Prenuptial Agreements in Japan

By
Jeremy Morley

We have represented many international clients who have entered into marriage contracts or prenuptial agreements with Japanese spouses. We always work in collaboration with Japanese counsel in such matters as appropriate and as instructed by our clients.

Prenuptial agreements are not common in Japan. They have never been a part of Japanese culture, even for the upper classes. 

-A cynic would say that wealthier spouses do not demand a prenuptial agreement because they believe that if there is a divorce they will be able to avoid disclosure of their assets or divert their assets and that they will be able to pay a relatively modest amount to their spouse to settle the matter so as to avoid litigation, which is extremely uncommon and extremely unhelpful in family matters. 

-Others might say that prenuptial agreements are inappropriate because they contemplate a divorce when a marriage implies a lifelong commitment.

There is a dearth of useful Japanese case law concerning the validity of specific clauses in a premarital contract or the effect of such a contract. 

Nonetheless it is accepted that prenuptial agreements are generally enforceable in Japan, provided they are well drafted and in conformity with the provisions of the Civil Code and other provisions of Japanese law. 

In Japan, Article 26 of the Act on the General Rules of Application of Laws (http://www.international-divorce.com/horei_law.htm) authorizes spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is either the law of the country of either spouse’s nationality or habitual residence or, regarding immovables, the law of the location of the immovables. The same law also specifies that prenuptial agreements are valid when made under the provisions of a foreign law, and sets forth a provision for registration of foreign prenuptial agreements in Japan. 

The Japanese Civil Code also contains important provisions that authorize prenuptial agreements. Article 755 provides that, “The property rights and duties of a husband and wife shall be prescribed by the following subsections, unless they entered into a contract setting forth otherwise, regarding their property before giving notification of the marriage.” 

Article 756 provides in essence that registration is needed in order to bind third parties but not in order to bind the spouses themselves.

Forum selection clauses are widely upheld by Japanese courts. Their validity in prenuptial agreements that preclude the jurisdiction of Japanese courts will likely be upheld if the matter in question is not within the exclusive jurisdiction of the Japanese courts, and if the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.

While a prenuptial agreement may determine the choice of the marital regime it is uncertain whether terms concerning other matters would be upheld in Japan. The issue often arises with regard to terms that purport to reduce or eliminate future alimony (spousal maintenance) obligations. Alimony per se cannot be awarded in Japan but clients often want a Japanese contract to handle the issue of alimony in the event that a divorce is sought in a court outside Japan. Similar questions arise as to terms designed to limit the inherent power of a court in Japan to make awards to protect the financial wellbeing of a spouse. 

It seems to be well accepted in Japan that any prenuptial agreement will be subject to potential review for compliance with Japanese public policy.

Prenuptial agreements for international people residing in Japan, or for anyone marrying a Japanese national wherever in the world the couple currently reside, need to be drafted with great care and international savvy. 

The initial decisions that must be made by qualified and experienced international counsel in such situations include:

-Should Japan be the “home” of the agreement or would it be preferable to draft the agreement under another law and then have local but experienced counsel in Japan review the agreement for compliance with local form and appropriateness?

-Should the agreement be in the typical long form of an American prenuptial agreement or should it be a pared-down version that will more likely be understood by a Japanese-speaking spouse, by a Japanese lawyer advising that client and a Japanese court that might be called upon to interpret the agreement?

-Should the agreement contain a choice of court clause as well as a choice of law clause?

-Should the agreement cover spousal maintenance as well as the division of assets?

-Should there be more than one agreement, so that if one fails the other might come into play? If so, which one should have priority and how should that be stated?

Beware of Child Abduction to Egypt

Mum trapped in Egypt with no way out after rescuing abducted daughter

Samantha Landy

Herald Sun

August 26, 2014 8:48PM

A MELBOURNE woman who travelled to violence-plagued Egypt to rescue her abducted daughter has been trapped in the country for more than a year — and the Australian Government says there is nothing more it can do to help her.

Amaal Finn’s five-year-old daughter, Zareen, is unable to leave Egypt due to a travel ban placed on her by her father — Ms Finn’s estranged husband, Mazen Baioumy.

Ms Finn says Zareen was left in Egypt with Mr Baioumy’s family against her wishes in January last year.

