Thursday, October 25, 2018

Janet Reed, Tenth Circuit rules that it cannot order child to be returned to U.S. under Hague Convention on Child Abduction

Tenth Circuit rules that it cannot order child to be returned to U.S. under Hague Convention on Child Abduction (1) where Respondent took child from U.K. to U.S. in violation of English custody order, and (2) where new English custody order limiting Respondent’s custody rights prevents U.S. courts from granting relief

Bina Shahani (Respondent) and John Navani (Petitioner) were married in England in 1995. They had one son in 1996 named Jivan. After the marriage ended in divorce nine years later, an English family court gave primary custody to Respondent and visitation rights to Petitioner. Pursuant to Respondent’s written request, Petitioner consented that Respondent take Jivan to the U.S. for a trip.
Respondent, however, did not return to England. Petitioner next filed a proceeding under the Hague Convention on the Civil Aspects of International Child Abduction [Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49] in federal district court in New Mexico. The Court ordered Jivan returned to England. Thereafter an English court gave Petitioner primary custody of Jivan and limited Respondent’s access to the child. Respondent filed an appeal in the U.S. Court of Appeals for the Tenth Circuit. Petitioner’s motion to dismiss this appeal as moot is granted and this appeal is dismissed.

“The Hague Convention seeks to deter parents who are dissatisfied with current custodial arrangements from abducting their children and seeking a more favorable custodial ruling in another country. [Cite]. Generally, it creates an international legal mechanism requiring contracting states to promptly return children who have been wrongfully removed to, or wrongfully retained in, their jurisdiction, without deciding anew the issue of custody. [Cite].” [Slip op. 2]
The Circuit Court first turns to the issue of Petitioner’s motion to dismiss the appeal on mootness grounds. “In the event that we would conclude that the district court erred in granting Petitioner’s Hague Convention petition and in ordering Jivan’s return to England, Petitioner argues that the new custody order nonetheless precludes us from granting Respondent any effectual relief and therefore moots her appeal ... in two ways.”

“First, the English family court concluded in the new custody order that Respondent wrongfully retained Jivan in the U.S. in violation of Petitioner’s rights of custody. Petitioner contends that the English family court’s ruling on wrongful retention settles the issue that Respondent raises in this appeal: whether Petitioner had rights of custody over Jivan sufficient to trigger the Hague Convention’s mandatory return remedy.”
“Second, Petitioner argues that Jivan cannot be ordered to return to Respondent’s custody because the English family court has determined that custody should now be with Petitioner, not Respondent.”
“We agree with Petitioner ... If we conclude that the district court should not have ordered Jivan’s return to England because Petitioner failed to make his threshold showing that he possesses rights of custody over Jivan, the only way to remedy the error would be to order Jivan’s return to the U.S. to be reunited with Petitioner.”

