No summary return principle in internal child ‘abduction’


October 27, 2016

Source: marilynstowe.co.uk

One of the biggest fears for a separated parent, particularly the parent with whom the child is not residing, is that the other parent may try to abduct the child to another country.

flight-takeoff-hd-16

Close behind this, I suspect, is the fear that the other parent may simply move the child a long way away, without actually leaving the country, thereby stretching or even severing the connection between the ‘remaining parent’ and the child, and putting that parent at a serious disadvantage in any subsequent proceedings concerning arrangements for the child.

Of course, if there has been an international child abduction and the child has been removed to a country that is a signatory to the 1980 Hague Convention on Child Abduction then the remaining parent can seek the summary return of the child to its home country, where the courts will decide what the future arrangements for the child should be. However, should the courts take a similar approach to an internal ‘abduction’, ordering that the child be returned to where it lived before it was moved, before proceeding with the case?

That was the question that fell to be determined by the Court of Appeal in the recent case Re R (Child).

The facts in Re R were that the parents began living together in Kent in 2013 and the mother gave birth to their son in June 2015. The relationship, however, soon broke down and on 11 January this year the mother left the family home with the child and, without the father’s knowledge or consent, took him to the North East, where her parents live. She maintained that she had done this because the father had been abusive towards her.

The father applied to the court for a preliminary order that the child be returned to the family home, pending the outcome of proceedings concerning arrangements for him.

The father’s application was dismissed by the District Judge. Importantly, the parties had agreed that the child would live with the mother during the course of the proceedings, and the District Judge was concerned that forcing the mother to move back to Kent might have a detrimental effect upon her wellbeing, which may well have an impact upon her ability to care for the child. He rejected the father’s argument that the court should take the same approach as in an international abduction case and order the summary return of the child. Instead, he simply approached the case on the basis of what was best for the child’s welfare, concluding that his welfare would be best served by the child remaining with his mother in the North East.

The father appealed the District Judge’s decision, but his appeal was dismissed. He appealed again, to the Court of Appeal.

The Court of Appeal found that there was no principle in an internal ‘abduction’ case that the child should be summarily returned. The matter of whether or not the child should be returned should be decided on the basis of what was best for the child’s welfare. In some cases the court may decide that it is best for the child’s welfare for him to be returned, in other cases it may decide that it is best for his welfare that he is not returned. The principles behind the Hague Convention have no application. (Indeed, on an abduction to a non-Hague Convention country the matter of whether the child should be returned would be determined by reference to the child’s welfare.)

The only matter left for the Court of Appeal to decide was whether the District Judge had erred in his decision as to what was best for the child’s welfare. The father had argued, for example, that the District Judge gave too much weight to the allegations that the mother had made about the father and her alleged anxiety about returning to Kent. However, the Court of Appeal was not prepared to interfere with the District Judge’s decision, finding that he was entitled to conclude that moving back to Kent may have an adverse impact on the mother, and therefore on the child.

The father’s appeal was therefore dismissed.

You can read the full report of the case here.

Contact us for assistance. We help clients worldwide

Follow our updates on Twitter and Facebook

Ironboyzz-FacebookTwitter-Ironboyzz

profile pic.jpgdroppedImage_7TM

ABP World Group™ Risk Management

Contact us here: Mail  ( contact@abpworld.com )

Skype: abpworld

NOTE: We are always available 24/7

Local father desperate after son is reportedly taken to Russia


September 23, 2016

Source: http://news10.com

A Queensbury man is raising awareness to a growing global issue of International Child Abduction. It happens when a child is wrongfully taken and held in another country by a parent.

Unfortunately, it’s not uncommon.

Corey McKeighan shares custody of his son Xavier with his mother who is from Russia.

Abducted_Russia

What was supposed to be a mother and son three week trip to her country, has McKeighan worried he will never get his son back.

Xavier is bright and full of energy. He just turned 4 on Monday.

“He was the best kid in the world. He was happy, he was funny.”

