C (Children)

The Supreme Court has given a decision in the case of C (Children).  It is a decision concerned with habitual residence and wrongful retention under the Hague Convention.  There is an article about the decision in the Law Society Gazette and the full judgment can be read here.  I reproduce below the press summary issued by the Court:

PRESS SUMMARY
In the matter of C (Children) [2018] UKSC 8
On appeal from [2017] EWCA Civ 980
JUSTICES: Lady Hale (President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
BACKGROUND TO THE APPEAL
This matter centres around a married man and woman who, until 2015, had been living together in Australia with their two children. By the end of 2014 the marriage was in difficulties. The mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight-week stay. The mother and the children came to England on 4 May 2015 where they have since remained. Discussions between the mother and father resulted in the father agreeing to an extension of the eightweek visit up to a year. Based on the extension, the mother gave notice to her employer and looked for work in England.  In September 2015, the mother enrolled the older child at a local pre-school. Without telling the father, on 2
November 2015, she applied for British citizenship for both children who had entered England on six-month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse.
In continuing correspondence, the father pressed the mother on the children’s expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK.
The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Abduction Convention”). The issue of when the mother had decided not to return to Australia was in contention. The mother’s own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year. The judge held that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But he accepted mother’s evidence that she did not have the intention, in November
2015, or before April 2016, not to return to Australia.
The mother now appeals against the Court of Appeal’s decision. The issues in the appeal are: (1) what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs; and (2) if a child has been removed from
their home state by agreement with the left-behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so-called “repudiatory retention”)? The father cross-appeals on the issue of habitual residence.
JUDGMENT
The Supreme Court allows the appeal and dismisses the cross appeal. Lord Hughes gives the lead judgment with whom Lady Hale and Lord Carnwath agree. Lord Kerr and Lord Wilson each give judgments concurring on the two points of principle but dissenting on the outcome of this case on its facts.
REASONS FOR THE JUDGMENT
Issue 1
When considering the general scheme of the Abduction Convention, the construction that summary return is available if, by the time of the act relied on as a wrongful removal or retention, a child is habitually resident in the state where the application for return is made is unpersuasive. That construction is inconsistent with the operation
of the Abduction Convention since 1980 and its treatment by subsequent international legal instruments. [19]
The Abduction Convention is designed to provide a summary remedy which negates the pre-emptive force of wrongful removal or retention and to defeat forum-shopping. [21] The point of the scheme adopted by the Abduction Convention was to leave the merits to be decided by the courts of the place of the child’s habitual residence. If the forum state is the habitual residence of the child, there can be no place for a summary return to
somewhere else, without a merits-based decision. This understanding of the scheme of the Abduction Convention is reflected in the provisions of both the Revised Brussels II Regulation and the 1996 Hague Convention on Recognition, Enforcement and Coperation in respect of Parental Responsibility and Measures for the Protection
of Children. [23]
The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the child’s habitual residence, and there is no room
for a mandatory summary decision. [34]
Issue 2
Repudiatory retention has been recognised in some jurisdictions, but no generally accepted international practice or authority exists on the point. [39] The desirability of inducing a prompt change of mind in the retaining parent is an argument for recognising a repudiatory retention when and if it occurs. The 12 month time limit for seeking mandatory summary return runs from the point a repudiatory retention occurs and that period may pass before an applicant is aware of the repudiatory retention. However, it is not a limitation period but a provision in the child’s interest to limit mandatory summary return. Once elapsed it renders a summary return discretionary.

The concern that repudiatory retention would make Abduction Convention applications longer and more complicated is a point well made. However, Family Division judges are used to managing applications actively and controlling any tendency to spill outside the relevant issues. Further, if repudiatory retention requires an overt act or statement,
this lessens the danger of speculative applications. [46-48]
Repudiatory retention is possible in law. The objections to it are insubstantial, whereas the arguments in favour are convincing and conform to the scheme of the Abduction Convention. It would be unwise to attempt an exhaustive definition of proof or evidence. An objectively identifiable act of repudiation is required, but it need
not be communicated to the left-behind parent nor does an exact date need to be identifiable. [50-51]
On the present facts there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe
the mother’s evidence that she did not possess this intention in November. [55] There is no basis in law for criticising the judge’s decision as to habitual residence. [57]
Lord Kerr dissents on the outcome of this case on its facts. He expresses misgivings about repudiatory retention requiring an overt act by the travelling parent. [63] The judge’s finding that wrongful retention did not arise in this case could not be reconciled with his statement that the mother had concluded by April 2016 that she and the children should remain in England. [68] Moreover, the judge’s conclusion that the mother had not formed any intention to retain the children in England in November 2015 is insupportable as he failed to address the question of what bearing the letter of November 2015 had on her intention. [72]
Lord Wilson also dissents on the outcome of this case on its facts. The solicitor’s letter to the immigration authorities in November 2015 represented a major obstacle to any finding that the mother had not by then intended to keep the children in the UK indefinitely. The judge’s finding as to the mother’s intention in November
2015 was flawed and the Court of Appeal were correct to order a fresh inquiry into her intention. [91-92]
References in square brackets are to paragraphs in the judgment
NOTE: This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.
Judgments are public documents and are available at: http://supremecourt.uk/decided-cases/index.html

 

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Child Abduction Conference, 9 February 2018

I attended the 1 King’s Bench Walk annual child abduction conference on Friday. I have attended every year since 2014 and the conference has been running since 2003 so this was the 15th year. It was again chaired by Richard Harrison, QC. I will single out just two of the talks.

