Hong Kong Prenuptial Agreements

It is expected that the courts in Hong Kong will follow the lead of the English courts concerning prenuptial agreements. That opinion was reflected in the recent Hong Kong case of SA formerly known as SA v. SPH [2011] HKCFI 1649; HCMC1/2011 (10 Nov.2011).

The current state of English law on prenuptial agreements may be found in the ruling of the UK Supreme Court in Radmacher v. Granatino.

There the court ruled on preliminary matters in a divorce case between German nationals whose matrimonial residence had been in Hong Kong. The issue concerned the effect of a prenuptial agreement and also a separation agreement which the parties had executed in Germany under German law. The court recognized that the effect of these agreements in Germany was likely to be far different from their effect in Hong Kong. In Germany the agreements were likely to be enforced strictly but in Hong Kong it was likely that a court would apply the Radmacher case and would therefore not be enforced unless it were established that the agreements were “fair in all of the circumstances.”

The husband asked the Hong Kong court to stay the action in its court pending a determination of the issues by a court in Germany. The Hong Kong court agreed to do so but only because it determined that Hong Kong law would allow the wife to apply for an additional financial award in Hong Kong if the courts in Germany were to make an award that was unfair to the wife when examined under Hong Kong’s laws. Thus the wife would have “two bites of the apple.” She could argue her case in Germany and then come back to Hong Kong for a second round if she was unhappy with the result in Germany.

The review of the matter in Hong Kong would likely occur under the guidelines in Radmacher. There, the English court ruled that courts “should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” A prenuptial agreement might have “decisive weight” but must always be reviewed on a case-by-case basis for fairness.

The conclusion is that prenuptial agreements for international people based in Hong Kong may be tremendously useful but must be carefully drafted by counsel with international experience and knowledge.

Hague Abduction Convention under Threat from the European Court of Human Rights

The European Court of Human Rights (the “ECHR”) continues to attack the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), including a decision issued in December 2011.

In June 2010 in Neulinger & Shuruk v. Switzerland the ECHR ruled that the European Convention on Human Rights requires that courts may not return an abducted child to its habitual residence, even when the child’s return is mandated by the Hague Convention, unless it is first established that it is in the best interests of both the child and the child’s family to do so.

The ECHR thereby overruled thirty years of international case law, discounted the fundamental purposes of the Hague Convention of deterring international child abduction and of not rewarding international child abduction, and ensured that any Hague case that follows its precepts will be lengthy and expensive as well as often unfair to the left-behind parent who must now defend what could be almost a custody case on the taking parent’s home turf.

Notwithstanding extensive criticism of its decision the ECHR has followed the Neulinger case in more recent cases.

In Šneersone and Kampanella v. Italy (ECHR Application no. 14737/09) the ECHR applied Neulinger to override an Italian return order that had been issued after an admitted international child abduction from Italy to Latvia.

In April 2006 the child’s unmarried mother unilaterally took the parties’ son from their habitual residence in Rome, Italy to her native Latvia where she retained him. She claimed that she did so because the father was not paying child support and she could not afford to remain in Italy.

The ECHR criticized the Italian courts’ failure to consider: (a) the risk that the child’s separation from his mother might leave him with neurotic problems or an illness, (b) the father’s failure to visit his son in Latvia since 2006 or (c) whether the father’s home was suitable for a young child.

The ECHR, citing Neulinger, stated that it “must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin.”

The Court’s decision is astonishing for its failure to criticize the mother’s conduct in abducting the child in the first place and for its failure to address the fact that the Article 13(b) exception should not be invoked when the abducting parent is the one who creates the risk by refusing to return with the child. The ECHR decision endorses international parental child kidnapping and constitutes an extremely dangerous precedent.

Equally disturbing is the case of X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011.

Here the child was taken from her habitual residence in Australia to Latvia by the Latvian mother. The father in Australia commenced a Hague proceeding promptly and the Latvian court, after a hearing, promptly issued a return order. On appeal the mother asserted that the child would suffer psychologically if she were returned to Australia without her mother and supported this assertion with a psychologist’s report and she claimed that she did not have the financial resources to return there. The appeal failed in January 2009.

