Government likely to junk inter-parental child abduction bill


November 8, 2016

Source: http://timesofindia.indiatimes.com

NEW DELHI: Despite international pressure, the Centre is likely to junk the bill on inter-parental child abduction, which deals with child custody issues for NRI couples and would have paved the way for India’s accession to the Hague Convention.

Child_Abduction_India.jpg

The Law Commission, though, recently submitted its report to the Law Ministry and stuck to its 2007 stand advising the government to accede to the Hague Convention on the Civil Aspect of International Child Abduction (1980).

“We are very clear that we are not signing the Hague Convention. This is a decision collectively arrived at by the Women and Child Development (WCD) Ministry, Ministry of External Affairs (MEA) and the Ministry of Home Affairs (MHA),” said a senior WCD Ministry official.

On June 22, 2016, the WCD Ministry had uploaded on its website a proposal to enact a draft of the Civil Aspects of International Child Abduction Bill, 2016. Subsequently, the draft bill was placed on the website seeking comments.

The draft bill was prepared following a reference made by the Punjab and Haryana High Court to the Law Commission of India and the WCD Ministry to examine the issue and consider whether recommendations should be made to enact a suitable law and for signing the Hague Convention.

However, the bill has since been removed from the ministry’s website.

The draft envisaged “prompt return of children wrongfully removed or retained in a contracting state, and to ensure that rights of custody and of access under the law of one contracting state are respected in other contracting states.”

It also proposed a central authority to discover the whereabouts of the child, to prevent further harm to any such child and to secure the voluntary return of the child to the signatory nation.
WCD Minister Maneka Gandhi has expressed apprehension over acceding to the Convention at several forums, primarily on two grounds – that taking such a decision will not be in the interest of aggrieved women and because the government maintains that there are fewer instances of Indian children being abducted and taken abroad.

At an event last month she had said, “Personally, in the beginning, when I was new, I thought we should join the Convention because we get protection. But with time and after interacting with women who have been abandoned by their husbands abroad, had their passports snatched from them, been beaten up, and have somehow scraped the money and are in terrible fear, I wonder whether we should join or not.”

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Japan denies being ’black hole’ for children abducted by estranged parent


October 5, 2016

Source: torontosun.com

TORONTO — The Japanese government insists it has been complying with international child-abduction rules despite criticism to the contrary from Canadian parents who have been unable to gain access to their children in Japan.

tim_terstege

Tim Terstege holds his son Liefie at a lawyer’s office in Yokohama, Japan, in February 2015, the last time they were together. Terstege is one of dozens of Canadian parents deprived of access to their children in Japan

In a statement, the Japanese Ministry of Foreign Affairs said its top priority is to protect the interests of the children involved in such disputes.

“It is not right to see Japan as having legitimized child abduction in custody disputes, or of being a black hole for children whose parents are separated/divorced,” the ministry said.

“We consider it highly important to deal with international child abduction in accordance with internationally standardized rules.”

Earlier this week, The Canadian Press reported on the difficulties Canadian and other non-Japanese parents — mostly fathers — have in accessing their children in Japan after marital breakdowns. In some cases and despite court orders, the mothers have abducted the children and fled to Japan, where they remain with impunity, leaving the other parent frozen out.

Japan signed on to the Hague Convention on international child abductions in 2014 but parents say it has been of little help in getting their children returned to Canada, or even in getting access to them.

Colin Jones, a Canadian lawyer in Kyoto, said in an interview Wednesday that the problem isn’t so much with adherence to the Hague Convention, but rather with a Japanese court system that lacks tools for forcing people to return children. Police will typically not get involved in custody battles, he said, and no one will use force to separate a child from a parent unwilling to hand them over.

“Even if you win, you have trouble getting the child back,” Jones said. “A really recalcitrant parent can frustrate the process.”

In its 2016 annual report in international parental child abductions, the U.S. State Department praised the Japanese central authority for how it manages the convention process and said the courts had processed cases and issued orders in a timely manner.

However, the report did fault the country for failing to comply with its obligations in terms of the enforcement of return orders.

“A Japanese court issued the first convention return order to United States in early 2015,” the report states.

“Authorities attempted, but were unable to effectuate enforcement of the court order by Dec. 31, 2015, exposing what may be a systemic flaw in Japan’s ability to enforce return orders.”

One Canadian father, Tim Terstege, said custody in Japan is effectively determined by whichever parent abducts the child first, and the courts appear powerless to do anything about it. In his case, Terstege has had problems accessing his son even for the minimal court-ordered 24 hours a year.

Global Affairs Canada said it was currently dealing with 25 cases involving Canadian children in Japan but refused to comment.

Jones said Japan’s legal system differs from that in North America in that judges may not necessarily have the same kind of powers to issue orders to give up a child or allow a parent access.

“One parent ends up having control of the child and (Japanese) courts just want to defer to that parent,” Jones said.

While Japan has returned some abducted children to their home countries, parents might expect too much of a system that isn’t designed to intercede in a way that might happen in Canada or the United States, Jones said.

“They expect some magical child-recapture organization to spring into being but it doesn’t,” he said. “You’re basically left with what the domestic institutions already have.”

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Canadian parents face ‘hostile Japanese system’ when trying to access abducted children


October 3, 2016

Source: thestar.com

The Japanese system is sometimes described as a black hole for children.

