Japan & International Child Abduction: An Update

The article below updates Japan’s attempt to handle the issue of international child abduction. It highlights the fact that there is substantial misunderstanding within Japan concerning the entire issue of child custody and how the country’s accession to the Hague Convention would work. There is a very long way to go until Japan returns abducted children.

TOKYO, Feb. 24 KYODO

Japan is struggling to address international child custody issues amid renewed pressure from the United States and other countries to join a convention to deal with the problems that arise when failed international marriages result in children wrongfully being taken to Japan by one parent.

What also makes Japan wary is facing possible criticism that it is harsh in its condemnation of North Korea for abducting Japanese in the past but lags behind in dealing with the so-called ''parental child abduction'' often conducted by its own citizens.

Japan is currently considering joining the convention which provides a procedure for the prompt return of such ''abducted'' children to their habitual country of residence and secures protection of rights of access to parents to their children.

Complaints are growing over cases in which a Japanese parent, often mothers, bring a child home without the consent of the other foreign parent, or regardless of custody determination in other countries, and denies the other parent access to the child.

The problem is not new. In 2006, Canadian Prime Minister Stephen Harper raised the issue with then Japanese Prime Minister Junichiro Koizumi. Most recently, ambassadors of eight countries, including the United States, Britain, France and Australia, jointly submitted concerns, and Kurt Campbell, U.S. assistant secretary of state for East Asian and Pacific affairs, also called on Japan to work on the issue during his visit to Tokyo earlier this month.

''The issue is only going to continue to grow by leaps and bounds if you will, simply because Japanese are marrying more and more with foreigners,'' Raymond Baca, consul general at the U.S. Embassy in Tokyo, said in an interview with Kyodo News.

''This is a multilateral issue. And it affects the world community,'' he also stressed, citing that a total of 81 countries have so far signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

As of Wednesday, the Japanese Foreign Ministry has received complaints on 77 cases from the United States, 37 cases each from Britain and Canada, and 35 cases from France, according to a ministry official dealing with the issue.

As part of efforts to address the issue, the ministry set up in December the Division for Issues Related to Child Custody, and has engaged in separate bilateral talks with the United States and France to deal with specific disputes.

The ministry has also held a briefing session for the embassies of countries interested in the issue and plans to hold a closed-door seminar in March in which experts from several countries are expected to gather for discussion on the issue, the official said.

''The issue needs to be considered with haste inside the Foreign Ministry and also inside the government,'' Foreign Minister Katsuya Okada said in his e-mail newsletter released Feb. 5.

But he said that acceding to the convention may ''take a little more time'' and also noted the need to take into consideration the differences of legal system between Japan and the United States, or Europe.

''In Japan, basically there is an idea of not letting authorities intervene in family affairs, except for child abuse cases. Therefore, there is no means for coercion. But in Europe and the United States, that may sound strange,'' he said.

There are also differences on parental rights, with Japan's law giving a single parent, often mothers, full custody of children in divorce, while the United States and Europe allow joint custody.

Japan's Civil Code also does not mention about the visitation rights for noncustodial parent and many Japanese mothers are known to refuse the divorced parent to meet the child.

''I understand our two nations' approaches to divorce and child custody are very different, but, as a result, American left behind parents have little or no access to their children once abducted to Japan,'' Campbell, the top U.S. diplomat for Asia, said in Tokyo.

''The U.S. government...strongly believes that children should grow up with access to both parents,'' he also said, noting that leaving the issue unresolved may raise concerns on the positive nature of U.S.-Japan relations.

Foreign Ministry Press Secretary Kazuo Kodama said that the ministry would ''carefully'' handle the issue so as not to impair the relations with its key security ally, shrugging off the possibility of the issue becoming a diplomatic flashpoint.

But some Foreign Ministry officials are concerned that the discussion starts to have a linkage with the issue of North Korea's abductions of Japanese nationals.

''When Japan calls for the resolution of (North Korea's) abductions, we may be asked, 'So what is your country doing (in the area of child abduction)?','' a senior ministry official said.

''And if we answer that it is a cultural issue, Japan may be regarded as a selfish country,'' the official said, responding on condition of anonymity.

Indicating Japan's awkward position, several diplomatic sources said that Campbell warned senior Japanese Foreign Ministry officials during his February visit to Japan that its failure to join the convention may have adverse effects on Washington's assistance to Tokyo in trying to resolve the North Korean abduction issue.

The Foreign Ministry official dealing with the child custody issue said Japan basically has no objection to the convention's idea of setting procedures to restore the status quo before the wrongful removal has taken place, without making any custody determination.

But still government officials appear uncertain on whether they can gain full understanding from the public at the moment on the issue of Japan's accession to the treaty.

A Justice Ministry official said that the government has to be able to respond to concerns especially in relation to cases when Japanese women flee from an abusive foreign husband.

While the convention has safeguards to prevent children to return to an abusive environment, the official at the civil affairs bureau said interpretations seem to vary among countries on whether the safeguards apply to cases when the abuse is seen only toward the mother and not to the child.

The Foreign Ministry official dealing with the issue also said that there may be a misunderstanding among the public that a child's return order issued in line with the convention means that the child would have to be there forever.

