible for a left-behind foreign parent who faces the determined opposition of the Japanese abducting parent to secure the return of his abducted child from Japan.
Jeremy D. Morley is an international family lawyer and the author of “The Hague Abduction Convention.” He handles many international child custody cases that concern Japan. His website is www.international-divorce.com
Monday, February 27, 2017
A court in Marin County, California has ruled in favor of our client in a divorce and custody case, that the legal system in Dubai, UAE does not meet minimum due process standards under the 14th Amendment to the U.S. Constitution, since a principal benchmark of due process is the assurance that individuals will be free of discrimination based on gender or religion.
Wednesday, February 22, 2017
When it comes to divorce and who gets to keep the house and children, it is not easy at all to stay rational and focused. The first gut instinct is to find a divorce lawyer that is on your side to defend your interests. As a Law School student, I understood during International Private Law class that ‘the best court case is the one that will never take place, especially, if you have different nationalities.
Many women have asked me how did I do it, how did I manage to continue a positive connection with my ex-husband and keep the physical custody of our daughter. It has not been an easy road: to the painful process of dealing with a myriad of emotions, social stigma, and uncertain legal consequences, you have to add the legal and practical complications that derive from being an expat with a mobile and international job. My short answer is that you need to always keep the eyes on the key priority: how can we minimize the damage for your child. In legal terms, it would be the equivalent to the principle of ‘the best interest of the child’. The beginning of the roadmap to that goal is the willingness to address the emotional needs and fears linked to the new family situation. After physically separating in 2006 in Washington DC, and consulting a number of divorce lawyers (some of them specialized in children issues), following advice we decided that going to couples’ and family therapy was the best approach for us. In parallel, we jointly drafted the voluntary separation and property settlement agreement. Granted, it was not always a linear process, but we managed to agree on what was fair financially speaking. I was transferred to Nicaragua in March 2008 for work reasons. In April the Superior Court of the District of Columbia awarded the divorce to the plaintiff, my ex-husband, without objections to the voluntary separation agreement. From that moment on, he travelled from the US on a regular basis to spend with our 4 year-old daughter as much time as he could, and keep their bond alive.
In March 2010, I got married with yet another expat who was working in Kenya, after starting a long-distance relationship. At that time, I thought it would be a positive next step for us to join him in Nairobi, which was a family duty station. My daughter could attend a great international school, I could take a break from work to spend more time with her, and we could enjoy family life again. Because of the distance from the US to Kenya, and the security situation, my ex-husband refused to give me permission (which was specified in the separation agreement) to move with her. Again, I had to measure what the critical path would be for the years to come – did I have a right to move to Kenya? And even so should I insist and end up fighting in a court?. Finding great legal advice in that precise moment when you need it the most is a rare and exceptional thing. I consulted Nicaraguan lawyers, but they were not well versed in International Family Law or Child Relocation. I knew Kenya had not ratified the International Convention on International Child Abduction, and I was not at all thinking of breaking unilaterally the terms of our separation agreement. After some research, I found Mr. Morley’s Law Firm and had what I believe to this day was the best money for value advice over the course of a 50-minute phone call. Mr. Morley listened carefully to the specific details of my situation, and asked me key questions about my future plans. Did I intend on living in Kenya for a long time? How strongly was I prepared to fight for it? He gave me a similar example that illustrated the titanic difficulty of convincing a US judge that Kenya was not a dangerous place (as per the US State Department evaluation), given that I would have the burden of the proof. It was in that moment that I realized that the best strategy was to not go to court, spend a fortune in legal fees, and ruin my good cooperation with my ex-husband in the process. Instead, I decided to wait a couple more years until our new family could relocate back to Europe. In 2012 we moved from Nicaragua to Malta to join my second husband, who has supported our daughter in all aspects. Last year brought many changes to our professional lives, and our family had to move again; this time to Brussels. But thanks to a collaborative approach, reinforced by Mr. Morley’s advice, my ex-husband and I keep on working closely together for her happiness and well being to this day.
Tuesday, February 21, 2017
Jeremy D. Morley(1)
“Mirror” orders can be a useful tool in the arsenal of lawyers who handle cases concerning international child travel and the prevention of potential international child abduction.
Increasingly courts are being asked to enjoin parents from taking children overseas because of a parent’s fear that the children will not be returned. Courts must take such applications extremely seriously, especially if a child is likely to be taken to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, or that does not return children promptly to their habitual residence. On the other hand it is also well-recognized that children have an interest in seeing the world and that children with a foreign parent should be encouraged to learn of their overseas heritage and to get to know their distant family.
A potentially left-behind parent’s application for an injunction is usually supported by: (a) Expert testimony as to the practices and laws concerning international child abduction and international child custody in the country to which the child may be taken (2); (b) Expert testimony as to the "red flags" or "risk factors" that research establishes are the indicia that a particular parent might indeed abduct his or child; and (c) Lay testimony as to any facts that establish the existence of any and all such risk factors.
In such cases, a judge will invariably ask a basic question: "What conditions can I include in my order that will minimize the risk that the child will be returned?" Unfortunately, the true answer is often "None" -- as evidenced by the epidemic of “successful” abductions to countries such as Japan, frequently in flagrant violation of court orders.
However, in many cases, a useful suggestion is that the order should require the taking parent to obtain a "mirror order" from a court in the foreign jurisdiction before being allowed to take the child overseas.
A mirror order is one that is issued by another court which contains the same terms as those that are contained in the order that is being mirrored. Inherent in the mirror order concept is the fact that the foreign court shall have the right -- and more importantly the obligation -- to enforce the terms contained in the order, specifically including the obligation to effectuate the prompt return of the child at the end of a designated period of time. Equally critical is that the foreign court should not be permitted to modify the original order.
