An Update Concerning Japan’s Continuing Failure to Sign the Hague Abduction Convention

Over the past couple of years the Japanese Government has made a succession of statements concerning its purported intention to sign the Hague Convention on the Civil Aspects of International Child Abduction. These statements were quite effective in that they served to limit the international pressure on Japan to sign the treaty.

Of course, more important than what the Japanese Government says is what the Japanese Government does. Although legislation to authorize acceptance of the treaty was introduced at the last session of the Japanese Diet the proposed law was not debated and was allowed to "die on the vine."

In May the Ministry of Foreign Affairs of the Government of Japan announced a so-called "pilot project" to assist in child abduction cases. Indeed, it renamed a division as the "Hague Child Abduction Convention Division". On August 1, 2012 the Ministry of Foreign Affairs announced that the program has been extended until March 29, 2013. See http://www.mofa.go.jp/policy/human/pilot_120501_en_2.html

Unfortunately, the pilot project has absolutely no substance. It merely allows a left-behind parent to make one telephone call for up to one hour to a Japanese lawyer to receive information. The Ministry cautions that, "The lawyer will not give you professional consultation on your specific case. This pilot project is designed to allow you, who reside outside Japan, to gain a deeper understanding as to what scheme currently available in Japan might be of help to you."

Very few left-behind parents will use the "pilot program," since it offers them no actual benefit. One might wonder if its real purpose is to show that those who pressure Japan to adopt the Convention are exaggerating the problem.

In my personal opinion, if the Government of Japan were making full disclosure to left-behind parents it would – and should – also state that, "The Japanese Government regrets to inform you that it will do nothing to help you except express words of sympathy for your situation and regrets that the legal system in Japan will provide no meaningful assistance to you."

Preventing International Travel: Connecticut Court Relies on Jeremy Morley's Expert Testimony

The Superior Court in New Haven, Connecticut relied in substantial part on the expert evidence presented by Jeremy Morley as to family law in India in ruling that the mother of a young girl should not be allowed to travel to India with the child for a visit with family.  The child’s father opposed the travel because of his legitimate concerns that the child might never return.  The Court relied primarily on Mr. Morley’s testimony in its ruling, which was issued on July 18, 2012.  The Court’s stated that: 

“The Court is absolutely convinced that—well, let me back up for one second.  We, normally in these matters, do not have the opportunity to hear from an expert witness, particularly someone as learned and experienced in what I’ll call international issues as Attorney Morley who was here this morning.  As everyone knows, Attorney Morley only testified for probably about 15-20 minutes.  We sometimes, lawyers and judges will discuss people’s testimony and sometimes say it’s the quality not the quantity of the testimony that is appropriate.

In that 15-20 minutes Attorney Morley laid out what I’ll refer to as both, I think, the social interaction between the parents and the political in India, the United States, the Hague Convention, their courts, our courts, that sort of thing in a very succinct, intelligent and sophisticated manner; the Court found Attorney Morley’s testimony to be extremely credible.”

International Child Relocation & the Plight of the Expat Spouse

by Jeremy D. Morley

June 1, 2012 – for Australian Family Lawyer

International child relocation is a hot issue in the States as it is in Australia. And some hot issues just don’t get solved.

We’ve been trying a case for weeks (on and off) in New York between two French parents, one of whom wants to relocate to Paris. The law on the topic is extremely simple, but its application is difficult and potential outcomes are quite unpredictable. Our legal brief cites little more than one case, the famous Tropea case from New York’s Court of Appeals. The case holds that each relocation case should be decided on its individual facts to determine what is in the best interests of the child. While various factors should guide the court in its analysis, there are no presumptions. It is simply up to each court to determine, based on all the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.

Since cases are completely unpredictable, each side often chooses to fight to the bitter end. And lawyers feel compelled to supply all possible evidence because New York’s top court has instructed trial courts to consider “all the proof.” This means that many cases are full-scale battles with voluminous testimony and extensive expert opinions and psychological reports. New York generally requires the appointment of a lawyer to represent the interests of the child, so there are usually at least three sets of lawyers to any case. The one predictable result is often financial disaster.

Last weekend I attended an excellent American Bar Association meeting on international family law in Washington. One session was on international child relocation. The international panelists did their level best to do more than merely complain about the unhelpful state of the law, but on this topic that is really hard to do.