While saying that the historic change of government in Japan may serve as a momentum for Japan to improve the situation, the official also said, ''To tell the truth, we have yet to come up with a good solution.''

Morocco – Norway International Child Abduction Inter-Governmental Battle

There are reports from Norway of an international re-abduction case involving the Norwegian Foreign Ministry, the Norwegian Embassy in Morocco and Special Forces officers of the Norwegian Navy. The case has led to an international crisis between Morocco and Norway.

Morocco is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.

Articles from the Norway Post:

The Moroccan Foreign Minister Taieb Fassi Fihri has asked that diplomats at the Norwegian embassy in Rabat be questioned and prosecuted, in connection with their alleged role in the Skah child custody case.

- Norway has broken diplomatic protocol, ethical guidelines and damaged the friendship between our two countries, the Moroccan Foreign Minister said at a press briefing Wednesday. He went on to say that Morocco was far from satisfied with Norway's handling of the case, in which a Norwegian woman smuggled her two children out of Morocco.

Norwegian Foreign Minister Jonas Gahr Støre maintains that neither the embassy nor his department were involved in the flight, and that he therefore can see no reason for punishing anyone.

___________

A heated dispute has arisen in Norwegian media, following reports that two special forces officers assisted a Norwegian woman in bringing her two children back to Norway, following a custody dispute with her Moroccan former husband. The two children reportedly escaped from their father's apartment and sought refuge at the Norwegian Embassy in Rabat last July.

The Norwegian Foreign Ministry say they regarded it as a "crisis situation" and allowed the children into the embassy. Three days later an embassy official drove the children to an agreed address where the children were turned over to a person representing the mother. The children and their mother were then smuggled out of Morocco on a small sailing boat.

Defence Minister Grete Faremo confirms that two officers from the Norwegian Navy's special forces were involved in sailing the boat when the mother and children were brought out, but that the two were on vacation at the time. However, Faremo says it is unacceptable for Defence personnel to participate in "such an operation", even on their time off. The opposition in Parliament (Storting) have callled for a full investigation into the case.

The children's mother had for several years sought help from the embassy, and claims that Norwegian officials earlier had not met her appeals to help her ensure enforcement of a Norwegian court order which had granted her custody of the children. There are also reports that embassy personnel and Norway's ambassador to Morocco had been threatened by the children's father.

Child custody fights could hurt US-Japan ties

The U.S. Government is clearly asserting more pressure on Japan to change its ways than ever before. See article below. On Saturday envoys from Australia, Britain, Canada, France, Italy, New Zealand, Spain and the United States met with Japanese Foreign Minister Katsuya Okada on this issue. They issued a joint statement that they were there to "submit our concerns over the increase of international parental abduction cases involving Japan and affecting our nationals." "Currently the left-behind parents of children abducted to or from Japan have little hope of having their children returned," said the statement. Such parents "encounter great difficulties in obtaining access to their children and exercising their parental rights and responsibilities," it said.

The Japanese Foreign Minister said that, "This is a very serious issue, to which we have to find a solution."

However, if past practice is a precedent, the Foreign Minister's statement means very little. The bureaucrats will take action only if, as and when they feel that they have little or no choice but to do so. We are not at that point yet. Far more pressure must be imposed.

Child custody fights could hurt US-Japan ties
By Associated Press
February 3, 2010

TOKYO - Japan should work to solve problems in international custody cases so that children of broken marriages have access to both parents, a senior US official said yesterday, hinting that the issue could hurt bilateral relations.

Visiting US Assistant Secretary of State Kurt Campbell said Japan’s position has “raised very real concerns among senior and prominent Americans in Congress, on Capitol Hill, and elsewhere.’’

Japan has not signed an international convention on child abductions, and its domestic family law permits only one parent to have custody of children in cases of divorce, nearly always the mother. That leaves many fathers, including foreigners, unable to see their children in Japan until they are grown up.

There are about 70 cases of American parents who are kept from seeing their children in Japan, and Campbell met with several of them in a group earlier yesterday. He called their situations “heartbreaking.’’

Steve Christie, an American university instructor who lives in Japan and met with Campbell, said he has rarely seen his son the past four years ever since his wife, whom he has divorced, suddenly left with the boy.

“This is our life and blood, this is our offspring, and we’re being denied a chance to see them,’’ said Christie, 50. “It’s not right, it’s immoral, it’s unethical.’’

In some cases, Japanese mothers living overseas have fled to Japan with their children and kept the fathers from having any contact, even if court rulings abroad ordered joint custody.

Australian International Child Custody Problems

We have previously expressed concerns about the impact of Australian child custody law on international family law situations.

See:
http://www.internationalfamilylawfirm.com/2008/11/australias-child-custody-law.html

http://www.internationalfamilylawfirm.com/2008/06/australian-child-relocation-abduction.html

http://www.internationalfamilylawfirm.com/2006/12/australia-child-relocation.html

Now, an Australian Institute of Family Studies report confirms that there is a real problem.  Our concern is that the problem is often greatly enhanced in international cases.

Children 'at risk' in shared parenting
By Xanthe Kleinig

From: The Daily Telegraph , January 29, 2010.

The practice of splitting child custody equally between divorced parents is being questioned after a major study found one in five parents in the arrangement believed it was not working.

