Saturday, February 4, 2017

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'


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.

Sunday, January 22, 2017

UK judges change court rules on child contact for violent fathers

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.

Sunday, September 18, 2016

Litigation Harassment, Spousal Violence and Child Abuse

MPs call for end to abusive men using courts against families

Government urged to review family court system which is ‘allowing men to re-traumatise women and children’

The government must carry out a full review of family courts to stop them being used by violent men to perpetuate abuse against their partners and children, MPs have said.

They called on the justice secretary, Liz Truss, to act swiftly to tackle deep-seated cultural attitudes among family court judges which put the rights of abusive men over the safety of women and children.

MPs were debating research by Women’s Aid which revealed that between 2005 and 2015, 19 children in 12 families were killed by violent fathers who had been allowed to see them through formal and informal child contact arrangements.

The debate focused on many personal stories of women who had been subjected to violence and coercive control by their partners, only to have to face them again in the family courts when the men fought for child contact.

MPs said the family court system was allowing violent men to re-victimise women. Increasing numbers of men were representing themselves and re-traumatising their victims when they made repeated and often spurious applications for access, they said.

Peter Kyle, the Labour MP for Hove, said: “The family courts are being used to perpetrate abuse against extremely vulnerable women … One of my constituents has been cross-examined by her former partner on three separate occasions, the man who beat her, broke her bones and battered her unconscious.”

He said a transformation of family courts was “desperately needed” to end the “abuse and brutalisation of women” via the legal system.

Angela Smith, the Labour MP for Penistone and Stocksbridge, raised the case of her constituent Claire Throssell and her children, Jack, 12, and Paul, nine, as Throssell watched from the public gallery.

Throssell’s estranged partner, Darren Sykes, a perpetrator of domestic violence who had threatened her and his children, murdered both boys during a contact visit to his home in 2014 by enticing them to the loft with a new train set. He then set 16 fires in the house and barricaded the home.

He had been given contact by the family court despite the authorities’ knowledge of his violence and the children’s expressed fear of their father.

Smith read Throssell’s own words to MPs: “It took just 15 minutes on 22 October 2014 for my life and heart to be broken completely beyond repair. My happy, funny boys were killed by their own father … The police later told me that Jack was still conscious when he was carried out and he told them: ‘My dad did this and he did it on purpose.’ This was taken as his dying testimony.”

Paul died in his mother’s arms in hospital, while Jack lived for another five days, MPs were told. Sykes died in the fire.

Smith said the family courts needed to properly implement “practice guidance 12 J”, which is supposed to force judges to put the safety of children and their residential parent before the access rights of a violent and abusive parent.

She highlighted the demands in the Women’s Aid report for an end to the cross-examination of a survivor by an abuser in family courts, and for special protection to be brought in, such as separate waiting areas, to keep victims safe from violent partners in court buildings.

Smith said there was a need both to end the assumption that men who were abusive to women could be good fathers, and to embed a culture in the family courts of putting children first.

“These changes are critical if we are to make sure this never happens again,” Smith said in reference to the Throssell case. “For Claire’s sake and for the sake of vulnerable women, we need the government to send out a clear message by agreeing to act. Jack and Paul must not be forgotten.”

MPs also urged the government to respond to the all-party parliamentary group’s report on domestic abuse, child contact and the family courts, which said the courts needed to ensure there was safe child contact, not contact at any cost.'

Gill Furniss, the Labour MP for Sheffield, Brightside and Hillsborough, said: “I urge the minister to instigate a full review based on the Women’s Aid report and the APPG findings … because we must ensure that Jack and Paul and all other victims are never forgotten.”

Keir Starmer, the former director of public prosecutions and Labour MP for Holborn and St Pancras, said it was important to look at the changes made to the criminal justice system to better protect victims of domestic violence – including special measures for victims and witnesses, and the presence of independent abuse advocates – and ask why the family courts were not making similar changes.

He said there was growing evidence that perpetrators of domestic abuse were using the family courts to continue to harass and control their victims.

Phillip Lee, the parliamentary undersecretary of state for victims, youth and family justice, said the government was not complacent. “I think it is fair to say the family court system can learn valuable lessons from the criminal justice system.”

He said the government was studying the research by the APPG on domestic violence extremely carefully. 

