Indonesia & International Child Abduction: The Indonesian Judicial Mafia

                             Jeremy D. Morley

The level of corruption within a state’s legal system may be an important factor in evaluating the risk of a proposed visit to that country by a child and a parent in litigation to permit or prevent such a visit.


Obviously the risk is far greater if the level of corruption is high, especially if the parent who wants to take a child to the foreign country is a national of that country or knows his way around” the country.

In this regard, a recent statement by the Chief Justice of Indonesia’s Constitutional Court, Mahfud MD, is remarkable. It adds authority, flavor and great substance to the statement in the current U.S. State Department report on Indonesia that “Widespread corruption throughout the legal system continued” and it serves to cast great doubt on the ability of the Indonesia system to take any meaningful steps to recover children from Indonesia who have been abducted to that country, especially if the abducting parent knows his or her way around the country.

Specifically Judge Mahfud stated, in an interview with Strategic Review, The Indonesian Journal of Leadership, Policy and World Affairs, that:

“The corruption is indeed endemic, deeply entrenched in the entire judicial process in Indonesia. The problem is not about the substance but more about the law enforcers and the legal culture. … As I mentioned earlier, in terms of substance, we have a comprehensive law. Anything we need, I can show you the relevant regulation. But the root of the problem is the mentality of our law enforcers. They inherited the corrupt mentality of the New Order regime, and are supported by the legal culture where things can be negotiated outside the courts. Then there is the judicial mafia, which has never been eradicated. We always talk about the substance but never about the structure and the culture. So now, you see judges who talk loudly about how they would eradicate corruption but then are caught red-handed committing it. Attorneys are caught in collusion and many are brought to court. Police officers are also imprisoned because of corruption. This is why our legal development has not worked until now.”

Prenuptial Agreements in India

Jayanth Krishnan had an inter-faith wedding. But before the couple got married, they signed a prenuptial agreement stipulating that neither would force the other to change his or her religion in the future. However, two years down the line, Krishnan’s wife started putting pressure on him to change his religion. Krishnan promptly sought a divorce. When the lawyer produced the prenuptial agreement to defend his client’s decision at the Coimbatore Family Court, it was upheld by the judge.

Krishnan is not alone. It’s not just destination weddings and exotic honeymoons; young urban Indians are adding a new must-have to their nuptial checklist — prenuptial agreements. “Young, urban about-to-wed Indians are increasingly signing prenuptial agreements. They want to lay down clearly who gets what if the marriage turns sour,” says V.K. Singh, a divorce lawyer with Legal Divorce Juris, Delhi.

Singh says both men and women are rushing to lawyers to lay down the financial terms and conditions for marriage. “I get a large number of women who want a signed statement from their fiancés, saying the latter will allow their wives to look after their parents financially after marriage,” he says.

The lawyer, however, adds a word of caution to couples seeking prenuptial agreements. “Prenuptials are not recognised in an Indian court of law. Even then, many couples are opting to sign the agreement, in order to put the financial terms and conditions of their marriage on paper,” says Singh.

A prenuptial agreement — a contract entered into by a couple about to tie the knot — is a signed, registered and notarised document that usually outlines the distribution of assets, liabilities and issues relating to the custody of children if the marriage falls apart in the future.

And with the proposed amendments to the Indian Marriage Act making divorce easier as well as giving women a greater share of the property acquired by the couple during the time they stayed married, interest in prenups will only go up, point out experts.

“The law will impact marriages on the financial front,” says Delhi-based Supreme Court lawyer Mahesh Tiwari. “The Marriage Act will allow women to get a 50 per cent share in all property acquired by a couple while they were wedded,” he explains. A Delhi-based men’s rights group, Save Indian Family Foundation (SIFF), has already demanded that prenuptial agreements be legalised to counter financial ambiguities in marriage, adds Tiwari.

Virag Dhulia, head, gender studies, Confidare Research, a Bangalore-based men’s rights community centre, and also an SIFF member, says Indian marital laws have a lot of grey areas regarding financial and child custody issues. “Prenuptials will bring clarity to wealth distribution between husband and wife. It will ensure that both parties are aware of what they are getting into and what happens if the marriage turns sour,” he explains.

If a couple is headed towards spiltsville, prenups can also help cut short long, exhausting legal battles. “Prenuptials can help couples get an amicable and quick divorce. That will benefit everyone involved,” says Dhulia.

