Turkey and International Child Abduction
by
Jeremy Morley
Turkey has a record of failing to comply with international norms concerning the return of internationally abducted children and the Hague Abduction Convention.

Courts in Turkey have frequently insisted that a Hague case requires the courts to conduct a full and lengthy “best interests” evaluation. Such practices are in flagrant disregard of the treaty, which requires that courts must not consider “best interests” and must return wrongfully removed or retained children so that the courts of the habitual residence of the children may decide what is best for them.

Furthermore a return under the Hague Convention should normally occur within six weeks of the initiation of a case but the Turkish record is that it generally takes one year or often far more than that for a return to take place.

There has been insufficient training of judges and lawyers concerning the Hague Convention.
The U.S. Department of State issues annual compliance reports to Congress as to the compliance of Hague treaty partners with the terms of the Convention. Such reports are extremely conservative in their views but it is remarkable that Turkey has perennially been sharply and negatively criticized by the United States Department of State for its misconduct in failing to return children abducted to Turkey from the USA to Turkey. They establish that the Turkish courts have failed to return abducted children and in many other cases have failed to do so until many years have elapsed.

The European Court of Human Rights (the "ECHR") has ruled on at least two seperate occasions that Turkey has violated the human rights of left-behind parents by failing to return children who were abducted to Turkey.

On March 5, 2012 the ECHR rendered a ruling in that Turkey had violated its obligations to a father residing in the United States whose Turkish wife took their daughter for a visit to Turkey in 2007 and failed and refused to bring her back. In plain violation of the Hague Convention the Turkish courts had made a best interests ruling in the father’s Hague case. At first instance and on appeal they had held that it was best for the child to stay in Turkey. The ECHR ruled that Turkey had thereby violated the treaty. Unfortunately the only result of the ruling – after close to five years of litigation -- was that the Government of Turkey was required to pay a nominal sum of damages to the left-behind father, but that the child remained in Turkey.

In another case the ECHR ruled that Turkey violated the rights of a left-behind Icelandic mother to have access to her children in Turkey. The mother had travelled to Turkey from Iceland on more than 100 separate occasions to try to see her children but these efforts had been entirely unsuccessful because the father had hidden the children each time and the Turkish authorities had failed to take any meaningful measures to assist her. Again the result was merely a fine.

On May 24, 2011 an American mother testified before the United States House of Representatives’ Foreign Affairs Committee that she had allowed the child’s Turkish father to take their son from their home in Ohio to Turkey for a family visit; that the father had provided her with a round trip travel itinerary; that he had given her a signed, notarized statement promising to return with the child on the stated dates; and that he had nonetheless kept the child in Turkey. She testified as to enormous efforts to get her child home – all of which had been entirely unsuccessful – and to her consequential emotional distress and devastation.

In yet another case, a child was abducted from Israel to Turkey in 2004 by her mother. The left-behind father promptly sought the child’s return under the Hague Convention. The Turkish authorities eventually ordered the child’s return. The case went on appeal to the ECHR, which upheld the return order. At that stage the mother hid the child in Turkey and the Turkish authorities failed to find her for two years. Only then – four years after the abduction and only after an enormously expensive series of court battles and after the father had traveled to Turkey more than fifty times – was the child ultimately returned.

Since the court system in Turkey in Hague cases has improperly allowed a taking parent to demand a full plenary best interests analysis, the taking parent invariably has had ample opportunity to create “facts on the ground” in terms of getting the child sufficiently settled into life in Turkey as to justify a Turkish court in ultimately deeming that it is best to keep the child in Turkey.
Will matters improve? The Turkish Central Authority promises that they will.

Client Returns Child to Brazil under Hague Convention

We are very pleased that, working with local counsel Jean-Paul Gallelli, we have secured the return of our client's child from California to Brazil under the Hague Abduction Convention, pursuant to a successful application to the Superior Court in Los Angeles.

