In a case decided in 2014 Sir James Munby, the President of the Family Division of the High Court of Justice, provided the following extremely helpful and straightforward recitation of the basic legal principles that apply in England and Wales concerning divorce jurisdiction:

1.  In the circumstances, and bearing in mind in particular that this judgment will be read by many unfamiliar with our court system, I think it important to give a judgment more detailed in some respects than might otherwise be appropriate.

2.  By way of preliminary, I should explain that within the United Kingdom there are three separate legal systems. Scotland and Northern Ireland each has its own legal system. I am sitting as a judge of the courts of England and Wales (what for convenience I shall refer to as “the English court”) applying the law of England and Wales (what for convenience I shall refer to as “English law”). 

English law: divorce proceedings in the English court

3.  An application for divorce is made in the English court by an originating process called a petition. The person applying for divorce is called the petitioner; the other spouse is called the respondent. An order for divorce is called a decree. The first decree is called a decree nisi: it is a provisional order which does not itself terminate the marriage. The second decree is called a decree absolute: it is a final order which brings the marriage to an end.

4.  The first thing I must consider is the jurisdiction of the English court in matters of divorce. For reasons which will become apparent in due course, it is important to distinguish two different senses in which the word jurisdiction is used. The first, what I will call “jurisdiction to entertain the petition”, goes to the logically prior question of whether the English court has any jurisdiction at all to receive, hear and consider the petition. The other, what I will call “jurisdiction to grant a decree”, goes to the question of whether the English court, assuming that it has jurisdiction to entertain the petition, has jurisdiction to grant a decree of divorce. I will consider these in turn.

5.  Jurisdiction to entertain the petition is conferred by section 5(2) of the Domicile and Matrimonial Proceedings Act 1973:

“The court shall have jurisdiction to entertain proceedings for divorce … if (and only if)

                               (a)        the court has jurisdiction under the Council Regulation; or

(b)        no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.”

                               The Council Regulation is defined in section 5(1A) as meaning:

“Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.”

6.  So far as is material for present purposes, Article 3 of the Council Regulation provides as follows:

“1        In matters relating to divorce … jurisdiction shall lie with the courts of the Member State

                             (a)        in whose territory:

–          the spouses are habitually resident, or

–          the spouses were last habitually resident, insofar as one of them still resides there, or

–          the respondent is habitually resident, or

–          in the event of a joint application, either of the spouses is habitually resident, or

–          the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

–          the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;

(b)        of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.

2                      For the purpose of this Regulation, “domicile” shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.”

In each of the cases before me jurisdiction was sought to be founded in accordance with, in most of the cases, the fifth or, in a small minority of the cases, the third limb of Article 3.1(a). So, in every case it was being asserted that either the applicant (the petitioner) or the respondent was habitually resident in England and Wales.

7.  Jurisdiction to grant a decree, assuming that the English court has jurisdiction to entertain the petition, depends upon section 1 of the Matrimonial Causes Act 1973, which so far as material for present purposes provides as follow:

“(1)      … a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2)        The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –

(a)        that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)        that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)        that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)       that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition … and the respondent consents to a decree being granted;

(e)        that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition … ”

Jeremy D. Morley A newly-reported ruling of the English High Court on prenuptial agreements demonstrates (a) the sharp division between the law in France concerning marriage contracts and the law in England; (b) the need to appropriately forum shop when strategizing a potential divorce; and (c) the continuing strong paternalism of the English judiciary in family law cases. Y v Y (Financial Remedy – Marriage Contract) [2014] EWHC 2920 (Fam).

The parties were French nationals who lived together in France at the time of their marriage. They entered into a French marriage contract pursuant to which they selected the standard-form regime of separation de biens, whereby each spouse keeps his or her own assets, whether in existence at the time or subsequently acquired, separate and free from any claim by the other unless jointly acquired and specifically held in joint (or common) ownership.

The marriage contract itself did not contain any specific reference to the dissolution of the marriage (other than by death), but under French law its terms would certainly govern a divorce.

The parties met with a notaire in Paris shortly before they signed the contract but, as is usual in France, they did not have separate counsel. However, it is the duty of a notaire in such circumstances to act for both parties equally, to read the marriage contract and to explain its effect to both parties.

Shortly after the marriage the parties relocated to England, where they lived and had a family throughout a long marriage, but they retained strong connections to France and remained domiciled there. The husband worked as a banker while the worked in business.

The parties and the Court agreed that if the case had been heard in France the marriage contract would be absolutely binding and would govern the divorce.