The viability of such a requirement varies substantially from country to country. Thus a very recent decision of the Supreme Court of India makes it clear that the courts in India will not allow mirror orders to be entered in child custody matters and that they will always conduct a full plenary review of the child's best interests (which invariably equate to a decision that the child -- who, by the time of the ultimate decision has typically been in India for some years -- should remain in India).(3)
It is also obvious that a court in Japan, even in the utterly unlikely event that it were to issue a mirror order, would not enforce the terms of any such order since its family law system is toothless and its orders are invariably not enforced.(4)
By contrast, a country such as Australia has a custody registration system that operates in a very similar way to the system of registration of foreign custody orders in the Uniform Child Custody Jurisdiction & Enforcement Act. However, Australia is very much the exception rather than the rule. The European Union has a registration system but it applies only to orders issued by an E.U. court and the practice within Europe varies substantially from country to country.
Indeed, foreign lawyers are generally shocked and amazed when they learn of the registration provisions in the UCCJEA. In particular, they are often shocked that a U.S. court will generally have exclusive continuing jurisdiction for many years after a child has left the jurisdiction as long as one parent continues to live there. The issue was recently before the Court of Appeal in England. (5) Since that Court is headed by a judge who is also that country's "Head of International Family Law" its decisions on such issues are far less like to be parochial than similar rulings from some courts in the United States and many other countries.
In the English case, the child was living in Malaysia. A Malaysian court gave custody to the father, an English national, and contact to the mother "at reasonable times". The father then asked an English court for a mirror order so that he could apply for a British passport for the child. However, the English court not only issued a mirror order but it also granted the mother’s application to reopen the entire case. On appeal, the English Court of Appeal ruled that the trial court has been right to issue the mirror order but wrong to claim any broader jurisdiction. It made clear that a litigant who seeks a mirror order does not accept the jurisdiction of the court to do any more than reiterate the provisions of the order issues by the primary jurisdiction. By definition, an application for a mirror order cannot supplant the primary jurisdiction. The Court ruled that if the mother wished to challenge the order or seek specific contact she should apply in Malaysia.
Lawyers bringing applications to enjoin children's foreign travel, and lawyers opposing such applications, need to tailor their presentations and their proposals to the specific laws, procedures, customs and practices concerning international family law, international child custody and international child abduction of the specific country or countries that the child is to visit or may be taken to.(6)
Thus, it is important to understand that merely because an American court conditions an event upon a foreign mirror order, the foreign court might not have jurisdiction to issue any such order. That situation arose in Danaipour v. McLarey (7) in which a district court in Massachusetts acted on the mistaken assumption that a Swedish court would provide a stipulated mirror order but in fact the Swedish court refused to do so.
Another critical factor is that once a child is taken into a foreign country it may be extremely difficult to bring a child home because of the stringent exit controls that many countries have that require the written consent of both parents or a sole custody order to remove a child. This is particularly the case with South American countries. Even if a U.S. court issues the requisite order it may have no effect in a foreign country or, even if ultimately effective, the lack of a local court order might cause significant border delays.
Some examples of issues that have arisen in my office concerning mirror orders are the following:
-A client was legitimately worried that a child would be retained in Bermuda if the father took him to visit his family there. Upon our advice, the client negotiated a strong New York consent order that specified that New York had continuing exclusive jurisdiction, that contained a host of other protective clauses and that permitted a visit to Bermuda only if a mirror order were first obtained. Subsequently, the father asserted that he had been unable to obtain the requisite mirror order from the Bermudan courts. As a result the Family Court authorized a visit without the mirror order. We successfully obtained from the Appellate Division, First Department an emergency order barring the scheduled visit.
-Our client settled an action under the Hague Abduction Convention by agreeing to limited and supervised visitation between the father and the child in Quebec, Canada, conditioned on the child’s prompt return to New York. We insisted that a mirror order be obtained from the Quebec courts before any visit could occur. Again, the father reported difficulty on obtaining the required order, which led to a delay in the scheduled visitation. Only when the mirror order was in place did visitation in Canada successfully occur.
-In many cases I have suggested, as part of my written expert evidence or expert trial testimony, that a mirror agreement would be futile because the family law system of the foreign country could not be relied on to enforce the mirror order. For example, I recently so testified as to China.
-In other cases I have testified that a mirror order might be a good idea because it would provide useful additional security for the prompt return of the child if the parent taking the child for an overseas visit were to keep the child overseas and because the family law system in such country is reliable and effective (e.g. I have so testified as to Italy and Hong Kong).
In conclusion, mirror agreement requirements may be useful depending on the circumstances. But they may also be counter-productive if they induce a false sense of security. They should never be requested or opposed except by counsel having full knowledge and understanding of international family law.--------------------
(1). Jeremy D. Morley concentrates on international family law. He may be reached at 212-372-3425. He is the author of the treatise, International Family Law Practice. His websites are www.international-divorce.com and www.internationalprenuptials.com. His blog is www.international familylawfirm.com.(2). Thus the author has provided such evidence as to many such countries including India, Japan, Colombia, China, Taiwan, Egypt, Italy, Hungary, Saudi Arabia, Mexico, Venezuela, the United Arab Emirates, Jordan and Mexico.
(3). Majoo v. Majoo,  INSC 515.
(5). W v W (Minor) (Mirror Order)  EWCA CIV 703.
(6). An example of a critical factor that is often overlooked is that a visit to one country may permit an easy visit to another country. Thus, once a child is in any European country that is within the "Schengen Zone" the child may be taken to any other such country without passing through any passport control.
(7). 286 F.3d 1 (1st Cir. 2002).