 
There was an interesting opening talk by Mr Justice Francis. He was appointed to the High Court bench relatively recently and was the judge in the distressing Charlie Gard case which made news around the world in 2017. He spoke about that and about international cases involving children. He made the point that better liaison between judges of different countries would help to improve the quality of judicial decision making in countries were that was an issue as well as helping to better manage individual cases being litigated in two countries. He was also critical of countries which assigned low level family judges to abduction cases given the importance of the same: in the UK all abduction cases are dealt with in the High Court.

 
As in previous years, a talk was given by a representative of the charity Reunite. This was the only part of the day that Japan was mentioned, twice. In the course of the presentation, the speaker revealed that Reunite is currently working with the Japanese authorities to promote co-mediation. At the end of the presentation the chairman asked the speaker whether there were any “particularly challenging” Hague countries in terms of the recovery of children. The speaker replied, as I knew she would, by saying simply “Japan”. She it appeared did not seem to see the need to expand on this answer but when asked to do so by the chairman she went on to explain that “enforcement is not pushed” in Japan because it is “not engrained in its legal culture.” She also said that she did not see this changing any time soon.

 
This was just intended as a short write-up; anyone wanting to know more is welcome to get on contact.

Rui’s Father: My interview on Paul Brown’s *LBP Stories* — For Rui Boy

Japanese child abduction is a crime of opportunity provided by an American client, the Japanese state, a venture which is collaborated on with the support of the postwar masters of the Pacific, the United States.

via Rui’s Father: My interview on Paul Brown’s *LBP Stories* — For Rui Boy

Happy New Year 2018

Happy New Year, son.  My thoughts were with you at 15:00 GMT yesterday when the year turned in Japan.  Every good wish for 2018.  I mailed you a New Year card, below along with receipt, a couple of days’ ago so it should be with you soon. New Year is not as big in the UK as Japan and the store did not have a New Year card as such; the best I could find was a card of a cat peering at a fish in a fish tank.

Also below is a photo of the family lunch in Hythe on 10 September last year to mark your Grandad’s 89th birthday, about which I posted last summer.  Also below is a photo taken just after Christmas on 27 December just gone showing Dad/Grandad, my brother and sister and I.  It is very rare that we meet up alone together and I cannot remember when we last did so but it must have been when I was a very young adult – I don’t think that there has been a photo like this of just the four of us since I was a teenager.  We were only able to catch a few hours together but it was very pleasant.

I saw the news a couple of days back that Japan proposes to change the age of majority from 20 to 18 from 2022 so that will cover you as you will turn 18 in 2026, which doesn’t feel all that far off now.  I hope that this reform will help in a small way to embolden you to contact your family in the UK that much sooner.  You are welcome to do so of course at any time as you are hugely missed here.  You will be standing on your own two feet before you know it and will be able to make decisions for yourself.  In the meantime, however, I wish you every happiness and success in year 2018.

 

 

Japan’s Supreme Court hands down a road map for parental child abductions


Japan’s Supreme Court hands down a road map for parental child abductions
by Colin P.A. Jones

Issues | LAW OF THE LAND

Dec 31, 2017

 

 

In 2014, after years of diplomatic pressure and countless horror stories about parents losing all contact with children taken to or retained in Japan, the nation finally joined the Hague Convention on the Civil Aspects of International Child Abduction. This should have relegated to history Japan’s growing reputation as a “black hole” of abduction of children by one parent — usually the Japanese one —after the breakdown of a marriage or other relationship.
Less than four years later, in a sadly predictable ruling issued on Dec. 21, Japan’s Supreme Court confirmed abductions can continue. The difference seems to be that lower courts will pay lip service to the ideals of the convention by going through the motions, and various well-intentioned institutions now exist to help achieve the amicable resolutions that should ideally end such cases. But visitation with taken children will still be difficult or impossible, return orders will remain unenforceable and, at the end of it all, courts will be able to find it best for the children to stay in Japan.

 

The baroque procedural regime adopted by Japan to implement the convention was designed to give lower courts various ways to avoid returning children. Now that the top court has ratified such a result, we can probably expect to see more cases like this.
Children will be the principal victims of such abductions. However, I can’t help but feel sympathy for Japan’s Ministry of Foreign Affairs. It bore the brunt of foreign criticism before Japan joined the treaty and, acting as Central Authority under it since , has devoted significant resources to resolving cases and helping the parents and children involved in such cases. This judgment will probably now make its job that much harder.