However, in England the governing law is that which was set forth by the U.K. Supreme Court in the seminal case of Radmacher v. Granatino, 2010] UKSC 42. There, the majority stated that, “The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” (emphasis added). In considering whether each party had a “full appreciation” of the implications of such an agreement, the majority stated that, “’What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.”

In Y v. Y, Mrs. Justice Roberts applying the Radmacher test and determined that, although the wife conceded that she understood from the outset that the marriage contract provided that she and her husband would have separate ownership of their assets during the marriage, she did not understand that this would apply if they were to divorce and she did not have all of the information which was likely to have been material to her decision. Consequently, all of the assets that each of the parties had accumulated during the marriage, mostly by the husband, comprising many millions of pounds, should be divided equally.

The judge’s decision on the facts concerning the inferred intentions of the wife, and the extent of her understanding at the time the contract was signed, were made despite the existence of substantial evidence to the contrary, including expert evidence from French counsel that, when a French notaire conducts the meeting that must be held before any such agreement is signed, the notaire explains and reads out the draft marriage contract, answers questions the parties may have, and normally explains how the provisions of the marriage contract will apply, notably in the event of dissolution of the marriage (in the event of death or divorce). In addition, this was not a case in which the wife was unsophisticated; indeed, she had worked throughout most of the marriage “at a senior management level” and had earned a substantial income.

The U.K. Law Commission has proposed that prenuptial agreements should be enforceable in England and Wales, but subject to an exception if an agreement does not satisfy the “financial needs” of the parties. I have previously opined that the exception is far too broad and indefinite, especially given the insistence of the English judiciary to oversee such agreements and to ignore them when a judge deems it appropriate to do so. The decision in Y v. Y. demonstrates exactly the kind of judicial intervention that the Law Commission should anticipate if it recommends a broad “needs” or “fairness” exception to any legislation that purports to authorize prenuptial agreements. The French parties living in France chose to enter into a French agreement that would be fully enforceable in France, but the English court undermined that certainty and party autonomy and substituted its own determination of what was fair in the circumstances.

Jeremy Morley works with counsel in England and France in handling complex international divorce issues. He strategizes with clients and lawyers in handling such issues. 

Korea is apparently taking steps towards signing the Hague Abduction Convention.

This would be a major step forward in the prevention of international child abduction.

Korea Mulls Signing Treaty to Protect Kids

Korea is moving to sign an international treaty to protect children against parental abuse and possible abduction in cases of multi-cultural marriage breakdown.A government source said the nation is inching closer to joining the 1980 Hague Convention on the Civil Aspects of Child Abduction.The multilateral treaty signed by 81 countries provides a mechanism that ensures the prompt return of children taken to another country by a divorced parent seeking a court ruling in their favor.”Korea has long been mulling the signing of the treaty to counter international custody disputes, which have been on the rise because of an increase in the number of multi-cultural marriages, and the unstable economy,” the source said.The Ministry of Justice and the Ministry for Health, Welfare and Family Affairs have been reviewing the issue.According to U.S. Department of State officials, more than 1,000 American children were abducted and taken to a foreign country by a parent in 2008, up from 642 in 2005.It is tough and complex to repatriate a child from countries that have not signed the pact such as Korea, Japan and the Philippines, as court rulings in previous jurisdictions can easily be overturned.The U.S. State Department warns on its Web site over possible custody disputes with Korea.

“Custody orders and judgments of foreign courts are not enforceable directly under Korean law,” it says.

By Lee Tae-hoon,10/25/09, Staff Reporter

Newspapers around the world have carried an article entitled “Japan, India pressed to curb child abductions” that calls attention to the fact that both countries violate human rights norms by failing to provide remedies for international child abduction. The articles describe the circumstances of several of my clients and state that,

“Jeremy Morley, a New York lawyer who specializes in international family law, says India is ‘a safe haven for child abductors” in part due to its slow-moving court system.’

‘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,’ Morley writes on his Web site.”

Japan, India pressed to curb child abductions

AP foreign, Tuesday December 7 2010

NEW YORK –  Japan and India are among America’s most prized allies. Yet to scores of embittered parents across the U.S., they are outlaw states when it comes to the wrenching phenomenon of international child abduction.

The frustrations of these “left-behind” parents run deep. They seethe over Japan’s and India’s noncompliance with U.S. court orders regarding children taken by the other parent to the far side of the world, and many also fault top U.S. leaders for reluctance to ratchet up the pressure for change.

“If they really made it an issue to solve these cases, I believe they could be resolved tomorrow. … They don’t have the will,” said Christopher Savoie of Franklin, Tenn.