A Canadian father is hoping a mountain hike will help ease his distress and draw attention to the insurmountable roadblocks countless parents like him face in trying to access their children in Japan after their marriages fall apart.

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Tim Terstege is planning to climb Mount Fuji on Oct. 13, the day four years ago his wife disappeared with his then-four-year-old son.

“That’s kind of a dark time for me; it’s a positive way of just dealing with it,” Terstege said in an interview from Himeji, Japan.

“When you go through this type of situation, you have to deal with a lot of pain. It’s just really hard. Climbing Mount Fuji is for me just a way of breaking out of the sorrow.”

Terstege, 42, formerly of Barrie, Ont., officially has 24 hours a year access to his son, Liefie, a dual Canadian-Japanese citizen. But he doesn’t know exactly where his wife or child are and the courts have not been of help. It’s the Japanese way, he said.

“Whoever abducts the child first is going to get custody,” he said.

The Canadian father is far from alone in trying to navigate a seemingly impenetrable and hostile Japanese system sometimes described as a black hole for children. Figures indicate dozens of Canadians — mostly fathers — are among thousands of foreigners faced with the gut-wrenching loss of their children in Japan. Some parents are reported to have killed themselves in despair. Others have ended up in jail after trying to snatch back their children.

The Japanese embassy in Ottawa said it was “unable to express (its) viewpoints” and referred questions to the Foreign Ministry in Tokyo, which had no immediate comment. Global Affairs Canada, which said it was currently dealing with 25 cases, offered only general observations about consular assistance.

However, in a letter to Terstege this past week, a senior official said the issue was important to the Canadian government, and embassy officials in Japan had, among other things, discussed his case with the Japanese Ministry of Foreign Affairs.

“We recognize the need to continue to raise the issue of parental child abduction cases with Japanese authorities,” the letter states.

In a briefing note last year, one Canadian consular official noted the “reality of the Japanese system” but said Canada was not pressing Tokyo for change, as former prime minister Stephen Harper did years ago.

In 2014, Japan finally signed on to the Hague Convention, which aims to provide legal recourse against international child abductions. However, enforcement is woefully inadequate and a parent can frustrate court orders to return a child simply by refusing to comply, experts say.

“While the process of implementing the Hague Convention has brought some clarity to the theory and practice of enforcing returns, without sanctions for contempt — which Japanese judges lack in these cases — or other police-like powers to back them up, court orders can end up being meaningless pieces of paper,” Colin Jones, a lawyer from Calgary, wrote in a recent article in The Japan Times.

Visitation restrictions, draconian by Canadian standards, can leave parents feeling like they have been treated like criminals, Jones said.

parental_kidnapping_japan

Kris Morness, of Vancouver, considers himself lucky in that he is usually able to Skype weekly with his son, Max, 5, believed to be in Tokyo.

Despite obtaining full custody and an American arrest warrant for his wife, who abducted Max three years ago from Seattle, Wash., where they were living, Morness said there’s little point in trying to litigate in Japan.

“It’s really traumatizing when you lose a child like this,” Morness, 43, said. “All I can do is wait. It is the worst bureaucratic nightmare I’ve ever experienced.”

In an effort to effect change, Bruce Gherbetti co-founded the activist organization Kizuna Child-Parent Reunion after his own experience. In 2009, his wife accused him of domestic abuse and, while he was in pretrial custody in Vancouver, she took their three girls now aged 9, 11, and 13 and left for Japan.

Among other things, Kizuna aims to educate the Japanese about the potential harm to children deprived of access to one parent.

“Your child is akin to a table or an automobile (in Japan),” Gherbetti said from Australia where he now lives. “If someone takes one of those from you, you have a better chance of obtaining its possession again than you do a child.”

Terstege said he’s given up on the Japanese court system. Even though he and his wife are still married, it’s highly unlikely he could ever regain custody, so his goal is to try to see his son for the 24 hours a year in the presence of a third party organization as per court order.

“I’m not going to give up,” Terstege said. “Climbing Mount Fuji is just another thing for me for motivation.”

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Virginia man convicted in Vermont same-sex kidnap case


September 30, 2016

Source: dailyastorian.com

A Virginia businessman has been found guilty of international parental kidnapping after getting involved in a Vermont same-sex couple’s child custody fight.
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A Virginia businessman was convicted Thursday of international parental kidnapping and conspiracy for helping a mother take her daughter out of the country to avoid losing custody to her former partner.

A federal jury in Buffalo returned the verdict against Philip Zodhiates, of Waynesboro, on Thursday after hearing during a weeklong trial how he had driven Lisa Miller and 7-year-old Isabella Miller-Jenkins from Virginia to the Canadian border in 2009 so they could fly from Toronto to Nicaragua, and had helped with their living arrangements in the Central American nation.

Neither Miller nor Isabella, now 14, have been seen in the United States since.

Lawyers for Zodhiates, the owner of a direct mail business that serves conservative Christian groups, denied that he was trying to obstruct the other mother’s parental rights by helping Miller, who became an evangelical Christian after dissolving her civil union with Janet Jenkins in Vermont.

Miller, who gave birth to Isabella during the civil union, defied court orders granting Jenkins visitation and left the country shortly before a court shifted custody to Jenkins, Assistant U.S. Attorney Paul Van de Graaf said.

Zodhiates, the prosecutor said, enlisted the help of a number of Mennonites in the United States and Nicaragua in arranging Miller’s trip and a place to stay.