Despite the benefits that prenups can bring to warring couples, as of now, they remain invalid in an Indian court of law. “At best, they can be used for the purpose of evidence, reference or for self-regulation,” says Osama Suhail, associate partner, AMZ Law, a Delhi-based divorce law firm.

Suhail has witnessed first hand that, in an Indian court, a prenuptial agreement may amount to being just a piece of paper. He was representing Amit Seth, a Delhi-based corporate executive, in a divorce case last year. “The couple had signed a prenuptial agreement which specified that Seth’s wife would not seek alimony if the couple were to separate,” recalls Suhail.

When the couple decided to call it quits, Seth’s wife went back on her promise. “She demanded maintenance on the grounds that she was unemployed,” recalls Suhail. When he produced the prenuptial agreement in court, the judge struck it down. Seth now pays a fat sum to his wife every month.

Suhail believes prenups can be a handy tool for couples who want an amicable end to a marriage. “But if one party decides to fight it out, this document has no meaning,” he says.

However, V.P. Sarathi, a divorce lawyer at VPS Law Firm, Coimbatore, believes there are ways of making prenuptials work in the Indian legal system. “Although there is no clause to legalise prenuptials, it depends on the creativity of the lawyer to make a case out of it,” he says.

The lawyer explains with an instance. “If a person breaks a prenuptial agreement signed on a stamped and notarised paper, it becomes a case of fraud. And fraud is a ground for divorce under the Marriage Act,” says Sarathi, who used the prenuptial agreement between his client Jayanth Krishnan and his wife to win his case.
Sarathi says if a prenuptial agreement is made in a legally prescribed format — written on a stamp paper, notarised and has two witnesses — it can carry weight in a law court. “There may not be any written sanction for prenuptials, but judges are often open to interpreting the agreement in different ways,” he says.
However, not everyone is as positive as Sarathi. Mumbai-based matrimonial lawyer Mrunalini Deshmukh, who gets about six requests to draft prenuptial agreements every month, says she tells her clients that it’s simply not worth the effort. “I tell them the document doesn’t count in court,” she says.

However, she admits that most of her clients are undeterred by her advice. “An increasing number of urban, high-income couples are signing prenups. Even though the document lacks legal power, they feel it will make both parties morally obligated to stick to its terms in case of a separation,” she says.

Clearly, modern Indian couples want to enter matrimony with their eyes wide open so that if a parting does come about, it can be without acrimony.
http://www.telegraphindia.com/1120404/jsp/opinion/story_15332562.jsp#.T32fB3k3PIV
 
Follow this Link for more info on Prenups in India

Legal Services to Chase Children

A new national legal service has been launched to provide free legal assistance to Australian parents dealing with the international abduction of a child.

Attorney-General, Nicola Roxon said the service would provide practical support to parents in distressing circumstances.

“We want to make it as straightforward as possible for parents to get the assistance they need when dealing with the abduction of their children from Australia,” Ms Roxon said.

“The Hague Convention on international child abduction, to which Australia is a signatory, provides a strong mechanism for lawfully seeking the return of abducted children to Australia. However, accessing information about the Convention and knowing how to apply to meet its requirements can be daunting for many parents during one of the most stressful and difficult times of their lives.”

She said the new legal assistance service would complement the counselling and mediation service already provided by International Social Services (ISS) Australia.

She said a new funding agreement with ISS would provide a national service to help parents prepare and lodge applications from Australia for the return of, or access to, children under the Convention.

Ms Roxon said it would also address key recommendations of the Senate Legal and Constitutional Affairs References Committee report into international child abduction to and from Australia.

“This service will now provide a one stop shop offering legal and counselling assistance for Australian families affected by the abduction of their child from Australia,” she said.

“With the assistance of International Social Services, Australian parents will be able to apply directly to the Attorney-General’s Department, as the Australian Central Authority – and the national contact - for the Hague Convention.”

She said more information could be accessed at this PS News link.

http://www.psnews.com.au/Page_psn306f3.html

Important New U.K. Ruling on Grave Risk in Hague Abduction Cases

Jeremy D. Morley

The U.K. Supreme Court has just issued an extremely important opinion concerning the grave risk of harm exception in a Hague abduction case.  In the Matter of S (a Child) [2012] UKSC 10. The ruling is surprising in at least three respects.