An estimated 90,000 Australian children are in shared-care arrangements under a policy introduced by the Howard government with the support of fathers' rights groups.

But the largest study of the family law system, released yesterday, found a presumption of a 50-50 split was putting some children into violent homes.

Attorney-General Robert McClelland said yesterday a "misunderstanding" that parents were guaranteed equal time under the law was to blame. "Bush lawyers or pub lawyers are providing advice to people going through the system that is wrong," he said.

"We are now in a situation where people have resolved cases where the best interest of children may have not been regarded."

Family laws introduced in 2006 included a presumption of equal parental responsibility, widely interpreted as an even-time split.

But researchers said yesterday parents had agreed to shared care even when they did not have to. Other parents were disillusioned because they were not granted a perfectly equal arrangement.

And violence was not being addressed in court because of the threat of paying full court costs if the allegations were not proven.

Mens Rights Agency director Sue Price said any shift away from equal time was a "disastrous" return to the old-fashioned notion that fathers didn't count.

"It is not good for children not to have both mum and dad in their life," Ms Price said.

The Australian Institute of Family Studies report, which took three years and surveyed 28,000 people, found about one in 20 children in shared care had parents who reported violence as a risk.

"There are significant concerns around the minority of families where there are safety concerns," institute director Professor Alan Hayes said. Where safety concerns were reported by parents, children suffered but they suffered the most when they were in shared care agreements, he said.

But researchers found "overwhelming" community support for the concept of shared parenting.

Ms Price said violence by women was ignored in the three reports released yesterday.

We Wrote the Book on International Family Law

Our book, International Family Law Practice, by Jeremy D. Morley, is available on the West Publishing website.

It provides a practical approach for U.S. lawyers handling international family law matters. It focuses on international marriage and divorce, international prenuptial and postnuptial agreements, international divorce planning, recognition of foreign divorces, international child support and custody, international relocation of children, and international child abduction.

It will also be helpful to lawyers handling international family matters globally.

Netherlands: Changing Hague Abduction Case Practice

It is reported that the Dutch State will no longer take legal action against Dutch citizens in cases of international child abduction, under a legislative amendment agreed by the Dutch cabinet.

Currently, the Dutch Central Authority -- which is the part of the Justice Ministry responsible for the implementation of the 1980 The Hague Child Abduction Treaty --acts as the legal representative of the foreign parent when a child is abducted by the Dutch parent to the Netherlands. Under the new law, the Central Authority will only refer the foreign partner to an external lawyer.

The proposed bill accedes to complaints by Dutch parents that the Dutch state takes the side of the foreign parents.

International Child Abduction a Growing Problem

In many cases, parents abduct their own children when marriages fail and return home where local laws protect them. In some cases the abducted children never see the other parent again.

Child abduction is one of a parent's worst fears, and for a growing number of parents around the world, this fear is being realized and compounded by international custody disputes. In many cases, parents abduct their own children when marriages fail and return home where local laws protect them. In some cases the abducted children never see the other parent again.

On July 13, 2003, U.S. Navy Commander Paul Toland returned home to discover his wife had moved out and taken their 9-month-old daughter Erika with her. At the time, Toland was stationed at a U.S. naval base in Yokohama, Japan. His wife Etsuko, a native of Japan who had become a U.S. citizen during their marriage, took Erika and their belongings from the family's home in Negishi Navy family housing to Tokyo and told her husband she wanted a divorce. To settle the matter, Toland says they went to a Japanese court."The big issue that I wanted to discuss, the most important one, was visitation with Erika. When can I see my daughter? When I said I wanted to see Erika on weekends, the judge and the attorneys in the room laughed, and when I asked to see Erika to give her gifts on her birthday, I was told to mail the gifts to my wife's attorney," he said.

Japan is one of several countries that do not recognize joint custody of a child. The parent who does not win custody in a divorce may apply for visitation, but Toland says such rights are rarely awarded in Japan. He says even when the courts grant visitation, the parent with custody has total discretion to decide whether the child can see the other parent. After several months in court, Etsuko received full custody of Erika. Soon after, Toland was transferred back to the United States, where he continued fighting to see his daughter. The situation took a tragic turn in late 2007, when Toland learned his ex-wife had passed away. Toland says Etsuko's death was devastating, but gave him renewed hope that, finally, he would be able to see his daughter. However, Erika was sent to live with her grandmother in Tokyo. Toland says even now, as her only living parent and after spending more than $200,000 in attorney fees, he has no access to his daughter.

International family lawyer Jeremy Morley is based in the U.S. and has handled custody cases in Japan for more than a decade. He says Toland's case is not unique. "There are several cases in which the parent who took the child to a country such as Japan has actually passed away, and the child has been kept by that parent's family in the foreign country. So, the problem is that when the child is kept in a country such as Japan by the family of the taking parent, there's really no way that works to get the child back, even in such unusual circumstances. The family law system in Japan and in many other Asian countries is just not developed," said Morley.

Japanese family law attorney Satoru Kawamoto agrees, adding Japan has rightfully earned a reputation as an international haven for child abduction, a distinction he says the country will keep until it signs the world's main treaty to prevent cases like Toland's. "Currently there is no physical enforcement to bring back the child to the United States, because Japan hasn't ratified Hague Convention, so I think Japan should ratify the Hague Convention," said Kawamoto.The Hague Convention on International Child Abduction has now been ratified by 81 countries.

