Tuesday, December 15, 2015

Habitual Residence: Hong Kong Rejects the Mozes/Gitter Rule

Jeremy D. Morley*
We have often pointed out that the majority U.S. interpretation of “habitual residence,” the key term in the Hague Abduction Convention, is out of line with the international consensus.
Most but not all U.S. circuits follow the rulings in the key cases of Mozes and Gitter. Those cases hold that a change of habitual residence normally requires proof that the parents’ last shared intention was to abandon a prior habitual residence in favor of a new one. There is an exception to this rule if the child has become acclimatized to the new location but it is normally restricted to situations where the acclimatization is both exceptional and unequivocal, and where the child does not retain significant contacts with the prior place of residency.
In JEK v LCYP [2015] CACV 125/2015(decision dated August 27, 2015), the Hong Kong Court of Appeal was faced with the question of whether to follow the U.S. or the U.K. authorities.  (Note – I advised one of the parties).
The facts as outlined by the court were that the parents had lived for the first 16 years of their marriage in New Jersey, where their two children were born and raised. The wife then moved with the children to Hong Kong, her country of origin, pursuant to what the husband believed was an agreement with his wife that the children would remain there on a limited, temporary basis not to exceed 1 to 2 years. After 8 months in Hong Kong the wife, having discovered that the husband was having an affair, petitioned for divorce in Hong Kong and sought to retain the children there. The husband then sought the return of the children under the Hague Convention.
The lower court in Hong Kong ruled that the children’s habitual residence was in the U.S. not only because their home and their roots was there and they were to return there during school holidays, but there was insufficient evidence of a settled purpose either for the children not to return to New Jersey after 1-2 years or to abandon New Jersey as their residence and to take up long-term residence instead in Hong Kong. The judge stated that, “As I have mentioned earlier, the Mother only changed her mind in early August 2013, about one month after she and the Children arrived in Hong Kong. I have also found that there was no sufficient evidence that the Father had after the 06.08.13 Email accepted or agreed to the Children living in Hong Kong beyond two years.”
The trial judge concluded that, “I do not find that there was sufficient evidence that there was a shared intention to abandon the Children’s place of habitual residence of New Jersey, nor a settled intention on the part of both parents to change the Children’s habitual residence to Hong Kong by the time of the retention.”
That decision was in line with the older English cases, which cases had been followed in the Mozes case and its progeny, and with the majority U.S. approach.
On appeal, the Hong Kong Court of Appeal overruled the lower court on this issue. In particular, it noted that “there has been development both locally and also in the Hague Convention jurisprudence on habitual residence which compels this Court to take cognizance of the development since Hong Kong is a contracting state of the Hague Convention.” It found that “impetus for change” first came from the Court of Justice of the European Union in Proceedings brought by A (Case C-523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22.
The Court of Appeal examined the recent case law from the UK Supreme Court, and in particular AR v RN [2015] UKSC 35, which had followed the European case law and had abandoned the prior interpretation of habitual residence. In AR v RN  the U.K. Supreme Court held that, for habitual residence,
·        It is the stability of the residence that is important, not whether it is of a permanent character;

·       There is no requirement that the child should have been resident in the new country for a particular period of time or that one or both parents intended to reside there permanently or indefinitely;

·        The focus must be upon the situation of the child;

·        The intentions of the parents are merely one of the relevant factors;

·        There is no rule that one parent cannot unilaterally change the habitual residence of a child; and