His ex-wife agreed to return on September 16th.

“The day before they were supposed to return, she had called me and said, ‘We’re not coming back and you’ll never see us again.’”

In a panic, McKeighan contacted the U.S. State Department, FBI, and congressional leaders. They are working with the foreign government to resolve this case that they say is international child abduction.

“It’s a gigantic problem,” International Family Law Attorney Jeremy Morley said.

Jeremy Morley

Morley has worked on hundreds of these types of cases. In Russia, it is difficult because our countries are not in a treaty relationship.

“We know that the Russian legal system is unpredictable. What I would do in a case like this is start the process by making contact with the taken parent and advising the taken parent of how dangerous their intended course of conduct is.”

Xavier was diagnosed with autism and his routine and treatment is back home in New York.

His father is still waiting to give his son a card for his 4th birthday.

“The first thing I would do is sing, ‘Who Let the Dogs Out’ with him because that’s one of our favorite songs,” Corey said. “I feel like I keep hitting walls. I just keep seeing him in my heart and in my mind. It pushes me nonstop ever day, just trying to do what I can.”

A U.S. State Department official says:

“We are aware of the reports regarding an international parental child abduction case.  Due to privacy considerations, we decline to provide additional details.

One of the Department’s highest priorities is the welfare of U.S. citizens overseas. This is particularly true for children, who are among our most vulnerable citizens.  The Bureau of Consular Affairs, along with our Embassies and Consulates, works with parents and foreign governments to try to resolve these difficult cases. Generally speaking, in cases involving international parent-child abductions a U.S. Embassy or Consulate can facilitate contact with local authorities, provide information on local judicial and law enforcement processes, offer a list of attorneys and translators, and issue passports or other travel documents as appropriate under U.S law.”

McKeighan has created a Facebook Page to raise awareness of this global issue in the hopes of bringing Xavier back home to the United States.

Contact us for assistance. We help clients worldwide

Follow our updates on Twitter and Facebook

Ironboyzz-FacebookTwitter-Ironboyzz

profile pic.jpgdroppedImage_7TM

ABP World Group™ Risk Management

Contact us here: Mail  ( contact@abpworld.com )

Skype: abpworld

NOTE: We are always available 24/7

Bill to curb parental abduction


August 14, 2016

Source: www.telegraphindia.com

One day two years ago, my wife left for India taking our two-year-old son. I’m now fighting a long court battle for custody in India.

– A US-based Indian father to The Telegraph

Cheerful Rural Indian Children

Cheerful Rural Indian Children

New Delhi, July 29: A bill the government is drafting makes it an offence for a parent to take her child away from his overseas home without her spouse’s consent and retain him in India without custody rights.

After the bill is passed, a parent accused of such “abduction” will not be able to get an Indian court to grant her custody of the child. Instead, the child will be sent back to his home abroad.

For years, the US and several other countries had prodded India to sign the Hague Convention on the Civil Aspects of International Child Abduction of 1980, which requires child custody cases to be adjudicated in the country of the child’s “habitual residence”.

New Delhi had resisted, saying such a law would force abused Indian wives abroad to stay on in such relationships rather than flee.

Officials in the women and child development ministry said the proposed bill, whose draft has been sent to related ministries for their opinion, would try to treat such abused women with sympathy.

Although India has not signed the Hague Convention, the UN Convention on Child Rights, which it has signed, says child abduction in any form must be prevented.

“In the absence of a domestic law so far, a parent who managed to get the child to India got the child’s custody,” a ministry official said.

The Civil Aspects of International Child Abduction Bill, 2016, applies to children under 16 who have been “wrongfully removed to or retained in other State (country) which is not his/her habitual residence”.

It mandates the formation of a central authority, with the powers of a civil court, with which complaints can be lodged in lieu of a court and which can decide all such cases.

“The law will not say which parent should have custody. It will return the child if he has been found to be wrongfully brought and retained in India. Then legal proceedings in that country will continue,” the official said.

