Letter in today’s Japan Times…

The Japan Times

Custody rights remain huge problem

Thank God for Christopher Savoie. I always remember the American father who forced Tokyo to act on the Hague Convention on International Child Abduction.

Years after Hague signing, parent who abducts still wins” in the May 1 edition and “Parental abduction victims hold rally to push for joint custody rights” in the May 6 edition are the most recent additions to my thick file of Japan Times stories on this issue which I began keeping in September 2009.

This is when Christopher Savoie famously, valiantly, virtuously and rightly tried to reclaim his kidnapped children from his Japanese ex-wife by seeking asylum inside the U.S. Consulate in Fukuoka. “Asylum” is self-evidently the right word for it. Ultimately, he failed. The consulate turned him over to Japanese authorities, but the Fukuoka police and prosecutors dropped their case and deported him instead. Prosecuting him would have been too shameful for Japan and cast the country in a humiliating bad light internationally. It was a textbook example of how it (sometimes) takes foreign pressure to move Japan forward.

More attention has been given to the plight of children and their alienated parents since then, but the application of the Hague Convention is not satisfactory. To make it satisfactory requires starting with acknowledging and treating the abducting parent (usually but not exclusively their Japanese mothers) as criminal kidnappers. Active intervention to repatriate the children followed by the prosecution and long imprisonment of the kidnapper are not excessive suggestions.

GRANT PIPER
NAKANO WARD, TOKYO

JT leading article (from Jan 2017): “Rules” on handing over a child

The Japan Times

Rules on handing over a child

Court rulings ordering a divorced parent to hand over a child to his or her former spouse are often ignored — largely because there are no specific procedures under the law governing enforcement of such a custody transfer. A revision of the relevant law is imperative to ensure that court decisions on child custody are enforced. There are two important points for consideration — creating a clear rule for the compulsory enforcement of a court order by a legally empowered official, and imposing financial penalties on the parties defying court orders to get them to comply. Either way, due consideration should be paid to the welfare of the children, including the potential psychological damage from the procedure.

In the absence of a specific legal procedure for custody transfers between divorced parents, the Civil Execution Law’s provision on the transfer of movable property is currently referred to in enforcing a court ruling ordering a divorced parent to hand over a child to the other party. But it would not stand to reason to treat children as if they were “property.”

In the case of international marriages, the compulsory execution of a court order on a custody transfer is possible under the 1980 Convention on the Civil Aspects of International Child Abduction, popularly known as the Hague Convention. As of November, 95 countries were parties to the convention, which Japan signed and ratified in 2014. A law setting domestic procedures needed to implement the convention has been enacted and put in force.

The law includes a detailed provision stating what an enforcement officer in charge of removing a child from a parent who abducted that child to Japan and handing that child over to the other parent should and should not do, including the need to try to persuade the abducting parent and asking for police assistance if necessary. The provision says an officer can use some form of power to restrain or make a parent who resists giving up the child comply, but prohibits the officer from using this power if it causes harmful effects on the child. The law says that if a court rules that a child must be moved back to his or her “state of habitual residence,” the parent who won the case can in principle ask for the decision to be executed by an enforcement officer after two weeks have passed. This rule leaves room for the disputing parents to agree on the transfer of the child in an amicable way without the involvement of an enforcement officer.

Last year, Justice Minister Katsutoshi Kaneda asked the Legislative Council, an advisory body, to look into revising the Civil Execution Law to set down specific procedures to enforce court decisions ordering the handover of children between divorced parents. Based on its recommendation, the government is expected to submit a bill for the revision to the Diet as early as next year.

Setting down the relevant procedures makes sense given what is happening to divorced parents and their children. In 2015, there were 97 cases in which divorced parents with parental prerogatives or the care and custody right over their children asked that their former spouses turn the children over to them, but the children were handed over in only 27 of the cases, according to the Supreme Court.

Merely setting the procedures for a compulsory execution of the court order — which would involve an enforcement officer stepping in to physically remove a child from one parent and hand him over to the other — may be too rigid and may not serve the intended purpose of the amendment. The procedures should include an indirect approach that may seem lukewarm but will eventually lead to the transfer of a child. One option would be to fine a parent who refuses to comply with the court and, to encourage compliance, the size of the fine would rise as long as the parent keeps refusing to obey the order.