Savoie was arrested in Japan last year, and spent 18 days in custody, after a failed attempt to reclaim two children taken from Tennessee by his ex-wife in violation of a U.S. court order.

More than 80 nations have signed an accord aimed at curtailing such incidents, but only a handful of Asian countries are among them. Of the continent’s non-signatories, Japan and India pose the biggest problem for the U.S. — accounting for more than 300 cases, involving more than 400 children, opened by the State Department since 1994.

The State Department says it cares deeply about international parental child abductions, which its experts believe will increase as binational marriages become more common.

The department has boosted the staff dealing with abduction cases from 18 to 65 over three years, and says it is working harder than ever to convince Japan and other Asian allies to sign the 1980 Hague Convention on international abduction.

The department’s special adviser on children’s issues, Susan Jacobs, and its top official for Asia, Assistant Secretary of State Kurt Campbell, have raised the topic on multiple occasions. Campbell used the word “kidnapping” in protesting the many cases in Japan where mothers living overseas with foreign husbands returned home with their children and kept the fathers from having contact with them.

“This is a hard job — we don’t get as many successes as we want,” said Stefanie Eye, chief of the State Department’s Eastern Hemisphere abductions division. “We want every child in the right place.” ….

Many times previously, Japan has said it would consider signing the Hague Convention, but it also has expressed concern that doing so might leave some Japanese women and their children vulnerable to abusive foreign husbands.

Stefanie Eye said that in Japan, unlike many Western countries, it’s accepted practice that only one parent — usually the mother — has custody of a child after a divorce. That leaves many fathers, including foreigners, unable to see their children until they are grown up because of lack of visitation rights.

“Part of what we’re doing is offering the Hague country perspective of why it’s important for children to have access to both parents,” Eye said.

The State Department says it knows of no cases where a child taken from the U.S. to Japan by one parent has been ordered returned to the U.S. by Japanese courts.

There has been some progress elsewhere in Asia, Eye said. She cited an announcement by Singapore that it will sign the Hague Convention and a preliminary indication by South Korea that it will do likewise.

“We’re seeing a lot of movement,” she said. “We’re waiting for someone to stand out and be a leader.”

For the moment, India shows no signs of being that leader. Though a national law commission recently recommended that India sign the Hague Convention, the government hasn’t signaled that this will be a priority, and an External Affairs Ministry spokesman, Vishnu Prakash, told The Associated Press in New Delhi that he had no comment on the issue.

“This government is not really interested in ensuring the children’s rights,” said Bharati Ali, co-director of HAQ — a non-governmental children’s rights group in India.

The State Department’s assessment is blunt.

“Once a child has been abducted to India, remedies are very few,” says an official advisory. “India does not consider international parental child abduction a crime, and the Indian courts rarely recognize U.S. custody orders, preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep the child in India.”

Jeremy Morley, a New York lawyer who specializes in international family law, says India is “a safe haven for child abductors” in part due to its slow-moving court system.

“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,” Morley writes on his Web site.

The California-based Rakshak Foundation has tried to help numerous Indo-American fathers entangled in cases of alleged child abduction.

Among them is Avinash Kulkarni, 45, of San Diego, who says his son — then 6 months old — was taken back to India by his ex-wife in 1990, and 18 years passed before he saw his son again. He said he won a civil case against his ex-wife in 2001, but made no headway with the Indian legal system in his efforts to make see his son.

“In India, the whole concept of human rights and fairness is nonexistent compared to here,” he said. “Fighting that is a losing battle. … I lost my prime years trying.”

Another father, Vipin Gopal, said he has been unable to exercise custodial and visitation rights granted by courts in Connecticut after his daughter was taken to India by his ex-wife four years ago.

He hopes the U.S. intensifies pressure on India to cooperate as part of the broader efforts to expand bilateral ties.

“Recently, during a visit to India, the Obama administration negotiated multibillion dollar trade deals and supported a U.N. Security Council seat for India,” Gopal said. “But if we can’t negotiate with India about the basic rights of our own children, that’s where America as a nation fails.”

Rex Arul, an energy consultant from Smyrna, Ga., is trying to regain custody of his 3-year-old daughter, who was taken back to India in July by his wife, a corporate attorney, in the midst of wrangling over a divorce. Arul says he subsequently obtained a U.S. court order awarding him custody, but is not optimistic.

“The cards are stacked against me,” he said. “The Indian courts always say the priority is the child’s best interest, but in the end it’s always rewarding the abductor.”