The first is that the Supreme Court bluntly castigated another high-level court in another jurisdiction -- the European Court of Human Rights. In X v Latvia the European Court reiterated its decision in the infamous Neulinger case that the European Convention on Human Rights requires an in-depth examination concerning the family’s best interests in any case under the Hague Abduction Convention.

The Supreme Court (Lord Wilson) completely rejected the European Court’s decision in X v. Latvia, stating, “[w]ith the utmost respect to our colleagues in Strasbourg” (!), that “we reiterate our conviction … that neither the Hague Convention nor, surely, article 8 of the European Convention requires the court which determines an application under the former to conduct an in-depth examination of the sort described. Indeed it would be entirely inappropriate.”

In the humble opinion of this author, the Supreme Court’s rebuke is welcome and entirely correct, for the reasons I have previously stated in my article, The Hague Abduction Convention and Human Rights: A Critique of the Neulinger Case.

The second somewhat surprising element of the decision in In the Matter of S is that the U.K. Supreme Court has made it clear that in its previous decision last year in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 it did, indeed, intend to change the English interpretation of  the grave risk exception to the Hague Convention in a far broader way than English courts had previously adopted.

The third element that is surprising to a lawyer on this side of the pond is that the Supreme Court did not merely overturn the decision of the English Court of Appeal for objective reasons but it lashed out at that court in remarkably forthright and harsh language for its failure to read correctly and apply the Supreme Court decision in re E.

The bottom line is that, although the U.K. Supreme Court declared that in re E it had not really changed the law concerning Article 13(b), but had merely removed the “excrescence” that earlier case law to the plain meaning of the treaty, it has in fact broadened the exception as it is applied in England.

In a key paragraph of re E  the Supreme Court stated that,

“[T]he words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" …"'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.” (emphasis added)

Now, in In the Matter of S (a Child)the U.K. Supreme Court had to determine how apply its prior ruling. A British mother living in Australia with the child’s Australian father had separated, obtained an “apprehended domestic violence order” in the Australian courts, and then removed the child to England. She defended the Hague case by submitting strong psychiatric evidence about her fear of returning to Australia. The evidence showed that she was psychologically fine in England but that if she were to return to Australia her prior emotional trauma -- diagnosed as Battered Women's Syndrome, a form of Post-Traumatic Stress Disorder -- would likely return.  She also submitted evidence of some domestic violence against her but none as to the child.

The trial court determined that the likely psychiatric and psychological impact on the mother of a return to Australia was significant and severe. The source of her stress (the father) was in Australia. Contact with this source of stress (re-exposure to the father) would put her at risk for further acute stress and post traumatic stress. She had a prior history of anxiety and depression which not only lowered her threshold for acute stress and post traumatic stress but also increased the likelihood of a recurrence of her anxiety and depression.

The Court of Appeal overturned the trial court’s ruling because her defense was based merely on her subjective perception of risks which might lack any foundation in reality.

The Supreme Court restored the trial court’s original judgment in the basis that, “It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.”

The Supreme Court declared that the Court of Appeal had wrongly defined the crucial question as whether the mother's anxieties were realistically and reasonably held. It stated that the critical question was what would happen if the parent and child were returned.  If, upon return, the parent would suffer such anxieties that their effect on the parent's mental health would create a situation that would be intolerable for the child, then the child should not be returned. It did not matter whether the mother’s anxieties were reasonable or unreasonable.

The Supreme Court decision is also surprising for its failure to discuss the extent to which the child would be expected to suffer as a result of the mother’s anticipated trauma.

Hope for parents denied access to children in Japan

By Leah Hyslop. Daily Telegraph.14 Mar 2012

After years of foreign pressure, Japan has finally taken a step closer to joining an international convention on settling cross-border child custody disputes

According to local reports, the cabinet approved a bill last Friday which will bring Japan in line with the Hague Convention on international child abduction.

Japan is the only G8 country not signed up the 1980 treaty, which aims to facilitate the prompt return of children illegally taken to a foreign country to the place where he or she usually lives.

Because Japan has not joined the agreement, many non-Japanese parents whose children have been taken to the country by a former partner have found it extremely difficult to gain access to their childen – even if they were granted custody rights in their home country.

Japan, which favours sole custody, does not consider international parental abduction in itself a criminal offence.