·        It is necessary to assess the degree of the integration of the child (or, in the case of an infant or young child, the degree of integration of those on whom the child is dependent) into a social and family environment in the new country.
Applying these principles the UK Supreme Court in AR v RN  found that the habitual residence of the children had shifted from France, where they were born and raised, to Scotland, where they gone pursuant to an agreement with the children’s father that they would return to France after one year. After just four months in Scotland, the mother had brought a custody case in Scotland seeking an interdict against the father removing them from Scotland. The father had promptly bought a Hague case.  The UK Supreme Court found that the absence of a joint parental intention to live permanently in Scotland was not decisive, nor was an intention to live in a country for a limited period inconsistent with becoming habitually resident there. The important question was whether the residence had the necessary quality of stability, not whether it was necessarily intended to be permanent. Following the children’s move with their mother to Scotland, their life there had the necessary quality of stability. For the time being, their home was Scotland. Their social life and much of their family life was there. The longer time went on, the more deeply integrated they had become into their environment in Scotland. Accordingly their habitual residence had shifted to Scotland.
The Hong Kong court followed AR v RN in JEK v LCYP and adopted the above-stated principles of the UK court. It applied those principles by making the following determinations:
·         The couple was experiencing marital problems when the Wife left New Jersey with the children. She was coming back to Hong Kong which was her home before she joined the husband in the USA after the marriage.

·         The wife had entered into a fixed term lease for two years as the residence of her and the children in Hong Kong. A family car was purchased by the husband for the use of the wife and the children and the wife had purchased an uncompleted property in Hong Kong for investment purpose which was funded by the husband.

·         Although the original agreement between the parties was that the move to Hong Kong was intended to be a temporary one, the wife had, before the agreed time expired, changed her mind and decided to stay in Hong Kong.
·         Looking at the position of the children, they have integrated into Hong Kong for nearly two years in terms of their full time studies here and their social activities.

·         Although the children’s move to Hong Kong was intended to be for a temporary period of not more than two years, Hong Kong has been their home for the past 24 months. It has all the hallmarks of a stable residence.

·         The absence of the joint parental intention to live permanently in Hong Kong is by no means decisive.

·         Based on the evidence, the children’s habitual residence is in Hong Kong and no longer in New Jersey, hence the Hague Convention was not engaged in the first place.
Thus, the Hong Kong courts have revised their rules concerning the interpretation of habitual residence to follow the interpretation of the entire European Union, the UK, Canada and most of the rest of the world. The contrast between the majority U.S. rule and the international consensus is clear. The Convention and the International Child Abduction Remedies Act require U.S. courts to pursue a uniform international interpretation of the treaty. Thus far, U.S. courts have failed to do so. In particular it is most unfortunate that the U.S. Supreme Court has declined multiple opportunities to resolve the issue.
*  Jeremy D. Morley, author of The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by the American Bar Association, liaises with lawyers and clients (always with local counsel as appropriate) around the world on international child abduction and custody issues.

Monday, December 14, 2015

Interview with Divorce.Co.NZ

An Interview with Jeremy Morley – of International Family Law in NY

In researching child relocation and abduction law, I came across Jeremy Morley.  His website, www.international-divorce.com, was very informative about the subject - something lawyers are not always known for.  I decided to call and interview Jeremy, as the subject of child abduction and relocation is currently a hot topic with cross cultural marriage, migration and divorce all on the increase.  Jeremy provides us with a birds-eye view of international family law showing us how extreme the legal standing of different countries can be. The desire to relocate is increasingly restricted by trends in family law which aim to keep parents in closer proximity to give children access to both parents. Most couples getting married never consider the possible outcomes should their marriage fail. But with almost 1 in 2 marriages in the UK headed for divorce, and similar numbers in other countries, nationality, immigration and repatriation are things to consider well in advance of falling in love.