Miller also is charged with international parental kidnapping and conspiracy and is considered a fugitive.

A third defendant, Timothy Miller, recently was arrested after being deported by Nicaragua, U.S. Attorney William Hochul’s office said Thursday.

A fourth defendant, Kenneth Miller, a Mennonite pastor, was convicted of international parental kidnapping in Vermont in 2012.

None of the Millers are related.

Kenneth Miller, of Stuarts Draft, Virginia, is serving a 27-month prison sentence.

Zodhiates faces up to eight years in prison when he is sentenced Jan. 30.

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Father Fights to Have His Kidnapped Child Returned From Guatemala


September 27, 2016

Source: Newswire.com

Wilmington, North Carolina – September 27, 2016 – (Newswire.com)

It was a day he has replayed in his head thousands of times. In 2012, Don Seagraves arrived at his ex-wife’s house for his scheduled visitation with his three-year-old son, Urijah. But when he got there, Urijah and Don’s ex-wife, Ivonne, were gone. Don suspected that Ivonne had taken their son to Guatemala without following the judge’s order.

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Don and Ivonne had a joint custodial agreement, which Don had faithfully upheld. But even though Ivonne committed a crime when she violated the Court’s custody order, Don faces an uphill battle to be reunited with his son.

Like Urijah, more than 1,000 outgoing international child abductions are reported to the U.S. State Department each year.  According to findings by the U.S. Congress in 2014, only one of every two abducted children taken from the U.S. to a foreign country with which the U.S. has reciprocal obligations under the Hague Child Abduction Convention are ever returned to the U.S.[1]

According to Don and Ivonne’s custody agreement, neither party was allowed to leave the State of North Carolina with Urijah, pursuant to a Court order.  Then Ivonne filed a motion for permission to take Urijah to visit her family in Guatemala.

Don objected. But Judge James H. Faison, III granted Ivonne permission, on the condition that she return to the United States by July 31, 2012.  Judge Faison’s court order also required Ivonne to share the telephone and mailing address where she and Urijah would be in Guatemala. But Ivonne left the U.S. in secret, leaving no information about her whereabouts. Soon after, an arrest warrant was issued by the Pender County Sheriff’s Office against Ivonne for felony parental kidnapping.

“In North Carolina, state law makes it a felony to keep a child under the age of 16 outside the state in violation of a court order,” says Mark Spencer Williams, attorney for Don Seagraves.  See N.C. GEN. STAT. § 14-320.1.  “There is also a federal law, the International Parental Kidnapping Crime Act (IPKCA) codified at 18 U.S.C. § 1204, which makes what Ivonne did a criminal act.”

The Court awarded Don sole custody as a result of the kidnapping, but Don has still not been able to locate his son. He has spent the past four years searching for him, despite his limited financial and professional resources; Don is a high school graduate who works in the construction industry, and he does not speak Spanish. He could not afford an attorney, let alone the extraordinary costs associated with civil and criminal remedies in a foreign country.

Then Don made contact with Rice Law, a Wilmington North Carolina law firm. The firm took on Don’s case on a pro bono basis. With their help, the National Center for Missing and Exploited Children, Interpol, the CUE Center for Missing Persons, law enforcement, and private investigators were used to locate Urijah. The U.S. State Department asked the government of Guatemala to issue an “Alerta Alba Kenneth” which is its equivalent of an “Amber Alert.”  On August 19, 2016, after a four-year search, Don was notified that Urijah had been found, living with Ivonne in Guatemala. Ivonne was served with legal documents under the Hague Treaty, which will require her to appear in court in Guatemala on Don’s petition seeking the return of Urijah.

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But there is another obstacle— Guatemala has a history of noncompliance with this Treaty and the U.S. State Department has not taken action to enforce the treaty in Urijah’s case.

The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) provides that a child who has been a habitual resident of the United States before being removed to a foreign country, and who has been wrongfully retained in another country in violation of the left-behind parent’s custodial rights, should be promptly returned to the country of habitual residence.

One of the responsibilities of the U.S. Secretary of State is to address countries with a pattern of noncompliance, which can include withdrawal of U.S. assistance and requests for extradition of the kidnapper.[2]  However, even though the Hague Convention requires a hearing to be scheduled within six weeks, no hearing has even been scheduled in Don’s case. The State Department indicates it has not even been able to conduct a welfare and safety check on Urijah because “our Consular staff is restricted from entering the district where the child was located, due to security concerns.”

Kevin Brosnahan, spokesperson, Bureau of Consular Affairs at the U.S. State Department, indicated that, “due to privacy considerations, we are not able to discuss this case specifically.” However, Brosnahan notes that the State Department annual reports show that since joining the Hague Convention in 2008, Guatemala has been cited five times for patterns of noncompliance.

As a result of Guatemala’s non-compliance and the U.S. State Department’s silence on the case, Don Seagraves has sought assistance from his elected officials, including Congressman David Rouzer (R-NC), Senator Thom Tillis (R-NC) and Senator Richard Burr (R-NC). Seagraves is asking that the State Department implement the sanctions required by the Goldman act against Guatemala until it complies with the Hague Treaty. Don is also asking that Ivonne be extradited to the U.S. on the kidnapping charge.

According to foreignassistance.gov, $225 Million in U.S. Aid is sent to Guatemala, yet it is one of only three countries listed as non-compliant with the treaty by the U.S. State Department[3]. To date, Don is not aware of any specific action that the State Department has taken for Guatemala’s pattern of non-compliance.

