Our article, International Relocation of Children: American and English Approaches, by Jeremy D. Morley and James H. Maguire, has been published in International Family Law.

See http://www.international-divorce.com/international_relocation_of_children.htm

 The United States has not accepted the accession made by Belarus in 1998 to the Hague Abduction Convention (the 1980 Hague Convention on the Civil Aspects of International Child Abduction).

This means that the Convention is not in force between the two countries.

Therefore, the return remedies set forth in the Convention cannot be utilized in respect of the abduction of children from the United States to Belarus or from Belarus to the United States.

The International Centre for Missing & Exploited Children reported in 2016 that although the Ministry of Justice is the Central Authority for any incoming and outgoing cases under the Convention, no implementing legislation had been adopted in Belarus that describes the return mechanism of an abducted child.

It reported further that the Ministry of Interior of Belarus may issue a Belarus passport for a child upon the consent of only one of the child’s parents.

It also reported that the Law on the Order of Departure from the Republic of Belarus and Entry into the Republic of Belarus by Citizens of the Republic of Belarus of 2009 permits only one parent to remove a child from Belarus.

The U.S. Government is clearly asserting more pressure on Japan to change its ways than ever before. See article below. On Saturday envoys from Australia, Britain, Canada, France, Italy, New Zealand, Spain and the United States met with Japanese Foreign Minister Katsuya Okada on this issue. They issued a joint statement that they were there to “submit our concerns over the increase of international parental abduction cases involving Japan and affecting our nationals.” “Currently the left-behind parents of children abducted to or from Japan have little hope of having their children returned,” said the statement. Such parents “encounter great difficulties in obtaining access to their children and exercising their parental rights and responsibilities,” it said. The Japanese Foreign Minister said that, “This is a very serious issue, to which we have to find a solution.” However, if past practice is a precedent, the Foreign Minister’s statement means very little. The bureaucrats will take action only if, as and when they feel that they have little or no choice but to do so. We are not at that point yet. Far more pressure must be imposed.

Child custody fights could hurt US-Japan ties

By Associated Press
February 3, 2010 TOKYO – Japan should work to solve problems in international custody cases so that children of broken marriages have access to both parents, a senior US official said yesterday, hinting that the issue could hurt bilateral relations. Visiting US Assistant Secretary of State Kurt Campbell said Japan’s position has “raised very real concerns among senior and prominent Americans in Congress, on Capitol Hill, and elsewhere.’’ Japan has not signed an international convention on child abductions, and its domestic family law permits only one parent to have custody of children in cases of divorce, nearly always the mother. That leaves many fathers, including foreigners, unable to see their children in Japan until they are grown up. There are about 70 cases of American parents who are kept from seeing their children in Japan, and Campbell met with several of them in a group earlier yesterday. He called their situations “heartbreaking.’’ Steve Christie, an American university instructor who lives in Japan and met with Campbell, said he has rarely seen his son the past four years ever since his wife, whom he has divorced, suddenly left with the boy. “This is our life and blood, this is our offspring, and we’re being denied a chance to see them,’’ said Christie, 50. “It’s not right, it’s immoral, it’s unethical.’’

In some cases, Japanese mothers living overseas have fled to Japan with their children and kept the fathers from having any contact, even if court rulings abroad ordered joint custody.

The following are excerpts, without footnotes, of an articles 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: Dominican Republic

By Antonia Josefina GRULLÓN BLANDINO,Court of Children and Adolescents, NationalDistrict, Civil Chamber, Santo Domingo,Dominican Republic

Resolution 480-2008

The National Congress of the Dominican Republic ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) in May 2004. Until then, Dominican Law 136-03 (Code for the Protection and Fundamental Rights of Children and Adolescents) lacked a procedure that allowed for the prompt hearing of and ruling on cases involving international child abduction.

On 6 March 2008 our Supreme Court issued Resolution 480-08 where it clearly established a procedure for hearing such cases in courts for children and adolescents in the Dominican Republic. The Dominican Republic has had two important phases over the course of this history, pertaining to hearings, duration of the legal process and judgments of the courts in relation to applications for the return of minors.