Ms Finn travelled to Cairo on August 17 last year to recover her.

Now, 12 months on, Ms Finn is still battling to get the ban dropped so the pair can return home, despite Mr Baioumy being ordered to remove it last year.

Amaal Finn and her estranged husband, Mazen Baioumy, are involved in a court battle.

Mr Baioumy is living in Melbourne.

The mother of three is in the midst of court proceedings in Benha, Egypt, which she says have cost her and her family almost $100,000.

Ms Finn said she had written to Foreign Affairs Minister Julie Bishop pleading for her to help them leave “two or three times”, but was yet to receive a response.

A Department of Foreign Affairs and Trade spokeswoman said the Government had “no standing” to intervene in court matters involving Australians overseas.

Amaal Finn’s estranged husband, Mazen Baioumy.

But she said consular officials were providing Ms Finn with “all appropriate support”, maintaining consistent contact with her.

The Australian embassy in Cairo had also supported Ms Finn in discussions with Egyptian authorities, helped her lodge documents and find local legal representation, the spokeswoman said.

Ms Finn has already been away from her two oldest children — a daughter, 14, and son, 12 — for more than a year and says Zareen is missing out on her childhood.

She said she has been forced to homeschool her daughter, who should have started kindergarten this year, as they are too afraid to leave the small apartment where they are holed up.

THE STRATEGIC INTERNATIONAL DIVORCE PLANNING PROCESS

by

Jeremy D. Morley

People with assets and international connections who are contemplating a divorce, as well as the spouses of such people, should first consult us for Strategic International Divorce Planning advice. Here is what we do for a motivated client (always working with local counsel as appropriate):

1. Analyze the Family’s Entire Economic Picture.
This is exactly what any divorce lawyer does in a conventional divorce situation but the strategic international lawyer will pay particular attention to any connections that the family has with other countries, to assets that are located overseas and to the possibility of moving assets or family to other jurisdictions.

2. Consult with the Client as to His or Her Goals.
Divorce lawyers can easily make a bad situation very much worse. They must be extremely sensitive to a client’s real needs and desires. For example, there is no point in advising a client to move his assets into an offshore trust if that will destroy a relationship with his soon-to-be ex or drive an inappropriate wedge between him and other members of his family. Is the client prepared to move lock, stock and barrel to a new country for a few years? Does he believe that his wife will join him there? How about the children?

3. Provide an Initial Analysis of the Law in Several Different Possibly Appropriate Jurisdictions.
The strategic international lawyer will prepare an initial analysis of the most obvious possible jurisdictions, including jurisdiction of the current residency, the other jurisdictions with which the client or his spouse have substantial connections and any other jurisdictions that the client is interested in, recognizing that if a particular jurisdiction is chosen the client may well need to move there for a substantial period of time and may also be well advised to take others in his family there, as well.

4. Focus on a few jurisdictions.
We will then usually consult with counsel in those jurisdictions that seem to hold the most promise.

We must analyze, separately for each “target jurisdiction”:

a) The jurisdictional rules. Will the courts in the target jurisdiction accept the anticipated divorce case, including all financial and child custody issues? What “facts on the ground” will need to be accomplished in order to satisfy the conditions?

b) The grounds for a divorce. What will the client need to prove in the target jurisdiction in order to be entitled to a divorce? What evidence must the client secure in order to do so?

c) The nature of the assets that are included in the target jurisdiction as property that is subject to being apportioned between the parties upon a divorce or that can be considered in making an economic apportionment between the spouses.

d) The method of asset division that is used by courts in the target jurisdiction.

e) The relevance of the conduct of the parties to the division of assets in the target jurisdiction.

f) The philosophy of the courts in the target jurisdiction.

g) Spousal maintenance. What are the rules concerning spousal maintenance (alimony). For what period of time might such payments be required? What is the likely amount of the award? Does the jurisdiction require a “clean break” whereby the spouse must receive a large lump-sum sufficient to generate the income needed to meet lifetime maintenance requirements?

h) Enforceability issues. Whether there are any specific factors which make it particularly easy or difficult to enforce an award in the target jurisdiction.

i) Particular issues. Each case raises specific matters that must be analyzed, depending on such matters as whether there are:

    -Pre-marital assets. Some jurisdictions allow and even encourage the courts to divide even a party’s premarital assets (England). Others do not (New York).