The bill will not provide penal provisions against the parent found to have abducted the child. But the errant parent must bear the expenses incurred by the central authority to locate the child, the legal costs of the litigating parent, and the expenditures in returning the child.

The ministry had been in undated with complaints from Indian fathers and mothers based abroad whose spouses had brought their children to India by force or without their knowledge.

Recently, a petition begun by Bring Our Kids Home, or BOKH — a coalition of such parents in the US — requested Prime Minister Narendra Modi and President Barack Obama to sign a bilateral agreement on the subject.

BOKH says India is among the top five countries for international parent-child abductions, with 173 such kidnappings between 2010 and 2014.

The draft of the bill was prepared after Punjab and Haryana High Court asked the ministry and the Law Commission to examine the issue. The law panel recommended that India frame a domestic law and sign the Hague Convention.

Follow our updates on Twitter and Facebook

Testimonials from our clients

profile pic.jpgdroppedImage_7TM

download (2)

ABP World Group™ Risk Management

Contact us here: Mail ( contact@abpworld.com )

Skype: abpworld

NOTE: We are always available 24/7

 

International child abduction to Pakistan


January 7, 2016

Source: Daily Times by Sarmad Ali

Pakistan has not taken any steps to prevent Pakistani citizens settled aboard from bringing their children to Pakistan during divorce or separation proceedings despite an increase in international child abduction.
PAKISTAN-Lahore
Child abduction, child abuse, forced marriages and rapes are widespread problems in Pakistan, India and Bangladesh. According to media reports, the number of international child abduction cases has increased across the world over the period of the last eight years. For instance, a total of 512 cases involving 84 different countries were reported to British authorities in 2011 and 2012 as opposed to 272 in 51 countries in 2003 and 2004. Moreover, the Foreign and Commonwealth Office (FCO) observes that a quarter of people do not think that it is a crime for a parent to take their children out of habitual residence without the consent and permission of the other parent.
It is important to understand the various kinds of child abduction around the world. The most feared type of abduction is committed by a complete stranger. This form of child abduction takes place when a stranger abducts a child for ransom, something that is generally very common in Pakistan, or abducted for the purpose of transporting the child abroad for wrongful activities. A less common kind of abduction could be where a stranger removes a child to bring up that child as that person’s own. However, the kind of child abduction that is committed most commonly is done by a parent or close relatives of the child (200,000 cases in 2010 alone). Usually, the perpetrator/abductor believes he or she is committing this crime for the good of the child. This sort of child abduction mostly occurs where there is a separation and/or divorce battle going on between the parents of that child. The abductor takes the child to a different place within the same city or same region of the same country.

International child abduction is where the parent takes the child out of his/her ordinary habitual residence to prevent the other parent from access to the child. The parent generally leaves the country of habitual residence along with the child ignoring visitation orders and/or in violation of custody. That action of the parent is considered an international child abduction or transnational child abduction. While this is not a new phenomenon, the incidence of international child abduction continues to increase due to the ease of international travel, increase in bi-cultural marriages and a high divorce rate. In effect, parental abduction has been defined as child abuse.

I have noted that there is no basic and formal data available concerning international child abduction. The issue of international abduction is not specific to any country as it is widespread all over the world but it is more prevalent in Asia, particularly in Pakistan, India and Bangladesh. Through unofficial channels I have found that there were 11 cases of international child abduction reported between Pakistan and the UK in 2008, 24 cases from April 2009 to March 2010 and 55 cases in 2011. Some individual cases of international child abduction were also reported between France and Pakistan and between Canada and Pakistan. The research conducted by Reunite International Child Abduction Centre revealed that most children abducted from Europe and the US are commonly taken to the Middle East, Pakistan and India by one of their parents.