Almost three years later the ECHR ruled that the Latvian return order violated Article 8 of the European Convention because the Court disregarded the psychologist’s report and did not sufficiently consider “what would happen as regards the child’s material well-being if returned to Australia.”

For a full discussion of these issues see my just-published article in the IAML Law Journal, TheHague Abduction Convention: A Critique of the Neulinger Case.

Quebec Court Orders Return of Children to California

We are very pleased to report a successful outcome in a California – Quebec, Canada international child abduction case. We represented the father and worked with local counsel in California and in Quebec.

The Quebec Court of Appeal has just issued a judgment overturning the decision of the Superior Court in Quebec and ordering that the children must be returned home forthwith to California.

The lower court refused to return the children to their habitual residence in California on the grounds that the father had consented to the children’s move to Quebec and that there was a grave risk of harm to them if they were to return. The appeal court gave short shrift to each such defense, criticizing the trial court for having given far too liberal an interpretation to the exceptions in the Convention and insisting instead that they must be restrictively interpreted.

With respect to consent, the appeal court held that while it was reluctant to interfere with the findings of fact of the trial court, the record did not contain the required clear, positive and unequivocal of consent that the Convention requires.

With respect to grave risk, the appeal court insisted that a removing parent must not be allowed to abduct a child and then, when brought to court, complain that the child has grown used to the surroundings to which the children were abducted.

No Family Law in Saudi Arabia

One might think that the dangers of marrying Saudi nationals and living in Saudi Arabia would by now have been sufficiently well publicized as to cause Western nationals, especially Western women, to steer clear of living in Saudi Arabia with a Saudi spouse.

Unfortunately many still fail to heed the warnings and contact international family law counsel after the fact.

Foreigners who intend to marry Saudi nationals or to live in Saudi Arabia should be warned that their “family law” rights are likely to be extremely limited, especially if they have children and especially if their spouse is a Muslim man.

We have represented numerous clients of various nationalities and faiths who have been in Saudi Arabia.

While we have worked with Saudi counsel it is necessary to report that the level of discrimination against foreigners and non-Muslims in Saudi Arabia at all levels of society, including the highest, is extreme and creates great danger for foreigners and most especially for foreigners with children.

Merely by way of example, women in a Saudi household cannot leave the country without the permission of the Saudi male head of their household. This applies to foreign nationals just as much as to Saudi citizens.

A foreign parent cannot take her or his children out of Saudi Arabia if the other parent is a Saudi national even if the foreigner has been granted custody rights.

Foreigners holding Saudi work and/or residency permits require an exit visa to depart Saudi Arabia.

Saudi authorities have confiscated the U.S. passports of U.S. citizens and U.S.-Saudi dual nationals when they have applied for Saudi citizenship or a Saudi passport.

The public display of non-Islamic religious articles such as crosses and Bibles is not permitted.

Women who do not wear a full-length black covering and cover their heads are at greater risk of being confronted by the religious police.

Men and women may not mingle in public unless they are family or close relatives. The religious police may demand proof that a couple is married or related. Women who are arrested for socializing with a man who is not a relative may be charged with prostitution.

Women are not allowed to drive or ride bicycles on public roads in Saudi Arabia.

In substance if “family law” means a law that protects the family, there is no family law in Saudi Arabia.

India and International Child Abduction

Newspapers around the world have carried an article entitled “Japan, India pressed to curb child abductions” that calls attention to the fact that both countries violate human rights norms by failing to provide remedies for international child abduction. The articles describe the circumstances of several of my clients and state that,

“Jeremy Morley, a New York lawyer who specializes in international family law, says India is ‘a safe haven for child abductors" in part due to its slow-moving court system.’

‘An abductor has ample time to create facts on the ground in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India,’ Morley writes on his Web site.”