It is cases like Urijah’s that have resulted in significant changes to our laws about international child abduction.  In 2004, Sean Goldman was abducted by his Brazilian mom, Bruna Bianchi, from her U.S. husband David. The case garnered national attention[4].  Ultimately, Secretary of State Hillary Clinton became involved in negotiations for the return of Sean Goldman[5]. Congressman Chris Smith (R-NJ) put financial pressure on Brazil through his efforts to stop aid to Brazil until Sean Goldman was returned[6].  After nearly six years, Sean Goldman returned home and in 2014, President Obama signed into law the Sean and David Goldman International Child Abduction Prevention and Return Act (P.L. 113-150).  The new law requires the U.S. Secretary of State to take action against countries like Guatemala that have a pattern of non-compliance, which can include the suspension of assistance and request for extradition of the parent who kidnapped the child.

The attorneys and staff of Rice Law, PLLC have provided pro bono assistance to Mr. Seagraves since 2012.  According to Mark Spencer Williams, the Managing Partner at Rice Law, “the U.S. has an extradition treaty with Guatemala that would extend to child kidnapping, but our local law enforcement has indicated that Guatemala is not likely to extradite Ivonne Seagraves back to the U.S. to face criminal prosecution.”  According to Williams, “it is especially frustrating that countries sign these agreements but then do not abide by them.”

To help Seagraves with some of the expenses associated with this, the Missing Children’s Defense Fund, a North Carolina non-profit 501(c)(3) will hold a charity golf tournament Saturday, 22 October 2016 at Echo Farms Golf & Country Club in Wilmington, North Carolina.

Many local businesses and individuals are working to support the effort to reunite Don Seagraves with his son Urijah.  Neuwirth Motors has donated a new Jeep as a hole-in-one prize, and Buffalo Wild Wings is providing food and prizes. Numerous other sponsors have come forward to help Seagraves.

“Our goal is to raise enough money that Mr. Seagraves can hire an attorney in Guatemala to help seek enforcement of the Hague Treaty and so he can travel to Guatemala for these hearings,” said Williams.

For more information or to register for the charity golf tournament, see http://www.planmygolfevent.com/29883-BringUrijahHome/index.html.  Supporters of Seagraves have also setup a GoFundme page at https://www.gofundme.com/bringbackurijah for donations.

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The Hague Convention: need of the hour


September 9, 2016

Source: http://dailytimes.com.pk

Throughout the world, the ‘best interests of the child’ is the gold standard by which courts make determinations on custody, visitation and relocation.

Parental Kidnapping Rescue abducted children recovery

A surge in transnational marriages has led to a corresponding surge in cases of international child abduction. In these cases one parent, unhappy with a court’s custody order, flees to another country with the child, and either attempts to have local courts issue a new custody order or simply goes into hiding with the child. There are never any winners in these heartbreaking cases; the children are denied the love and affection of both parents, and the parents spend years embroiled in venomous court battles.

To address the menace of child abduction, the international community formulated what is known as The Hague Convention on the Civil Aspects of International Child Abduction in 1980. Through this instrument, member states agree to uphold existing custody orders from other jurisdictions, and to return children wrongfully removed from one country to another. The Hague Convention does recognise that in some cases a parent might be fleeing an abusive environment, resorting to abduction in an attempt to protect their child; local courts are given the authority to make appropriate determinations in these special cases. In a nutshell, The Hague Convention provides a reasonable remedy for the bad behaviour of parents engaging in the act of international child abduction.

International parental kidnapping cases have been quite prominent in media over the years, and protecting children is one benefit for Pakistan becoming a member of The Hague Convention. There is, however, another benefit that goes largely unnoticed by the authorities and media: by signing The Hague Convention, Pakistan will give courts throughout the world the confidence to allow law-abiding parents to relocate to Pakistan with
their children.

Throughout the world, the “best interests of the child” is the gold standard by which courts make determinations on custody, visitation and relocation. Given the trend of international marriages, courts have recognised that in many cases custodial parents may wish to move back to their home countries where they have family support, career opportunities, cultural ties, and facilities by which they can provide better lives for their children. However, before allowing an international relocation by one parent, the courts must be confident that the other parent will not be denied access to the children. The Hague Convention provides courts with this confidence.

pakistan Child Abduction

An alarming number of Pakistanis, mostly women, presently living abroad are denied the ability to move back home with their children because Pakistan is not a signatory to The Hague Convention. For the most part, Pakistani women move to foreign countries due to arranged marriages. When their marriages fall apart, these women who have no employable skills and limited finances find themselves abandoned by their spouses far from their families and homeland. To make matters worse, foreign courts will not allow them to move their children to Pakistan, leaving them with no choice but to live off the charity of others in foreign countries. The plight of these desperate Pakistani women and their children will undoubtedly improve when Pakistan becomes a member of The Hague Convention on the Civil Aspects of International Child Abduction.

I hope Prime Minister Nawaz Sharif and Advisor to Prime Minister on Foreign Affairs Sartaj Aziz take notice of such situation, and initiate the much needed step of becoming the member of The Hague Convention on the Civil Aspects of International Child Abduction. It is responsibility of the state to ensure justice for its citizens not only in the boundaries of the state and all over the world.

The Hague Convention does not alter any substantive rights. The Convention requires that a court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member country rather than specifically to the left-behind parent.