Pakistani_Child

The findings of international non-profit organisations show that Pakistan is a safe haven where in the past few years, children from Europe and other parts of the world have been taken by their own parents. This increase in cases of international child abduction in Pakistan is because of the increase in multicultural marriages between Pakistani men and women of foreign origin. During divorce proceedings, these men bring their children to Pakistan in order to keep the children away from their non-Pakistani mothers. Pakistan has not taken any steps to prevent Pakistani citizens settled aboard from bringing their children to Pakistan during divorce or separation proceedings despite this increase in international child abduction. The only positive move in this regard was taken in 2013 by the then caretaker government’s minister of law, Ahmer Bilal Soofi, a lawyer by profession, when he pledged to address the issue of international child abduction after news that 40 children had been abducted to Pakistan from the UK broke.

The issue of international child abduction is difficult to resolve due to the involvement of conflicting international jurisdictions. It is worthwhile to note that laws dealing with child abduction may differ from country to country; for instance, child abduction may not constitute a criminal act where the child is taken by a parent but it may constitute a criminal offence from where the child is abducted. For example, taking a child out of the UK for more than 28 days without the consent and/or permission of the other the parent constitutes a criminal offence.

In view of the discussion above I believe that Pakistan should treat international child abduction as a high priority problem so as to prevent children from being sent or taken to Pakistan in violation of the law. In order to do so, Pakistan, in connivance with all the stakeholders, should raise public awareness to build a case for the ratification of The Hague Convention on the Civil Aspects of International Child Abduction that deals with international child abduction. Pakistan has already signed judicial cooperation protocol with the UK way back in 2006 for preventing UK children from being taken to Pakistan by their parents on account of martial disputes and conflicts. The Hague Convention is a complete code and provides a platform to promptly bring back children taken away from their country of habitual residence by their parent ignoring visitation decree or in violation of custody. If Pakistan ratifies The Hague Convention I am sure international child abduction will decrease and the action of ratification will also promote legal uniformity and harmony with those countries that have already ratified it.

Follow our updates on Twitter and Facebook

Testimonials from our clients

profile pic.jpgdroppedImage_7TM

download (2)

ABP World Group™ Risk Management

Contact us here: Mail 

Skype: abpworld

NOTE: We are always available 24/7

American Father’s Nightmare: Children Kidnapped in Mexico by Ex with Wealthy Local Relatives


November 29, 2015

Source: Breitbart.com

By: Ildefonso Ortiz

An American father who traveled to Mexico for vacation almost three years ago had his two sons kidnapped and was falsely imprisoned. Since then he has been fighting in an effort to get them back.

Eric-Haan

After years of dealing with Mexico’s corrupt judicial system in the lower courts, the case is headed to Mexico’s Supreme Court where, if international laws are upheld, the children should be returned to the United States. 

Read: We can recover your abducted child

The nightmare began on January 2013, when Eric Haan took his two children along with his then wife (identified only as Erica) from their home in Michigan to visit his in-laws in Playa Del Carmen, Mexico. During their vacation there, his wife along with her parents, ended up kidnapping the children and accusing Haan of being an abusive husband.

Breitbart Texas was granted access to the criminal complaint that shows a series of contradictory statements by Haan’s wife where she tries to paint him in a negative light, but the complaint does not list any cases of abuse that would be classified as such in a Mexican court. Using Mexico’s corrupt legal system, the family was able to press charges on Haan in order to keep him from the children.

Breitbart Texas has investigated Erica’s relatives who are part of a wealthy family family of developers from Monterrey, Nuevo Leon, and have been linked to some financial scandals. At the request of Haan’s attorney’s, out of fear of reprisals or further legal attacks Breitbart Texas is not identifying Erica by her last name nor identifying her relatives.

Breitbart Texas spoke with Carlos Alvarado, the attorney who is representing Haan as he navigates Mexico’s infamous judicial system. Haan’s case would fall under an international treaty set forth by the Hague Convention which would call for an expedited resolution to parental kidnapping cases, however, in this case the lower courts in Mexico have prolonged the case for almost three years. 