Japan, India pressed to curb child abductions

AP foreign, Tuesday December 7 2010

NEW YORK –  Japan and India are among America's most prized allies. Yet to scores of embittered parents across the U.S., they are outlaw states when it comes to the wrenching phenomenon of international child abduction.

The frustrations of these "left-behind" parents run deep. They seethe over Japan's and India's noncompliance with U.S. court orders regarding children taken by the other parent to the far side of the world, and many also fault top U.S. leaders for reluctance to ratchet up the pressure for change.

"If they really made it an issue to solve these cases, I believe they could be resolved tomorrow. ... They don't have the will," said Christopher Savoie of Franklin, Tenn.

Savoie was arrested in Japan last year, and spent 18 days in custody, after a failed attempt to reclaim two children taken from Tennessee by his ex-wife in violation of a U.S. court order.

More than 80 nations have signed an accord aimed at curtailing such incidents, but only a handful of Asian countries are among them. Of the continent's non-signatories, Japan and India pose the biggest problem for the U.S. — accounting for more than 300 cases, involving more than 400 children, opened by the State Department since 1994.

The State Department says it cares deeply about international parental child abductions, which its experts believe will increase as binational marriages become more common.

The department has boosted the staff dealing with abduction cases from 18 to 65 over three years, and says it is working harder than ever to convince Japan and other Asian allies to sign the 1980 Hague Convention on international abduction.

The department's special adviser on children's issues, Susan Jacobs, and its top official for Asia, Assistant Secretary of State Kurt Campbell, have raised the topic on multiple occasions. Campbell used the word "kidnapping" in protesting the many cases in Japan where mothers living overseas with foreign husbands returned home with their children and kept the fathers from having contact with them.

"This is a hard job — we don't get as many successes as we want," said Stefanie Eye, chief of the State Department's Eastern Hemisphere abductions division. "We want every child in the right place." ….

Many times previously, Japan has said it would consider signing the Hague Convention, but it also has expressed concern that doing so might leave some Japanese women and their children vulnerable to abusive foreign husbands.

Stefanie Eye said that in Japan, unlike many Western countries, it's accepted practice that only one parent — usually the mother — has custody of a child after a divorce. That leaves many fathers, including foreigners, unable to see their children until they are grown up because of lack of visitation rights.

"Part of what we're doing is offering the Hague country perspective of why it's important for children to have access to both parents," Eye said.

The State Department says it knows of no cases where a child taken from the U.S. to Japan by one parent has been ordered returned to the U.S. by Japanese courts.

There has been some progress elsewhere in Asia, Eye said. She cited an announcement by Singapore that it will sign the Hague Convention and a preliminary indication by South Korea that it will do likewise.

"We're seeing a lot of movement," she said. "We're waiting for someone to stand out and be a leader."

For the moment, India shows no signs of being that leader. Though a national law commission recently recommended that India sign the Hague Convention, the government hasn't signaled that this will be a priority, and an External Affairs Ministry spokesman, Vishnu Prakash, told The Associated Press in New Delhi that he had no comment on the issue.

"This government is not really interested in ensuring the children's rights," said Bharati Ali, co-director of HAQ — a non-governmental children's rights group in India.

The State Department's assessment is blunt.

"Once a child has been abducted to India, remedies are very few," says an official advisory. "India does not consider international parental child abduction a crime, and the Indian courts rarely recognize U.S. custody orders, preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep the child in India."

Jeremy Morley, a New York lawyer who specializes in international family law, says India is "a safe haven for child abductors" in part due to its slow-moving court system.

"An abductor has ample time to create facts on the ground in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India," Morley writes on his Web site.

The California-based Rakshak Foundation has tried to help numerous Indo-American fathers entangled in cases of alleged child abduction.

Among them is Avinash Kulkarni, 45, of San Diego, who says his son — then 6 months old — was taken back to India by his ex-wife in 1990, and 18 years passed before he saw his son again. He said he won a civil case against his ex-wife in 2001, but made no headway with the Indian legal system in his efforts to make see his son.