Escape hatches do their job

The case on which the court ruled has already been widely reported in the Western press. It involved the four children of an American father and Japanese mother.
According to the Supreme Court’s judgment they were brought to Japan by the mother in July 2014 with a promise they would be returned to their home in the United States the following month. They stayed. The following year the father applied to a Japanese court for a return order under the Hague Convention.
In 2016, the Osaka High Court issued an order that the children should be returned. The court found that the older children (11 at the time they were brought to Japan) were found to not want to return, but returning just the younger ones (who were both 6) would have been bad for all of them.
The basic concept underlying the convention is that children in these situations should be returned — promptly — by courts where they have been taken to their jurisdiction of habitual residence, and decisions about their long-term best interests should be made by courts there. The convention provides a few exceptions where returns can be refused, specifically: (i) if the child “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views” and (ii) “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Having obtained a return order, the father then set about trying to enforce it. Here he encountered the unpleasant reality that Japanese family court orders involving children are generally unenforceable. No adults get arrested or even punished for noncooperation, meaning abducting parents (and the family members who often help them) can flaunt the law and the rulings of Japanese courts. This is relatively common knowledge within Japan, where even domestic divorces can see a child unilaterally taken by one parent and the other losing all contact for years. That a case like this would arise under the Hague Convention was always predictable; it was just a matter of when it would happen.
Whilst refusing to cooperate with the return order, the mother filed a motion to have the whole matter reconsidered based on changed circumstances. This was one of the escape hatches built into Japan’s implementing act — the ability of a losing party to seek a new trial (after an appeal!), even though the whole point of the process is to get kids back home as quickly as possible.
The Osaka High Court did rule expeditiously on this motion (impressive when one considers it can take years or even decades for a wrongly convicted criminal defendant to get a retrial based on new evidence) and — lo and behold — found it was no longer appropriate to return the child because the father lacked the wherewithal to support them. (That the father had been forced to pursue ruinously expensive cross-border litigation to remedy the abduction did not seem to matter.)
This was the other bolt-hole built into Japan’s implementing act: the ability of judges to consider the child-rearing capabilities of both parents in determining whether the exception in (ii) above might apply. In other words, the court did a custody evaluation about what would be in the best interests of the children, which is one of the basic things that is not supposed to happen in Hague Convention cases. The basic premise, again, is that custody determinations should be made by courts where the children have been habitually resident.
That this escape hatch would be used in a difficult case such as this was also predictable. Otherwise Japan’s courts would have suffered the ongoing bother and embarrassment of a demonstrably unenforceable return order hanging out in limbo in a high-profile case.

Top court decides on custody

It is this ruling that the five judges on the Supreme Court’s 1st Petty Bench upheld. Judgments of Japan’s Supreme Court are often terse, particularly when dealing with subjects like excessive detention, police misbehavior, constitutional violations and so forth. Part of the rationale may be that, except in rare cases, the top court only considers appeals as to matters of law and does not revisit lower court findings of fact, and the judgment just needs to contain conclusions about the applicable law.
When it comes to family cases, however, the court sometimes breaks from this staid mold and its judges presume to explain what is best for children they have never even met. In their December ruling the court declared in no uncertain terms that “the appellant (father) lacks the financial basis to appropriately care for the children, and cannot be expected to receive ongoing support in their care and support from his family.” It would thus be bad for the children to be returned to America.
That in the course of ruminating on the best interests of the children the judges did not find it worth mentioning that they had been denied all contact with their father during the entire process is simply indicative of how little importance the Supreme Court attaches to the parent-child relationship, at least when it is inconvenient to the result that best suits the court system.
At risk of sounding repetitive, who is best suited to care for the children is precisely the type of decision that the Hague Convention expects to be made in the home country. Moreover, Article 20 of the treaty clearly states that “a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Perhaps the court just found this language inconvenient when for all intents and purposes it conclusively determined the merits of the custody issues in this particular case — where the children would grow up and who would raise them.
There you have it. Courts in other countries should now be on notice that, despite Japan joining the Convention and a diligent Central Authority providing assistance to parents of taken children, return orders issued by the nation’s courts remain unenforceable, contact can be safely denied, Japanese judges looking for ways to let children stay in Japan can simply find fault with the left-behind parent’s imagined parenting capabilities and higher courts will ratify that decision as being “in the best interests of the children.”
By demonstrating such a low threshold for refusing returns and condoning noncooperation with enforcement proceedings, the Supreme Court’s ruling seems likely to serve as a road map for further abductions to come.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.

Source:  “Japan’s Supreme Court hands down a road map for parental child abductions”, The Japan Times, 31 December 2017