Before Resolution 480-08

Only Article 110 of our Law 136-03 (Code for the Protection and Fundamental Rights of Children and Adolescents) referred to cases of a wrongly removed and / or retained child from his or her habitual residence. Article 110 determined that the Public Prosecutor is the authority designated to return the child to its guardian or person who has the rights of custody. The judicial approach developed in the following manner:

1. Lack of judge’s knowledge of the tools necessary for the hearing of these cases: In the event of a child’s abduction or illegal retention, the judges, in their rulings, limited the ruling by only deciding to send the case to the Public Prosecutor as the institutional body in charge of the case. Also, they had the authority to decide on matters beyond the return of the child to its habitual residence, such as custody issues, guardianship and visitation rights.

2. Duration of the procedure in the courts: The hearing process was dealt with on par with any other case, without any limitation in terms of timeframe or promptness, making it possible for a case to be heard at each instance of the Dominican judicial system including the Supreme Court, where it might take a year or more in order to have a ruling.

3. Absence of the Central Authority’s participation in most cases: The Consejo Nacional para la Niñez (CONANI) [National Council for Children] was designated in 2004, and in 2005 the recommended form for return applications, developed at the Hague Conference, began to be used. The majority of the applicants used to go directly to the courts and there was therefore an absence of the Central Authority’s participation or even knowledge of the case.

After Resolution 480-08 came into effect

1. Concentration of jurisdiction for the hearing of these cases: Jurisdiction is clearly established by designating the courts for children and adolescents in the territory where the child subject to the retention or abduction is located.

2. Participation of the Central Authority in the investigation process and hearings: The resolution establishes that the Public Prosecutor and the Central Authority (CONANI) should be present at the hearings.

3. The duration of the process in the courts: Statistics have shown that in 2011 and 2012, the average timeframe for the hearing and decisions for these types of cases was two to four months.

4. Ongoing training and courses for judges of child and adolescent courts in the Escuela de la Judicatura [School of the Judiciary], therefore guaranteeing that these cases are being heard and decided by professionals duly trained and given the necessary tools and knowledge to make decisions according to the principles of the 1980 Child Abduction Convention.

5. The resolution clearly establishes that rulings only relate to whether the child is returned or not, excluding decisions pertaining to any other issues.

6. Appeal of the decision rendered at the first instance is the only recourse to appeal which is allowed. In general terms, the benefits of the concentration of jurisdiction that resolution 408-08 establishes are:

a) Jurisdiction, substantive and territorial, is clearly established in order to hear these cases.

b) Trained and prepared judges hear the cases.

c) The timeframe for the resolution of these cases has been reduced.

d) The presence of the Public Prosecutor’s Office and Central Authority in every hearing is guaranteed.

e) There are guarantees that procedures follow the mechanisms foreseen under the 1980 Child Abduction Convention, with utilisation of the Central Authority.

f) The applicant is always represented by either the Central Authority or by other private legal assistance.