    -Trust assets. Jurisdictions vary considerably in their treatment of assets that a spouse has placed in trust. Some jurisdictions will “pierce” the trust (Colorado). Others will not (Japan).

    -Inherited assets. Many jurisdictions do not divide assets that a spouse has received as an inheritance. Others do (Netherlands).

    -Gifted assets. Many jurisdictions do not divide assets that a spouse has received as a gift.

    -A pre-nuptial agreement. Some jurisdictions do not recognize international prenuptial agreements as binding. Jurisdictions vary significantly in the bases upon which prenuptial agreements may be invalidated or restricted, in the nature of the burden of proof concerning validity and on other critical factors concerning their applicability.

   -“Bad conduct.” Some jurisdictions punish adultery, criminally and by a financial award to the “innocent spouse” (Korea). Others allow a divorce for mere incompatibility (California).

5. Analyze the rules concerning children.

Jurisdictions around the world vary enormously in their treatment of children upon a divorce.

Issues include:

-     -Sole custody versus joint custody.

-     -Minimal visitation rights to a noncustodial parent versus liberal visitation rights.

-     -Male-dominated approaches versus female.

-     -National biases versus impartiality.

-     -Religious biases versus impartiality.

-     -Freedom to relocate versus limited relocation.

-     -Freedom to take children overseas versus inability to do so.

An analysis of these matters must consider not only the rules on paper but the rules in practice. Enforcement issues may be critical.

6. Select the jurisdiction.
Having provided the client with the necessary information concerning each such jurisdiction, the client decides on a strategy.

7. Advise as to the steps now to be taken.
Our advice is frequently required to assist with the implementation of the strategy so as to:

(a) Maximize the likelihood that the jurisdiction in question will indeed be the jurisdiction that actually handles the matter.

(b) Minimize the likelihood that the other spouse will succeed in bringing the case in a less attractive forum or in moving the case from the better forum to a less attractive forum

(c) Maximize the likelihood that the jurisdiction in question will view the facts of the case in as favorable a light as possible.

Caveat: Attorneys in our firm are admitted to practice law only in the States of New York and New Jersey. Any information that we provide concerning the law of another jurisdiction is subject to a client obtaining legal advice from counsel in that jurisdiction. When appropriate we will retain the services of local counsel to assist us in providing advice to a client; the client will be responsible for the payment of the fees of all such local counsel.

India: A Safe Haven for International Child Abduction

India is a safe haven for international child abductors.

India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence. It has been adopt4d by more than 90 countries. India’s Law Commission expressly recommended that India should adopt the treaty but the Indian Law Ministry opposed it on the ground that it would hurt Indian parents who take their children to India.

Furthermore, no Indian legislation sets forth any helpful law on this issue.

In recent years there have been more child abductions from the United States to India than to any other non-Hague country.

The law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However more recent decisions of courts in India changed that rule and held that foreign custody orders are merely items to consider as part of an overall custody review. The Law Commission reported that the Indian courts had followed an inconsistent and unpredictable pattern in international child abduction cases, which would make foreign judges wary of allowing child visits to India, and which should be remedied by signing the treaty. In its most recent ruling the Supreme Court of India capped five years of litigation with a ruling that ordered the return of a child to the United States, but subject to conditions that were difficult to fulfill. However, the abducting mother had – most unusually -- failed to start a custody case in India and the case would otherwise have taken an entirely different course.

The court system in India is extremely slow and inefficient so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India.

As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.

In Katare v. Katare, 283 P. 3d 546 (Wash. 2013) the Supreme Court of Washington State, en banc, upheld in relevant part the trial court’s ruling in a case involving an American mother and an Indian father. The trial court held that it was not convinced that there was a serious threat that the father would abduct their children to India. However, the potential consequences of any abduction to India were severe and “irreversible.” Accordingly the court was warranted in imposing severe limitations on the husband's residential time with the children, including strict restrictions on the locations of such visitation, surrender of his passport, notification of any change of his citizenship status, and prohibition of his holding or obtaining certain documents (i.e. passports, birth certificates) for the children.

