International custody battles: Precedent setting custody decision by BC court

B.C. court awards Taiwanese father custody of his daughter

Judge in international abduction case says there was 'wrongful removal of the child from Taiwan'

Eric Rankin (Feb 04, 2017). CBC News. Retrieved from: http://www.cbc.ca/news/canada/british-columbia/b-c-court-awards-taiwanese-father-custody-of-his-daughter-1.3967100.

A Taiwanese man who tracked his abducted daughter to B.C. has now won full custody of the eight year old girl — more than five years after she was spirited here by her mother.

Chen was elated but emotionally cautious when he spoke to CBC News moments after the B.C. Supreme court decision late Friday.

"I have to stay calm. I can't cry again because I cry too much already" said Chen. "I have to be strong for my daughter."

A B.C. Supreme Court ruling last week gave Chen temporary custody of the little girl. The pair had a tearful reunion at Vancouver International Airport on Jan. 26.

The girl — whose name is being withheld by the CBC — met her father and older brother for the first time since she was three years old.

Chen's lawyer calls the latest B.C. Supreme Court decision awarding him permanent custody "precedent setting," and says it could influence similar legal cases involving future international child abductions.

Long legal battle

Lyndon Chen, 50, had been fighting for the child's return since 2011. That's when his ex-wife ran off with their son and daughter from their home in Taiwan.

She first fled to Hong Kong — where Chen was able to regain custody of his son.
But the mother then took their daughter to B.C.

Chen didn't give up. In his homeland of Taiwan, he fought a long legal battle for the return of the girl. Last year, a court there finally granted him sole custody of his daughter.

But Chen still had to find her in B.C.— and convince the courts here that the child should be returned to him.

Now B.C. Supreme Court Justice Nathan Smith has done just that.

'Wrongful removal of the child'

In his oral judgement, rendered late Friday, Judge Smith stated "it's clear to me there was wrongful removal of the child from Taiwan".

Complicating the case, however, was the fact that Taiwan's status as a country is disputed internationally, and as a result it's not a signatory to articles of the Hague Convention which govern parental child abductions.

For Judge Smith, however, the case revolved around an affidavit filed by the mother, Hsin-Chen Shu, also known as Sin-Chen Chang and Yun-Syuan Shu.

In her sworn statement, she didn't take issue with the Taiwanese court proceedings and admitted she had taken the child in violation of court orders there.

"Essentially the child was removed from Taiwan without the consent of one of the parents and she remains in B.C. in violation of a Taiwanese court order" said Judge Smith.

"There's no evidence before me that it would be contrary to public policy to respect the order of the Taiwanese court."

Judge Smith says Chen can soon return with the child to Taiwan.

Seven day delay

But there's a complication. The B.C. Supreme Court justice also delayed implementation of that order for seven days, to allow the ex-wife time to file an appeal, meaning the battle for the child may be far from over.

Still, Chen says he's willing to share his daughter.

"She can see her mother, she can talk to her mother whenever she wants … she can talk to her brother. I think that every child should have that chance."

Hsin-Chen Shu will be allowed to see her daughter for a few hours on weekends while they remain in Canada — but the courts have taken measures to ensure she doesn't once again flee with the child.

"(Her) passport has been surrendered and the child's passport has been surrendered" says Lyndon Chen's lawyer, Leena Yousefi. "(The) visitation will have to be supervised by somebody to ensure that the child is not taken away."

'Case sets precedents'

Yousefi also says the B.C. Supreme Court decision to honour a Taiwanese court order, breaks new ground.

"This case absolutely sets precedents for British Columbia and laws relating to non-Hague countries and … wrongful (child) removals."

Lyndon Chen is still trying to absorb the fact he finally has his daughter back in his life after five years.

"I can't believe it's true. It's (been) true in my dreams many times already, but I can't imagine it's true now."

Hsin-Chen Shu declined CBC requests for an interview.

UK judges change court rules on child contact for violent fathers

Reforms aim to end presumption that a father must have contact with a child when there is evidence of domestic abuse

Laville, S. (20 January 2017). The Guardian. Retrieved from: https://www.theguardian.com/society/2017/jan/20/uk-judges-change-court-rules-on-child-contact-for-violent-fathers-domestic-abuse

Senior judges are taking steps to end the presumption that a father must have contact with a child where there is evidence of domestic abuse that would put the child or mother at risk.

The reforms are to be introduced in the family courts after campaigning by the charity Women’s Aid, which identified that 19 children have been killed in the last 10 years by their violent fathers after being given contact with them by judges.

The changes include a demand from one of the most senior family court judges for all the judiciary to have further training on domestic violence and to act to ensure women and children are protected.

Mr Justice Cobb announced the changes on Friday after talks with Women’s Aid, and following concerns raised in a Guardian investigation.

Cobb said: “It is indeed most disturbing to note that for at least 12 children [in seven families], of the 19 children killed … contact with the perpetrator [the father] was arranged through the family courts.

“For six families, this contact was arranged in family court hearings [two of these were interim orders], and for one family, contact was decided as part of the arrangements for a non-molestation order and occupational order.”

Since its report on the child murders last year, Women’s Aid has identified another case in which a child was murdered by a father after being given contact via the family court. The charity is presenting their updated report to the prime minister in Downing Street on Monday.

Cobb also called for an end to the cross-examination of domestic violence victims by alleged perpetrators in court hearings, a practice banned in the criminal court. He said there needed to be “decisive action to cure this deeply unsatisfactory situation”.

Cobb’s reforms were endorsed on Friday by the President of the family division, Sir James Munby, who praised both Women’s Aid and the “hard hitting articles in the Guardian” for highlighting the issues.

The changes are contained in amendments to judicial guidance known as practice direction 12J. A key change announced by Cobb was that the presumption in the family court that there should be “contact at all costs” with both parents would be scrapped. He said it should be excluded in domestic violence cases where involvement of a parent in a child’s life would place the child or other parent at risk of harm.

He also said judges needed to be more alert to perpetrators of domestic violence using the courts as a way to continue their abuse. “Family court judges should be sure that they understand the new offence of coercion [controlling or coercive behaviour in an intimate or family relationship],” he said.

Cobb called for judges to be more alert to how violent men could use the access within the courts to assault their former partners, putting forward a proposal for courts to consider more carefully the waiting arrangements before a hearing, and arrangements for entering and exiting the court building.

Munby pointed out that austerity measures had impacted on courts’ ability to protect vulnerable witnesses. He said in his own court in the Royal Courts of Justice in London there was no safe waiting room and no video link.

“The problem, of course, is one of resources, and responsibility lies … ultimately with ministers. More, much more, needs to be done to bring the family courts up to an acceptable standard, indeed to match the facilities and ‘kit’ available in the crown court,” said Munby.

In his report on Friday, Cobb said it was essential that family court judges used the practice direction as it had been amended.

“By this report, I wish to highlight the concerns raised by Rights of Women, Women’s Aid … I hope that positive steps can now be taken to address in the family court the problem, long since addressed in the criminal court, of the alleged victims of domestic abuse being directly questioned by their unrepresented alleged abusers.”

Polly Neate, director of Women’s Aid, welcomed the changes. She said: “There should never be a presumption of contact where one parent is known to be a perpetrator of domestic abuse, as is made clear today.

“We urge the Family Procedure Rule Committee, and lord chancellor and secretary of state for justice, Liz Truss MP, to agree the new practice direction, with all of the changes set out by Mr Justice Cobb, without delay.”

The Ministry of Justice has indicated – following the articles in the Guardian and questions in parliament – that it is going to change the law to enforce a ban on direct cross-examination.