Attorney Jeremy Morley says that by signing and complying with the convention, countries will both combat and bring attention to this major worldwide concern. "International child abduction is a huge problem, it's growing and it's underreported. People don't recognize the existence of the problem, they don't recognize how terribly serious it is," said Morley.Commander Toland says he hopes no more parents have to experience what he has been going through. And, despite years of disappointment, he says he will never give up his fight for Erika. "I love her and I want to get to know her. I want to get to know my own daughter. I missed a lot of years with her, but I don't want to miss any more. I want to be there for her," he said.Legal analysts say Toland's case will be an uphill battle and under current Japanese law there is little he can do.

http://www1.voanews.com/english/news/usa/International-Child-Abduction-a-Growing-Problem---82239247.html

Expert Testimony in International Family Law Cases

by Jeremy D. Morley

Expert testimony is frequently needed in international family law cases.

International family lawyers are frequently called upon to act as expert witnesses.

Such testimony is often secured in cases concerning international child abduction, particularly in cases in which one parent is seeking to prevent the other parent from having overseas visitation with the child or relocating with the child to another country. However it is also useful in a myriad of other cases.

Such testimony might concern:

· The factors that indicate that an individual is likely to commit an international child abduction;

· The degree of the risk of an international child abduction that is presented by an individual having specific risk factors;

· The sufficiency of terms of a proposed custody order in preventing a potential international child abduction;

· The likelihood that a foreign country will return an abducted child;

· The lawyer's experience with and knowledge of a specific legal system;

· The division of foreign marital assets;

· The discovery of hidden marital assets; and

· The enforcement of foreign divorce and custody judgments.

Jeremy D. Morley has frequently appeared as an expert witness on international child abduction prevention, international child abduction recovery, international divorce jurisdiction and international family law.

Mr. Morley has submitted evidence as an expert in courts in the United States, Canada and Australia, in the form of testimony, affidavits or affirmations, as to such international family law matters as:

· The terms that should be in a custody order that will allow international visitation but will minimize the risk that the child may not be voluntarily returned;

· The family law system in Japan;

· The fact that particular left-behind parents would be unable to secure any meaningful assistance from the Japanese courts (many cases);

· The extent of Italy's compliance with its obligations under the Hague Convention;

· Whether certain actions committed by a parent constituted international parental child kidnapping within the meaning of the International Parental Kidnapping Crime Act;

· The rampant and scandalous misuse by many divorcing spouses of India's so-called "anti-dowry law";

· The enforceability in the United States of a proposed English shared residency order;

· The unenforceability in New York of another proposed English residency order;

· Whether a particular divorce case should be heard in a U.S state instead of in England;

· Whether Japanese non-judicial divorces would be recognized in U.S. courts;

· The dangers, in terms of potential parental child abduction, of allowing children to visit certain specific countries, including Saudi Arabia, Jordan, Germany, Mexico, Malaysia, the UAE (Dubai), Taiwan, China, Japan and Bulgaria;

· Whether the issuance of multiple passports for a child will enhance the risk that the parent might abduct the child;

· The potential recognition in a U.S. state of an Iranian divorce; and

· Whether a parent had "rights of custody" within the meaning of the Hague Convention under the laws of a U.S. state.

Dubai - Unmarried Sex More Criminal Than Rape

A British woman arrested in Dubai for sex outside marriage after making a rape complaint hopes a hasty wedding to her fiance will result in her being freed, British papers say.

The 23-year-old said she was raped by a waiter at a hotel where she was celebrating her engagement to her 44-year-old boyfriend on New Year's Eve.

But when the London couple reported the alleged rape to police, they were arrested for having sex outside marriage and being drunk outside licensed premises, the Guardian said.

The couple, Muslims of Pakistani origin, spent two days in jail and have had their passports confiscated to prevent them leaving until their court case. But the Daily Mail reports the woman has been told that she must drop the rape allegation, admit to being drunk and marry her fiance if she wants to return to Britain.

The British Embassy planned to marry the couple within weeks in the hope lawyers would drop the charges, the Mail said.

"I always dreamed of a big family wedding in Britain, but now I just want to get married so I can get out of here," the 23-year-old is quoted as saying in the The Sun. "I've done nothing wrong but I'm petrified of rotting in jail."

The woman told British papers she felt Dubai authorities were being tougher on her because she was a Muslim. "Sex outside marriage and drinking alcohol are illegal but police are normally lenient with white, non-Muslim foreigners," the Mail said.

Non-Resident Indians and International Child Abduction

Non-resident Indians always face the risk that, when their marriage breaks down, one spouse will run to India, often with the parties’ child or children, hoping for a better result in the Indian courts than in the American courts. Sometimes the children are used as hostage for a better financial settlement.

It is now reported that, in a case alleging parental abduction of a young child from England to India, the Supreme Court of India has ruled in favor of the left-behind parent. Anurag Mittal v. Rachana Aggarwal, Case No. 20333/2009, Supreme Court of India.