In several cases in several U.S. states and Canadian provinces, the author has testified as an expert witness on this issue.

It is the author’s opinion that a court in a case concerning the prevention of international parental child abduction must weigh both the risk of abduction presented by the facts concerning the specific parent and the risk that is presented by the specific country. The more certain it is that the country to which the child might be taken is a fully compliant Hague Convention treaty partner with an effective legal system, the more evidence that the individual parent is likely to be an abductor is required.

Conversely, when the foreign country is one such as India -- which is not a Hague partner, has an ineffective, slow and even corrupt legal system and is a proven safe haven for international child abductors -- far less evidence of the parent being a likely international child abductor is required to be established in order to justify – and require – a court to take effective steps to prevent a potential child abduction.

In the latter case, because the risk is so great, a parent should normally be barred from taking a child to India if there is any significant evidence that the child might not be returned.

Getting Your Child Back After a Summer Visit Overseas

by Jeremy D. Morley*

Many children whose parents are separated are spending this summer away from home on vacation in the country of origin of one of their parents. Usually such visits are great, providing excellent and important benefits to the children and their parents.

But sometimes – and it happens all too often – as the date to return home draws near, problems arise. Children announce that they don’t want to go home and they refuse to do so. Or parents with temporary possession of a child insist that it would be best for the child to stay and not go back to live with the other parent.

Indeed, some parents encourage that process. They make sure that the kids have a fantastic summer, taking them on trips to great resorts, showering them with generous gifts and demanding neither homework nor chores. Some parents feed negative information about the other parent to their children, which might be true or often distorted or entirely false, or they encourage them to focus on the negative qualities of the other parent, or the other parent’s family, friends, community, country, religion or people. Sometimes it becomes all-out psychological warfare using all these tactics while the children are away from their usual environment and particularly susceptible to such manipulation.

Faced with such a circumstance, what can -- and what should -- a potentially left-behind parent do?

The all too obvious initial answer is that the parent should have acted before the child was permitted to leave home. There are many steps that worried parents can take, in advance, to improve the chances that a child who may be leaving on an international visit with the other parent will be returned on schedule. These may include home state court custody orders, foreign country mirror orders, well-drafted affidavits by the taking parent, financial performance bonds and legal fee escrow accounts. (And yet, especially with respect to countries that do not usually return abducted children, it is often essential to prevent the visit from taking place at all, because protective measures will likely be useless. Sometimes it is essential to seek a court order barring any such visit, and for this it is usually essential to retain experienced international family law counsel and provide qualified expert witness evidence concerning the nature of the risk).

Once a parent who has taken a child on an overseas vacation has threatened or intimated that the child will not be returned, it is usually necessary to act very quickly but very appropriately. However, self-help can be –and very often is – totally counter-productive.

Before you make threats you need to know how those threats might be interpreted, not only by the other parent, but also by that parent’s lawyers, by judges (both in your courts at home and in the courts in the foreign country), by police and by prosecutors.

Before you allege the other person’s criminality you need to understand whether threatening prosecution is itself criminal; which criminal laws might apply; what those laws actually provide; and how those laws might apply to the facts of your situation.

Before talking “International Law” you need to be advised about the key international treaty, the Hague Abduction Convention. Before threatening to employ it you need to understand whether it applies in your case, what you might need to prove to win a case, what defenses exist and what other exposure you might have.

Before you run to court you need to know the impact that a case in one country might have on the courts in the other country.

Before you threaten to grab the kids yourself and before you waste money on hiring re-abduction “special forces”, you need to understand fully the potential consequences – some extremely serious -- of doing so.

There are many steps that you can take, but every case is different. One size does not fit all. Usually your local lawyers alone will not have the necessary experience to provide you with the strategic advice and big picture review that you must have. You need to consult with an experienced family lawyer who, after understanding the critical issues by interviewing you, can then suggest the most appropriate strategy or strategies, and can lead the effort to implement them. Such counsel will often not be located in the geographical location of your child and the other parent but will bring in a local family  lawyer or a local criminal lawyer in that area to participate in the strategic planning and then to handle the local court proceedings if needed.