Friday, August 19, 2016

Financial Abuse: Almost one in five UK adults suffer 'financial abuse', survey finds

Almost one in five UK adults suffer 'financial abuse', survey finds

Campaign by Co-op bank and charity Refuge aims to raise awareness of issue whereby one partner controls or exploits the other’s finances

Osborne, H. (10 December 2015). The Guardian. Retrieved from: https://www.theguardian.com/society/2015/dec/10/almost-one-five-uk-adults-suffer-financial-abuse

Almost one in five UK adults have suffered control or exploitation of their finances by a partner, according to a report published to launch a campaign against “financial abuse”.
A survey of more than 4,000 people found that 18% had been a victim of financial abuse in a current or former relationship, and that a third of those affected had never told anyone what was happening. Half of the victims said a partner had made significant financial decisions without consulting them, or forced them to ask permission to spend or show evidence of having done so.
Six in 10 of those reporting abuse were female, although victims spanned all gender, age and income groups. For women reporting experience of the problem, the abuse tended to start at key life stages: 71% said it was when they moved in with a partner, 75% said it was when they got married, and 30% when they had children. Among men the figures were 28%, 25% and 30% respectively.
The research, commissioned by Co-operative Bank and the domestic violence charity Refuge, marks the start of a campaign by the two organisations to raise awareness of the issue and encourage financial institutions to better support victims.
Refuge said it had seen cases where victims were forced to provide receipts for all spending, or given such small allowances that they could not afford to buy food for themselves and their children. One victim quoted in the report said they had been “utterly entrapped, financially trapped. You look back on it and think well why would you do that? It’s so hard to explain it, it’s so subtle I suppose.” Another admitted: “I felt abused but I would never have said it was abuse because I didn’t think it was valid – because he hadn’t hit me.”
The My Money, My Life campaign wants the government to support an industry-wide agreement to identify and address banking practices that fail to help victims of financial abuse in relationships.
Co-op bank said victims of financial abuse were often unable to open bank accounts post-separation because they did not have the right ID, and that some paper-based account management processes put people at risk of being found by partners they were trying to escape.
Sandra Horley, chief executive of Refuge, said: For women who report that they have experienced financial abuse, money can be a matter of life and death. It can mean the difference between being trapped with a violent and dangerous abuser, or escaping to a place of safety.
“Financial abuse is a form of domestic violence and the consequences of this type of abuse can be both devastating and long-lasting.”
Sarah Pennells, the founder of money website SavvyWoman.co.uk, said she had heard from dozens of women whose partners had run up debts on joint accounts when the relationship was ending or forged their signature and left them with thousands of pounds of debt.
“Financial abuse is a real problem and one that many banks are reluctant to recognise,” she said. “There are steps that banks can and should take, such as changing a joint account so that both partners have to agree to any money being taken out or an overdraft extended, but all too often they don’t offer to help.”
Co-op bank said it would work with other banks to develop a code of practice for financial institutions so there was a consistent response to the disclosure of financial abuse, develop awareness-raising materials for customers, and train staff to respond appropriately and refer customers to specialist support.

UK: Controlling or coercive domestic abuse to risk five-year prison term

Controlling or coercive domestic abuse to risk five-year prison term

CPS given new powers to bring charges if evidence is found of repeated offences within intimate or family relationships

Bowcott, O. (2016). The Guardian. Retrieved fromhttps://www.theguardian.com/society/2015/dec/29/domestic-abuse-law-controlling-coercive-behaviour