Read: Prevention of Parental Abduction – Recognizing the Warning Signs

Alvarado also pointed out many of the irregularities in the case such as how the local family court judge in Playa del Carmen used the accusation that had been filed against Haan in order to rule in Erica’s favor. In her ruling, the judge referred to Haan as a convicted criminal, however the American citizen has not been convicted of the allegations filed against him.

Haan sued in Mexico’s federal court to have the judge’s decision overturned. While Haan lost that lawsuit in March, his attorneys immediately filed for an appeal. The appellate court referred the case to Mexico’s Supreme Court which is set to review the case in the coming days.

In preparation for his hearing, Haan even started a petition on the website Change.org where he asks Jorge Mario Pardo Rebollo, one of the Mexico’s Supreme Court Justices who will oversee his case, to return the children to the United States.

As Haan’s ordeal continues to unravel, the American father has become an international voice for the crime of international child abductions. In an effort to bring a voice to the victims of the crime, Haan created a website http://www.endabductionsnow.org where he shares the details of his story. A crime that as seen by this case it is a lengthy and costly nightmare for the victims where many times consular offices and embassies can be of little help.

Visit our web site at: www.abpworld.com

Follow our updates on Twitter and Facebook

Ironboyzz-FacebookTwitter-Ironboyzz

profile pic.jpgdroppedImage_7TM

download (2)

ABP World Group™ Risk Management

Contact us here: Mail 

Skype: abpworld

NOTE: We are always available 24/7

Cayman Islands – New Children Law rules to help prevent parental abductions


August 3, 2015

Source: caymanreporter.com

By Tina Trumbach

A new Children Law rule alerting the Immigration Department when attempts are made to take children in custody disputes out of the Cayman Islands goes into effect today (Monday 3 August).

cf98afe2a2acf949bdc7dd7e2d20835a

The Children Law (2012 Revision) allows the court to issue what is called a Prohibited Steps Order (PSO), which bars a parent from taking specific actions concerning a child. Prohibited steps orders can be used to stop a parent from removing a child from the Cayman Islands.

These types of court orders are often used as an emergency measure to prevent parental abductions in custody disputes.

From today, new amendments to the rules concerning the prohibited steps order will make filing notice of a PSO with the Immigration Department a requirement while it was previously only regarded as “best practice” by family law attorneys.

By requiring that Immigration be notified, the new rule amendment ensures that attempts to remove a child from the jurisdiction may be flagged and intercepted.

This is important with regard to international custody battles, as once a child is removed to another jurisdiction, getting the child back can be a difficult and lengthy process.

Invited by the Cayman Reporter to comment on the issue, Clyde Allen of the Law Firm, CHAMBERS said, “An application for a PSO can be made to the court fairly quickly, if there is a breach or to prevent a breach, and that order can be filed with the Immigration Department. That is fine, but the real concern is not what takes place in Cayman, but when an act takes place outside Cayman.”

Mr. Allen outlined the difficulties encountered by the parent still in Cayman and the local court in trying to get children returned. He said parents often have to rely on Hague Convention provisions.

“That is where the real dilemmas can arise for a parent, who will have to retain legal counsel to understand and apply the laws of that jurisdiction as well as deal with possible language issues where the child might be taken to, say, a South American country,” he said.

The attorney, who has extensive experience in family law, was hopeful that the new provisions will assist in these cases, which often result in lengthy and complicated legal wrangling across several jurisdictions.

lady justice

“I am aware of a case where, notwithstanding an order being made by a Judge for a mother to take her children outside of the jurisdiction for only a specific period, that mother went on to keep the children beyond that period in breach of that order and caused the judge to have to make further orders determining the residency of the children and to order that she was in contempt,” he said.

According to Mr. Allen, the mother had essentially abducted the child, which is in itself a criminal offence, but due to “jumping jurisdictions” the situation was made more complicated.

“In order to secure the return of the children to the Cayman Islands, the judge recorded in the order that the mother was in breach of Hague Convention provisions,” he said. “That order was then used by the father in a court in Florida, a signatory to the Hague Convention, which court assisted with the return of the children to the place of residence in Cayman.”