In my experience left-behind parents who do not first secure knowledgeable advice often make mistakes, sometimes fatal to their case, that could have been avoided if they had secured the necessary advice from wise and experienced international counsel.

_____________

* Jeremy D. Morley consults on international family law matters with clients globally, always working with local counsel as appropriate. He may be reached at +1- 212-372-3425 and through his website, www.international-divorce.com.. Jeremy has handled hundreds of child abduction cases and  has written the leading treatises on international family law.

The Hague Abduction Convention in South Africa

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: South Africa

By The Honourable Mrs. Justice BelindaVAN HEERDEN, Supreme Court of Appeal, Bloemfontein, South Africa

International child abduction

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) was incorporated into South African domestic law in terms of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1997 (date of commencement 1 October 1997). From the outset, jurisdiction in Hague matters was vested only in the High Courts. Indeed, the Central Authority for South Africa is the Chief Family Advocate who has delegated her powers under the 1980 Child Abduction Convention to the Office of the Family Advocate attached to each of the High Courts which to all extents and purposes function at provincial level. The whole of the 1980 Child Abduction Convention Act was repealed by section 313 of the Children’s Act 38 of 2005 (date of commencement 1 April 2010). However, section 275 of the Children’s Act states that the 1980 Child Abduction Convention “is in force in the Republic and its provisions are law in the Republic, subject to the provisions of this Act”. The whole Convention is annexed to the Act as a schedule. Section 45(3) retains the exclusive jurisdiction of the High Courts in Hague abduction matters. Lower courts, such as children’s courts at magistrate’s court level, are therefore excluded.

The main problem with concentration of Hague abduction jurisdiction in the High Courts is that these courts have broad civil and criminal jurisdiction and do not have a special chamber dealing with family and child law in general, and Hague abduction matters in particular. Prior to 2007, this meant that there were no High Court judges with specialized training in the 1980 Child Abduction Convention to deal with such matters. In January 2007, a high level meeting took place between the Chief Justice (the head of the judiciary in South Africa), the author of this note and Lord Justice Mathew Thorpe, Head of International Family Law in the United Kingdom, to address instances of the failure of the judicial system in South Africa to achieve acceptable international standards in the management and determination of return applications brought under the 1980 Child Abduction Convention. Spearheaded by the Chief Justice, at a subsequent meeting of the Heads of Court in November 2007, the Judge- President of each High Court nominated one or more judges to assume a special responsibility for international family law cases. The intention was that the judges nominated would receive specific training to equip them better to deal with the special challenges of international family law cases. These judges would then build up a repository of experience in the management and adjudication of such cases. In exceptional circumstances preventing the nominated judge (or one of the nominated judges in High Courts with several nominees) from trying the case, the nominated judge would be available to assist the judge to whom the case was assigned. In addition, the nominated judges were to be responsible for liaison and collaboration with judges in other jurisdictions within the Global Hague Network. The author of this note was designated by the Chief Justice as the co-ordinator of the nominated first instance judges, and as the primary liaison judge for the South African jurisdiction.

This gave rise to a South African Judicial Network spanning the provincial High Courts, enabling particular judges at each High Court to apply their special expertise in Hague Abduction matters, while retaining their jurisdiction to deal with general civil and criminal cases. Apart from specific training of the nominated judges, which took place in 2008, there has been ongoing in-house training at several of the High Courts. Moreover, practice directives dealing with the urgency of Hague Abduction matters and dedicated case management of such cases have been issued at some of the High Courts. Regulations issued under the Children’s Act also cover the practical aspects required to implement the 1980 Child Abduction Convention, including a provision that proceedings for the return of a child under the Convention must be completed within six weeks from the date on which judicial proceedings were instituted in a High Court, except where exceptional circumstances make this impossible.

By and large, this informal concentration of jurisdiction in nominated High Court judges has worked well. There is, however, a need for an ongoing training of nominated judges and the speedy replacement of nominated judges who leave the High Court (usually on appointment to the Supreme Court of Appeal).

Intercountry adoption

The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (hereinafter the 1993 Adoption Convention) was incorporated into South African domestic law by section 256 of the Children’s Act and the whole Convention is annexed to the Children’s Act as a schedule. In terms of the Children’s Act, a children’s court has jurisdiction over inter-country adoptions. For purposes of the 1993 Adoption Convention, the Central Authority is the Director-General of Social Development.

