Tagging to Prevent International Child Abduction

Time magazine has an interesting article on the technological advances in Seoul, Korea, entitled Seoul: World's Most Wired Megacity Gets More So.

Part of the article caught my eye because it has great application in preventing international child abduction:

Earlier this year, the city rolled out U–safety zones for children, a program using security cameras, a geographic-information-system platform and parents' cell-phone numbers. Participating families equip their kids with a U-tag — an electronic signature applied to a coat or backpack that allows a child to be tracked at all times. If the child leaves a designated ubiquitous-sensor zone near a school or playground, an alarm is automatically triggered alerting parents and the police. The child is then located via his or her mobile phone. The city plans to increase such zones rapidly. To some Americans, the Big Brother–ish qualities of the U-city push can be a tad unnerving. But Seoul officials point out that the U-safety-zone project is entirely voluntary, and the technologically sophisticated citizens seem to have few objections.

Since the United States does not have any exit controls, meaning that U.S. borders are totally open for people to leave and take any child with them, most court orders purporting to prevent international child abduction are far too weak.

Judges generally need to require supervised visitation if they really want to allow a potential parental child abductor to have access to a child while genuinely preventing abduction. This is a remedy that judges are often reluctant to order.

Technology might provide an answer. We would need electronic tags that would trigger an alarm if they were removed, if the child were taken anywhere out of a designated area or if the child were taken near an airport or state or international border. The alarm would need to be sent to the appropriate police authorities, as well as to the other parent, and the police authorities would need to be both authorized and required to make an immediate arrest.

The authorities in the United Kingdom have already implemented such a scheme, although on a less sophisticated basis. See England: Electronic Tagging to Prevent Re-Abduction of Child

Please email me with your thoughts on this topic (to jmorley@international-divorce.com)

American parents struggle to reunite with children in Japan

Overseas custody rights: American parents struggle to reunite with children in Japan
By Charlie Reed, Stars and Stripes
Pacific edition, Tuesday, August 4, 2009

It’s been six years, three weeks and one day since Navy Cmdr. Paul Toland last saw his only child, Erika — one of 118 Japanese-American children living in Japan and cut off from their American parents. “I count every day,” Toland said. “You can’t lose track.”

Toland’s emotional tally began July 13, 2003, when he returned from work to discover his wife had surreptitiously moved out of their home in a Navy housing complex in Yokohama, Japan, taking Erika — just 9 months old at the time — with her.

Toland’s estranged wife, a native of Japan who became a U.S. citizen during their marriage, moved to Tokyo and barred him from visiting his daughter. Her actions likely would have resulted in felony kidnapping charges in the United States but were essentially protected by Japanese criminal and family laws, which do not recognize parental child abduction as a crime and do not acknowledge foreign custody orders.

But while Japanese nationals cannot be arrested for abducting their own children in Japan, foreigners in Japan would likely face criminal penalties if they attempted to take their children back, according to Jeremy Morely, a New York City-based attorney who has worked on parental child abduction cases in Japan for more than a decade.

Toland, a medical administration officer now based in Bethesda, Md., is at the forefront of a growing international debate over parental child abduction in Japan. Even after his wife died in 2007, he has been unable to gain custody of or even see Erika, who now lives with her maternal grandmother.

At the heart of the issue is Japan’s refusal to accede to the Hague Convention on the Civil Aspects of International Child Abduction of 1980. The treaty, which includes 81 countries as signatories, prevents parents from fleeing with their children to or within those countries before a court can determine custody. It protects rights of access for both parents and includes measures to safeguard victims of spousal and child abuse.

In May, the United States, the United Kingdom, France and Canada held a symposium in Tokyo and released a joint statement urging Japan to sign the Hague convention — the first such public declaration after decades of lobbying Japanese government officials behind the scenes.

But after nearly 30 years of multilateral diplomacy, Rep. Chris Smith, R-N.J., thinks a hard-line approach is now in order. In July, Smith introduced the International Child Abduction Prevention Act of 2009, which would allow for economic sanctions against countries that refuse to take action in international child abduction cases. “Japan is one of the most egregious abusers in this regard, and that’s unacceptable,” Smith said. “If we continue to allow this to happen, we will get much more of it because there will be impunity.”