The discussion focused on a grandiosely-named document entitled “the Washington Declaration on International Family Relocation” developed by an august group of experts. I remember when, with some real enthusiasm and expectancy, I opened my first email about the Declaration and noticed that there were 13 Articles and 13 Factors. While I did not quite expect something akin to the Declaration of Independence or the Universal Declaration of Human Rights, I was frankly astonished to discover that it all added up to just about nothing. It is another laundry list of factors that judges should consider. It contains no presumptions and no priorities. This is not a criticism of the valiant people who drafted the document. It reflects the disagreements between decision-makers and pressure groups on this topic.

Some years ago the American Academy of Matrimonial Lawyers prepared a Model Relocation Act, but its members could not agree on even the most basic issues, such as who should bear the burden of proof and whether a relocation request justifies opening a full custody modification hearing. As a result the Model Act merely presents possible alternatives that individual states might consider.

Until recently the English courts followed a clearer course. In the leading case, Payne v. Payne, Thorpe LJ stated with approval that relocation applications by the primary care provider would normally be granted except when incompatible with the child’s welfare. The benefit of that ruling was that the English law was at least fairly predictable. However, in Re K (Children) [2011] EWCA Civ 793, the Court of Appeal has now backed away from “the Payne guidance.” Just how far remains to be seen.

In the United States, international child relocation applications are governed by the same legal principles that apply in domestic relocation applications. Given the sheer size of its geography and population there are very many more domestic relocation cases before the courts than international cases. However, while international applications cover the same ground as applications to move with a child to another location in the same state or to another U.S. state, they also typically raise significant additional issues that are not present in domestic cases. Unfortunately, the fundamental differences are often insufficiently appreciated by lawyers and judges.

A key difference between international and domestic cases concerns the nature of the applicants. Parents who apply for international relocation generally have fundamentally different circumstances, concerns, and needs than parents who want to relocate domestically. Such factors should be better understood.

Special circumstances of expatriate spouses

Expatriate parents who seek to relocate internationally with their children typically share similar experiences and challenges, which need to be better understood by lawyers who act as their advocates and by judges who decide the fate of their children. Applications by expats for international relocation are often made by mothers who want to return to their country of origin. They seem to fall into three distinct categories. (In a text such as this there is no way to avoid making generalized observations. The purpose is not to stereotype people but to promote better understanding of their circumstances).

A “trailing spouse” is one who accompanies the other spouse (typically her husband) on an assignment to a foreign country, usually for a limited number of years. The husband has usually achieved significant success in his career and is pleased to improve his situation by making an international move. It is a situation that is often fraught with danger for the trailing spouse.

In what is a very typical scenario, after some years in the foreign country, the parties' entire world has changed. The husband has advanced his career, has adapted well to life there and wants to stay indefinitely, or at least extend his stay. However, his wife has had an entirely different experience. She is lonely, isolated, and miserable. She does not work, misses her family and her friends, and has experienced far more culture shock than she expected. The relationship between the spouses has spiraled downward. The wife wants to “go home” with their child while the husband insists that they stay put or that she return without the child.

The wife is shocked that the husband refuses to allow her to take their child back home. She feels that she was dragged to a foreign country, is furious that he does not appreciate the sacrifices that she has made for his career and feels betrayed that he husband is forcing her to live in an alien country without support, family, friends, or career.

The husband's argument is also compelling. He opposes relocation on the grounds that the child has by now lived for a large portion of his life in the current location; is thriving there; and all of his friends are there. He contends that the wife is being selfish in wanting to take their child away from his father to a place that he does not remember, and away from everything that the child knows in his current home. This argument is often the winning one, especially if the focus is on the child to the exclusion of the mother. While the court may give lip service to the notion that a happy mother is a better mother, that issue is often trumped by the “facts on the ground” that the child has been in the current location for a considerable period of time.

The second category is the “romantic expat” who moves from his or her home country for romance, often to a country whose culture, traditions, and language are entirely different. Such relationships are especially prone to breakdown even after (and perhaps because) they have a child. When that occurs the foreign mother inevitably wants to go back home with the child. She is shocked when the husband insists that she must not do so; after all, she came to the current country only because of him and now that he has “let her down” she cannot understand why he wants to keep her a prisoner here. In court the father presents all of the arguments that the husband in the previous scenario presented, with the additional factor that the child has lived his entire life in the current jurisdiction.

The third category is the “holdover expat.” This is someone who left his or her home country for a temporary period of time, perhaps coming to the current jurisdiction to study or on a work assignment. After some years there he or she meets someone and they have a child. When the relationship breaks down the expat wants to return to the country of origin with the child. In court the party who opposes relocation uses the same arguments as were used in the two prior scenarios, but with the added factor that the foreign parent was already living in the current jurisdiction when they met and has lived in there for a longer period of time.