Before the coming into operation of the Children’s Act, section 18(4)(f ) of the then applicable Child Care Act 74 of 1983 prohibited a non-South African citizen from adopting a South African child. This effectively meant that inter-country adoptions were unlawful. In Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC), this section was declared to be unconstitutional and invalid. The Constitutional Court ruled that inter-country adoptions should proceed through the existing children’s courts, like all other adoptions. In the subsequent Constitutional Court judgment in AD & another v DW and others 2008 (3) SA 183 (CC), the court noted that, in the context of inter-country adoption, the correct route to follow would be adoption proceedings before the children’s court. As indicated above, this exclusive jurisdiction of the children’s court in respect of inter-country adoptions has now been formalised in terms of the Children’s Act.

A children’s court has a status similar to a magistrate’s court at district level, and as there are children’s courts in every magisterial district in South Africa, they are much more accessible to litigants, and much less expensive, than the High Court. While children’s courts have a specialised child law jurisdiction, this jurisdiction spans a wide range of matters involving children, including South African domestic adoptions. It is, however, generally accepted that children’s courts do have the necessary expertise and experience to ensure proper compliance with the 1993 Adoption Convention and that the concentration of jurisdiction in such courts in this regard ensures that the safeguards and procedures envisaged by the Convention are followed. Since children’s courts are found in every magisterial district throughout the country, in the region of 384 such courts exist in South Africa. Concentrated training of all presiding officers would not be possible under present circumstances.

The Hague Abduction Convention in Paraguay

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Paraguay

By María Eugenia GIMÉNEZ DE ALLEN, Judge of the Court of Appeals for Children and Adolescents, Central Department, Asunción, Paraguay

Introduction

Achieving the correct application of international treaties on the international return of children raises the issue of concentrated jurisdiction, with specialisation to handle these cases. In this brief analysis, I state my opinion on the utility of concentrated jurisdiction in Paraguay.

Some facts about Paraguay

Firstly, I consider it important to provide some facts about my country, the Republic of Paraguay, in order to better assess the suitability of concentrated jurisdiction for handling cases involving the international return of children. Paraguay, according to Article 1 of its Constitution, “is a social State under the rule of law, which is unitary, indivisible, and decentralised.” Paraguay has an area of 406,752 km2, and, according to official figures from the latest census of 2012, a population of 6,672,631 inhabitants. The Judiciary of Paraguay is decentralised in 17 Judicial Districts, with a total of 39 Courts of First Instance for Children and Adolescents. These courts have exclusive jurisdiction in cases relating to the rights of children and adolescents, i.e., they are courts specialised in these matters. In summary, there are 39 judges across the country with authority to judge a case on the international return of children in the first instance, not including judges at higher judicial levels who could have jurisdiction in these matters.

Current regulation in Paraguay

Paraguay does not currently have what would be called concentrated jurisdiction, and thus the resolution of these issues would fall to any of the Judges of First Instance for Children and Adolescents. Under current regulations, the judge of the place of habitual residence of the child or adolescent has the authority to resolve a request for the international return of children, under the international legal instruments ratified by Paraguay: the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) and the Montevideo Convention of 15 July 1989 on the International Return of Children.

Training to gain expertise

The most signify cant advantage of concentrated jurisdiction in which only some judges have jurisdiction to handle cases of the international return of children, in my opinion, is the expertise they gain on this matter: obviously, the more cases they solve, the more experience they gain. However, in a small country like Paraguay, concentrated jurisdiction is not the only way to ensure the correct application of international treaties on the international return of children. With a smaller number of judges with jurisdiction in child and adolescent issues, providing them with training is not too difficult a task. It is a need that can be satisfied with ongoing training programs for the range of justice operators involved in the application of international treaties on the international return of children: not only Judges of First Instance, but also Public Defenders (Defenders of the Child), Courts of Appeals for Children and Adolescents, and the Supreme Court itself, in addition to multidisciplinary teams specialised in the area of children and adolescence.