U.S. State Department reports show the number of open cases of parental abductions in Japan involving American children has doubled since last year, rising from 40 cases involving 50 children to 80 cases affecting 118 children. Most cases involve Japanese mothers and non-Japanese fathers whose breakup results in the mother keeping her children away from their father in Japan.

State Department officials agree the problem is getting worse as international marriages and divorces continue to rise and more parents report their cases to the department, but they contend Japan is moving toward taking action. “They are beginning to recognize that this is an issue that sets Japan apart from [its closest allies],” said Michelle Bond, deputy assistant secretary for overseas citizens services at the State Department. Japan is the only major industrialized nation not to have signed the treaty and is behind only Mexico and India in the number of parental child abduction cases involving American children, Bond said.

Japan’s reluctance to sign the Hague treaty stems from its tradition of sole-custody divorces, Bond said, wherein one parent makes a complete and lifelong break from his or her children when a couple splits. The parent who has physical custody at the time of divorce tends to keep the children, and police will not intervene in custody cases, Bond said.

In an interview with Stars and Stripes last month, Japanese Foreign Ministry spokesman Yasumasa Kawamura said: “Japan fully recognizes that the Hague Convention is one of the most effective tools to protect children’s rights and well-being.” But a gap exists between “what the treaty requires and Japan’s social expectations based on Japan’s family relationship and legal system,” he said.

The current system isn’t working for Rick Gates, a civilian Department of Defense employee at Naha Port on Okinawa and a former Marine who first came to Japan on assignment in 1994. Gates, 38, has not been allowed to visit his two children, both American citizens, in almost a year despite having a Japanese custody order for his oldest daughter, Monami, 8.

Soon after his divorce in early 2008, Gates said, he and his Japanese wife decided to reconcile. Though he got custody of Monami during the proceedings, he allowed her to stay with his ex-wife and his son, Kaito, 6. “I didn’t want to split the children up,” he said. “I had every belief that we were going to restore our marriage, so I didn’t push the issue of getting my daughter turned over to me.” But within a few months, Gates said, his ex-wife changed her mind about reconciling and eventually stopped him from visiting his children or even speaking to them on the phone.

Like Toland, Gates has worked with the State Department to have a third-party mediator from the embassy check on the status of his children in what is referred to as a “welfare and whereabouts visit.” Both Toland and Gates hope political pressure from Capitol Hill will finally help turn the tide in Japan.

But Morely, the New York City attorney, said congressional efforts could backfire.

“American pressure can very well be counterproductive,” Morely said. “If Japan sees the world community upset with them, that will be better than the perception that the American government is trying to bully them.”

He argues that continued diplomacy is key to not only persuade Japan to sign the Hague treaty but also to change its family legal system, which is crucial if the treaty is to function properly.

“As soon as they sign it, they’ll be in violation of it,” he said. “That’s why they haven’t signed it; they’re not set up for it.”

In many cases, “taking” parents can be arrested if they leave Japan and they often live in fear that their children will be kidnapped back from them, Morely said.

“Not signing is hurting a lot of Japanese mothers, and that fact is not yet understood in Japan,” he said. “It’s detrimental. It forces the Japanese mother never to leave the country.”

The National Center for Missing and Exploited Children knows of no successful return of a child from Japan to the United States as a result of civil ligation or criminal proceedings, said Maura Harty, senior policy director for the International Centre for Missing and Exploited Children. The two groups are sister organizations. “We hope the government of Japan will hear the collective arguments and cases being made by the international community … and modify its domestic law,” as well as become a signatory to the Hague treaty, Harty said.

Meanwhile, like scores of other parents whose children have been spirited away in Japan, Toland is essentially powerless. Still, he said, he has spent hundreds of hours in Japanese and U.S. courts and nearly $200,000 in legal fees and other expenses. “I’m not giving up on this,” said Toland, 42, who is now engaged and helping raise his fiancee’s teenage son. “I’d never give up on this. I’d never give up on my own daughter.”

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.