The British media have been full of hype about a 12-year old girl who was allegedly abducted from her home in Scotland and taken to Pakistan by her father for what was claimed to be a forced marriage.The case illustrates the way in which public opinion in international child custody cases can easily be manipulated and how there are two (or three) sides to all of these stories. On Tuesday the Daily Mirror was reporting that ‘A missing girl of 12 was in Pakistan last night amid fears her father snatched her for an arranged marriage. Molly Campbell, also Misbah Rana, is thought to have been duped by elder sister Tahmina into joining her dad Sajad Rana on a flight to Lahore. Interpol has been alerted. Molly’s gran Violet Robertson, 67, said: “It’s an arranged marriage. Molly doesn’t know the man – he’s 25. She doesn’t want to go to Pakistan. She wants to be with her mum.”On Wednesday, the Sun was calling the girl “The Kidnap Bride” while Mirror’s headline screamed “MOTHER: GIVE ME MY MOLLY” and the newspaper reported that “A mum last night begged her ex-husband to bring back their daughter amid fears she may be forced into marriage in Pakistan. Louise Campbell, 38, told of her anguish since Molly, 12, vanished. It is believed her father, Sajad Ahmed Rana, took her from school on Friday to marry a 25-year-old man in Pakistan.”On Thursday a British MP got in on the act by claiming amidst a storm of publicity that he was flying out to Pakistan to rescue the abducted child.Only after the girl herself appeared at a press conference in Pakistan did the truth begin to emerge. The girl reported that she had gone to Pakistan of her own free will and she appeared to be quite happy about the move.In this particular case the girl was of sufficient age and maturity to be able to express herself articulately and effectively – and the press backed off. But that is highly unusual. Most kids are too young, too frightened or too upset to be able to explain effectively what has happened to them. Then it is the parent with the loudest bullhorn who typically sways the media to his or her side. On Friday we were interviewed about these problems on BBC Worldwide. As we explained, emotions run terribly high in these cases because parents feel that they are “all or nothing cases.” They fear, often justifiably, that their children will never be part of their lives if the case is lost.

The lesson of all this is that people must keep an open mind about these cases. Not only are there two sides to every story – the mother’s side and the father’s side – but there is also the child’s side. It is the child’s best interests that are often neglected as each parent battles for total victory against the other parent.

International family lawyer, Jeremy D. Morley, announces the launch of the Strategic International Divorce Planning™ service. Morley contends that people with assets and international connections who are contemplating a divorce, as well as the spouses of such people, should first seek strategic planning support.The financial consequences of being divorced in one jurisdiction rather than another might be highly significant. For example, the difference between getting divorced in London instead of in New York can be staggering. England has recently acquired an extremely well-deserved reputation as the divorce capital of the world for anyone whose spouse is well-endowed with assets. Once the English divorce courts have finished their work, and the English solicitors and barristers have collected their fees, a once-married spouse with assets will now most likely become an ex-spouse with far less assets. Such people often wonder too late why they did not seek international divorce planning advice before it was too late.Likewise, the disparity between the practices of divorce courts in Tokyo as compared to those in Sydney, and of the divorce courts in Hong Kong as compared to those in Frankfurt, are equally vast – or possibly even more so.Yet very few people do their homework on these critical issues at a time when it could really make a big difference. They simply assume that wherever they live is necessarily the jurisdiction in which they must sue or be sued. They walk in blind to what may be the most significant financial transaction of their life.The differences between one divorce jurisdiction and another are far more than the difference between a soccer team playing at home or playing away. It is instead a difference between playing one game at home and a totally different game with totally different rules away.The analogy to a game is not inappropriate. Any serious competitor plays a competitive game strategically. Is the process of divorce any less serious than that?

Morley has taught in law schools in England, Illinois and Canada. He has lived in Japan and has done business in more than 20 countries in Europe, Asia and South America. He is admitted to practice law only in the State of New York. Any information that he provides concerning the law of another jurisdiction is subject to a client obtaining legal advice from counsel in that jurisdiction. When appropriate he will retain the services of local counsel to assist us in providing advice to a client.

We have previously reported that Singapore Court of Appeal has held that it will normally enforce prenuptial agreements or other marital agreements, at least if they were entered into in a foreign jurisdiction under whose law they are valid. (Singapore Prenuptial Agreements) The Court determined in the case of TQ v TR, [2009] SGCA 6 (Feb. 3, 2009) that the Singapore courts should accord “significant (even critical) weight” to the terms of a prenuptial agreement between foreign nationals that is governed by and valid according to a foreign law, unless its terms violate the public policy of Singapore.

Now, in AFS v AFU, [2011] SGHC 52 (7 March 2011), the Singapore High Court has followed the ruling in TQ v TR but has refused to enforce a Deed of Separation entered into in Singapore on the ground that the husband had violated an obligation to make full disclosure of his assets and expectancies before the parties had signed the Deed.

One year after the Deed was executed the husband’s company granted him a stock option of great value. The Court determined that the husband had had an expectancy of receiving the stock option prior to the date of the deed and that he had failed to disclose it to his wife.