Preventing International Travel: Bali, Indonesia

In a recent Nevada case, I was asked to testify as an expert concerning the risk of a child's international travel to Bali, Indonesia. The Nevada Court relied upon my expert testimony as to Indonesian law and practices concerning child abduction. Indonesia is not a signatory to the Hague Convention on International Child Abduction, and if the court allowed the father to take his two minor children there, the only available recourse to the mother would have been through the Indonesian courts in the event of a wrongful retention.


My testimony was well accepted by the court, and referenced throughout the written opinion. The following are selected excerpts:

“In support of Mother’s concerns, she attached the affidavit of Jeremy D. Morley, a prestigious international family law attorney, wherein Mr. Morley described several child custody matters he has handled involving Indonesia. Mr. Morley opined that Indonesia did not comply with international norms for the return of abducted children and noted that parental child abduction is not a crime under Indonesian law. Mother drew attention to Mr. Morley’s discussion of the implications of the children’s dual nationalities, as dual citizenship could hamper the U.S. Embassy’s ability to protect the children.”

“Based upon the Court’s concerns regarding Indonesia’s status as a non-signatory to the Hague Convention, the implications of the children’s dual citizenship, evidence of Father’s lack of significant ties to Reno, and in consideration of Mr. Morley’s Affidavit, the Court does not find that good cause exists to allow the children to travel with Father to Bali.”

Once again, this case shows that the many countries who have not signed the Hague Convention on international child abduction and who do not have an independent and reliable family law system are doing a disservice to their own citizens.

Since the Indonesian legal system cannot be relied upon to return internationally abducted children, courts should be wary of permitting a child's travel there, if the potentially left-behind parent objects.

No-Fault Divorce: New York

Please follow the link below for my article "Letter from New York," appearing in the Autumn 2012 publication of Australian Family Lawyer.  This article covers the newly enacted no-fault divorce law in New York State. 

http://www.international-divorce.com/no_fault_divorce_new_york

Argentina and the Hague Abduction Convention

The Office of Children’s Issues of the U.S. State Department’s Bureau of Consular Affairs, has recently released the annual report on Hague Convention compliance. The report details various issues of non-compliance with member countries. It places countries under two categories; “Not Compliant” and “Demonstrating Patterns of Noncompliance,” with the former category signaling more serious compliance problems. The 2011 report succinctly stated that Argentina is a country having “enforcement concerns.” This year, Argentina has been classified “Not Compliant.” The text of the report follows here, as well as some case summaries demonstrating the reason(s) why Argentina has been categorized as noncompliant.


Patterns of Noncompliance with the Convention:
Argentina
-Argentina demonstrated patterns of non-compliance in judicial performance. The USCA is not aware of any successfully enforced order for return from Argentina to the United States since 2006. In 2011, the USCA continued to observe significant delays in the execution and enforcement of return orders under the Convention. In one longstanding case, the Supreme Court upheld an order for return in December 2010, but has stayed enforcement of the order pending the left-behind parent’s fulfillment of several undertakings regarding the taking parent’s immigration status and financial requests. These particular undertakings go well beyond the scope of the Convention.

-The USCA and the Argentine Central Authority (ACA) maintain an excellent working relationship. The ACA has been extremely attentive and very responsive to USCA inquiries, and provides prompt status updates on cases. However, the USCA has concerns regarding the working relationship between the ACA and the Departamento de Cooperación Internacional (General Prosecutor’s Office, or GPO), which assigns public defenders to left-behind parents in need of pro-bono legal assistance. The USCA noted the ACA had great difficulty contacting and communicating with the GPO during the reporting period, particularly with offices outside Buenos Aires. Public defenders in two cases were not responsive to the ACA, USCA, U.S. Embassy, or to left-behind parents’ inquiries, which resulted in excessive delays in scheduling Hague hearings and left-behind parents unable to communicate with their legal counsel. One of these cases, filed in 2009, has not yet had a Convention hearing after more than two years.