A new article on Korean Family Law has been added to my website at international-divorce.com.  This article discusses the legal grounds for a divorce in Korea, the statutes that govern financial issues in Korean divorce cases, and how Korean courts handle “choice of law” issues in these cases.  The article also focuses on Korean recognition of foreign divorce decrees, outlining how these foreign judgments will be valid and enforceable in Korea.  Please follow the below link to read our full article on Divorce Law in Korea.                                 

http://www.international-divorce.com/d-korea.htm

A senior U.S. diplomat met with South Korean officials Friday to discuss Seoul’s planned accession to an international convention on the custody of children from international marriages. The Hague Convention on the Civil Aspects of International Child Abduction aims to prevent parents in custody battles from abducting their children and taking them to another nation in search of a more favorable arrangement. It also lays out a procedure for promptly returning children to their original country of residence. “We’re here to talk about the Hague Convention on International Abductions with the ministry of foreign affairs,” Susan Jacobs, the U.S. State Department’s special adviser for children’s issues, said ahead of talks with Paik Ji-ah, director-general of the ministry’s international organizations bureau. “All the partners want South Korea to accede to the convention,” she said. South Korean officials said they are making preparations to accede to the 1980 convention, with a Justice Ministry task force drafting a bill that outlines the government’s role and rights with regard to the treaty. A rough version of the bill is nearly completed, they said.

Relevant government offices, such as the foreign, justice and welfare ministries, are laying the groundwork for the country’s membership, which could come as early as this year after submitting the bill to parliament, officials said.

http://www.businessghana.com/portal/news/index.php?op=getNews&news_cat_id=&id=142014

Custody dispute crossing borders: Mom wants to take daughter to Okinawa

Newark Star-Ledger, May 01, 2007

The state Supreme Court will hear oral arguments today in a Hillsborough child custody case with international implications.

After the breakup of her marriage, Erika MacKinnon wants to return to her homeland, Japan, along with her 7-year-old daughter. A network of relatives and better job prospects should translate into a better life for mother and child, according to her attorney.

Erika’s ex-husband, Ronald MacKinnon, challenges that notion. Relocating the child to her mother’s hometown on Okinawa could make it difficult, perhaps impossible, for him to visit her, he said.

Unlike North American and European countries, Japan never signed the major treaty on child custody issues, the Hague Convention on the Civil Aspects of Child Abduction.

“Japan will not recognize foreign custody orders or foreign ar rest warrants in child abductions,” said Walter Benda, a Virginian who came home 11 years ago to find his ex-wife had taken their two daughters to Japan.

“I don’t think there’s much you can do … if the Japanese parent doesn’t want to act in good faith,” said Benda.

Jeremy Morley, a New York lawyer specializing in international family law, said he is “very frustrated” by the haphazard response of American courts.

“What the court needs to appreciate in this type of case is that if a child goes to Japan, and the custodial parent wishes to keep her there, it could be the last the other parent will ever see of her,” Morley said. “Some courts recognize that, some do not.”

While there have been high-profile cases elsewhere involving abductions to Japan, Saudi Arabia and Egypt, the issue is a new one for New Jersey.

“The precedent in New Jersey is a case involving a parent who moved to Wisconsin,” said Michele D’Onofrio, who represents Ronald MacKinnon. “That doesn’t fit the facts of a case where a parent wants to take a child halfway around the world.”

For that matter, the idea of “abductions” does not fit this case either, said Christina Reger, Erika MacKinnon’s attorney. Rather than bolting for Japan, her client has dutifully gone through the American legal system, prevailing in the lower courts, she said.

“She was only 19 when she came to this country” in 1991, after meeting Ronald MacKinnon when he was stationed on Okinawa with the Marines, Reger said. Erika held a series of low-paying jobs while her husband worked construction, she said.

“She has absolutely no family here, no support group, limited financial prospects,” Reger said.

In contrast, Erika MacKinnon’s fluency in English opens many opportunities in the Japanese job market, and her mother and sister can help with child care, Reger said.

Moreover, since the girl was born, Erika MacKinnon has taken her to Okinawa for extended stays every year, Reger said. Even when Ronald called her in the middle of one of those trips to say he was leaving her for his high school sweetheart, “they still came back,” she said. …

“The court should reconsider reopening the case to take testimony on that point,” Morley said, and possibly require a bond be posted to pay for the trips.

The below article was recently published in the May 2016 issue of AJ Famille, a monthly publication featuring articles on all aspects of Family Law, with a French focus:

The Hague Abduction Convention in the United States

Jeremy D. Morley*

The Hague Convention on the Civil Aspects of International Child Abduction is a remarkably successful international treaty that has had a substantial impact globally in deterring international child abduction.

The purpose of this article is to inform lawyers in France of some of the distinct ways in which the Convention operates in the United States.