"In India, the whole concept of human rights and fairness is nonexistent compared to here," he said. "Fighting that is a losing battle. ... I lost my prime years trying."

Another father, Vipin Gopal, said he has been unable to exercise custodial and visitation rights granted by courts in Connecticut after his daughter was taken to India by his ex-wife four years ago.

He hopes the U.S. intensifies pressure on India to cooperate as part of the broader efforts to expand bilateral ties.

"Recently, during a visit to India, the Obama administration negotiated multibillion dollar trade deals and supported a U.N. Security Council seat for India," Gopal said. "But if we can't negotiate with India about the basic rights of our own children, that's where America as a nation fails."

Rex Arul, an energy consultant from Smyrna, Ga., is trying to regain custody of his 3-year-old daughter, who was taken back to India in July by his wife, a corporate attorney, in the midst of wrangling over a divorce. Arul says he subsequently obtained a U.S. court order awarding him custody, but is not optimistic.

"The cards are stacked against me," he said. "The Indian courts always say the priority is the child's best interest, but in the end it's always rewarding the abductor."

English Criminal Law in International Child Abduction Cases

Courts, prosecutors and the police are often reluctant to apply criminal law in international child abduction cases. They feel that such cases are mere family disputes that should be resolved privately or through the civil courts.

In many cases this view is naïve and it can be extremely harmful.

Now the English Court of Appeal has demanded stronger enforcement of criminal laws against international child abduction, full punishment for the commission of such offenses and new legislation to allow for longer jail terms.

On the appeal of two cases in which fathers had abducted their children and taken them overseas, where they had retained them for several years, the English Lord Chief Justice, Lord Judge, described child abduction as “an offence of unspeakable cruelty.” R v Kayani and Solliman [2011] EWCA Crim 2871. He insisted that a plea for mitigation based on a “right to family life” was “misconceived”, both at common law and under Article 8 of the European convention on human rights. He said that “We can see no reason why the offence of child abduction should be placed in a special category of its own when the interests of the children of the criminal fall to be considered,”

The fathers had been sentenced under the Child Abduction Act 1984, which provides for a maximum seven-year sentence.

Not only were the jail sentences upheld but the Court of Appeal suggested that child abduction should be treated as kidnapping and that the maximum sentence should be increased beyond seven years, to as long as a sentence for life. Previously courts had refused to treat parental child abduction as subject to equal punishment as kidnapping. The Court of Appeal overturned prior precedents. Lord Judge insisted that a discrepancy in sentences between child abduction and kidnapping was “illogical”. He stated that “Our view is clear. Simply because the child has been abducted by a parent, given current conditions, it no longer necessarily follows that for policy reasons a charge of kidnapping must always be deemed inappropriate. To that extent the observation of the court in R v C has been overtaken by events and has no continuing authority.”

Expert Testimony As To International Child Abduction And Other International Family Law Issues

International family lawyers are frequently called upon to act as an expert witness concerning international child abduction and other family law issues.

Such testimony can be of vital importance. Unfortunately many family lawyers and their clients often do not recognize the potential value of such testimony.

Exert testimony can make the difference in a case in which a parent who fears a potential international child abduction seeks to prevent a child from being taken to another country. Often the issue is whether the legal system in the country to which the child may visit or to which the child may be abducted has a reliable legal system that will recognize and enforce U.S. custody orders or will promptly return a child under the Hague Abduction Convention.

Expert testimony may be decisive in international relocation cases, in which the issue is whether the courts in the country to which a child's relocation is requested will provide recognition and prompt enforcement of child access orders issued by the courts in the child's current residence.

Thus, this author has presented expert testimony as to the dangers that might result if a child were taken to and retained in Japan, China, Taiwan, Russia, Morocco, Hungary, Jordan, Morocco, Saudi Arabia, Mexico, Malaysia, the UAE (Dubai) and Bulgaria, as well as other countries. He has also presented testimony as to the strength and effectiveness of the legal system in other countries such as England, Italy and Germany.

Expert testimony can also be useful as to the red flags that might show that a person is likely to abduct a child internationally.