Here follows Jeremy’s comments:
Jeremy do we have any idea how many people are affected by the exercise of relocating with children?
No one is collecting the statistics but as the world is shrinking international relocation is occurring with much more frequency. Most relocation is legal, approved or not contested.
Some of our site visitors who may be thinking about separating or already separated, may be considering relocating to cities or countries for work, family and support. Is there any rule of thumb?
Well you need to be a lawyer to give advice of course. The answer is also much too complicated and varies dramatically from jurisdiction to jurisdiction as to the extent to which courts permit it.
Most countries look at the best interests of the child but what that means, varies incredibly according to who the local judge is and what the local standards are.  It is a function of predicting what a court would do based on what you think sounds reasonable in the circumstances. But countries like New Zealand and Australia will be extremely hard to relocate out of, whereas England is likely to be much easier.
Australian law was changed and the judges are interpreting the need to ensure that both parents have a continuing strong role in the life of the children as meaning that relocation strongly interferes with that goal. 
Whereas England is much more amenable to looking at what is best for the primary caregiver because if the primary caregiver is happy then the kid is more likely to be happy. There have been some really nasty cases in Australia.
Can you give us an example of an Australian case?
A typical scenario is that an English girl falls in love with an Aussie, moves to Australia, has a baby and then discovers he is a jerk. The relationship terminates and she wants to go home to everything she has known in her life. But to the Australian courts will probably not allow her to take her child to live back home.  If she does go home the English courts will send the child back to Australia and mum will obviously go back with her child and then she will be stuck in Australia feeling as if she is a prisoner.  It happened to someone I know who is living in a remote part of NSW and it’s not fair but that’s the way the courts are there.
So that’s the outcome of the courts but how does it turn out for the mother? Does it affect her financially?
Yes absolutely. This particular person is living in a remote part of Australia.  I think she’s got a job, but often they can’t get a job. She is lucky that her skills are international because she is a teacher. But most often it’s impossible for people living overseas to get a job at the same level because their qualifications may be based on qualifications that work at home but not in other countries.
What about the United States, how do courts view relocation?
American courts will look very carefully at what is best for the child based on what the mother’s and father’s circumstances are and looking at who has been providing most of the day-to-day care.
If I am representing a mother in a USA court who wants to make a relocation application, then I ask her to prepare a complete dossier. A presentation book, showing what her plan is for the child to be in the new place; photographs of exactly where he will live and where he will play; photographs of the back yard and the nearby park; a map showing the place where she will be living and its relationship to the school; a brochure from the school showing how great it is; what she will do for a living back home; photographs of all the family; and so on.  It should be an entire presentation contrasting the life that she currently has in this particular state in America versus the life that she expects to have with her baby or young child in the country to which she wants to relocate.
Australia basically rejects it at the present time. I think it has to change because it produces great injustice.
Is New Zealand similar to Australia?
I deal with huge numbers of typically women, who just want to go home. They are the “trailing spouse,” they trail behind their husband as he moves to NZ, or they fell in love with him somewhere and he is from NZ and the deal was that they would settle there.  When the relationship ends she is left with no network, family, no friends and sometimes no job.
This must have a huge emotional impact?
Emotionally they can be left with no sense of being a local. And suddenly they start to notice the bad things in the country and it becomes a downward spiral.
Is it different for applicants of older children than younger children in trying to relocate?
A child is free to relocate at the age of majority which varies from country to country. In reality the courts will allow it earlier if the child insists. The children’s point of view will be taken into account when they are a teenager or maybe a year or two before that depending on how mature they are.  But it does often get easier when the child is a little older than a baby.  It is easier for them to have visitation in the other country for long chunks of time.  So that if mum goes back home to England for example, then an 8 year old can spend half the summer in NZ with dad and dad can come and visit once a year to England and they can talk every day on the webcam.  You can have visitation for chunks of time that you can’t have with a young baby.
What are the real costs in getting a child returned if they are taken overseas?
Oh you can’t possibly answer that. I am sorry. It depends on what country. You have got to hire a lawyer in the country to which the child has been abducted. If the child has been abducted in England it is free because they give legal aid to everybody. If they have been abducted to America it is not free. It can be tens of thousands if not hundreds of thousands of dollars.