Ann Thomas, managing partner of The International Family Law Group LLP said that she had seen a number of cases where a parent, usually a father, had been completely cut out of the lives of their children after they were taken to Japan, which could took many years to resolve – if they were resolved at all

“Recently, I dealt with a case in which a father in the West Midlands was denied all involvement when the mother took his children to Japan without his consent,” she said. "He was even refused telephone contact. Recently, we have been able to secure regular Skype contact and face to face contact from time to time, but it took four years to conclude.”

Although the movement towards signing the convention was welcomed in many quarters, doubts have been expressed as to how far its rules will be implemented. Particular concern has been raised over how Japanese courts will apply the convention's provisions against return, including the provision that deals with the possibility that returning would expose the child to physical or psychological harm.

Jeremy Morley, an international family lawyer, told Telegraph Expat: “I have not seen the fine print of the Japanese law that adopts the Hague Convention in Japan but I understand that it will include a broad definition of the 'grave risk' exception to the convention. Such a definition will effectively relegate the role of the Hague Convention in Japan to being yet another meaningless document that will provide cover for abductions to continue. The entire family law system in Japan is dysfunctional and court orders are very difficult to enforce... I fully expect that Japan will be in violation of its obligations under the Hague Convention as soon as it signs it.”

The bill is expected to now be debated in Parliament.
Click Here for the article at The Telegraph's website

International Family Law Seminar in DC

Join us for a tremendous seminar on International Family Law in Washington, DC with a wide array of exceptionally well-qualified speakers. 

Sessions on: International Child Support; International Family Formation; Limitations on Planning of Structures Issues; International Child Relocation; International Prenuptial Agreements; Islamic Family Law; Offshore Assets; Recognition of Foreign Court Orders and Conflicts of Laws; & International Couples in Transit.

 I will be chairing the session on International Prenuptial Agreements.

Details at http://meetings.abanet.org/webupload/commupload/IC942000/relatedresources/ABA_Agenda030712.pdf

Iran's Temporary Marriage Law

By Jeremy D. Morley

  

Iran's parliament has passed legislation this week that expressly authorizes “temporary marriages” and requires their registration only in limited circumstances, primarily if the woman becomes pregnant.

The law allows men to have as many sexual partners as they want, sanctioned by sharia law under the term "temporary marriage".

Sex outside marriage is a crime in Iran punishable by 100 lashes or, if adulterous, by stoning to death. However, temporary marriage is a way around those provisions. Such a marriage can be for a few minutes or several years. If a couple is married, the man -- but not the woman – can have as many additional temporary marriages as he wants. 

The system is known as the sigheh system and the marriage contracts are known as Nikaḥ al-Mut’ah ("pleasure marriage") contracts. They are fixed-term contractual marriages and are customary in the Shia tradition.

The man in a temporary marriage can end the sigheh at almost any time, but there is no divorce right for women in temporary marriages. For her they continue until they automatically expire at the end of the stated period of time.

A spokeswoman for the Iranian Parliament's Cultural Commission had proposed that registration should be compulsory for all temporary marriages. That proposal was rejected on the grounds of privacy. A member of the Parliament's Legal and judicial Commission stated that the main appeal of temporary marriages is that are unregistered, because family issues, especially marriage, are among the most private matters in an individual's life, and lawmakers should not interfere so deeply in people's private affairs.

Many people consider sigheh to be a type of legalized prostitution. Others see it as a loophole for couples to have a relationship within the rigid Islamic laws Women who practice temporary marriage are often the poor and desperate, while men from any age and economic status may find the practice attractive. It was the subject of a film in 2009 entitled In the Bazaar of Sexes, the poster for which is shown above.

Federal Courts Violate the Hague Abduction Convention

By Jeremy Morley

This week the Abbott case – the only Hague abduction case ever to get the U.S. Supreme Court -- was finally dismissed, but only because the child turned 16 and the Hague Convention applies only to children under that age. The case is known for the fact that U.S. courts finally accepted the rule applied by most other countries that a parent who can veto his child’s relocation overseas ha s a Hague right of custody.

The child’s mother had wrongfully taken the child, then aged 9 or 10, from his habitual residence in Chile to Texas in violation of Chilean law prohibiting either parent from taking the child out of the country without the other’s consent. The Supreme Court ultimately ruled that he should have been returned to Chile.

However, the case should also be famous for the fact that it demonstrates that the federal appeal courts trample on the clear treaty obligation of the United States to resolve Hague cases expeditiously – and within six weeks if possible.