Limited Role of Central Authority

The State Department’s Office of Children’s Issues is the U.S. Central Authority for Hague cases. Unlike many other countries, the U.S. Central Authority does not litigate Hague cases, and is not involved in any significant way in Hague litigation. A petitioning parent must retain private counsel to initiate a Hague case in court in the U.S.

Submitting an application to the Office does not initiate judicial proceedings, does not stop the clock for purposes of the “one year and settled” exception to the Convention, and does not require the taking parent to take or not to take any action. The Office does not appoint attorneys for left-behind parents and does not file return petitions with the courts. The responsibility for starting a Hague case in an appropriate court rests exclusively with the left-behind parent.

One area in which the Central Authority has an important role is that it is required by Congress to prepare regular reports as to the compliance by other Hague countries with the provisions of the Convention. These reports are useful evidence in custody cases concerning whether or not a parent should be allowed to take a child for a visit to a foreign country.

Treaty Partners

The United States has not accepted as Hague Convention treaty partners all countries that have acceded to the Convention. The status of such acceptances must be checked whenever a Hague case is contemplated.

Concurrent Jurisdiction

In many countries Hague cases are channeled to a limited number of judges who have special training and experience in handling Hague cases. While the U.S. State Department has lobbied other countries to provide such training and judicial concentration in Hague cases, in the U.S. Hague cases can be brought before either federal or state judges wherever the child is located. Since there are several thousand counties and many federal judicial districts, a Hague case can be brought before any one of thousands of courts in the U.S. Most such judges have never handled a Hague case.”

Family Court judges and U.S. federal judges have completely different backgrounds. This means that the choice of the state or federal system can have a major impact on the outcome of the case. Litigants and counsel might prefer a family court judge who has experience in child custody cases or a federal judge who does not have any such experience.

In practice, the vast majority of Hague cases are brought in federal court. Petitioners often prefer to bring the case in a court that is not accustomed to applying “best interests” analyses in conventional child custody cases. Also, swift action might be more likely in a federal court, whose dockets are shorter and whose enforcement procedures are clear and forceful.

If the case is started in a state court the respondent has the absolute right to remove it to the federal court.

Application and Petition

The standard Hague application that is filed with the Central Authority need not contain much detail. The usual procedure is that the petitioner’s attorneys will then file a far more detailed petition in the appropriate court, which may be supported by documentary evidence and even by sworn affidavits. Often an ex parte motion for a protective order is filed at the same time, seeking an immediate court order barring the respondent from leaving the jurisdiction with the child and requiring that passports be deposited in court. The respondent then has a limited period of time within which to file its responsive pleading, and must appear in court at a certain time (often within just a few days) typically with the child.

Live Hearings

At the first court appearance, petitioner’s attorney will normally explain the petitioner’s theory of the case and ask the court to schedule a final hearing on the matter on as expeditious a basis as possible. The respondent’s attorney will normally advise the court at this time of the basis of the defense.

Occasionally a court might decide the case summarily based on the papers submitted by the parties but usually the court will schedule a hearing with live witnesses. The hearing date   should be well within the six week schedule called for by the treaty.

The court will also generally hear and resolve at this time any pre-hearing issues that either party might raise. Such issues may include the following: Whether pre-hearing discovery should be permitted and, if so, upon what terms; whether interim relief should be ordered, or continued if previously ordered; whether a guardian or lawyer should be appointed for the child; whether telephone or video testimony should be permitted; and whether witness affidavits should be accepted in evidence.

Discovery

Pre-trial discovery is often permitted provided it does not delay the trial. The discovery can include pre-hearing depositions (out-of-court oral testimony of a witness that is reduced to writing for later use in court), written interrogatories, and demands for the production of documents and other evidence.

Guardian / Lawyers for Child

If a respondent asserts an exception based either upon grave risk of harm to the child or on the objections of a mature child, the court mighty appoint an independent expert to help determine the facts or an independent lawyer to represent the child. Courts have sometimes appointed an attorney to act in the dual role of the “guardian ad litem” (a person the court appoints to investigate what solutions would be in the “best interests of a child”) and as the child’s attorney.

Child’s Testimony

The testimony of the child who is the subject of a Hague petition may be heard in a Hague case when appropriate. The child’s opinions are frequently permitted on the issue of a mature child’s objection. A child’s testimony has also been permitted as to facts concerning whether the child was habitually resident in a specific location and as to the grave risk exception. In such cases the courts make it quite clear that the weight they will give to such testimony may be less than that given to the testimony of other witnesses, depending on the age and maturity of the child and the extent to which the child’s testimony is independent. A child’s testimony is often taken in an informal manner.