One thing that concerns me with local New Zealand law is existing Prevention Orders now have to be discharged for a parent to take the child for a holiday. It puts the burden of trust back on the parents.
It is a typical problem.  If you are a parent and want to take the child away on a holiday, do you apply first? Or if you are the parent who is worried about the child being abducted do you need to go to court first?
I think you could take your children overseas on a holiday and say the other party verbally agreed. I wonder if there is anything here protecting the other or custodial parent.
Yeah it is dangerous, so the custodial parent has to be careful and perhaps not allow the non-custodial parent to have any of the child’s passports.  It happens and often too late for parents that should have been more careful maybe. You often have to expect the worst in this kind of situation.
In terms of making private agreements, can people agree for the other spouse to take the child overseas?  If it is a private written agreement will it stand in court?
A document that gives permission to one parent to take the child out of the country will prove that it was not a wrongful taking under the Hague Convention as consent to take the child away is a defence.  So the defence is established if there is such a document, it can be a formal agreement or it can be an email. 
But in terms of it being a mutual promise whereby the parent who has taken the child promises to return the child within a certain period of time, then it is not effective.  The left-behind parent if he or she has a concern that the child might not be returned, needs to have an agreement made into a court order for it to have any effect.
Does being de-facto or having a child from a fling with someone make any difference to your rights to relocate with your child?
Assuming that the father is acknowledged to be the father, the rest of it is all the same, marriage makes no difference.  The only wrinkle comes into whether or not there has been an admission that is effective legally that dad isn’t the dad. Sometimes mum claims dad is dad but dad claims he is not the dad. That is a paternity question and if that is solved then, it doesn’t make any difference whether the parents are married or not.
We have a lot of immigration here, families from the UK, South Africa, Asian, USA, families relocating to New Zealand and Australia.  Feasibly we get many cross cultural families coming here too. If a British woman married to a South African man relocated to NZ after which the marriage fails, how does a request for relocation work then?
Everything that I have said thus far about relocation, and burden of proof, applies regardless of nationality.  So if they are residents of New Zealand regardless of where they come from, they and their children are residents of New Zealand.
So in your scenario if one of the parents want to go home wherever that may be, and if he or she does it without the consent of the other parent, it is kidnapping.  To avoid that, he or she needs to make an application for relocation.
There is also the issue of how other countries view court orders.
There are 70+ countries who are parties to the Hague Child Abduction Convention. Japan does not adhere to the Hague Convention.  A child will just about never come back if taken to live in Japan.  Japan will never acknowledge or give any respect to the foreign custody order. China is probably the same. If it’s Hong Kong it’s totally different.  It depends massively as to what country the child is taken to.
So where would we find out the status of countries with respect to the Hague Convention?
Most countries in the world are not parties to the Hague Convention.  The US State Department website tells you which countries are compliant and not fully compliant.
But then the rest of the world…there is no way to know, every case is unique and every country has weird rules and laws. What I do a lot of if the potentially left behind parent is worried is to check and see if they are a party to the Hague Convention, and if they are not do some research. If it was India in question we would talk to Indian lawyers, to find out what are the chances getting an Indian court to respect to a NZ court order. Then if they give respect will it be words or will it be effective.  You end up then trying to show the NZ court that India will not in fact respect foreign custody orders.
Most of our judges here in the USA are so worried about offending other countries that they will usually not buy the evidence that a foreign country’s legal system is  deficient. We have to lay it out in such great detail. It is hard to find to prove that if a child is taken to such-and-such a country the likelihood of him ever being returned is very low. Judges just don’t want to make an adverse ruling based on another country’s legal system.
What do you think that people should know that they don’t know?
I think that mothers are naive about following their heart without thinking through the consequences. Expats beware. What is really going to happen if your relationship breaks down? Do you realise that your child -- and therefore you -- can be stuck in a foreign country?
What if you went home to have your baby?
Country of birth doesn’t make any difference. If you have the baby at home the child’s habitual residence during that period of time it its home. However, if you then live in a foreign country the child’s habitual residence may quickly change to that new location. If you take your child back to your home country because you have had a fight with your husband and your home country is a party to the Hague Convention, your home country will most likely send the child back to the habitual residence and you presumably will follow. Most likely you will feel that you have been sent to jail.