The reason that this is newsworthy is that Indian courts have in the past been reluctant to issue return orders in the case of the abduction of a child to India by an Indian parent. See for example the case of Sharma v. Sharma, Feb. 16, 2000, in which the Supreme Court of India refused to enforce a Texas custody order and required the lower Indian court to exercise custody jurisdiction even though the mother had removed the child from the family’s residence in Texas and had promptly commenced a case in India upon her arrival in that country.

The new case concerns a four-and-a-half year old girl who was born in England of Indian parents. The mother, who had also taken British nationality, took the child to India in September 2008. The mother’s father sought custody in India. The child’s father secured an order from the English High Court of Justice, Family Division in November 2008 requiring the child’s return to England. The Indian Supreme Court has ordered the child’s return to the U.K. It ruled that, “The decision has to be left to the British courts, keeping in mind the nationality of the child and the fact that both the parents had worked for gain in the UK and had also acquired permanent resident status there,'' adding that the English court had not directed handing over of the child to the father.

While the case is helpful it raises very considerable issues:

First, it has now been more than one year and three months since the abduction and the child has still not been returned from India.

Second, it is obvious that the left-behind parent has been compelled to incur very substantial legal expense in at least securing a favorable Indian order.

Third, apparently the left-behind father has not been able to see his child for the entire period of separation.

Fourth, the grounds upon which the decision was reached raise substantial questions as to their applicability to future cases, since the Court seems to leave substantial room for discretion by Indian judges in other international parental abduction cases.

Japan and International Child Abduction

Policy hurts Japanese nationals too

Lawyer for Christopher Savoie foresees curbs on visits 'home' with kids

By JEREMY D. MORLEY

In the debate about whether Japan should sign the Hague abduction convention, a serious consequence of Japan's failure to ratify the treaty is being overlooked. Japan's failure to sign the convention is extremely damaging to Japanese nationals living overseas, since it makes it far harder for them to bring their children to Japan for visits, and encourages them to break foreign criminal laws that prohibit international child abduction.

A key reason that Japan has not signed the treaty is that it believes the convention will help foreigners but will be of no value to Japanese citizens. That claim is not merely reprehensible, but is also entirely false.

The ordeal of my client, Chris Savoie, in losing his beloved children to Japan, has served to shine a strong light on this problem. As an international family lawyer, I have consulted with about 100 non-Japanese parents whose children have been abducted to Japan, but Chris' case is the first to have really caught the attention of the world's media.

The result is that both the public and judges in countries outside Japan are now increasingly aware that Japan:

• is a haven for international child abduction; has never ordered an internationally abducted child's return;

• has no system of shared parenting;

• does not respect foreign child custody orders;

• and has a family law system that is totally dysfunctional, at least when it comes to international relationships.

This means that if a non-Japanese parent objects to a child being taken for a visit to Japan by a Japanese parent from the parents' home in America (or another Western country), the American (or other Western) judge must now almost always bar any such visit, since there will be nothing that the non-Japanese parent could do in Japan if the Japanese parent refused to return the child. As a result, visits "home" to Japan by a Japanese mother with her Japanese-American children should no longer be permitted by American courts, since the risk is far too great that the children will be kept in Japan and never be returned.

Courts around the world are increasingly familiar with developing sensible international parenting plans for parents who live in different countries. A typical plan is that if, for example, dad is in New York and mom is in London, mom will have primary care of their children in London but the children will spend the major part of each summer holiday with dad in New York, and they will also spend either Christmas or spring vacation with dad in either city. A typical order will also provide that dad be able to speak to the kids at least four or five times a week via Skype with a webcam. Furthermore, the financial arrangements will typically be modified so that dad's child support payments are reduced because of his additional travel expenses.

Unfortunately no such arrangement could possibly work with respect to Japan, simply because Japan does not have a legal system that will enforce any part of the agreement. Japan's Family Code recognizes nothing but sole custody and makes no mention of visitation rights on the part of the noncustodial parent.
Japan's family law system, as it applies to foreign parents seeking access to their own children, seems intended to accomplish nothing except to wear out the petitioning foreign parent and to endorse the status quo in favor of the child-abducting Japanese parent. The "system" does not issue orders in contested cases, perhaps because it has no means of enforcing any of its orders. Indeed, Japan does not even have an efficient child support system within Japan, never mind on an international level.

Accordingly, U.S. and other Western courts are now basically compelled to stop international child visitation to Japan if the non-Japanese parent objects. This ridiculous result stems directly from Japan's failure to have a working family law system.

Consequently, the only way a Japanese parent will be able to take their children to visit Japan over the objections of the other parent will be by covertly removing the children. This will constitute their commission of an extremely serious crime under U.S. federal law: The crime of international parental child kidnapping is a felony in the United States punishable by three years in jail. It will typically be reported to Interpol so that an abducting parent will be subject to arrest if he or she ever travels out of Japan.

All of this means that Japan's policy is extremely damaging to Japanese parents in international marriages. Until Japan signs the Hague convention and has a system in place to give the treaty real teeth in Japan, there will be no way for a Japanese mother to take her children to Japan except with the express agreement of the non-Japanese parent, or by illegally abducting them.