Additional new Children Law rule amendments further strengthen the protections for children against parental abduction in custody disputes.

The local court will now be able to require someone who has had a prohibited steps order made against them (called a “prohibited person” under the law) to make an oath stating whether he or she has the child’s passport in his or her possession. The court can also now require that person to surrender the child’s passport to the court. A prohibited person can also be compelled by the court to state whether they know of anyone else who has the child’s passport.

Parental-child-Abduction

The court can also order the “prohibited person” to reveal whether they know of any pending passport applications for the child.

These new measures seek to cover all avenues that may be used in parental abduction situations, including taking advantage of a child’s dual nationality status.

Mr. Allen was hopeful that the new rule changes would improve the situation, but noted that it is important to deal with a possible flight from Cayman early on in any custody or divorce proceedings.

“I foresee that this and other rule changes will help to clarify the position,” he said. “However, I do not see that it will necessarily change the status quo. Where a parent is aware of the desire of one parent to take the children to another jurisdiction to reside, it is always prudent at an early stage in the proceedings to bring this fact to the attention of the court and ensure that the relevant orders are in place.”

It was his opinion that it will be a matter of time and practice before we know how effective the new provisions of the law will be.

“From my own experience, the Immigration Department to date has been very effective in assisting to prevent a parent from leaving the island with a child, contrary to the terms of an order,” Mr. Allen said.

He noted that the problems arise when a parent from outside of Cayman thinks that the laws in their jurisdiction are more effective or might be more in his or her favour.

“Such a view fails to appreciate one of the underlying principles of the law which is that the welfare of the children is paramount,” Mr. Allen said. “What that parent does not seem to understand is that the law has moved the child or children to the centre of the debate.”

The attorney noted that child welfare and maintenance is the primary concern of the court in all family law matters.

“The Children’s Law that we have in place supports this and is second to none,” he said. “Our courts have made changes and now have a Family Division which is led primarily by Justice Williams who addresses numerous family-related matters and which appears to be very effective indeed.”

Based on his experience in the field to date though, Mr. Allen does not foresee a slowdown in acrimonious divorce and custody cases before the court.

“My view is that there has been an increase in the volume of family-related issues on island and our legislature and judiciary are trying to address them as fairly as possible,” he said. “The fact that things are not worse than they are is a tribute to the effectiveness of the judiciary and all of the stakeholders in trying to manage the various family issues.”

In his view, parents need to be mindful of acting in the best interests of their children and not rely on legislation to sort out all of their problems.

“It is always important to refine our laws to keep up with the changing circumstances. However, it is also important to look at the actions of the parents and ensure that they understand their responsibilities to ensure that they are working towards the betterment of the children,” he said.

This approach would help limit the level of legal involvement required in family matters.

“If there was an equal focus on this aspect of the equation, there would may be less need for the use of legislation to head off applications for PSOs and to address differences between parties which lead one party to attempt to jump jurisdictions and then lead to associated problems in the court which ultimately affect and impact the party from whom the children have been taken and, sadly, the children,” he said.

The Children Law came into force in 2012, and provides comprehensive rules and forms for the protection of children in the Cayman Islands. The rules of the law were last amended in 2012, to ensure that the best interests children are taken into account during family law disputes – including divorces, as well as custody and maintenance proceedings.

The Family Division of the Grand Court was created in 2009 and is led by Justice Richard Williams. It provides a specialised forum for family members to seek legal address in all family-related disputes.

Family proceedings include all issues arising from marriage and divorce, issues arising from the need for financial support for spouses or children following divorce, separation or in cases where the parents were not married to each other and generally, issues concerning the welfare of children.

Follow our updates on Twitter and Facebook

Testimonials from our clients

Ironboyzz-FacebookTwitter-Ironboyzz

profile pic.jpgdroppedImage_7TM

download (2)

ABP World Group™ Risk Management

Contact us here: Mail 

Skype: abpworld

NOTE: We are always available 24/7