Jeremy is based in New York but deals with relocation and abduction cases all over the world, working with local counsel as appropriate. We strongly recommend his website --www.international-divorce.com -- as a great source of information. You can contact Jeremy directly if you have any concerns with child abduction, child relocation or international child custody. jmorley@international-divorce.com

Thursday, December 10, 2015

Uniform Child Abduction Prevention Act

Jeremy D. Morley
The Uniform Child Abduction Prevention Act (“UCAPA”) has been adopted by 14 states and by the District of Columbia. The jurisdictions that have adopted the Act are Alabama, Colorado, District of Columbia, Florida, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Pennsylvania, South Dakota, Tennessee and Utah. In 2015 just one state, Michigan, was added to the list of enacting jurisdictions.
The Uniform Law Commission states that UCAPA “provides courts with guidelines to follow during custody disputes and divorce proceedings in order to help them identify families at risk for abduction and prevent the abduction of children.”
In my practice, UCAPA is helpful primarily in providing, in Section 7, a useful list of the risk factors (or red flags) of potential international child abduction. Since a substantial part of my practice concerns the prevention of potential international child abduction, it is often of great importance to provide courts with a useful source of reliable evidence concerning such risk factors. 
The Uniform Law Commission provides the following explanation of the law: An action for abduction prevention measures may be brought either by a court on its own motion, by a party to a child-custody determination or an individual with a right to seek such a determination, or by a prosecutor or public attorney.  The party seeking the abduction prevention measures must file a petition with the court specifying the risk factors for abduction as well as other biographical information including the name, age and gender of the child, the current address of the child and the person against whom the measures are sought, a statement regarding any prior actions related to abduction or domestic violence, a statement addressing any prior arrests for domestic violence or child abuse by either party, and finally any additional information required by existing State child custody law including the UCCJEA.
UCAPA sets out a wide variety of factors that should be considered in determining whether there is a credible risk that a child will be abducted.  These factors include overt signs such as previous abductions, attempts to abduct the child, or threats of abduction, as well as signs of general abuse including domestic violence, negligence, or refusal to obey a child-custody determination.  The act also includes a wide range of activities that may indicate a planned abduction including abandoning employment, liquidating assets, obtaining travel documents or travel tickets, or requesting the child’s school or medical records.
The act also addresses the special problems involved with international child abduction by including several risk factors specifically related to international abduction.  In particular, the act requires courts to consider whether the party in question is likely to take a child to a country that isn’t a party to the Hague Convention on the Civil Aspects of International Child Abduction, or to a country that places the child at risk, has laws that would restrict access to the child, that is on the current list of state sponsors of terrorism, or is engaged in an active military action or war.  In addition, a court will consider issues related to citizenship such as a recent change in citizenship status or a denial of United States Citizenship.
If a court determines that a credible risk exists that the child will be abducted, it may then enter an order containing provisions and measures meant to prevent abduction.  The act lists a number of specific measures that a court may order.  These include imposing travel restrictions, prohibiting the individual from removing the child from the State or other set geographic area, placing the child’s name in the United States Department of State’s Child Passport Issuance Alert Program, or requiring the individual to obtain an order from a foreign country containing identical terms to the child-custody determination.  An abduction prevention order is effective until the earliest of the order’s expiration, the child’s emancipation, the child’s 18th birthday, or until the order is modified, revoked, or vacated.
If abduction appears imminent, a court may issue a warrant to take physical custody of the child, direct law enforcement officers to take steps to locate and return the child, or exercise other appropriate powers under existing state laws.  A warrant to take physical custody is enforceable in the enacting state even if issued by different state. The court may authorize law enforcement officers to enter private property, or even to make a forcible entry at any hour, if the circumstances so warrant.  Nevertheless, the person on whom the warrant is being executed must be served with the warrant when or immediately after the child is taken into custody and the person must be afforded a hearing no later than the next judicial day or the next possible judicial day if the next day is impossible.