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.

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.