Until March this year, more than 94 countries including, United States, China, Germany, France, Canada and Australia are party to the convention, and even India has been the signatory of Convention since 2008.

Mr Prime Minister, when all our major neighbours and important countries of the world are the signatories to this important convention, why not Pakistan. Isn’t this a lack of interest in the welfare of overseas Pakistanis who send millions of dollars to Pakistan every year?

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Department Of State’s Annual Report Highlights Risk Of Parental Child Abduction


July 14, 2016

Source: mondaq.com

The U.S. Department of State reported yesterday that more than 600 children were abducted by parents from the United States to another country in 2015.

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A substantial number of those children may never be returned to their parents in the United States. The Department of State’s 2016 Annual Report on International Parental Child Abduction released yesterday reported that only 299 children whose habitual residence was in the United States were returned in 2015.

The staggering numbers contained in the Report make it clear that parents must proceed with caution if they believe the other parent has any intention of abducting their child from the United States. Any parent who has concerns about the other parent abducting their child should immediately consult with an attorney who has knowledge and experience handling proceedings brought pursuant to the Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980.

An experienced attorney may be able to advise the parent on preventive measures such as enrolling the child in the Children’s Passport Issuance Alert Program and seeking a court order enjoining the other parent from traveling abroad. If the child has already been abducted, an experienced attorney can assist with submitting the necessary papers to request the return of the child, liaise with counsel in the country to which the child has been abducted, and provide assistance to that foreign counsel as necessary to seek the return of the child to the United States.

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In addition to identifying the number of children abducted by a parent from the United States to another country in 2015, the 2016 Annual Report assesses the extent to which certain Hague Convention partners have complied with the Convention. The Department of State reported that the following countries have not complied with the Convention: Argentina, the Bahamas, Brazil, Columbia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Peru, and Romania. In determining whether the Hague Convention partner countries were in compliance, the criteria examined by the Department of State included the following: the number of unresolved cases; the extent to which the judicial authority implemented and complied with the Hague Convention provisions; the failure of law enforcement to locate abducted children; failure to enforce return orders; and the amount of time devoted to the appeals process.

The 2016 Annual Report also details the extreme difficulties in attempting to seek the return of abducted children from countries that are not Hague Convention partners. According to the Report, countries that demonstrated a pattern of noncompliance in 2015 were: Egypt, India, Jordan, Lebanon, Nicaragua, Oman, Pakistan, and Tunisia. For each of those countries, the Department of State examined the extent to which the country did or did not adhere to any protocols with respect to international child abduction.

The 2016 Annual Report is available here.

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Parental Child Abduction – Are children safe outside the EU umbrella?


July 13, 2016

Source: spearswms.com

Brexit could make it more difficult to return children abducted to an EU country, write Jo Edwards and Jamie Gaw.

With the end of the school year approaching, many families will be making holiday plans. For separated parents this can be a thorny issue. If parents cannot reach an agreement, the court will need to determine the matter.

Child-Abductions-EU

International couples in particular may wonder where proceedings relating to their children should take place. The primary basis for jurisdiction is where the child is habitually resident. There is no definition of habitual residence in the key treaties/regulations which govern international children law, namely the 1980 Hague Convention on International Child Abduction, the 1996 Hague Convention on international private children law issues including custody, access and parental responsibility and the EU regulation Brussels II revised.

However, there is case law which provides guidelines on establishing habitual residence. Firstly, the child’s presence must be more than physical; it must reflect integration in a social and family environment. There also must be a certain permanence or regularity to the residence. Another important factor is the age of the child. An infant’s environment will be intertwined with that of her family, whereas cases concerning adolescents will require consideration of their state of mind.

BREXIT

Assuming that a child is habitually resident in England, how will the Court determine an application to take that child abroad on holiday?

Whether the destination country is a signatory to the 1980 Hague Convention will have a significant impact on the outcome. If the destination is a signatory, provided that the trip is in the child’s best interests, permission will usually be granted. If the destination is a non-Hague country (e.g. India, Dubai or Thailand) the Court will consider whether the advantages of the trip outweigh the welfare risks.

Whatever the destination, the parent should provide details of the trip, e.g. flight details, addresses and contact numbers. Additionally, if the destination is a non-Hague country, they should consider obtaining an expert’s report citing the risks and recommended safeguards (e.g. a financial bond and/or undertakings).

Now that the UK has voted to leave the EU what impact will this have on international children law?

All EU Countries are signatories of the 1980 Hague Convention. Therefore notwithstanding Brexit, the principle that an abducted child has to be returned to the country she was taken from will still apply.

UK-Child-Abduction

However, Brussels II Revised, which applies only to EU members, strengthens and extends the provisions of the Hague Convention.  In particular Brussels II specifies that an application for a child’s return must be determined within six weeks, save in exceptional circumstances. At present the mean duration of proceedings in England is 88 days; Denmark has achieved 44 days. In contrast, in the US the mean duration is 227 days. The Hague Convention also contains defences to resist a return order, including that the child should not be returned because there is a risk that she will be harmed. In contrast, Brussels II states that providing protective measures are put in place the child should still be returned.

In short, the implications of the referendum result are that it could take longer and be more difficult for a child abducted to an EU country to be returned to the UK, and vice versa post-Brexit.

