From April's sweet showers, marriage equality flowers

Marriage equality to become law…

 

... in New Zealand at least, following a vote last week by the House of Representatives there.

By a majority of 77 votes to 44, the Marriage (Definition of Marriage) Amendment Bill 2013 was passed on its third reading.  It received Royal Asset on 19 April 2013.

New Zealand’s Department of Internal Affairs now has four months to make the changes necessary for marriage licensing.  Marriage equality will be effective there from 19 August 2013.

New Zealand will be the first country in Oceania, and the second Commonwealth country (after Canada) to allow same sex-couples to marry.

New Zealand has a well-established pedigree for affording universal rights to groups denied them, and long before others follow their lead.  See, for example, the issue of women’s suffrage.  The Electoral Bill granting New Zealand women the franchise was introduced in 1893.  The same year, Elizabeth Yates was elected Mayor of Onehunga, the first time a woman held such a post anywhere in the British Empire.

Barely 25 years later, along shuffled the UK, with the Representation of the People Act 1918.  That Act – introduced after decades of campaigning, the highlights of which included (amongst other outrages) the force-feeding of imprisoned suffragettes - gave women over 30 who met minimum property qualifications the vote.  Ten years later, the Representation of the People Act 1928 extended the voting franchise to all women over the age of 21, granting women the vote on the same terms as men.      



France's parliament on the vote



Closer to home, on Tuesday France's parliament also voted to enshrine marriage equality in law.  France’s lower house approved a marriage bill in a 331-to-225 final vote, following impassioned speeches by lawmakers for and against the legislation.

And earlier this month, the Uruguayan parliament approved a marriage equality measure.  That bill passed the lower house with a 92 / 71 vote majority.  The Uruguayan senate approved the bill in a 23-8 vote.  Now what is required is the signature of the President, Jose Majuica (who has already indicated he supports the measure) on the bill before it passes into legislation.

The response to the Uruguayan vote

Historically never especially fond of democracy, the conservative religious communities in the countries in question remained true to form.  In Uruguay, for example, the Roman Catholic Church described marriage equality as a harsh blow to the institutions of marriage and the family.  In France, a right-wing senator doomsayed that marriage equality would open the way to people being able to marry animals or objects (whatever gets you through the night, dear…)

But as the votes suggest, these dreary misanthropes are outnumbered by those who support marriage equality.  The New Zealand vote was greeted in parliament by cheers, applause and the singing of a traditional Maori love song "Pokarekare Ana” by some MPs and those in the public gallery (it’s worth checking out the video:  the genuineness of the reaction is really very beautiful and moving).

The scene in New Zealand's parliament after the vote

All of which makes the lumbering approach to marriage equality in England and Wales seem pretty dispiriting.  On 24 January 2013, the Marriage (Same Sex Couples) Bill was introduced to the Commons.  On 5 February 2013, the bill passed its second reading in the House of Commons by 400 votes to 175.  The Bill was then examined in 13 sittings line-by-line, by Committee.  It completed its Committee Stage on 12 March 2013 and is due to have its report stage and third reading in the House of Commons on a day to be determined.  Whilst the majority of the public supports marriage equality (see the YouGov surveys from June 2012 and December 2012), I detect much hand-wringing yet to come to placate the vocal minority against, and particularly those who maintain their appointed deity has set his / her / its face against the concept.

Please don’t let it take the 25 plus years that British women had to wait after their New Zealand sisters got the vote for the universal human right of marriage equality to be afforded to same-sex couples here.

In with the in-crowd: the Hague Abduction Convention gang grows...

My first blog, way back in January (so long ago…) was on Japan’s ratification of the 1980 Hague Abduction Convention.  After some considerable delay and a change of government, it appeared that that ratification was back on track.  Japan’s Foreign Minister announced his government’s commitment to taking steps, and promptly, to sign the Hague Abduction Convention.

It wasn’t all empty rhetoric either.  We know that, because Japan’s Lower House unanimously approved ratification of the Convention on Tuesday.  The Lower House will now consider draft legislation about how the Convention will work locally.

The ratification and draft legislation will then go before the Diet, Japan’s parliament, in late May.  Under Japan’s Constitution, a treaty approved by the Lower House will receive Diet approval if the Upper House does not vote on it within thirty days.

Japan is the only nation among the Group of Eight yet to join the Convention club, which has 89 signatories as at today’s date.

It might have more soon …

Hot on the heels of the Japanese development comes a commitment from Pakistan’s parliament to look at implementing the Convention there.  Earlier this week, Pakistan’s interim law minister, Ahmer Bilal Soofi, said this:

“My ministry will examine it.  We genuinely believe that this convention should be adopted.” 