Legal Fees

The legal fees in a U.S. Hague case can be very high. U.S. domestic law expands Article 26 of the Convention by providing that any court that orders the return of a child under the Hague Convention “shall order” the respondent to pay “necessary expenses” incurred by or on behalf of the petitioner, “unless the respondent establishes that such order would be clearly inappropriate.” However, there is no provision for a winning respondent to claim legal fees from the petitioner.

Habitual Residence

It may surprise foreign lawyers to learn that the issue that creates the most confusion and lawyers’ time in American courts is that of habitual residence. Determining the child’s “habitual residence” is a threshold issue in any Hague Convention case. It is often outcome-determinative because, if the court concludes that the country from which the child was removed was not the country of the child’s habitual residence, the Convention will not apply and the petition must be dismissed.

Courts in the U.S. have scrutinized the phrase extensively and there has been substantial diversity in the way that it has been interpreted in different circuits and by many state courts.

The courts have developed three primary but divergent approaches to determine the habitual residence.

The first approach – followed by a majority of courts — focuses primarily on parental intention, with a subsidiary look at acclimatization. The parents’ “last shared intent” regarding their child’s habitual residence is presumed to be controlling, although the presumption can be rebutted in exceptional cases if the child has sufficiently acclimatized to its new surroundings as to render a return order unfair or seriously damaging. 

Courts taking this approach will decide that a child has acquired a new habitual residence only if it is established that the parents had a shared and settled purpose to do so. Many courts also require proof of an intention to abandon the former habitual residence. The inquiry focuses on the state of mind of each of the parents, and whether their intent was shared. This may be revealed by considering, for example, whether or not they intended the move to be permanent or temporary, how long they intended to stay, whether they had plans to return to a previous residence, whether the shared intention was unconditional and whether an express or implied condition was satisfied. It is possible, using this approach, to find that a child remained habitually resident in a prior country of residence despite having resided for several years in a new country, even attending school and assimilating into the new community.

The second approach is the “child-centered approach” whereby the courts look exclusively at the child’s objective circumstances and past experiences. Relevant inquiries include whether the child is attending school, the child’s participation in other cultural, and the child’s overall level of acclimatization and integration into the community. The inquiry does not consider parental intent, which is deemed to be entirely irrelevant.

The third approach requires a mixed inquiry into both the child’s circumstances and the shared intentions of the child’s parents. How much weight should be given to each factor is unclear. Sometimes evidence of shared parental intent to abandon an old habitual residence and acquire a new one will trump any evidence of acclimatization from the child’s perspective. In other cases, sufficient evidence of acclimatization will defeat any evidence of shared intent.

Unfortunately the U.S. Supreme Court has never resolved the conflicting interpretations. As a result, the treaty can be interpreted quite differently depending, for example, on whether the case is brought on one side or the other of the Hudson River between New York and New Jersey, with New York looking primarily at the last shared parental intention and New Jersey looking far more at the actual “conditions on the ground.” The treaty is supposed to have one autonomous meaning on a global level, but that has rule not been respected in the U.S.

Since the majority interpretation focuses on parental intention, it is essential whenever habitual residence is disputed to present as much evidence as possible as to all the factors that might indicate such intention. 

Grave Risk of Harm

The U.S. follows the general principle that the grave risk of harm exception in Article 13(b) of the Convention must be interpreted narrowly. The burden of proof of most of the Hague exceptions is “preponderance of the evidence” but for grave risk it is “clear and convincing evidence,” a much higher standard.

Expert testimony is often used by both sides, especially testimony from doctors, psychologists, social workers and even lawyers who can testify as to the resources available in the habitual residence. Such testimony may be decisive in proving or disproving grave risk of harm.

Many courts require a respondent to establish prior harm to a child but also to prove that the authorities in the habitual residence will not provide adequate protection if the child is returned. Some courts have recently deviated from that requirement and the issue is unsettled.

A difficult situation often arises when there is evidence of domestic violence against a spouse, but less severe abuse or none at all directed at the child. Traditionally, a respondent must show a strong link between the spousal abuse and harm to the child, but some courts have adopted a broader approach. The cases vary dramatically depending on the facts of the case and the nature and quality of the evidence.

Undertakings

Some U.S. courts have attached conditions, or undertakings, to a return order in an effort to mitigate the risks that might result from the return. The U.S. Department of State has urged that undertakings should be used sparingly and be narrowly tailored to advance the Convention’s goal of prompt return. In some cases the courts have stated that undertakings provide a false sense of security, since they may well be totally unenforceable.