It can also be useful on the issue of whether a parent's activities are in violation of the federal International Parental Kidnapping Crime Act.

The author has also provided evidence concerning the anti-dowry law in India, otherwise known as the "498-A" law; as to whether the courts in England or the United States should hear a divorce case; as to the terms that should be included in a visitation order in order to reduce the risk of international child abduction; and as to the potential recognition in a U.S. court of divorces issued by certain foreign countries.

Some specific examples are as follows:

- In a case in the Superior Court in DeKalb County, Georgia this author provided expert testimony at the request of a father as to the law and practice in China as to international child abduction and international child custody. The case concerned two Chinese national who lived in Georgia with their child. The mother was about to be deported because she had no immigration visa. She asked the Court for custody of her child and the right to relocate with the child to China. The father believed that the Chinese legal system would not help him to see the child if the mother's application were granted. The Court gave "great weight" to this author's testimony and as a result decided the case in favor of the father.

- In a case in the Superior Court in Toronto, Ontario, Canada the author provided expert evidence as to the family law of India. The case concerned two parents of Indian origin, one of whom wanted to take their child for a visit to India. The father believed that the child would never be returned home to Canada if a visit were authorized, notwithstanding the mother's promises to do so. The Court relied almost entirely on the author's opinions, described as "a detailed and helpful affidavit" which "unequivocally outlined" the hazards of any visit to India and provided a "sobering warning" of such risks. Consequently the court ruled in favor of the father and barred the proposed visit.

- In a case in the Supreme Court, New York County, the issue was whether to permit a proposed visit of a child living in New York to the country of Italy. The author testified that Italy was fully compliant with the Hague Convention on the Civil Aspects of International Child Abduction. Opposing expert testimony was also presented. The Court accepted the author's testimony and the visit was authorized.

The evidence that is required in such cases can often be supplied remotely. The author has testified in person in several U.S. states but he has also been permitted to testify as an expert witness in cases throughout the United States, as well as in Canada, Australia and New Zealand, either by affidavit or telephone or video.

Child Abduction Victory Does Not Signal a Change in Japan’s “Do Nothing” Approach to International Child Abduction

My client, Moises Garcia, may be about to achieve the impossible: bringing a child abducted from the United States to Japan back home from Japan by means of the legal system.

But let no one be mistaken. It was the legal system in the U.S. – and some unusually good luck – that did the trick, not the Japanese legal system.

While Dr. Garcia tried his utmost – and at substantial expense -- to secure the assistance of the Japanese legal system, the courts in Japan did nothing to help him and did everything to hinder his efforts, while paying lip service to his plight.

The Japanese courts purported to acknowledge that he had custody of the child, which he had been awarded in Wisconsin, where the child was born and lived, but then decided that the child should stay in Japan with her Japanese mother because by that time the delays had been such that she had already been in Japan for a significant period of time.

It is reported today that the child's mother has now entered a plea agreement, after having spent several months in jail in Wisconsin, pursuant to which she agrees to have the child returned to Wisconsin by Christmas.

The only reason that this case appears to have had a successful outcome is that the mother left Japan (without the child) and entered the U.S., traveling to Hawaii to renew her green card. She was then arrested in Hawaii because of the actions taken by my client's legal team in Wisconsin.
This case does not signal any change in heart on the part of the Japanese legal system. Anyone who understands what has really occurred here will conclude that the mother would have gotten away with her abduction if she had stayed in Japan.

The Japanese courts are not ready to take any action in any such case and they have never done so. That will not change even when Japan signs the Hague Convention on international child abduction unless and until the entire family law system is overhauled and until Japanese society recognizes that kids are entitled to two parents even if parents are divorced.
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The Law Office of Jeremy D. Morley has represented very many parents whose children have been abducted to Japan, as well as children abducted to other countries throughout the world. We also represent many parents who fear that their children may be abducted overseas and seek assistance in preventing a potential abduction. We may be reached at jmorley@international-divorce.com and through www.international-divorce.com