Headline, May28, 2014

'''' O' MONEY - OH'' MISERY : 

'' OH-HO ! -MONEY IN MISERY ''''

CASH AND KIDS may pull in different directions. Countries that are  ''man friendly''  -shorthand for favouring the richer, usually male, partner-  when it comes to money may be  ''mum-friendly''  when it comes to custody.

Japan, for example is quick and cheap for a rich man  -unless he wants to keep seeing his children. English courts are ferocious in dividing up assets, even when they have been cunningly squirrelled away offshore. 

But compared with other jurisdictions, they are keen to keep both divorced parents in touch with their children.

The children's fate, even more than family finances, can be the source of the hottest legal tussles. The American State Department unit dealing with child abduction has seen its caseload swell from an average recent years of  1,1000 open cases to over 1,500 in 2009. In Britain, the figure rose from  157  in 2006  to 183  in 2007, according to Nigel Lowe of Cardiff Law school.

Of the cases reported worldwide,  ''mothers are the main abductors''  when a marriage breaks down. They are cited in  68%  of the cases. Ann Thomas, a partner with the International Family Law Group, a London law firm, says child abduction has increased  ''dramatically''  in the past few years or so.

A big reason is the freedom of movement within the European Union, which has enabled millions of people from the new member states to live and work legally in the richer part of the continent. That inevitably leads to a boom in binational relationships, and in turn more children of mixed marriages.

Ms Thomas notes that when a relationship between a foreign mother and an English father breaks down, the mother often assumes that she can automatically return to her homeland without the father's permission. That may be a costly legal mistake.

Most advanced industrialised countries, plus most of Latin America and a sprinkling of others, are signatories to the  1980  Hague Convention, a treaty which requires countries to send abducted children back to the jurisdiction where they have been living previously.

That is fine in theory: it means that legal battles have to be fought first, before a child is moved. It is a great deal better than a fait accompli which leaves one parent in possession, while the other is trying to fight a lengthy and expensive legal battle in a faraway country.

But in practice things are very different. Views on the desirability of children being brought up by  ''foreigners''  vary hugely by country; so do traditions about the relative role of fathers and mothers in bringing up their children after divorce.

In most Muslim countries, for example, the assumption is that children over seven will be brought up by the father, not the mother, though that is trumped by a preference for a local Muslim parent. So the chances of a foreign mother recovering abducted children from a Muslim father are slim.

Apart from secular Turkey and Bosnia, no Muslim countries have signed the Hague Convention though a handful have struck bilateral deals, such as Pakistan with Britain  and Egypt and Lebanon with America.

Japan has not signed it either -the only member of the rich country G7 not to have done so. Canada and America are leading an international effort to change that. Foreign fathers, in particular, find the Japanese court system highly resistant to attempts even to establish regular contact with abducted and unlawfully retained children, let alone to dealing with requests for their return.

Such requests are met with incomprehension by Japanese courts, complaints an American official dealing with the issue. ''They ask, 'Why would a father care that much?''' Countries edging towards signing the Hague Convention include:

India, Russia, mainland China. But parents whose ex-spouses have taken children to Japan should not hold their breath: as Ms Thomas notes, even if Japan eventually adopts the Hague Convention, it will not apply it retrospectively. 

Moreover, even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive. The annual State Department report to Congress on observance of the Hague Convention lists:

Honduras as  ''non-compliant''  and nine other countries: Brazil, Bulgaria, Chile Ecuador, Germany, Greece, Mexico, Poland and Venezuela-  as showing  ''patterns of non-compliance''. Anyone in a wobbly marriage with a citizen of these countries might that in mind before agreeing to let the children go on a holiday there.

But America is not blameless either, particularly if parents try to recover their children through state rather than federal courts, where judges may be unaware of the Hague Convention's requirements. ''Except in Florida, New York, California and Texas, a judge may only hear one Hague case in his career,''  says a State Department official.

Judges who get it wrong can be overruled on appeal, but it takes time and money: the Hague Convention aims to make proceedings quick and cheap, thus making abduction less likely. 

Whereas Britain offers automatic legal aid to the foreign parent trying to recover the children, in America they must rely on their own resources or a pro bono lawyer.

The Honour and Serving of the Post continues.

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