An Alternative Procedure

There is an alternative procedure in the U.S. to obtain the return of an abducted child.

Every American state) has adopted the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”), except Massachusetts which has a similar law.

The UCCJEA generally requires U.S. courts to register and enforce custody determinations issued by a foreign court if that court had jurisdiction under the jurisdictional principles contained in the UCCJEA. If the child had lived in the foreign country for the six months preceding the commencement of the foreign custody case, and if that case was the first custody case concerning the child, the foreign country will be the “home state” of the child within the meaning of the UCCJEA, and an American court must normally consider that the foreign court had custody jurisdiction. 

It may be preferable for a left-behind parent whose child has been taken to the U.S. to proceed under the UCCJEA instead of the Hague Convention. There are several reasons for this:

·                     The primary venue for the litigation is the jurisdiction from which the child was taken. This will usually be far more convenient and comfortable than a distant and unfamiliar American court.

·                     It is often far easier to establish that the foreign country is the “home state” for UCCJEA purposes than the habitual residence.

·                     Once a notice to register the foreign custody order is properly given in a U.S. court, it must be enforced unless the respondent can establish that (1) the issuing court had no jurisdiction; or (2) the foreign child custody determination was vacated, stayed, or modified by a court in the foreign country; or (3) notice or an opportunity to be heard was not given to the other parent.

·                     The UCCJEA does not permit the respondent to assert any of the exceptions that can be asserted in a Hague case. 

·                     A case can be brought under the UCCJEA to register and enforce a foreign custody order even if the foreign country is not a party to the Hague Convention (unless its child custody laws violate human rights). 

·                     The Hague Convention does not provide an effective mechanism for to enforce access rights. The UCCJEA has no such restriction. 

·                     The Hague Convention applies only in respect of children under the age of 16. 

·                     Hague cases generally raise “interesting” (i.e., expensive) issues. UCCJEA enforcement cases usually (but not always) do not. Therefore UCCJEA cases are generally substantially cheaper.

On the other hand, it could be better in some cases to bring suit under the Hague Convention, instead of under the UCCJEA, for a variety of reasons:

·                     The courts in the child’s habitual residence might not exercise custody jurisdiction if the child is no longer located there. From a U.S. perspective the courts of that country might have jurisdiction but if those courts do not have jurisdiction under their own jurisdictional rules and if there was no custody order in place prior to the child’s removal, there will be no foreign custody order to register and enforce in the United States. 

·                     If the foreign country was not the home state for purposes of the UCCJEA, because the child lived there for less than six months (unless he or she was a baby less than six months old), a custody order issued by a court in that country will generally not be enforceable under the UCCJEA. 

·                     If proper notice or a proper opportunity to be heard was not provided by the foreign court, this will be fatal to an effort to register and enforce the order in the U.S.  

·                     If the courts in the child’s habitual residence act slowly it may well be far better to bring a Hague case forthwith in the place where the child is currently located.

·                     If the courts of the habitual residence will not handle the custody case’ unless and until the child is returned there, it would be possible for the left-behind parent to wait until the U.S. court has custody jurisdiction, usually after six months, and then to sue for custody in the U.S. state where the child is located. In such a situation, however, a Hague case would invariably be a far wiser course, since it would be much quicker and it would not open the door to a full-blown best interests analysis.  

Conclusion

Hague cases are handled differently in the U.S. than in other countries. The Convention generally works well but it requires strategic implementation and expeditious implementation. In some cases it is better to proceed under the UCCJEA.

*Jeremy D. Morley is a New York lawyer who handles Hague Convention throughout the United States. He is the author of the American Bar Association book, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers. He may be reached at [email protected]

Jeremy D. Morley

We just won a Hague Abduction Convention case in Sweden, working with Swedish counsel, and obtained an order to return the abducted children to Japan. Of the greatest importance, the Swedish court granted our express application that our client, the left-behind parent, is the parent who will take the children back to Japan.

Japanese family law is extremely weak. Child custody orders in Japan are essentially unenforceable.  Japanese law applies the one-parent rule, whereby only one parent is permitted to have custody of a child. Visitation rights are minimal and unenforceable. For these reasons, the parent who is in possession of a child in Japan is usually, by default, the custodial parent. This has to be explained, and proved, usually by expert evidence, to a court handling a Hague petition seeking the return of a child to Japan. It is often also necessary in such cases to handle suggestions from the abducting parent or the court about undertakings. These are provisions that impose conditions of the return of an abducted child. They might, for example, require that, before a child can be returned to Japan, a Japanese court should issue an order concerning the terms under which the parties should reside prior to the issuance by a court in Japan of a comprehensive custody order. Such conditions are completely counter-productive and entirely naïve when it comes to the return of children to Japan. Japanese courts do not issue such orders and, even if they did, they would be unenforceable. For these reasons, it is critical to ensure that the focus is on which parent will take the child back to Japan because the reality is that legal system in Japan is essentially a vacuum when it comes to child custody and visitation. Basically, whoever possesses a child in Japan has de facto custody.