In terms of custody, access and parental responsibility, all EU countries are signatories of the 1996 Hague Convention. Again Brussels II incorporates the Hague provisions. However, there is now a concern that cooperation and enforcement of private children law orders between the UK and other European countries may be less effective after the UK has left the EU.

Currently the English Court applies the concept of habitual residence in line with the objectives of Brussels II, with its emphasis on the child’s best interests. When the UK becomes fully divorced from the EU it is not clear whether the English Court will solely be guided by Hague Convention and domestic cases. However this may not make a big difference in practice, given the English Court’s own emphasis on a child’s welfare.

Ultimately, only time will tell whether a new treaty will be negotiated between the UK and the EU, perhaps mirroring the terms of Brussels II. Until then the future landscape of international children law will be uncertain.

Jo Edwards is a partner and head of family, and Jamie Gaw is a solicitor at Forsters.

 

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EU refuses to reform divorce forum jurisdiction, but ‘speeds up’ child abduction


July 11, 2016

Source: Family Law

By David Hodson OBE

The European Union last week (30 June 2016) adopted the European Commission’s proposals for reform of Brussels II, the Brussels Regulation.

This is the primary EU family law legislation. It sets out divorce jurisdiction in all member states and provides forum criteria where more than one EU Member State is involved. It adds child abduction laws to the 1980 Hague Convention, and it provides for the cross-EU border recognition of children orders and divorce orders.

The-Branch-of-Divorce-Law

The proposals will now be sent to the Council of the EU and a decision taken by unanimity. The European Parliament will be consulted.

The review of the operation of Brussels II has been underway for several years – and going very slowly. This note deals with the separate elements in Brussels II of divorce and children.

Proposals in respect of much-needed reform of divorce jurisdiction and forum criteria

There are none!

After a long consultation process involving experts, judges, policy advisers and practitioners across Europe, and after an admission by the EU that the ‘first to lodge’ forum criteria was having adverse consequences, no proposals have been made. This has apparently been met with unhappiness; a very diplomatic term being used. Outside the niceties of diplomatic language, in reality the response is almost disbelief. There had been much support for reforms. Last autumn, the EU seemed to be distinctly positive towards a likely significant reform, although not necessarily as many in the UK would have wanted. But to have no reform whatsoever is amazing.

What are the two separate aspects in the context of divorce and forum?

First, in March 2001, Brussels II introduced identical divorce jurisdiction across the entire EU, in national and international cases, based primarily on habitual residency intermixed with some elements of residency, domicile and nationality. With a few minor elements of uncertainty of interpretation, it has mostly worked very well and is generally accepted. (Separately, I have written that when the EU laws fall on our leaving the EU, England could well adopt domestic divorce jurisdiction laws on these EU ones. This has not been the issue in the consultation.)

it is the second element which was controversial when introduced in March 2001, and has remained very controversial ever since and been constantly criticised with calls for reform. Because of the many international families around the EU and the EU’s wide jurisdiction rules, it was always likely that, often, more than one EU member state would have jurisdiction – hence the potential for forum disputes, and hence the need for laws to deal with these forum disputes across Europe. The EU solution was that whoever was first to lodge proceedings secured the jurisdiction. This was irrespective of having a weak connection and another member state having a much stronger connection, known as lis pendens. Enter the rate to court to gain priority. Enter the victor, invariable the one seeking to break up the marriage, the one with access to specialist international advice, the one not wanting to contemplate pre-litigation agreements or mediation. It was thoroughly against the UK culture of attempts to settle and encouragement to reconcile. But the EU has throughout refused to listen, often claiming that it is an English problem: England is where many applications want to have their proceedings, and England has a very specialist and proactive family law profession. Only recently has the EU accepted that it is a problem.

More than a decade ago, some of us in England proposed a solution of a hierarchy of jurisdiction: a solution which has increasingly found favour in many places. Belatedly, the EU has looked at it and considered how it might work. The EU has looked alternatively at a transfer provision, an option for a member state to transfer proceedings to the country with the closer connection. The same option is available already in children case in Brussels II.

Whichever option, there had to be reform of one form or another to get rid of the worst elements of the first to lodge proceedings law and the unfair and arbitrary race to court. Instead, the EU has made no reform proposals at all. The dreadful anti-family life, anti-settlement consequences of this EU law will now continue for at least another decade until the next review process.

The EU has been very clear in saying that it is no part of their brief to look at marriage and marriage life. They do have a brief regarding divorce and family breakdown. Unfortunately, the laws in respect of the latter are inevitably having an impact on the former. There cannot be narrow reference to the laws of one element of family life without an impact on other aspects. A holistic approach to law is always important.

This is a shocking outcome. Perhaps they were unwilling to admit they were wrong in March 2001, and they have been wrong not to have reformed it at an earlier occasion. But they should have reformed it now. They have not. Families, particularly spouses who want possible reconciliation, use of mediation and negotiation, are the losers. It is highly regrettable.

Children law

There are several important changes. I am grateful to the specialist international children law colleagues at iFLG for their input on this.

Probably the most prominent is the change in timetable for dealing with child abduction cases. In the 1980 Hague Convention, there is no timetable. Brussels II, Art 11.3 requires a court to issue its child abduction order no later than 6 weeks after the application is lodged unless exceptional circumstances make it impossible. England and Wales is one of the fastest countries in respect of child abduction work. It’s not always possible within 6 weeks, but our family justice system and the instruction of lawyers through the central authority is specifically geared to the 6-week timetable.

