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Case Update: Hague Abduction Convention, ICARA, fee-shifting, legal fees

On June 29, 2020, the U.S. District Court for the Southern District of New York issued an order for Ms. Orna Kirsh to pay fees and costs to Mr. Dror Nissim after Mr. Nissim prevailed in a Hague Abduction Convention return proceeding.  The US implementing legislation for the Hague Abduction Convention (ICARA) includes a fee-shifting provision that orders the respondent (Kirsh) to pay necessary expenses incurred on behalf of the petitioner (Nissim) during the course of the Hague Abduction Convention proceedings unless it would be clearly inappropriate.  
The court reviewed 6 factors in determining whether a fee award would be “clearly inappropriate," and concluded it would not be.
The court considered the following factors: whether there was a reasonable basis for removing the children to the USAwhether either party engaged in forum shoppingthe degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and coststhe respondent’s inability to pay a…

Case Update: Hague Child Abduction Convention, Consent to Relocate, COVID-19 Return to EU

As the COVID-19 pandemic drags on, it is inevitable we will see more international cases that address this issue, even if tangentially.
In the case of Sacchi v. Dervishi, the US District Court for the Northern District of California ordered two children returned to their habitual residence of Italy and crafted its return order to account for the European Union's travel restrictions that left the United States off of approved travel partners due to a resurgence in the COVID-19 outbreak in many parts of the U.S.
The couple, who were residing in Italy for the better part of 2 years with their children, were having marital difficulties.  The children’s mother, Ms. Dervishi, decided she wanted to return to California, where the family had previously lived, and where the children were born.  She asked their Father, Mr. Sacchi, for permission to move the children with her.  It appears that both parents had a tentative (albeit somewhat unclear) understanding that the children could move to …

Treaty Update: US accepts Pakistan's accession to the 1980 Child Abduction Convention

On July 1, 2020, the United States accepted Pakistan's accession to the 1980 Hague Child Abduction Convention.  The treaty will enter into force between the U.S. and Pakistan on October 1, 2020.
As a quick note, Pakistan did not appear among the list of countries that are not compliant with returning abducted children in the most recent compliance reports under ICAPRA, issued by the U.S. Department of State each spring. This may or may not have played a role in the U.S. government's decision to accept Pakistan's accession. 
Pakistan became a party to the 1980 Convention in 2017, but the U.S. delayed in accepting its accession.  Pakistan has not completed its Country Profile, which is requested of each country who becomes a treaty party to the Convention.  Country Profiles are helpful documents maintained by the Hague Conference on Private International Law that gives basic details on the treaty's operation in that country.  

HCCH Update: COVID-19 Toolkit for the 1980 Hague Child Abduction Convention

The Hague Conference on Private International Law published a toolkit that explores the application of the 1980 Hague Child Abduction Convention in the wake of COVID-19.  
You can find the toolkit by going here.  The toolkit pinpoints resources and publications provided by the HCCH that support a global response to the current pandemic.  
The document highlights: - focusing on each case individually (on a "case-by-case" basis) - ensuring suitable contact between parents and children - promoting mediation and other mechanisms to resolve these cases, including remote mediation - sharing information and collaborating among judges and the Central Authorities - putting in place practical door-to-door arrangements to ensure a child is returned safely
The document then provides hyperlinks to the relevant documents on the HCCH's website that provides additional guidance.





Case Update: Abduction Prevention, Restrictions on Passport Renewal, Ne Exeat

In the custody trial of OG v. AB, a Mother expressed her desire to take the parties’ children to visit her family in her native Russia but indicated that the Father was unwilling to give her the children’s expired Russian passports so that she could renew them for the travel.  The Father testified that the mother had previously threatened to “never let him see the Children again” and he was concerned she would not return to the United States once in Russia. The children are dual nationals of Russia and the United States.
At the conclusion of the trial, the parties were granted shared legal and physical custody and the court issued a writ of ne exeat, prohibiting either parent from traveling with the Children outside of the continental United States without the written consent of the other parent.  The court declined to authorize the renewal of the children’s Russian passports because Russia and the United States are not treaty partners under the Hague Child Abduction Convention.  It al…