Japan's hands-off approach to international child custody issues needs to change. It is to be hoped that President Obama discussed these matters very forthrightly with Prime Minister Hatoyama during his recent trip to Japan.

Jeremy D. Morley is an international family lawyer and the author of "International Family Law Practice." He represents Christopher Savoie, whose two children were abducted to Japan by their mother in violation of U.S. law. His Web site: www.international-divorce.com

The Japan Times: Tuesday, Nov. 17, 2009
(C) All rights reserved

People in Glass Houses...

Does the U.S. Comply with the Hague Convention?
By Jeremy Morley

The United States Congress has instructed the U.S. Secretary of State to issue annual reports evaluating the compliance by other countries of their obligations under the Hague Abduction Convention.

Valuable efforts are under way that seek to expand such oversight by agencies of the U.S. Government.

All of this naturally raises the question of the extent to which the United States is itself in reasonable compliance with the terms of the treaty.

The author, expressing his purely personal opinions, has substantial concern as to three issues. These are, (i) the length of time for Hague cases to be concluded in the United States; (ii) the enormous number of courts that have jurisdiction in Hague cases; and (iii) the lack of any legal aid scheme in the United States.

1. Expeditious Procedures
a. Treaty Requirements
Speedy resolution of return applications is absolutely essential to the operation of the Convention.
The preamble to the Convention states that, “The States signatory to the present Convention … Desiring … to establish procedures to ensure their prompt return to the State of their habitual residence …”

Article 1 of the Convention states that, “The objects of the present Convention are - a. to secure the prompt return of children wrongfully removed to or retained in any Contracting State.”

Article 2 of the Convention requires Contracting States to “use the most expeditious procedures available” to implement the objects of the Convention.

Article 11 of the Convention states that, “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.”

The Hague Conference Guide to Good Practice under the Convention, Part II – Implementing Measures (http://www.hcch.net/upload/abdguide2_e.pdf) repeatedly demands that states act expeditiously in such cases. In particular, the Guide to Good Practice insists that:

-“Expeditiousness is essential at all stages of the Convention process including appeals.”

-“Expeditious procedures should be viewed as procedures which are both fast and efficient.”

-“Almost all aspects of implementation (e.g. the investment of adequate resources and powers in Central Authorities, the allocation of jurisdiction among courts/administrative authorities, the procedures to be followed both at first instance and on appeal, and the ready availability of appropriate advice, assistance and representation) may have a bearing on the speed with which applications are processed.”

b. The U.S. Practice
The U.S. practice does not meet the requirements of the treaty. Hague cases can take years to complete in the United States.

Abbott v. Abbott, a case now on appeal to the U.S. Supreme Court, illustrates the problem. The child, then aged 9 or 10, was allegedly abducted from Chile to the United States in August 2005. A Hague case was commenced in a U.S. District Court in Texas in May 2006. The district court rendered its decision in July 2007, a delay of 14 months. The Fifth Circuit rendered its decision in September 2008, a delay of another 14 months. The Supreme Court granted certiorari in June 2009, a delay of another 9 months. When the Supreme Court will finally render a decision, and whether that decision will end the litigation, is anyone’s guess. The child is now 14 and has lived in the United States for well over 4 years. He is now presumably mature but may well not have been at the time the case was commenced. If he objects to returning to Chile, and if he is allowed to now so advise the Court, his wishes may well prevail. In any event if the litigation is dragged out for another year or so he will turn 16 and the case at that point must automatically end.

c. What Needs To Happen
The State Department’s annual Compliance Reports are filled with complaints about the delays in the courts of other countries. Such complaints are totally appropriate. But who is evaluating the very sorry and frankly embarrassing performance of U.S. courts.

We should examine and learn from the experiences of countries which have established a good track record in this area. Most practitioners would agree that the courts in England have achieved a remarkable degree of success in handling Hague cases expeditiously, sensibly and with substantial justice.

In England, the courts have repeatedly insisted that they are bound to render decisions in Hague cases expeditiously and to complete all proceedings wherever possible within six weeks. See e.g. F (A Child) [2009] EWCA Civ 416 (19 March 2009). Appeal courts have criticized delays in Hague cases. See e.g. Re D (a child), [2006] UKHL 51, “The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed. That object is negated in a case such as this where the application is not determined by the requested State until the child has been here for more than three years.”

Appeals in England must also be lodged within 14 days of the first instance decision. Resolution of appeals is now expedited through a fast-tracking appellate procedure. Convention appeals can be scheduled for final determination within a week of the appeal being lodged, particularly when an immediate return order has been issued. The target of six weeks is for resolution of the case in its entirety, including all appeals.

Similar practices should be adopted in this country.

2. Efficient, Knowledgeable Courts
a. The Good Practice Guide
The Hague Conference Good Practice Guide strongly encourages treaty partners to provide for the concentration of Hague return cases in a limited number of courts.

The Guide correctly states that the principal advantages of such a concentration of jurisdiction would be:
-An accumulation of experience among the judges concerned; and, as a result, the development of mutual confidence between judges and authorities in different legal systems;

-The creation of a high level of interdisciplinary understanding of Convention objectives, in particular the distinction from custody proceedings;

-Mitigation against delay; and

-Greater consistency of practice by judges and lawyers.