The Court explained that the decision in TQ v TR held that an agreement between parties “cannot be enforced in and of itself”. The terms of an agreement would only constitute one of the factors that the court should take into account in arriving at its decision as to the proportions in which the matrimonial assets concerned are to be distributed. Even if prima facie the court would not lightly set aside an agreement between parties, the court has liberty to decide that an agreement ought not to apply if the court does not consider it just and equitable.

Applying those considerations the Court awarded the wife 25% of the value of the undisclosed assets.

Thus, the rule in Singapore is that financial agreements between spouses (or spouses-to-be), while they might be afforded decisive weight in appropriate circumstances, are always subject to judicial scrutiny. Section 112 of the Singapore Women’s Charter requires the Singapore courts to order the division of matrimonial assets “in such proportions as the court thinks just and equitable”. Thus, although financial agreements are most significant there are not mechanically enforceable in Singapore.

It also seems most likely that the Singapore courts will be influenced significantly by cases to be handed down in England under the authority of the English Supreme Court case of Radmacher.

Yesterday’s decision by the Second Circuit Court of Appeals in Guzzo v. Cristofano cogently restated the rules concerning the definition of the term “habitual residence” in the Hague Abduction Convention.  My client, Ms. Cristofano, had entered into a “bi-continental marriage” with Mr. Guzzo. Both are lawyers; he in Italy and she in New York.  Their child was born in New York and spent considerable time in both countries, always with his mother. The parties ultimately negotiated and signed a separation agreement, but his signature was not notarized. It stated that the parties would separate and that the mother and child would live primarily in New York, with visitation in Italy and New York. The mother then took the child to the father’s residence in Italy and they stayed in that area for much of the next two years. Indeed the child spent much of those two years in school in Italy. Ultimately the mother and child left Italy for New York and the father promptly initiated a Hague case. The issue in the case was whether the child was habitually resident in Italy at the time he was brought back to New York. Judge Sullivan at first instance held “No” and he dismissed the petition. Indeed, he ruled in strong language that the father’s testimony concerning a purported reconciliation was not credible.

On appeal the Second Circuit affirmed that ruling and continued the line of cases starting with Gitter that sets forth the Second Circuit rule in that regard. It affirmed that the evidence of the parents’ last shared intention was clear and controlling absent any proof of acclimatization in Italy.

I should also note that the Court relied in part on another very recent case in which one of my clients won a Hague case on the issue of habitual residence, this being the case of Hofmann v. Sender. There, the Second Circuit accepted our argument that a consent to a child’s international relocation that is implicitly or inferentially conditioned on an event that does not occur – here, the establishment of a family home in the new country – does not constitute a sufficient consent for Hague Convention purposes.

Jeremy D Morley

Jurisdiction in India concerning child custody matters is primarily based on the concept of “ordinary residence.” Section 9 (1) of the Guardian and Wards Act 1890 provides that, “If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.” Ordinary residence is not necessarily the same as habitual residence, but it is based on the original meaning of the term in English law. Nonetheless, the courts in India have developed their own jurisprudence concerning its interpretation.

The leading case is the Supreme Court of India’s ruling in Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479, which outlines with the simple proposition that “ordinary residence” means “where the minor ordinarily resides,” but then provides helpful amplification of that concept.  The key provision in the ruling, explaining the fundamental distinction between sufficient and insufficient residence, comes in the Court’s analysis of a prior case, Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 SC 1521. The Court in Majoo explained as follows:

The Court [in Kaur] noticed a near unanimity of opinion as to what is meant by the use of the word “resides” appearing in the provision and held that “resides” implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words:

‘…….Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases there on, we would define the word “resides” thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case…..’ “

Thus, the fundamental distinction is between a mere “flying visit to, or casual stay at a particular place,” which is insufficient to create ordinary residence and residence “through choice” to make a place “his abode permanently or even temporarily,” which may be sufficient. The Court also cited the case of Kuldip Nayar v. Union of India, AIR 2006 SC 3127, in support of the proposition that, “residence is a concept that may also be transitory.”