Priority should be placed on the indirect approach so that the child handover can take place in a more amicable manner. But a mechanism should also be included that will trigger a compulsory enforcement if, for example, it’s suspected that a parent ordered to give up the child is seeking to dodge the ruling by continuing to make the payments. The law to implement the Hague Convention says that the removal of a child must be carried out when the child is together with the parent who took him or her to Japan, out of consideration for the psychological effects on the child. The advisory council should take into account how to minimize the risk of trauma on children in executing court rulings.

Source:  “Rules on handing over a child”, The Japan Times (leader), 26 January 2017 

The Economist article: Unhappily ever after

KATE BAGGOTT and her two children live in a tiny converted attic in a village near Frankfurt. Ms Baggott, who is Canadian, has a temporary residence permit and cannot work or receive benefits. The trio arrived in Germany in October, after a Canadian court order gave them a day’s notice to get on the plane. Ms Baggott’s ex-husband, a Canadian living in Germany, had revoked his permission for the children’s move to Canada after they had been there nearly a year, alleging “parental child abduction”. A German court has given Ms Baggott full custody, but she must stay until an appeal is over.

Such ordeals are becoming more common as the number of multi-national and footloose families grows. Across the European Union, for example, one in seven births is to a woman who is a foreign citizen. In London a whopping two-thirds of newborns in 2015 had at least one parent who was born abroad. In Denmark, Spain and Sweden more than a tenth of divorces end marriages in which at least one partner is a non-citizen.

The first question in a cross-border break-up is which country’s laws apply. When lots of money is at stake there is an incentive to “forum shop”. Some jurisdictions are friendlier to the richer partner. Germany and Sweden exclude assets owned before the marriage from any settlement. Ongoing financial support of one partner by the other is rare in France and Texas—and ruled out in another American state, Georgia, if the spouse seeking support was adulterous.

Under English law, by contrast, family fortunes are generally split evenly, including anything owned before the marriage. Prenuptial agreements, especially if drawn up by a lawyer representing both spouses, are often ignored. The wife of a Russian oligarch or a Malaysian tycoon can file for divorce in London if she can persuade a judge that she has sufficient links to England. A judge, says David Hodson, a family lawyer in London, might be presented with a list of items supporting her claim, which may be as trivial as which sports team the husband roots for, or where the family poodle gets a trim.

Across the European Union, until recently the rule has been that the courts of the country in which divorce papers are filed first gets to hear the case. The result was that couples often rushed to file rather than attempting to fix marital problems. But in some countries that is changing: last year Estonia became the 17th EU country since 2010 to sign an agreement known as Rome III that specifies how to decide which country’s law applies (usually the couple’s most recent country of residence, unless they agree otherwise). Though the deal brings welcome clarity, it can mean that courts in one country have to apply another country’s unfamiliar laws. And one spouse may be tricked or bullied into agreeing to a divorce under the rules that best suit the other.

The bitterest battles, though, are about children, not money. Approaches to custody vary wildly from place to place. Getting children back if an ex-partner has taken them abroad can be impossible. And when a cross-border marriage ends, one partner’s right to stay in the country where the couple lived may end, too, if it depended on the other’s nationality or visa.

Treasures of the heart

Under the Hague Abduction Convention, a treaty signed by 95 countries, decisions about custody and relocation fall to courts in the child’s country of “habitual residence”. If one parent takes a child abroad without the other’s consent or a court order, that counts as child abduction. The destination country must arrange the child’s return.

But plenty of countries have not signed, including Egypt, India and Nigeria. They can be havens for abducting parents. Around 1,800 children are abducted from EU countries each year. More than 600 were taken from America in 2015; about 500 abductions to America are reported to the country’s authorities each year.

Some countries, including Australia and New Zealand, often regard themselves as a child’s habitual residence from the moment the child arrives. The EU sets the threshold at three months. America differs from state to state: six months’ residence is usually what counts. GlobalARRK, a British charity that helps parents like Ms Baggott, is campaigning for information on such rules to be included among the documents issued to families for their move abroad. It also lobbies for a standard threshold of one year for habitual residence and advises parents to sign a pre-move contract stating that the child can go home at any time. Though such contracts are not watertight, they would at least alert parents to the issue.