“Yet the new custody order ... forbids Respondent from removing Jivan from his father’s care and the jurisdiction of the English family court.” [Slip op. 7]
“Although the Full Faith and Credit Clause does not require us to recognize judgments, such as the new custody order, which are rendered in foreign countries, [cite], the new custody order should be given effect in American courts for two reasons. First, general principles of comity normally counsel giving ‘considerable deference’ to a foreign judgment.”
“Second, and more fundamentally, factors unique to the Hague Convention suggest that the English family court should be given the final word, through the new custody order, in this matter¼ The Hague Convention attempts to prevent an international version of forum shopping. ... [Cites].” [Slip op. 8]
“Neither party disputes that England is Jivan’s country of habitual residence. [Cites]. As a result, the English family court had, and continues to have, plenary jurisdiction over Jivan’s custody.” [Slip op. 9]
¼Granting Respondent the relief she seeks would create the evil that the Hague Convention was intended to prevent: dueling custody orders issued by separate national courts.” [Slip op. 10]
The Court next addresses Respondent’s arguments. “First, she contends that the issue in her appeal remains whether Respondent breached Petitioner’s rights of custody under the original custody¼the fact remains that we cannot grant her any effectual relief, even if we decided the issue in her favor¼
“Second, Respondent asserts that the new custody order violates principles of English family law in determining that Petitioner had equal rights of custody at the time of the allegedly wrongful retention.” The Circuit Court, however, holds that “the only way for us to remedy the error would be to hold that the English family court incorrectly interpreted its own law in deciding custody. The Hague Convention explicitly forbids us, however, from determining the merits of custody.” [Slip op. 11]“Third, Respondent suggests that the new custody order should have no effect in American courts because it was issued ex parte without her participation. [Cite]. It is true that principles of comity generally require us to examine the fairness of the foreign country’s judicial procedures ¼ [a]lthough Respondent wishes to leave us with the impression that the English family court is a renegade body that routinely issues orders without hearing from both sides, Respondent’s affidavit makes clear that Respondent’s failure to participate in the English family court proceedings was her choice, not the result of the inherent unfairness of the English judicial system.” [Slip op. 12]
“Fourth and finally, Respondent asserts that this appeal is analogous to [cases] in which the Third and Fourth Circuits concluded that an appeal of an order granting a Hague Convention petition is not mooted by the child’s return to his country of habitual residence during the pendency of the appeal. ... [T]he Fourth Circuit explained that it retained the power to grant meaningful relief because the district court could order the child’s return to the U.S. following a reversal and remand.”
“Furthermore, it noted (because the case involved Scottish law) that the courts of the UK are required by statute to recognize another contracting state’s Hague Convention orders ‑‑ meaning that if a federal court of appeals reversed a district court’s granting of a return petition, the courts of the UK would recognize that reversal and provide for the child’s return to the U. S.” [Slip op 12‑13]

The Case is: Navani v. Shahani, WL 2171355 (10th Cir.).

*** Janet Pittman Reed has been licensed for more than 16 years and handles cases in Divorce & Separation. This attorney works in Jacksonville, NC and attended University of Florida, Fredric G. Levin College of Law. She was admitted in North Carolina in 1997.


Janet Reed, English Court of Appeal (Civil Division) reverses dismissal for lack of jurisdiction over defendant since she had taken part in the divorce proceedings

In proceeding to enforce Texas damages judgment against mother who abducted child to Russia, English Court of Appeal (Civil Division) reverses dismissal for lack of jurisdiction over defendant since she had taken part in the divorce proceedings where decree had ordered child’s retention in Hague Convention nation though plaintiff had sought damages under Texas family law rather than contempt of decree

In 1990, Lawrence Robert Whyte [plaintiff or the father] married Marsha Whyte [defendant or the mother] in 1990. A child, Nina, was born in January 1995. In September 1995, one of them filed divorce proceedings in the District Court of Harris County, Texas; it led to a final decree in January 1998. The court entered it with both parties’ agreement and accompanied by submission to the court’s jurisdiction. The decree designated both parties as Nina’s “Joint Managing Conservators” but granted the father “primary physical residence” in Texas.

The decree consisted of about 25 pages of the most detailed provisions in relation to Nina’s residence, care and contact with her parents. It specifically provided for Nina’s time with each parent, and her delivery by the one to the other; clause 15 explicitly enjoined either parent from taking Nina to a country not party to the Hague Convention on the Civil Aspects of International Child Abduction, in force for U. S. July 1,1988 [T.I.A.S. 11670]. The clear purpose of that clause is to facilitate control of any breach of the custody orders.

The decree also spelled out sanctions for breach of its terms. For example, Clause 20 provided that a party violating the terms of the decree would be liable for any costs and fees reasonably incurred by the other as a result of the violation. Finally, a note reminded the parties that breach of the order was a contempt of court, punishable by imprisonment.

Flouting the divorce decree in August 1998, defendant exploited one of her periods of agreed custody to abduct Nina to the Russian Republic, a country not one of the over fifty parties to the Convention. She refused to return her. After proceedings in the Russian courts, those courts declined to honor the Texas decree and awarded custody to the defendant.

In desperation, the father had Nina seized in Russia and returned to Texas in December 2001. The defendant’s flagrant defiance of the Texas court order, and the dislocation, distress and trauma that Nina had to go through as a result -- having been at the time of the abduction three and a half years old -- were obvious to the forum court.