This statement of intent was made in a speech given at a consultation organised by the charity Struggle for Change, in collaboration with the British High Commission.  In attendance were officials from the diplomatic community, government ministries, police department, as well as legal experts and human rights activists.

Attendees were told that there were 40 child abduction cases between the UK and Pakistan in 2012.  Significant child abduction traffic was also reported involving the USA, Norway, Denmark and the Netherlands.  Unsurprisingly, the most traffic was between countries with significant expatriate Pakistani communities.

Pakistan’s Human Rights Secretary, Shaigan Sharif Malik, likewise committed his ministry to doing the necessaries, and quickly: 

“I give my word that we will be ratifying this Convention soon.  This is an issue regarding children’s rights, something that we are serious about.”

Three working groups focusing on mediation, challenges and implementation, respectively, have now been formed to draft recommendations that will be forwarded to the relevant authorities for effective implementation of the Convention in Pakistan, once ratified.

Although Pakistan is not currently a member of the Hague Abduction Convention club, it has a bilateral arrangement with the UK in the form of a Protocol.  The Protocol was concluded in January 2003, and has been revisited twice since, in September 2003 and February 2006.

The Protocol is primarily concerned with child abduction cases, but cases that involve the cross‐border recognition of orders as to custody and access also fall within the “spirit”, if not the letter, of the agreement.

In terms of practical operation, the Protocol looks to appoint liaison judges in the two jurisdictions; in England and Wales, the liaison judge is Lord Justice Thorpe.  The liaison judges are intended to work together to advance the objects of the Protocol.

But the Protocol does not (and cannot) change the underlying legal mechanisms for resolving child abduction cases between the two countries.  It is at best mood music, playing in the background and seeking to inform and influence, rather than dictate, the approach to be taken in cross-border custody disputes between the two countries.

Not so the Convention:  the Convention introduces a presumption that, save in limited circumstances, the unlawful taking or retention of a child across international boundaries is harmful to his or her welfare.  The Convention introduces a default legal response in such situations, of returning children to the country from where they were taken.

Here’s hoping that Pakistan follow the Japanese lead, and make good on the commitment to ratify the Convention in the very near future.  The more members of the club there are, the better the global response to the peccancy that is parental child abduction.

On Morocco, Kafala and the 1996 Hague Convention

Kafala - I’m reliably informed by those who know better about such things - is the closest Islam comes to the Judeo-Christian concept of adoption.  It is the commitment by an adult to take care, free of charge, of the education and protection of a child as a parent would do for his or her own.

It differs from adoption, in that a kafala arrangement does not extinguish the child’s legal relationship with his or her birth parents.  The child keeps the name of the birth family, special rules on inheritance apply, and (on attaining adulthood) the members of the kafala family are not considered blood relatives.  They are therefore not muhrim to him or her.  Muhrim refers to the rules on family relationships that regulating marriage, permissible behaviour and so on.

Kafala emphasises that the parents assuming the child’s care are not replacing the birth family, but merely acting as trustees or caretakers.

Enough of my awkward attempts to explain complex Islamic principles – and if any Islamic jurists think I’ve got any of the above badly wrong, do please correct me!

I mention kafala because recent changes in the law surrounding it in Morocco risk leaving parents and children in limbo.

Until recently, Moroccan law allowed Muslims – including converts – to assume guardianship of abandoned children.  However, a change in the law last September restricted kafala to Moroccans, meaning that foreign Muslims were no longer eligible to have children placed in their care.  Morocco’s Justice Minister defended the change, which he described to parliament in November 2012 as designed to better protect the interests and identity of children. 



Morocco's Parliament in Rabat



"We found that there were many foreigners who declare themselves Muslims, stay in a hotel and, when they get their child, they leave the country. How can we be sure that they will respect the law and protect the child?"

All of this is a cause of particular heartache for non-Moroccan nationals who had started the kafala process before the change.  Agence France-Presse reported at the start of this week on the plight of a number of individuals affected.  One French couple, Yassamane and Eric, had been waiting to have a child placed with them for more than a year.  Said Yassamane, who gave up her psychology practice in France and moved to Morocco to complete the kafala process: 

“I was awarded my child in April 2012.  It was the happiest day of my life.  But since that date, the judicial procedure that usually lasts a few months has dragged on for more than a year." 

Another affected is Gabriel, a Spanish journalist.  He is waiting to see whether the legal change will affect the kafala decision to place with him of a fifteen-month-old boy. "I'm afraid this decision will be applied retroactively," he said.