An exception is provided for domestic systems that do not allow for concentrated jurisdiction, in which case the (weak) suggestion is that it is particularly important that judicial training or briefing be available for judges concerned in Hague proceedings.

b. The U.S. Practice
In the United States there is no concentration of Hague cases in a limited number of courts. To the contrary, the United States has several thousand separate jurisdictions, any of which may handle Hague cases. Since there is concurrent state and federal jurisdiction for a Hague case in the U.S., each county or county equivalent (of which there are reported to be 3,140 -- see http://en.wikipedia.org/wiki/County_(United_States)), and each of the 94 federal districts, has Hague jurisdiction.

The completely different backgrounds of family court judges and federal judges means that the choice of one system or the other might have a major impact on the outcome of the case.

Most judges in the United States who might be called upon to handle Hague cases have never done so previously. In this author’s experience, it is more usual than not for a judge in a Hague case to report that, “This is my first Hague case” and then to ask the lawyers to provide special support for that reason.

The “official” response to this issue will doubtless be that, (a) it is constitutionally impossible to change this system and (b) the United States solves the problem by educating the judiciary. However, it is submitted that that is entirely unsatisfactory. The Constitution does not mandate concurrent jurisdiction in Hague cases, nor does it prevent specific judges in a State or federal district from being assigned Hague cases specifically. As for training, while some training programs are supplied, there is a very clear training gap.

c. What Needs To Happen
The State Department’s annual compliance reports are replete with complaints about the poor organization of foreign courts and the lack of training of foreign judges who try Hague cases. Again, however, it seems inappropriate to criticize other countries on these issues when our own system is in many ways so poor.

The entire system as to the courts that handle Hague cases should be reviewed and reformed so that a select group of specially trained and experienced judges handle these cases. This is precisely the system that the State Department has successfully encouraged other countries to adopt.

3. Legal Aid
In the negotiations leading to the adoption of the Convention, the United States demanded that it be permitted to exclude itself from the provision in Article 26 that countries must provide legal aid to parents who apply for the return of their abducted children. The United States and several other countries have made such a reservation.

While the U.S. is legally authorized to do so its actions in this regard do not set a good example for others to follow. At an international forum on the Convention, the Australian Central Authority’s representative stated that,
“Central Authorities are well aware that the level of assistance in obtaining legal representation, and the quality of that representation, is extremely variable in Hague cases. At one end of the spectrum is the USA where the only assistance available is through pro bono lawyers who register with NCMEC to do this work for no fee or reduced fees. At the other end of the spectrum is England and Wales where all applicants are automatically provided with experienced legal representation at no cost. It is probably fair to say that the English system of legal representation is admired by other Convention countries and sets the benchmark to which others aspire.”

Instead of doing the least that it can get away with, the U.S. should surely be at the forefront of efforts to help left-behind parents secure the return of their internationally-abducted children. American parents whose children are abducted to England receive free representation by top-notch English lawyers, courtesy of the British taxpayer. But English parents receive no reciprocity when their children are abducted to the United States, which is self-evidently unfair.

Conclusions
While there is great merit to the State Department’s review of the compliance of other countries with the Hague Convention, it would serve U.S. citizens well in this regard if the United States would put its own house in proper order as to its own compliance with the terms and the spirit of the Convention.

These are of course merely the independent personal opinions of this author.

Korea Reportedly Moving Towards Signing the Hague Abduction Convention

Korea is apparently taking steps towards signing the Hague Abduction Convention.

This would be a major step forward in the prevention of international child abduction.

Korea Mulls Signing Treaty to Protect Kids

Korea is moving to sign an international treaty to protect children against parental abuse and possible abduction in cases of multi-cultural marriage breakdown.

A government source said the nation is inching closer to joining the 1980 Hague Convention on the Civil Aspects of Child Abduction.

The multilateral treaty signed by 81 countries provides a mechanism that ensures the prompt return of children taken to another country by a divorced parent seeking a court ruling in their favor.

"Korea has long been mulling the signing of the treaty to counter international custody disputes, which have been on the rise because of an increase in the number of multi-cultural marriages, and the unstable economy," the source said.

The Ministry of Justice and the Ministry for Health, Welfare and Family Affairs have been reviewing the issue.

According to U.S. Department of State officials, more than 1,000 American children were abducted and taken to a foreign country by a parent in 2008, up from 642 in 2005.

It is tough and complex to repatriate a child from countries that have not signed the pact such as Korea, Japan and the Philippines, as court rulings in previous jurisdictions can easily be overturned.

The U.S. State Department warns on its Web site over possible custody disputes with Korea.

"Custody orders and judgments of foreign courts are not enforceable directly under Korean law," it says.

By Lee Tae-hoon,10/25/09, Staff Reporter

Japan – Leading Haven for International Parental Child Abduction

The firestorm of publicity that we generated concerning the case of my client, Chris Savoie, whose kids were abducted to Japan by their Japanese mother, has now led to an official demand by eight countries that Japan stop its practice of providing a safe haven for international child abduction.

In order to generate concern about my client's plight I appeared on the NBC Today Show twice, CBS’ Morning Show, CNN's American Morning, CNN’s Anderson Cooper, CNN’s Situation Room with Wolf Blitzer, Headline News, and a host of other shows and I was interviewed at length by newspaper reporters in the U.S. and Japan.