Parental Child Abduction - Lesson 1

The new proposals from the EU set out a three-stage process. There will be a maximum of 6 weeks for the receiving central authority to process the application, 6 weeks for the first instance court hearing and 6 weeks for any appellate court. Even England has struggled to have appeals within the 6 weeks.

Of course, this recognises that there are some notorious countries around Europe which are incredibly slow in dealing with return applications; where the time period is not measured in weeks, but in many months. They must be faster and now they have no excuse for appellate periods or within their central authority.

The proposal is beneficial in saying that the appeal process should be a maximum of 6 weeks. In some countries, it is very much longer. It gives a maximum of 6 weeks for the central authority to deal with the matter when received from another central authority. The fact that within England cases are received and passed on to specialist lawyers significantly faster than that time should not derogate from the fact that some central authorities are longer than 6 weeks.

So the reform is to be welcomed as it makes explicit maximum periods for the central authority and for the appeal process and maintains the 6-week period for the core first instance hearing.

Where the matter cannot be dealt within the 6 weeks to the first instance hearing, there is a duty on the courts to explain to the parents with reasons.

There is also a reform that there would be only one level of appeal in child abduction cases, specifically that a first instance decision is appealable only once. This is of concern, as our Supreme Court has on several occasions handed down fundamental and deeply principled judgments in child abduction cases; for the benefit of the parties concerned, our national law, but crucially acknowledged as of benefit of the entire international family law community. This opportunity must not be stopped as it is so important.

Moreover, and another very commendable reform, parental child abduction cases are to be heard by a limited number of courts so that judges develop the necessary expertise. This is the case in the UK. Incidentally, it is also the position in Japan, a new signatory to the 1980 Hague convention, which has just two court centres dealing with child abduction work. Continued experience is that a limited number of judges with greater experience and expertise will lead to greater efficiency, speed and consistency.

There is also reform of the enforcement of children decisions across the EU. At the moment there is sometimes a two-stage element. Decisions as to access and return are automatically enforced but decisions as to custody need an intervening process, known as exequatur. This will be abolished. There are specific proposals when enforcement has not occurred within six weeks, and for the state making the original order to be able to declare it is provisionally enforceable. These are commendable changes.

Hearing the voice of the child is a predominant theme in national and international family law discussions. Although there is relatively little dissent from its importance, how the voice is heard is the subject of much debate and disagreement. For instance, Germany is adamant that the child should actually be heard and seen by the judge before any decision can be made and indeed sometimes before they will recognise any decision made by another country. In England we have historically heard the voice of the child through third parties such as Cafcass. This is itself changing in England.

The EU proposal is that a child who is capable of forming his or her own views will be guaranteed an opportunity to express these views in all proceedings concerning them. This will apply in particular to proceedings on custody and contact and also on return proceedings in the context of abduction. For those countries which presently have no or limited opportunities or indeed facilities for judges to see and hear children, this will be a significant and fundamental change. It will have an impact on judicial time, on judicial training and on rooms needed in court buildings and staff trained for the greater number of children attending family courts

There are new rules to promote better cooperation between central authorities as the direct point of contact and which play a key role in supporting judges and family justice systems.

There are additional reforms in the public law arena. This includes placing a child in fostering arrangements. It will enable child welfare authorities to obtain information through central authorities from other member states. There will be minimum requirements for requesting a social report and an eight week time period for the authority to respond.

Further details can be found here.

Is it relevant any longer? Perhaps not because these reforms will only be coming into force when the likely Brexit occurs. But actually they are relevant in that they produce a better child abduction procedure and cross recognition. England and Wales is one of the leading countries in the world in respect of international family law. Even once outside the EU, we will be looking to the highest possible standards and efficiency in our work and joining in cross-border recognition, enforcement and co-operation. Any reforms which can therefore improve matters for children and families is to be commended. It is though a great pity that they have turned their back on crucial, much-needed reform in the context of divorce forum criteria.

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Understanding Stages of Grief applied to Parents Affected by Parental Child Abduction / Alienation / Retention


June 23, 2016

Source: Medium.com

“The death of a child is indisputably one of the most incredibly horrible tragedies one can imagine. Whether by sudden accidental circumstance, or by a more lengthy cause as in illness, the loss of a child is undeniably painful to experience. Painful to the parents, parents to the family, and painful to anyone related to the child. Never knowing the laughter of that child again or the tears, the joys and the accomplishments is a pain no parent should ever have to endure, and yet it happens. No one might be to blame. It can just happen”. (Tim Line)


Imagine a similar pain and the same sense of loss, with one exception-the parent is very much aware that the child is alive.

Parental Alienation PAS

The effects of Parental Alienation, Parental Child Abduction and retention are very similar to the loss of a child in some other way. However, the bereavement cannot end.

This feeling of bereavement can also affect the child that an abducting/alienating parent claims to love and can have serious emotional scars that can remain for a long period of time – If not for a lifetime.

Yet, parental child abduction and parental alienation remain as silent abuses that the effects never seem to be fully understood unless you or your family have to cope with this trauma yourselves.

Even parents that are lucky enough to have any contact whatsoever with their children, Parental Alienation, where a custodial parent maliciously tries to destroy the relationship between the child and target parent, rips the innocent child from their arms slowly. They witness the suffering. They witness the effects but they feel powerless to do anything about it.