More than 100 families - Spanish, French and Americans, as well as Moroccans living in Europe – had children placed with them before the law was changed.  They complain that normally routine court hearings are being delayed indefinitely, and applications have ground to a halt.  They are waiting to see whether the fear given voice by Gabriel comes to pass:  will the change be retrospective in effect? 

In the meantime, many of them continue to visit the children who have been matched with them at the orphanages where they must remain.  Some allow visits to last for six hours a day, but one (in the southern resort town of Agadir), restricts visits to an hour a day.

All very depressing…

But in the interests of saying something mildly helpful, I offer this:  the 1996 Hague Convention on Child Protection recognises and supports international kafala placements.  The Convention entered into force in Morocco in December 2002.  It is now also in force throughout the EU Membership (except for Belgium and Italy, who really need to get on with it!)

If the Moroccan authorities are concerned about foreign applicants and how they will act when they return abroad with a child, I suggest the answer lies in the Convention.  The Moroccan authorities could include in the kafala decision such protective steps and measures as they thought necessary and appropriate.  Under the Convention, that kafala decision (and any conditions attached to it) would be recognised and implemented throughout Europe (and elsewhere, although unfortunately, the Convention is not yet in operation in the USA).  Only in very limited circumstances – for the most part if procedural safeguards had not been observed when making the original decision - could recognition of the decision be refused.  

So, Moroccan authorities, look to the Convention.  It’s there and it works.  Use it!

Going underground – When parents defy the court process

A few weeks ago, I wrote about a US international custody dispute.  That case involved a Virginian Amish-Mennonite pastor, who was sent to gaol for his part in abetting a parental child abduction.

The phenomenon is not unique to the US.  According to an article in Australia’s Courier-Mail on Tuesday, Church and domestic violence support groups there are actively helping parents breach court orders and go on the run with their children.  Those groups, the article reported, helped
recalcitrant parents operate under the radar and evade detection by the authorities.

One parent claimed a domestic violence group and others had helped a former spouse hide two children from the courts and police.  When six officers finally found the children - who had been missing for a month - they had been given new SIM cards for their phones and access to a number of different computers.  The parent who had illegally taken the children had limited funds at the time, so the implication was others were underwriting her financially.

The problems identified resonate with those we face here, too.  I’ve had a number of cases over the years which have required steps to be taken to find children taken by a parent in defiance of court orders.  For the most part, those steps have been successful.  Our courts are extremely sympathetic to requests for the disclosure of information to help locate missing children.  Any lawyer experienced in managing child abduction cases will know the classes of information that best pinpoint where and how parents seeking to evade detection are operating.

But I have had a small cohort of cases where even the most intensive efforts to find a missing child have not been successful.  Each of those has had the fingerprints on it of a network of supporters conspiring to help the abducting parent defy the court process.  Often family members are implicated, and in some instances punished, for their support – however well-intentioned – in helping a parent avoid detection.  This third party support is virtually inevitable:  it is neither easy nor cheap to run one’s life without leaving an information footprint of some description that can be used in the detection process.  These have been some of the most difficult and sad cases of my career.

 

Family law experts in Australia claim the problem there is compounded by the justice system being under-resourced.  The Courier-Mail article features comment from several sources to the effect that the issue is partly on account of courts not properly managing, and taking into account in their decisions, factors such as domestic violence or abuse.  Thus, it is claimed, parents have to take the law into their own hands. 

If those working in the Australian Family Justice System need an illustration of how underfunding fails children and families, they should have a word with me.  With the decimation of our Family Justice budget (with further swingeing cuts promised), and the all-but-in-name extinction of Legal Aid, most lawyers here agree that the service we are able to offer some of the most vulnerable is no longer fit for purpose. 

Rather pessimistically, I suspect we’ll see more and more cases of the type described above.  With parents increasingly denied effective access the court system, of course there will be the temptation to take the law into their own hands and go underground.  Some will do so with good reason, others will do so out of malice or spite.  If in the latter categories, under-resourcing represents a total failure of the left-behind parent. 

 

On either side of the equation, the individuals who will be most let-down will be the children affected. 

But we’re all in this together…

I’d like to hear what others think.  Can a parent ever be justified in going on the run with a child in defiance of court orders?  If yes, in what circumstances?  Likewise, is it ever justified for family members, churches, support groups and others to help parents in these situations evade detection and due process?  I’d also love to hear from parents who, having been through the court process and obtained an order, have nevertheless been denied a relationship with their child because the other parent has gone underground.