Sun, Apr 10, 2022 page8

• Custody disputes need better regulation

  • By Wang Chang-kuo 王昌國
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  A recent custody case involving an Italian businessman and a Taiwanese flight attendant surnamed Chan (詹) over their eight-year-old daughter raises some interesting questions.

  The Taipei District Court in January ruled that the father had sole parental rights and ordered Chan to present the child on March 14. After the child refused to be taken from her school that day, Chan appealed to the Constitutional Court, requesting a stay.

  The law that the Taipei District Court has adduced for its ruling is the Hague Convention on the Civil Aspects of International Child Abduction, which could become a focal point in the Constitutional Court procedure.

  To prevent cases of international child abduction, the Hague convention ensures the prompt return of children to determine the country in which that dispute should be adjudicated.

  Time is essential in custody right disputes. If a case is dragged out to the point that a child has grown accustomed to one country, it would be distressing for them to return to another country and start over.

  A fierce custody battle involving Taiwanese-Brazilian Wu Yi-hua (吳憶樺), also known as Iruan Ergui Wu, is a well-known example. Born to a Brazilian mother and a Taiwanese father, Wu came to Taiwan at the age of six, and was compelled to return to Brazil three years later when the Kaohsiung District Court ruled in his mother’s favor.

  By this time, his uncle had enrolled him into an elementary school, where he had made friends, and could speak fluent Chinese and Taiwanese. Wu’s distraught face and strong reluctance to leave left a deep impression on the Taiwanese public.

  As Taiwan does not have specific regulations regarding international child custody rights, there is necessity in the Taipei District Court’s adduction of the Hague convention.

  Nonetheless, if the country of the child’s habitual residence does not offer reciprocal favorable treatment — meaning the country does not recognize verdicts or rulings by Taiwanese courts — there would be no guarantee that the parent could continue to have contact with the child in due course.

  This could be problematic because the court might rule in favor of the Taiwanese parent to circumvent this uncertainty, potentially leading to further cases of child abduction.

  Whether a nation should accede to the Hague convention is controversial. Japan faced strong domestic opposition before becoming a party to the convention.

  Some people in the country think that Japanese women who lived abroad after marriage do not have the economic or social support necessary to help themselves, and would have difficulty accessing local legal resources.

  With no one to turn to for help, the women’s actions to either bring the child back to Japan or remain in the foreign country are acts of desperation.

  It would be highly inappropriate to regard child removal of this sort as illegal abduction.

  Even though the Japanese government in 2011 signed the convention, which took effect in Japan on April 1, 2014, after a postponement, civilians still had qualms about whether the government could offer complete protection, such as providing legal translation, lawsuit support and training dedicated personnel to work on the cases.

  From the example of the Taipei District Court’s adduction of the convention, it is apparent that Taiwan lacks domestic laws that could be applied in such cases.

  To tackle the problem, lawmakers should take into account the dilemma, refer to overseas cases, draft necessary laws and articles, and facilitate cross-sector cooperation to prevent further instances of child abduction.

  Wang Chang-kuo is a family judge at the Chiayi District Court.

  Translated by Rita Wang
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