The very sad part of this is it is not unique. There are hundreds of thousands of children and parents affected by Parental alienation and also thousands of cases involving parental child abduction but it is only recently that law professionals are starting to sit up and take notice of the traumatic emotional damage that this can cause target families and children.

If you are a parent, spend a moment to look at your children and imagine what it would be like if you woke tomorrow morning to find that they are not there and you have no idea where they have been taken to or if you will ever see them again. Imagine the minefield of legal litigation required to locate and reunite with your children once they have been found to have been abducted abroad?

Imagine pleading for help from authorities, courts, family, friends and groups but they are powerless or reluctant to help to reunite you with your child and can even facilitate the abduction, alienation and retention by their inaction.

People find it very difficult to understand the effects on a target parent. Many feel that eventually, time should allow you to “get over it” and just carry on with life but it is not that simple.

Let us look at an extended Kübler-Ross model that tries to explain the stages of grieving and see how that can be applied to a parent who is retained from their children’s lives.

Stage 1: SHOCK AND DENIAL.

In many cases, a target parent can actually identify the signs that abduction and alienation might occur but they are often given false reassurances that this will not happen or is not happening by authorities and legal professionals. When it does, the initial trauma is one of shock and numbness. However, there is a belief that everybody around will be just as horrified at the situation and will do everything they can to find a resolution to return the child to the situation prior to abduction/retention

Stage 2: EMOTIONS ERUPT.

Unlike a bereavement resulting from death, the shock never really passes as a target parent fails to understand how the situation could have occurred and begins questioning people around them. One minute they were a loving parent sharing their children’s lives and the next, it is taken away from them, often through no or little fault of the affected parent. Emotions can overflow their usual boundaries. They are expressed in ways ranging from wrenching sobs to gentle tears.

sad child

The strongest try to look for a resolution quickly and place their trust in authorities, lawyers, courts and organisations to help them resolve the situation. These emotions heighten even further if heinous “tactics” are used by the other parent to achieve their alienating objectives such as false allegations. This stage in the grieving process is also without end.

Stage 3: ANGER.

Mixed with the hurt, many people feel angry. “How could the other parent do this to them?”, “Why aren’t people doing enough to help?”, in cases where false allegations are used as a mechanism to aliene and retain their child, “Why are the authorities listening to them? This is NOT me that they are talking about!” They sometimes want to retaliate. Although the anger is towards the other parent for their actions, it can also be transferred to other areas such as the lawyers and authorities for their apathy and inaction. The anger can also be misdirected at people closest to the target parent through their absolute despair of the situation and this can affect friendships, relationships and support. This anger one feels can reappear so once again is another stage in the process than can be without end

Stage 4: SICKNESS.

Often the body acts out the pain being felt through actual physical symptoms. Nausea, headaches, diarrhoea, extreme fatigue, lack of sleep are common. In some cases, panic attacks can occur that can be compared to Post Traumatic Stress Disorder (PTSD) especially in situation such as family court proceedings. Once again, as these litigation processes can be ongoing, so can recurrences of the sickness stage.

Stage 5: PANIC.

Along with a time of sickness and emotional upset, people begin to realise that they aren’t acting like themselves anymore. They begin to worry, wondering if they are becoming mentally ill. They frequently ask themselves “What is happening to me?”. From the outsiders point of view, this is often met with wrongful judgement. They can lose sight of the person they really are and just start to see the shell of the person that the target parent might be becoming without the help to keep them strong and focused. The longer it takes for resolution, the harder it is for the target parent to cope. Apathy often occurs in other aspects of the target parents lives that could affect their work and personal lives.

Stage 6: GUILT.

Personal guilt feelings build up as people wonder whether they are somehow to blame for the situation they find themselves in. They ask themselves if they could have done something to make it different…. “if only . . .”

Stage 7: DEPRESSION AND LONELINESS.

The pain of their loss often causes people to withdraw into themselves. As the depression deepens, friends and family find it harder to draw the person out, to talk them into participating in regular activities again. Many suffer detachment issues in their relationships with others. Mixed with the other stages that are still present in some form, without understanding of family and friends, it can appear as though the target parent does not WANT to be around people who care when it is, in fact, quite the opposite.

Stage 8: RE-ENTRY TROUBLES.

Once the effort is made to get back into the normal routine, the pain of loss makes it difficult to be as trusting and open as before the loss. Suspicion must be battled constantly. Friends and families are tested again and again.

Stage 9: HOPE.

Only the very strongest emotionally of the target parents can maintain this. They focus on areas that might be able to help others in a similar situation. They identify the failures in the system that do not seem to protect and try to do something about it. Some try to become advocates or write a book about their experiences. Raise awareness in whatever way they can. Some affected parents can never reach this stage as they feel defeated, betrayed and can even result in major depression or even suicide.

Stage 10: ACCEPTING AND AFFIRMING REALITY.

Sadly, a parent who continues to be subjected to alienation and retention can never fully reach this stage. Many are forced into a position where they have to box all of the emotions that they feel and “give up” on finding a solution as a means of self preservation. Although they do not give up on their love for their children, they give up hope of ever being a parent to that child again.


Conclusion

In conclusion to this short paper, it appears that when a child is retained, alienated and/or abducted the grieving processes begins but can NEVER end until there is resolution. Unfortunately, in many cases, this forced “living bereavement” goes without deterrent or accountability in the family courts or by authorities which continues to subject families to this abuse.

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