In all three scenarios the arguments presented in opposition to the relocation application often prevail. The courts focus on the best interests of the child without fully appreciating the drastic impact that the mother's unhappiness and often justifiable bitterness will have on the child's wellbeing. Not only are the mother's concerns insufficiently understood, they are often labeled unfairly by lawyers and judges as selfish, irrational, crazy, and obsessive. In each scenario the mother is the primary caregiver. She is the one who is typically required to choose between abandoning her child and abandoning her family, friends, career, and culture in her home country. It is difficult not to feel great sympathy for her predicament, especially if she is the one who has been abandoned.

Denial of an application for relocation can have severe and devastating consequences. A typical downward spiral is as follows:
i. The mother feels that she is imprisoned in this country.
ii. The mother considers abducting the child.
iii. The father increasingly fears that the mother will abduct the child.
iv. Each parent tries to increase his or her control over the child.
v. The mother takes steps to take the child to her home country.
vi. The father makes an emergency application to court to prevent abduction.
vii. The court issues an order preventing the mother from leaving the jurisdiction.
viii. The relationship between the parents is completely destroyed, to the substantial detriment of the child.

The consequences may then include: parental alienation; criminal child abduction; Hague Convention litigation; enormous expenditures on legal fees; parental inability to agree on anything; and increasing police and judicial intervention, all of which causes awful consequential damage to innocent children.

There is no quick and easy solution to these problems. However, a starting point is to understand better the plight of the expatriate spouse. Clients who wish to return to their country of origin in situations such as these often find that their lawyers and therefore the courts do not adequately appreciate the extent of their plight and the merit of their cases. Many complain with justification that they are treated as difficult, uncaring, or crazy even by those who are supposed to be helping them. It is essential to understand what it is that these people are going through and to appreciate--and communicate effectively to the court--that their responses are the natural and typical consequences of the situations in which they have been placed.

Such understanding exists in the business world, where it is commonly accepted that spouse/partner dissatisfaction and other family concerns are the most significant cause of “expatriate assignment failure”--defined as “the inability of an expatriate to perform effectively in a foreign country and, hence, the need for the employee to be fired or recalled home.” International companies now devote substantial resources to what I have termed the “plight of the expatriate spouse.” The legal system should encourage similar understanding.

In many cases a fair, appropriate and enforceable compromise solution would be a far better result than a blanket denial of relocation. If the other country has a developed an effective legal system, child custody laws that reflect a similar philosophy to ours, and strong laws to prevent international child abduction, an appropriate solution might be to allow relocation more liberally provided that many of the terms listed in the following section are included in the court's order.

Such a solution is far from perfect but it would often be far better than the present policy in many courts of routinely denying most international relocation applications even in compelling cases.

ABA BOOK: The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer

Announcing the Publication of The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer by Jeremy D. Morley

A NEWLY RELEASED BOOK PUBLISHED BY  BY THE AMERICAN BAR ASSOCIATION

Every family lawyer should understand the workings of the Hague Convention on the Civil Aspects of International Child Abduction. Family law is becoming increasingly internationalized as the world is shrinking, international relationships are increasing and international travel is growing. Clients who fear that their children may be abducted, or who worry about allowing their children to travel overseas, or who are contemplating international marriage or international divorce expect their family lawyer to be conversant with the treaty.

The Hague Abduction Convention tells family lawyers how this critical treaty works in the United States, both in theory and in practice. The renowned author, Jeremy D. Morley, has enormous experience counseling clients and fellow practitioners as to international family law matters globally, as well as lecturing on international child custody law to audiences around the world.

The Convention is misunderstood by many family lawyers, and judges may not be fully aware of the law and the voluminous case law that has developed around it. It operates in the United States in ways that are significantly different than in other Hague countries due to federal legislation that implements the treaty, the concurrence of federal and state jurisdiction, the uniform state legislation on child custody jurisdiction and a host of other factors.

This book provides a much-needed practical resource for U.S. practitioners that explains the operation of the treaty in American courts, both federal and state, and unravels the relationship between the Hague Convention, the Uniform Child Custody Jurisdiction and Enforcement Act and foreign child custody laws. Focusing mostly on what are sometimes called "incoming" abductions, or abductions from other countries into the U.S., The Hague Abduction Convention begins with a brief overview of the Convention. Subsequent chapters address the issues of primary concern for practitioners:

• Procedural and practical issues


• The threshold issue of establishing the child's "habitual residence"


• Rights custody


• Provisions regarding consent and acquiescence to the child's removal


• The "one-year-and-settled" exception


• The role of the child's objection to the return


• The critical "grave risk of harm" exception


• The human rights exception


• International relocation and travel

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.