The Indian courts have further held that an ordinary residence cannot be created by child snatching. A very recent example is the case of Akhilesh Anjana vs Kavita Anjana (14 March, 2022, Madhya Pradesh High Court), holding that a child who was living with his father after the father had unilaterally removed him from the matrimonial home continued to be ordinarily resident in the district in which he had been living before his father had wrongfully removed him. 

In addition to jurisdiction based on ordinary residence, Indian courts also may assert child custody jurisdiction on the basis of parens patriae, based on the traditional duty of the sovereign to protect all who are present in the country, and on the basis of habeas corpus. Such cases are exceptional and are primarily founded on the need to provide urgent protection for a child who is physically present in the district in which the court is located, even if the child is not ordinarily resident there. These issues arise frequently in the case of international child abduction to India. In some cases, courts in India have held that foreign children should be returned to their home country based on the limited and exceptional jurisdiction founded on parens patriae and habeas corpus. Merely by way of example, the Supreme Court of India has most recently ordered the return of an American child to the United States because of the exceptional circumstances of his abduction. Rohith Thammana Gowda vs The State Of Karnataka, 29 July, 2022. However, as I have often reported, it is critical to note that such returns are rare and very much the exception rather than the rule.

The European Court of Human Rights (the “ECHR”) continues to attack the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), including a decision issued in December 2011.

In June 2010 in Neulinger & Shuruk v. Switzerland the ECHR ruled that the European Convention on Human Rights requires that courts may not return an abducted child to its habitual residence, even when the child’s return is mandated by the Hague Convention, unless it is first established that it is in the best interests of both the child and the child’s family to do so.

The ECHR thereby overruled thirty years of international case law, discounted the fundamental purposes of the Hague Convention of deterring international child abduction and of not rewarding international child abduction, and ensured that any Hague case that follows its precepts will be lengthy and expensive as well as often unfair to the left-behind parent who must now defend what could be almost a custody case on the taking parent’s home turf.

Notwithstanding extensive criticism of its decision the ECHR has followed the Neulinger case in more recent cases.

In Šneersone and Kampanella v. Italy (ECHR Application no. 14737/09) the ECHR applied Neulinger to override an Italian return order that had been issued after an admitted international child abduction from Italy to Latvia.

In April 2006 the child’s unmarried mother unilaterally took the parties’ son from their habitual residence in Rome, Italy to her native Latvia where she retained him. She claimed that she did so because the father was not paying child support and she could not afford to remain in Italy.

The ECHR criticized the Italian courts’ failure to consider: (a) the risk that the child’s separation from his mother might leave him with neurotic problems or an illness, (b) the father’s failure to visit his son in Latvia since 2006 or (c) whether the father’s home was suitable for a young child.

The ECHR, citing Neulinger, stated that it “must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin.”

The Court’s decision is astonishing for its failure to criticize the mother’s conduct in abducting the child in the first place and for its failure to address the fact that the Article 13(b) exception should not be invoked when the abducting parent is the one who creates the risk by refusing to return with the child. The ECHR decision endorses international parental child kidnapping and constitutes an extremely dangerous precedent.

Equally disturbing is the case of X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011.

Here the child was taken from her habitual residence in Australia to Latvia by the Latvian mother. The father in Australia commenced a Hague proceeding promptly and the Latvian court, after a hearing, promptly issued a return order. On appeal the mother asserted that the child would suffer psychologically if she were returned to Australia without her mother and supported this assertion with a psychologist’s report and she claimed that she did not have the financial resources to return there. The appeal failed in January 2009.

Almost three years later the ECHR ruled that the Latvian return order violated Article 8 of the European Convention because the Court disregarded the psychologist’s report and did not sufficiently consider “what would happen as regards the child’s material well-being if returned to Australia.”

For a full discussion of these issues see my just-published article in the IAML Law Journal, TheHague Abduction Convention: A Critique of the Neulinger Case.