The plaintiff, however, did not proceed against the defendant under the divorce decree’s penal provisions; instead he filed proceedings against her under chapter 42 of the Texas Family Code. That allows for damages for “interference with possessory interest in child”. They may include the costs of recovering possession; “mental suffering and anguish” suffered by the plaintiff because of defendant’s disregard of the court’s order as to possession; and punitive damages in respect of actions done with malice. The Texas court ended up ruling for plaintiff in March 2003. It awarded him as against the defendant $867,219 for the costs of getting Nina back; $500,000 for pain and suffering; and $250,000 in punitive damages, totaling over $1.6 million. The defendant took no part in these proceedings. It is that order that the plaintiff seeks to enforce in the English courts. The High Court of Justice dismissed on the grounds of lack of jurisdiction and plaintiff appealed. The Court of Appeal (Civil Division) unanimously allows the appeal.

The Court points out that “Murthy v Sivajothi [1999] 1 WLR 467 adopted the principle that, where the [party] makes a related claim in the sense discussed in the United States authorities and reflected in our own RSC Ord. 16 r. 8(1)(c), that party submits to judicial jurisdiction to resolve “any question or issue relating to or connected with the original subject matter of the action. Whether a particular claim should be regarded as related in this sense must always be a question of fact and degree.”[¶ 6]
The present Court then declares. “These issues have usually been discussed in commercial or property cases, as was Murthy itself. The principle stated [there] is, however, in my view particularly apt for application in a case within the family jurisdiction, where proceedings may affect [a] wide range of the aspects of the parties lives. And it is particularly apposite in the present case. The [original] Texas decree was, if not all about Nina, then at least to a very large extent about her. She was the subject matter of that action. A breach of the orders about Nina in that action was not merely something relating to or connected with the original subject matter, but actually part of the original subject matter itself.” [¶ 7]

“That the mother, by her defiance of the divorce decree, submitted to the penalties available to the court for breach of that decree is not affected at all by the fact that the father chose to proceed under the expansive chapter 42, rather than confine himself to the more limited recourse provided by the decree itself. Chapter 42 is part of the Texas Family Code, and is clearly recognised in that jurisdiction as an inherent part of the protection to be provided to families who have the misfortune to have their affairs regulated by the courts. It is quite impossible to say that the mother did not submit to that regime when she submitted to the divorce decree that it enforces.” [¶ 8]

“The judge [below] was not pressed with the full force of Murthy, because the case seems to have been presented to him through the medium of an earlier appeal in this court, [2004] EWCA Civ 35, in which an attempt was made to enforce the chapter 42 order against the second defendant, who is the mother of Mrs. Whyte.”

“She had become involved in the divorce proceedings because, as a co‑owner of property with Mrs. Whyte, she had been required to sign a release of various interests as part of the financial settlement in the divorce. Even if, which this court thought doubtful, she had thereby submitted to those divorce proceedings, she had not done so in any way that made it fair or reasonable to say that she had also submitted to proceedings that related, not to the financial aspects of the divorce, but to the custody of Nina, with which the second defendant was not concerned. That case therefore gives no help in the very different issue that is before us. If that had been made clearer to the judge I am satisfied that he would have seen this case in a different light.” [¶ 9]

The appellate court allows the appeal, declares that the courts of this country have jurisdiction to entertain a claim against the mother based on the chapter 42 decree of the Texan court, and remands the proceedings to the Queens Bench Division.

One of the concurring Justices adds the following observation. “The objection to jurisdiction seems to me to depend on the purely technical point that the father elected to seek the redress to which he was clearly entitled by originating petition under chapter 42 rather than by an application in the divorce proceedings. Had he obtained an order for the reimbursement of his costs and expenses under clause 20 of the consent order the mother would clearly have no ground on which to contest jurisdiction. He might have limited his order under chapter 42 to the reimbursement of the same costs and expenses. That only illustrates how unrealistic it would be to find a submission to the jurisdiction in the first instance but not in the second.” [¶ 12]

The case is: Whyte v. Whyte, WL 1650632 (CA (Civ Div)), EWCA Civ. 858.

*** Janet Pittman Reed has been licensed for more than 16 years and handles cases in Divorce & Separation. This attorney works in Jacksonville, NC and attended University of Florida, Fredric G. Levin College of Law. She was admitted in North Carolina in 1997.

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