Coercive or controlling domestic abuse becomes a crime punishable by up to five years in prison from Tuesday, even if it stops short of physical violence.
The Crown Prosecution Service’s new powers have been introduced as Citizens Advice reports a steep rise in the number of victims seeking help over the past year.
The charity said it had supported more than 5,400 people suffering from domestic abuse in the 12 months to October 2015, including 3,000 cases of emotional abuse and 900 of financial abuse.
The new legislation will enable the CPS to bring charges where there is evidence of repeated, or continuous, controlling or coercive behaviour within an intimate or family relationship.
The CPS said abuse can include a pattern of threats, humiliation and intimidation, or behaviour such as stopping a partner socialising, controlling their social media accounts, surveillance through apps or dictating what they wear.
Controlling or coercive behaviour is defined under section 76 of the Serious CrimeAct 2015 as causing someone to fear that violence will be used against them on at least two occasions, or generating serious alarm or distress that has a substantial effect on their usual day-to-day activities.
The new law is likely to generate complex challenges over precisely what constitutes criminal behaviour. The director of public prosecutions, Alison Saunders, said: “Controlling or coercive behaviour can limit victims’ basic human rights, such as their freedom of movement and their independence.
“This behaviour can be incredibly harmful in an abusive relationship where one person holds more power than the other, even if on the face of it, this behaviour might seem playful, innocuous or loving.
“Victims can be frightened of the repercussions of not abiding by someone else’s rules. Often they fear that violence will be used against them, or suffer from extreme psychological and emotional abuse.
“Being subjected to repeated humiliation, intimidation or subordination can be as harmful as physical abuse, with many victims stating that trauma from psychological abuse had a more lasting impact than physical abuse.”
Cases can be heard in magistrates or crown courts, and the maximum sentence is five years imprisonment. Evidence can include emails, GPS tracking devices installed on mobile phones, bank records, witness statements from family and friends and evidence of isolation.
Polly Neate, the chief executive of Women’s Aid, said: “Coercive control is at the heart of domestic abuse. Perpetrators will usually start abusing their victim by limiting her personal freedoms, monitoring her every move and stripping away her control of her life; physical violence often comes later.
“Women’s Aid and other organisations campaigned to have this recognised in law, and we are thrilled that this has now happened. It is a landmark moment in the UK’s approach to domestic abuse, and must be accompanied by comprehensive professional training and awareness raising among the public.”
Louisa Rolfe, the temporary deputy chief constable of Avon and Somerset police and the national police lead on domestic abuse, said: “We have seen a substantial increase in reporting nationally with greater understanding of all forms of abuse, not just physical violence.
“The new domestic abuse offence ... is another tool to help the police service and CPS prosecute perpetrators of domestic abuse and protect victims. It will provide more opportunities to evidence other forms of domestic abuse, beyond physical violence. Not only will this encourage more victims to report, we hope, but also the concerned family and friends of victims.”
The College of Policing’s head of crime and criminal justice, David Tucker, said: “The new offence of coercive control presents challenges. It demands much fuller understanding of events that led up to a call for assistance and this can make evidence gathering more complex. However, more importantly, it delivers greater opportunities to safeguard victims and achieve successful prosecutions.”
According to Citizens Advice, 1,500 people sought help for domestic abuse between July and September 2015, a rise of 24% on the same period in the previous year.
Gillian Guy, the organisation’s chief executive, said: “Perpetrators are using coercive control to trap victims in abusive relationships.
“More and more people are coming to Citizens Advice because they are experiencing abuse by a partner or loved one, including restrictions on accessing their own money, forcing them to take on debts and spying on them online.
“The government’s change in the law making coercive control a criminal offence is an important step forward in protecting victims of domestic abuse and helping them find a way out.
“It is also important that the government continues to consider whether victims of all forms of abuse are able to get the support they need, including through the justice system and legal aid.”
Figures from Her Majesty’s Inspectorate of Constabulary show the number of domestic abuse cases reported to the police in England and Wales rose by 31% between 2013 and 2015.

Wednesday, April 13, 2016

MyLawBC.com: New web resource for legal issues in BC

Ian Mulgrew: Legal self-help finally arriving in B.C.

Ian Mulgrew (April 13, 2016). Vancouver Sun. Retrieved from: http://vancouversun.com/opinion/columnists/ian-mulgrew-legal-self-help-finally-arriving-in-b-c