Britain is comparatively generous to foreign parents who seek a child’s return: it provides help with legal advice and translation. But plenty of countries do little or nothing. Family judges in many places favour their compatriots, though they may dress up their decisions as being in the child’s interests. Parents who can no longer pay their way through foreign courts may never see their children again.

Some parents do not realise they are committing a crime when they take the children abroad, says Alison Shalaby of Reunite, a British charity that supports families involved in cross-border custody disputes. Even the authorities may not know the law. Michael, whose former partner took their children from Britain to France in 2015, was told by police that no crime had been committed. After he arranged for Reunite to brief them, it took more than five months to get a French court order for the children’s return.

Other countries are slower still, often because there are no designated judges familiar with international laws. Over a third of abductions from America to Brazil, for example, drag on for at least 18 months. When a case is eventually heard the children may be well settled, and the judge reluctant to order their return.

A renewed push is under way to cut the number of child abductions, and to resolve cases quickly. The EU is considering setting an 18-week deadline for the completion of all return proceedings and making the process cheaper by abolishing various court fees. And more countries are signing up to the Hague convention: Pakistan, where about 40 to 50 British children are taken each year, will sign next month. India, one of the main destinations for abducting parents, recently launched a public consultation on whether to sign up, too.

But the convention has a big flaw: it makes no mention of domestic violence. Many of the parents it classifies as abductors are women fleeing abusive partners. One eastern European woman who moved to Britain shortly before giving birth and fled her violent fiancé four months later, says she was turned away by women’s shelters and denied benefits because she had lived in Britain for such a short time. For the past year she has lived on charity from friends. The police have taken her passport to stop her leaving Britain with the baby. Another European woman, living in New Zealand, says she fears being deported without her toddlers when her visa expires in a few months. She fled domestic abuse with the children and a bag of clothes in December, and has been moving from one friend’s house to another ever since.

Child abduction is often a desperate parent’s move of last resort, says GlobalARRK’s founder, Roz Osborne. One parent, who has residence rights, may have been granted sole or joint custody, meaning the children cannot be taken abroad without permission. But the other parent may have entered on a spousal visa which lapses when the marriage ends. Even if permission to remain is granted, it may be without the right to work or receive state benefits. In such cases, the decision of a family court guaranteeing visiting rights or joint custody can be close to meaningless.

Britain’s departure from the EU could mean many more divorcing parents find themselves in this desperate state. Around 3.3m citizens of other EU countries live in Britain, and 1.2m Britons have moved in the opposite direction; so far it is unclear whether they will continue to have the right to stay put and work. And in America, says Jeremy Morley, a lawyer in New York who specialises in international family law, immigration issues are increasingly used as weapons in child-custody cases. Judges in family courts, he says, often pay little attention to immigration issues when ruling on custody, because they know few people are deported solely because their visas have expired. But under Donald Trump, that may change.

Many parents have no idea what they sign up for when they agree to follow a spouse abroad, says Ms Osborne. They may mistakenly believe that if things do not work out, they can simply bring the children back home. Ms Baggott’s move to Germany was supposed to be a five-year adventure, the duration of her husband’s work visa. Instead, she says, she has endured “a decade of hell”.

Source:  Unhappily ever after – For multi-national families, breaking up can lead to tragedy”, The Economist, 18 February 2017

Post on the 2017 Child Abduction Conference (10 February)

As previously posted here, I attended the 1 King’s Bench Walk International Child Abduction Conference in London on 10 February as I did in 2015 and 2016.  As in previous years, it was an all-day conference and I shall not attempt to summarise everything.

For me, the most notable points were these:

  • Following “Brexit” it is not clear what will become of the “Brussels II” Regulation which regulates family law issues between EU states, including questions of international parental child abduction (see also Blogroll to the right for a link to the entire text). It may well be replicated in domestic law but, as I said, it is not yet clear whether and how this will occur.
  • Mr Justice MacDonald, a High Court judge, gave an address in regard to case management issues in the context of abduction cases.
  • The annual update given by the charity Reunite International revealed that their statistics show that there have been 10% increases in parental abductions in “most years”; whilst worrying, that is not altogether surprising given the increased prevalence of international marriages. They have also set up successful bi-monthly meetings for left behind parents in the UK and now publish their prevention guides, available on the website, in languages other than English.  The speaker also drew attention to a shocking incident whereby the Metropolitan Police refused to take action in regard to a removal of a child where that removal was reported before it happened.  That is now the subject of a civil claim but shows that ignorance as regards the issue of parental child abduction extends to arms of the state whose role should be to help prevent abductions taking place at all, where there is advance knowledge that an abduction may take place.  Reunite is also undertaking a great many more mediations now than before, an encouraging sign as the organisation has a good track record in that regard.
  • There was also a separate talk dedicated to mediation and arbitration. On this the notable development over the last year has been the introduction of the Child Arbitration Scheme in July 2016.

This post is dedicated to my son who turns 8 ¼ today.

London event: Taking Flight – Domestic Violence and Child Abduction

An international child abduction lecture is taking place next month at the London College where I undertook my LLM degree; the speaker is Baroness Hale of Richmond.  Lady Hale, who I have (successfully) conducted Supreme Court litigation before (albeit not in this context), is a former family law academic (Professor at the University of Manchester, before joining the Law Commission prior to her appointment to the High Court) who now sits as the Deputy President of the UK’s Supreme Court.  With the current President, Lord Neuberger, due to retire later this year, Lady Hale is widely tipped to replace him. I disagree with much of what she has written – more so as an academic than a judge – but, despite this, her views on the many issues thrown into play in this day and age, and as summarised below, by international parental child abduction will be well worth listening to.

Details and booking link below:

UCL Faculty of Laws logo.jpg

Taking Flight – Domestic Violence and Child Abduction

Thursday 16 March 2017, 18:00 – 19:00

Gustave Tuck Lecture Theatre, Wilkins Building, Gower Street, London WC1E 6BT

Speaker: The Rt. Hon. The Baroness Hale of Richmond DBE (The Supreme Court)
Chair: Lady Justice Black

(Head of International Family Justice)
Admission: Free
Accreditation: This event is accredited with 1 CPD hour with the SRA and BSB
Series: Current Legal Problems 2016-17

About the lecture:

Increasing concerns that victims of domestic violence, who flee the country with their children, are effectively being forced, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to return to face their abusers, led to calls for a Protocol to the Convention which would make special provision for such cases. Instead, however, the Hague Conference on Private International Law has established a Working Group with the aim of developing a Guide to Good Practice in relation to article 13(1)(b) of the Convention. This provides an exception to the automatic return of children to their country of habitual residence required by article 12, where there is a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

The Working Group has not found this an easy task. It raises so many difficult questions of principle. Should concern for the victims of domestic violence ever override the concern for the welfare of children which the Convention aims to protect? When is a risk of harm to a parent also a risk of harm to a child? How is a court in the receiving country to resolve disputes about who did what to whom? How effective are protective measures in the home country? What can the receiving country do both to assist the home country and to provide protection in the meantime? How does the interface with the 1996 Hague Convention on the Protection of Children work? Is Europe a special case? And what about the human rights of the children and both of their parents? Perhaps above all, is there a risk that, in its anxiety to preserve the integrity of the 1980 Convention, the Working Group will lose sight of the reasons why it was set up?

About the speaker:

Brenda Hale is the most senior woman judge in the United Kingdom. She became a High Court Judge in 1994, after a varied career teaching law at the University of Manchester and reforming the law as a member of the Law Commission. She was promoted to the Court of Appeal in 1999 and to the House of Lords in 2004. In 2009, the ‘Law Lords’ became the Supreme Court of the United Kingdom, where she has been Deputy President since 2013. Her principal interests are in family, social welfare and equality law.

About Current Legal Problems:

The Current Legal Problems annual lecture series was established over sixty years ago. The lectures are public, delivered on a weekly basis and chaired by members of the judiciary.

The Current Legal Problems (CLP) annual volume is published on behalf of UCL Laws by Oxford University Press, and features scholarly articles that offer a critical analysis of important current legal issues.

It covers all areas of legal sponsorship and features a wide range of methodological approaches to law. With its emphasis on contemporary developments, CLP is a major point of reference for legal scholarship.

Find out more about CLP on the Oxford University Press website

To book:  “Taking Flight – Domestic Violence and Child Abduction”, UCL Faculty of Laws Events Page