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Jeremy D. Morley handles numerous cases concerning Japanese family law. He lectured earlier this year on such issues at the Japanese Foreign Ministry and has frequently been called as an expert witness on Japanese family law in courts throughout the world.

Jeremy D. Morley

The U.K. Supreme Court has just issued an extremely important opinion concerning the grave risk of harm exception in a Hague abduction case.  In the Matter of S (a Child) [2012] UKSC 10. The ruling is surprising in at least three respects.

The first is that the Supreme Court bluntly castigated another high-level court in another jurisdiction — the European Court of Human Rights. In X v Latvia the European Courtreiterated its decision in the infamous Neulinger case that the European Convention on Human Rights requires an in-depth examination concerning the family’s best interests in any case under the Hague Abduction Convention.

The Supreme Court (Lord Wilson) completely rejected the European Court’s decision in X v. Latvia, stating, “[w]ith the utmost respect to our colleagues in Strasbourg” (!), that “we reiterate our conviction … that neither the Hague Convention nor, surely, article 8 of the European Convention requires the court which determines an application under the former to conduct an in-depth examination of the sort described. Indeed it would be entirely inappropriate.”

In the humble opinion of this author, the Supreme Court’s rebuke is welcome and entirely correct, for the reasons I have previously stated in my article, The Hague Abduction Convention and Human Rights: A Critique of the Neulinger Case.

The second somewhat surprising element of the decision in In the Matter of S is that the U.K. Supreme Court has made it clear that in its previous decision last year in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 it did, indeed, intend to change the English interpretation of  the grave risk exception to the Hague Convention in a far broader way than English courts had previously adopted.

The third element that is surprising to a lawyer on this side of the pond is that the Supreme Court did not merely overturn the decision of the English Court of Appeal for objective reasons but it lashed out at that court in remarkably forthright and harsh language for its failure to read correctly and apply the Supreme Court decision in re E.

The bottom line is that, although the U.K. Supreme Court declared that in re E it had not really changed the law concerning Article 13(b), but had merely removed the “excrescence” that earlier case law to the plain meaning of the treaty, it has in fact broadened the exception as it is applied in England.

In a key paragraph of re E  the Supreme Court stated that,

“[T]he words “physical or psychological harm” are not qualified. However, they do gain colour from the alternative “or otherwise” placed “in an intolerable situation” …”‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate'”. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.” (emphasis added)

Now, in In the Matter of S (a Child)the U.K. Supreme Court had to determine how apply its prior ruling. A British mother living in Australia with the child’s Australian father had separated, obtained an “apprehended domestic violence order” in the Australian courts, and then removed the child to England. She defended the Hague case by submitting strong psychiatric evidence about her fear of returning to Australia. The evidence showed that she was psychologically fine in England but that if she were to return to Australia her prior emotional trauma — diagnosed as Battered Women’s Syndrome, a form of Post-Traumatic Stress Disorder — would likely return.  She also submitted evidence of some domestic violence against her but none as to the child.

The trial court determined that the likely psychiatric and psychological impact on the mother of a return to Australia was significant and severe. The source of her stress (the father) was in Australia. Contact with this source of stress (re-exposure to the father) would put her at risk for further acute stress and post traumatic stress. She had a prior history of anxiety and depression which not only lowered her threshold for acute stress and post traumatic stress but also increased the likelihood of a recurrence of her anxiety and depression.

The Court of Appeal overturned the trial court’s ruling because her defense was based merely on her subjective perception of risks which might lack any foundation in reality.

The Supreme Court restored the trial court’s original judgment in the basis that, “It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.”

The Supreme Court declared that the Court of Appeal had wrongly defined the crucial question as whether the mother’s anxieties were realistically and reasonably held. It stated that the critical question was what would happen if the parent and child were returned.  If, upon return, the parent would suffer such anxieties that their effect on the parent’s mental health would create a situation that would be intolerable for the child, then the child should not be returned. It did not matter whether the mother’s anxieties were reasonable or unreasonable.

The Supreme Court decision is also surprising for its failure to discuss the extent to which the child would be expected to suffer as a result of the mother’s anticipated trauma.