Case Summaries:

1. Abducted/Retained June 2008, Application Filed July 2009
The first hearing on the Convention application occurred in November 2009. In August 2010, the left-behind parent (LBP) initiated a non-Convention proceeding in family court; that court recognized a U.S. court order awarding the LBP sole legal custody and physical custody of the children. In October 2011, the court hearing the Convention case refused to recognize the custody order and denied return under the Convention. An appeals court reversed the decision and ordered the family court to execute the order of return. The taking parent (TP) appealed to the Supreme Court, which has not yet issued a decision. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on court proceedings.

2. Abducted/Retained August 2009, Application filed June 2010
No hearing on the Convention application has been scheduled. In December 2010, the ACA informed the USCA that the LBP’s attorney was no longer handling the case and the court assigned two public defenders in February 2011. For nine months the public defenders did not respond to communication from the ACA, USCA, the U.S. Embassy, or the LBP. In October 2011, the court appointed another public defender. In November 2011, the USCA convened a conference call with the LBP and public defender. The public defender is working with the court to schedule the first hearing in the Convention proceeding. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on the progress of setting a Hague hearing date.

3. Abducted/Retained September 2009, Application Filed December 2009
The court ordered the child’s return under the Convention in May 2010. The TP filed a complaint against the court, and also filed an appeal of the Convention return order. On October 28, 2010, the appellate court decided not to hear the appeal of the return order until TP’s previous complaint was heard. Both the complaint and appeal are still pending the appellate court’s decision. The LBP’s attorney filed motions asking the court to address the appeal urgently and the ACA has reminded the court of the importance of reaching a prompt decision under the Convention. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on court proceedings.

4. Abducted/Retained January 2009, Application Filed April 2009
The court ordered the child’s return in November 2009. The TP appealed. In May 2010, the appellate court rejected the TP’s appeal and affirmed the ordered return of the child to the United States. In August 2010, the TP filed an “extraordinary appeal” with the Supreme Court of Argentina, which dismissed the appeal and ordered the lower court to execute the return order. In April 2011, the Argentina’s Ministry of Interior denied the TP’s request for asylum because she is an Argentine citizen and thus had no basis for seeking asylum. In November 2011, the court stayed the execution of the return order until undertakings requested by the TP are met, which require that the United States grant the TP legal permanent residency and that the LBP provide financial support and health care to the TP. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on court proceedings.

5. Abducted/Retained August 2008, Application Filed April 2009
The court interviewed the child in accordance with the U.N. Convention on the Rights of the Child. During the interview, the child stated that he wanted to stay in Argentina. The court determined it would not continue with the case until the LBP responds to domestic violence allegations, provides a U.S. police report, and provides information regarding whether the TP will be able to reside and work in the United States until 2014. In August 2011, the ACA indicated that the TP presented documentation to the court, from the LBP, authorizing the TP to seek the permanent residency of the child in Argentina. The USCA is waiting to receive confirmation from the LBP regarding this matter. The USCA and U.S. Embassy Buenos Aires have regularly requested updates from the ACA on the progress of scheduling a Hague hearing.

The report can be found in its entirety at:
http://travel.state.gov/pdf/2012HagueComplianceReport.pdf
For more information on Argentina and Child Abductions, please follow this link to our website:
http://www.international-divorce.com/ca-argentina2.htm

Singapore and The Hague Convention

With effect from May 1, 2012, the 1980 Hague Convention on the Civil Aspects of International Child Abduction has entered into force between the United States and Singapore. This means that if a wrongful taking or retention of a child from Singapore to the United States or from the United States to Singapore occurred on or after May 1, 2012 the Hague Convention may be used to secure the child's return. We work on many U.S. - Singapore child abduction and child custody matters.

Divorce Law in Korea

A new article on Korean Family Law has been added to my website at international-divorce.com.  This article discusses the legal grounds for a divorce in Korea, the statutes that govern financial issues in Korean divorce cases, and how Korean courts handle "choice of law" issues in these cases.  The article also focuses on Korean recognition of foreign divorce decrees, outlining how these foreign judgments will be valid and enforceable in Korea. 

Please follow the below link to read our full article on Divorce Law in Korea.                                 

http://www.international-divorce.com/d-korea.htm

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