Training by the Judges of the Network

Training in the application of international treaties involves the Judges of the International Hague Network of Judges in particular, who have the important role of contributing to the organisation and participating in training seminars where best practices on the correct application of legal instruments in this area are publicised. It is a function of the Judges of the Network to advise colleagues on jurisdiction issues in relation to international treaties and other legislation, and on existing relevant international jurisprudence, without breaching the independence of each judge in solving every dispute subject to their decision.

It can be said that Paraguay has made significant progress with the appointment by its Supreme Court of two judges as members of the International Hague Network of Judges, who are fulfilling, in practice, this important role of training and advice to fellow judges on the correct application of international instruments.

A change in the rules

In my opinion, the implementation of concentrated jurisdiction in the Paraguayan legal system would require legislation providing for this change, as it would entail changing rules of jurisdiction laid down by the law, bearing on issues of public order.

Conclusion

In closing, I would like to state that concentrated jurisdiction certainly has significant advantages; however, considering the circumstances of my country (territory, population, legislation and judicial organisation), at present, the training of justice operators is the most practical way of achieving the correct application of legal instruments on the international return of children in the Republic of Paraguay.

The Hague Abduction Convention in Panama

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Panama

By Delia P. CEDEÑO, Judge of Children and Adolescents of the First Judicial Circuit of Panama, Panama City, Panama

When we speak of “jurisdiction” we are referring to the authority of each State to apply the law to resolve a dispute, definitively and irrevocably, exercised exclusively by courts composed of autonomous and independent judges.“Concentration” is a technique in the service of judicial economy – a legal approach used by the judge and recommended to the parties, in order to hear a variety of connected legal questions at a single trial.

The above leads us to note that when we refer to “concentration of jurisdiction,” it would be with the objective that international return applications are processed in certain courts in order to comply with the constitutional guarantee to directly assume the role of resolving a conflict between a requesting party and the respondent.

In Panama, since the creation of the Special Jurisdiction for Minors (by Act 24 of 1951), applications for the international return of children were in principle received at the General Secretariat of the Supreme Court of Justice by way of international warrants submitted by the Ministry of Foreign Affairs, to then be sent to the Tribunal for Minors for processing, or alternatively to the Juvenile Court (which by that time had been created), always taking into account the domicile of the child. Panama adopted the Hague Convention of 25 October 1980 on Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention), by Law 22 of 10 December 1993.

When the Family Code of 1994 entered into force, international return requests were sent directly by the Ministry of Foreign Affairs to the Juvenile Court of the domicile where the identified minor was residing with the alleged perpetrator of the wrongful removal or retention, pursuant to Article 778 of the Family Code. We can confirm that in the Republic of Panama, concentration of jurisdiction has been accomplished in order to hear requests for the return of a child since the creation of the Juvenile Court, as a special court to deal with issues concerning underage persons since 1951.

Subsequent to the entry into force of the Family Code, in 1995, Article 747 established that Special Jurisdiction for Minors would be exercised by the Supreme Court, by Superior Courts, and by the Regional Juvenile Courts.

The same law stated in Article 744 that in any proceeding which is related to a minor, the Juvenile Courts would have exclusive jurisdiction. These courts are currently called Childhood and Adolescence Courts, mandated by the modified Act 40 of 1999 (and added in Article 157 in order to establish the change in designation of these courts).

In defining the competencies of courts specialised in childhood and adolescence in Article 754 of the Family Code, it is stated that these courts have jurisdiction over disputes that are not expressly attributed to another authority, and thus by not giving this jurisdiction to another court judges for childhood and adolescence matters have concentrated jurisdiction.

In Supreme Court jurisprudence from 1997 (the case of Horna Whitehurst), the Court determined that the Childhood and Adolescence Courts, which are part of the Special Jurisdiction for Childhood and Adolescence, are competent for international return applications, which reaffirms that there is concentration of jurisdiction for this procedure.

Based on experience, we note that concentrating jurisdiction allows the taking and implementation of quick measures in order to secure the prompt return of children, as is foreseen in Article 7 of the 1980 Child Abduction Convention. At the same time, the exercise of the judicial function in these procedures is facilitated, including the hearing, judicial determination and enforcing of a decision, with the aim of protecting minors from the harmful effects that can be caused by their wrongful removal or retention, and to facilitate their safe return to their habitual residence.