Instead of it taking the recommended six weeks for the courts to handle the case it took them six years -- and even then the child was never returned. The result is an utter farce. Federal appeals courts in the United States have no rules concerning expeditious handling of Hague cases. With minimal exceptions these cases are placed on the same timetable as any other case, while courts often pay mere lip service to the requirement of speedy determination by simply refusing to grants a stay of enforcement of a return order pending an appeal, thereby effectively depriving many respondent’s of their right of appeal.

For the family in question, it appears (to an outsider) that the result has been disastrous. CNN reports that “the youngster seeks no further contact with his father.”

Speedy resolution of return applications is essential to the operation of the Convention. The language of the Convention repeatedly calls for state parties to provide for procedures to ensure the "prompt return" of abducted children (Preamble; Article 1) and to "use the most expeditious procedures available" (Article 2). Indeed, the Convention provides in substance that a country’s judicial authorities are expected to conclude a Hague case within six weeks of its commencement.

In England the courts have adopted rules that require appeals in Hague cases to be lodged within 14 days of the first instance decision and that expedite appeals through a fast-tracking appellate procedure. The target of six weeks is for resolution of the case in its entirety, including all appeals.

The United States federal courts should follow suit. By failing to do so they are participants in international treaty violation.

French Jewish mother wins custody battle against Saudi prince

A French Jewish mother has won a custody battle in France against a Saudi prince, who has been ordered to return their 10-year old daughter he was alleged to have kidnapped after their cross-religious romance turned sour.

The Paris criminal court ordered Prince Sattam al-Saud from the kingdom’s founding royal family, to hand over custody of his daughter Aya to her French mother, Candice Cohen-Ahnine, and provide child support of €10,000 (£8,300) a month.

For the past three-and-a-half years, the prince has kept Aya in a Riyadh palace despite efforts by the French foreign ministry and President Nicolas Sarkozy's office to resolve the issue.

But the French court ruling appears to have had no effect on the prince. “What do I care of Sarkozy?” he is cited as telling Nouvel Observateur magazine. “If need be, I’ll go like [Osama] bin Laden and hide in the mountains with Aya.”

Miss Cohen-Ahnin, 34, and the prince met in London 14 years ago at Brown’s nightclub and their daughter was born in November 2001.

Their relationship continued until 2006 when he allegedly announced that he was obliged to marry a cousin, but that she could be a second wife. She refused and they separated.

Miss Cohen-Ahnine claimed that her daughter was taken from her during a visit to Saudi Arabia in 2008 and that she was held in the prince’s palace where she had only fleeting meetings with her daughter.

She said she managed to leave when a maid left her door open and she sought refuge in the French embassy.

Miss Cohen-Ahnin was eventually spirited out of the country after the prince allegedly produced a document purporting that she had been Muslim but had converted to Judaism — a crime punishable by death.

She said she was concerned about her daughter’s upbringing when she discovered Facebook photos of her in a niqab and playing with her father’s firearms.

Despairing at the lack of diplomatic progress, she published Give My Daughter Back, a book recounting her ordeal, in October.

Since the court ruling, the prince faces an international arrest warrant for ignoring the custody sentence.

Mrs Cohen-Ahnine said the court ruling was a “great victory for me and vindicates everything I have said … but I’m still very worried for my child’s future.”

The prince denied ever having kidnapped the child or the mother.

Speaking to The Daily Telegraph, he said: “She was free to come and go as she pleased.”

He said she had converted to Islam and the two had married in Lebanon under Islamic law, and under terms of the divorce, put through courts in Lebanon and Saudi Arabia, the parents were to share custody of the child.

He said the protocol was drawn up in Saudi Arabia offering her a house, all expenses paid and access to the child and the possibility of taking her on holiday for one-and-a-half months a year.
He said she left Saudi Arabia for France without even telling the family. He claimed that she said: “'Give me two million euros and take the daughter’. I said, 'No, I don’t bargain over my own child’. That’s when the problem started.”

The prince said he would send lawyers to France to challenge the court decision but not his daughter.

“France hasn’t got the right to take her back. She is a Saudi citizen and a princess. They cannot oblige a princess to leave this country,” he said.

For more information on Saudi Arabia and International Child Abductions, please go to:
http://www.international-divorce.com/saudi_child_abduction.htm