The interviews with the Japanese media were especially difficult because the world-views of the Japanese reporters were fundamentally different those of Western reporters. The Japanese reporters' starting position was that of supporting the wishes of a Japanese mother to return home to Japan. It was essential to provide them with the documentary evidence that showed that the mother had brought the children to the United States knowing that she would be divorcing her husband and that established that she had received a very large cash settlement in the divorce case in return for committing to stay in Tennessee with the children and allowing the father to have extensive time with the kids.

I personally have consulted with approximately one hundred left-behind parents in the United States, England, Canada and other countries whose children have been abducted to Japan by a Japanese parent (or other family member). Once they are taken there they are never returned unless the taking parent herself has a change of heart. And because the Japanese legal system does not provide for sharing of parenting time, the left-behind parent at the very best can hope to eventually see his children for a few visits of only one or two hours, only in Japan and only in a supervised courthouse room or possibly in a coffee shop with a guard posted at the entrance.

A useful result of the publicity is that judges in the United States and other countries with a desire to prevent child abduction will hopefully never again naïvely trust that a Japanese parent’s promise to return her children after a family visit to Japan will be fulfilled or enforced.

Nonetheless, it is incumbent on lawyers representing potentially left-behind parents to help the U.S. courts by providing expert evidence in admissible form to support these claims. In seeking to restrain or enjoin travel with a child to Japan it is bad practice to fail to provide the court with such expert testimony or other admissible expert evidence. It is not good enough to rely on news reports; admissible expert evidence is required.

Below is one of many articles concerning the diplomatic effort to solve this problem.

Japan urged to settle international child custody issue

by Gilles Campion Gilles Campion Fri Oct 16, 11:24 am ET

TOKYO (AFP) – Eight countries on Friday called on Tokyo to allow divorced foreign parents access to their children living in Japan and to sign a treaty against international parental child abductions.

Justice Minister Keiko Chiba of Japan's month-old centre-left government met envoys from Australia, Britain, Canada, France, Italy, New Zealand, Spain and the United States to discuss the emotive issue.

The group urged Japan to ensure that, when an international couple divorces, the foreign parent is not denied access to the child, something that activists say has happened in thousands of cases in the country.

The long-simmering issue was thrown into stark focus when Japanese police last month arrested a US man after he snatched his two children from his Japanese ex-wife on their way to school and took them to an American consulate.

The Tennessee man, Christopher Savoie, 38, who was released Thursday, said he had tried to take his children in an act of desperation after his Japanese wife took them away from their US home and denied him access to them.

The case highlighted the common practice of Japanese courts awarding child custody in divorce cases to just one parent, usually the mother, rather than reaching joint custody agreements with parental visitation rights.

Japanese courts also habitually side with the Japanese parent in an international custody dispute -- sometimes even awarding a child's Japanese grandparents, rather than a foreign parent, the custody rights.

Japan, alone among G7 countries, has not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which obliges countries to return a child wrongfully kept there to their country of habitual residence.

"Japan is a modern country with a completely backward family law," said US lawyer Paul Wong, whose daughter was taken into the custody of his former Japanese parents-in-law after his ex-wife died of cancer.

"Japan is the only country that has never returned a child to a foreign parent of any country. Ever. It is nothing but discrimination," added Wong, who works on the issue with the US State Department.

US Ambassador John Roos said in the meeting that his country is aware of 82 child abduction cases affecting US citizens, involving 123 children, while the French delegation said it knew of 35 cases involving its nationals.

"Our priority is to preserve the children?s interests as well as their rights to grow up in a stable and safe environment, with access to both parents and both cultures," said French Ambassador Philippe Faure.

In the Savoie case, a Tennessee court found earlier this year that his former wife Noriko had kidnapped and taken to Japan their eight-year-old son and six-year-old daughter and issued an arrest warrant for her.

However, that ruling carried no legal weight in Japan.

Savoie was arrested on September 28 outside the US consulate in Japan's southwestern Fukuoka city on suspicion of kidnapping, but he was released by prosecutors on Thursday without charges being filed.

Activist groups say they hope that Japan's new government -- which took power last month after more than half a century of almost unbroken conservative rule -- will review the issue.
Chiba, the justice minister, voiced sympathy for the concern raised but said she would have to discuss the matter with other members of the government, according to participants at the meeting.

Foreign Minister Katsuya Okada said the government "is studying the possibility" of signing the Hague onvention, adding: "Personally I believe Japan should consider this proactively."

Publication of International Family Law Practice

My book, International Family Law Practice, has now been published.

It can be ordered through West at http://west.thomson.com/productdetail/159300/40816680/productdetail.aspx

West Publishing Co. Description:

DescriptionThis title provides a practical approach for U.S. lawyers handling international family law matters. It focuses on international marriage and divorce, international prenuptial and postnuptial agreements, international divorce planning, recognition of foreign divorces, international child support and custody, international relocation of children, and international child abduction. It will also be helpful to lawyers handling international family matters globally.
Features
-Includes discussion of foreign law.
-Includes practical checklists and practice pointers throughout.
-Provides broad coverage of international family issues.

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.