The B.C. Legal Services Society has established a do-it-yourself website that will help ordinary, middle-class people — not just the poor — solve legal problems.
Need a will? Missed a mortgage payment? How about a separation agreement, divorce or family orders? 
The new site, MyLawBC, provides free tools and solutions for everyday legal problems ranging from family violence to the powers of attorney — a remedy for sky-high legal fees and mazelike court procedures.
“More Canadians believe aliens have visited the Earth than believe the justice system is fair,” noted Mark Benton, CEO of the society.
The site, he said, is an attempt to empower B.C. residents to accomplish legal tasks on their own by providing reliable online help via up-to-date information, links, downloadable worksheets, documents and plans.
“My partner was looking at this and while I was doing the dishes she announced she had finished the separation agreement,” Benton joked.
It’s a profoundly different and uniquely accessible way of helping people.
“It isn’t aimed specifically at middle-class people — that’s a spillover effect,” explained Sherry MacLennan, director of the society’s public legal education and information services. “Many issues are shared by people regardless of the socio-economic status.”
Citing figures that a five-day trial costs roughly $60,000 and average legal fees are $365 an hour, she said: “Who can afford that? Not many.” 
A “soft launch” of the site occurred Feb. 29 and it has been running while bugs are fixed and small improvements made in the software. Already 1,900 people have tried it. The “official” launch will be in May.
“I think we were on the cutting edge, it’s an evolution that’s happening and it’s an important cultural change that’s happening,” MacLennan said. “It’s an evolution from systems designed to support the inside stakeholders to becoming more focused on what the user needs.”
Providing legal information and education are part of the mandate of the society, established in 1979, and the site is part of its innovative approach, which includes the use of graphic novels to address family violence.
But these days, most people turn to the Internet — the society’s website alone had more than 1.4 million hits last year.
Yet research shows people are overwhelmed by online legal information and, after reading it, are often uncertain how it applies to their troubles.
MyLawBC was developed to address these needs,” Benton said.
It was financed with about $775,000 in non-government funding from sources such as the Law Foundation and Notary Foundation. It will cost about $60,000 annually in maintenance.
MacLennan said: “Clients are doing their own research online and we’ve learned that we have to adapt our products to help them. So it’s more useful and effective for them, so they can take steps to solve their problems. For those with a little more money, and (who) can afford to pay for a lawyer, this website is going to encourage them and point out where they will get the most value for their money.”
Anyone with Grade 6 literacy skills should be able to use it.
“We’re hoping lawyers will see this as a reliable tool to give to their clients and start working together — more triage, more unbundling of services,” MacClennan said.
B.C. has been moving more and more into the delivery of legal services online — a new Civil Resolution Tribunal for small claims and strata disputes soon will begin operating.
These kind of Internet remedies to legal issues were pioneered in Europe; but the family law dialogue tool, for instance, will be the first of its kind in Canada.
Big online retailers led the way with these kind of conflict-resolution systems that utilize linked, question-and-answers dialogue boxes to create “guided pathways” leading to solutions.
The Law Society worked with a Dutch group, Hiil Innovating Justice, and a California tech company, Modria, which designed dispute-resolution systems for eBay and PayPay.
Couples, for instance, will be able to negotiate a separation agreement using something like a chat box at their own pace and in privacy without meeting face-to-face. If, after answering a series of questions, they can agree on the terms, the site produces a document they can use.
The legal community isn’t known to be receptive to change and not all lawyers are thrilled with these developments.
“Some are early adopters, that are excited about it and enthusiastic, and then you get the other ones and their first reaction is fear,” MacLennan said. “They’re afraid. It’s getting (them) past the fear and learning to see how it can help them. … We were aware it could become controversial among some.”
However, she quipped: “I don’t know of any divorce lawyers who have been put out of business by our free do-your-own divorce guides.”
MyLawBC initially contains information in four areas of law — family, family violence, wills and personal planning, and foreclosure.

Wednesday, March 2, 2016

Legal decision: Children under the age of 10 cannot legally be left home alone

B.C. Supreme Court Rules On When Kids Can Stay Home Alone

Khoo, E. (2016). The Huffington Post Canada. Retrieved from: http://www.huffingtonpost.ca/2015/09/17/bc-supreme-court-kids-home-alone_n_8155074.html

If you think it’s okay to leave your children unsupervised, think again. A B.C. Supreme Court has ruled that children under the age of 10 should not be left home alone, no matter how mature they are.

The ruling came after child protective services discovered a single mom from Terrace, B.C., was leaving her son home alone every day after school in January 2014. From 3 p.m. to 5 p.m., the eight-year-old boy would be unsupervised until the mother, identified only as B.R., came home from work. However, B.R.’s other child, a four year old, was left with a caregiver during this time.

Previously, a provincial court judge ruled that B.R. must supervise her son at all times, but the mother appealed the decision. This week, Supreme Court Justice Robert Punnett then ruled in favour of the social workers who deemed that “children who are eight years of age do not have the cognitive ability to be left unsupervised.”

To back up their claim, social workers cited a number of various risks involved in leaving a child home alone. These included everything from accidental poisoning to fires. As a result, the Supreme Court ruled that kids under 10 must be supervised at all times.

In Canada, only Manitoba and New Brunswick’s child welfare acts state that children cannot legally be left home alone if they are under the age of 12.

As a result of this case and the lack of guidelines, parents are now questioning their judgement when it comes to leaving children unsupervised.

Lenore Skenazy, the New York-based author of "Free-Range Kids," explains: “I hear from parents every day who say ‘Now I’m dragging the triplets across the parking lot because I’m afraid that somebody will say that they think this is dangerous and they will call the police who will then think it’s dangerous who will then call [child protective services] who will then think it’s dangerous and so I have to second-guess literally what I think is best and safest for my own family.’”

For more information on leaving your children home alone, check out parenting expert Alyson Schafer’s advice.