Monthly Archives: May 2016

31 May

International Child Custody Disputes Involving China

Any international child custody dispute can be incredibly traumatic and terrifying for both parents and children. Most of the time (when parents live in separate countries), the results of such a dispute are almost always psychologically taxing for at least one of the individuals involved. Who gets custody of the child, and what freedoms the parents enjoy in relation to relocating and having their children visit them internationally, is outlined in the Hague Convention and the International Child Abduction laws. However, for those cases that involve China and the few additional states who are not party to Hague Convention, international child custody disputes can be terrifyingly difficult affairs.

For those countries that have not signed the Hague Convention treaty, there is little that a parent can do to prevent a child from being taken to and removed from said country. As it stands, a parent from an outside country has no legal right to remove their own child from China if the child is living with a parent of Chinese nationality. According to the Hague Convention, which outlined the typical case of international child abduction by a parent, a child cannot be removed from the country of his/her habitual residence without approval from both parents.

Child Custody in China 

The underlying problem regarding child custody in China (and other countries not party to Hague Convention treaties) revolves around the difference of their child custody laws when compared to other states. In China, negotiation is deemed an important factor in conflict mediation, and for this reason the state usually facilitates in matters that are otherwise considered informal agreements.

During cases of international child custody, as well as international child abductions involving China (or other countries not associated with the Hague Convention), it is important that parents wconsider the nationality of the child. For example, if the child is of Chinese nationality, both parents will be required to solve their custody dispute with local Chinese courts. If the child is of non-Chinese nationality, then the child custody dispute must be settled in his country of ‘habitual residence’.

Please consider the laws of those countries of which your spouse is a foreign national before having children. It is the parents responsibility to understand the implications of certain laws with regards to issues involving international child custody disputes.

For more information on international child custody as well as the Hague Convention, make sure you keep checking on the Ivan Zartz Attorneys blog page.

If you require a lawyer that specialises in matters of international child custody, then contact Ivan Zartz Attorneys as soon as possible.

25 May

The Best Interest Of The Child: The ISIS Case

The best interests of the child are the primary considerations with regards to all actions concerning children, whether it be in the courts of law , private welfare and social welfare of the child. This standard is maintained across the board and in all countries that are susceptible to international law and the United Nations Convention on the Rights of the Child.

The ISIS Case

A recent situation occurred in England that perfectly highlights the government’s responsibility, as well as their right, to make decisions regarding the custody of the child and to do so in the best interest of the child. A mother of three from Leicester UK decided to move to an ISIS-controlled region within Syria with her children, obviously to pursue a lifestyle invested in religious ideology and warfare. Her arrest at the airport (on the suspicion of religious radicalisation and affiliation with ISIS) provided evidence of her interest in having her children grow up in the war-afflicted country and under ISIS law.

Child custody services appealed to the court and its judge that he come to a written agreement regarding the lives of the children, and what their futures entailed. The court came to the decision that it was in the best interest of the children to be removed from the custody of their mother, and placed in the care of their maternal grandparents. The woman now faces criminal charges as well as international charges for her affiliation with jihadists.

The Best Interest Of The Child

The police protection order, submitted by airport security, was enforced, and the children were then immediately placed into foster care before being handed to their grandparents. This event highlights the state’s right to ensure that ‘the best interest of the child’ precedent is upheld, and that the courts, as well as the law, should do everything in its power to enforce change in the best interest of the child.

For more news regarding family law, commercial law and debt collection, make sure you keep visiting Ivan Zartz Attorneys Articles page!

Contact Ivan Zartz Attorneys today for the best debt collection and family law legal assistance in the country!

25 May

International Arbitration Bill: What It Means For Arbitration In SA

The International Arbitration Bill has been passed on to parliament, and will most likely be approved. This means that we may be subject to new International Arbitration Law within the next few years. What does this mean for South Africa, and how does it in any way affect  mediation in the legal sense?

The South African courts have gone a long way in promoting mediation as an alternative form of dispute resolution between parties, especially regarding commercial interests. Arbitration allows parties to formally settle disputes in private (where the arbitration does not include the state), saving businesses a lot of money that would otherwise be spent on legal fees. Additionally, arbitration reduces the pressure that courts and legal professionals experience in alleviating the vast number of commercial dispute resolution cases.

Old Arbitral Procedures

International arbitral procedures, alternatively, has always been an issue within the profession. This is because cases of international arbitration fell within the limits of the outdated Arbitration Act, No 42 of 1965. With the new International Arbitration Act in place, international arbitral procedures will be distinguished from domestic arbitration, and will be governed by as per UNCITRAL Model Law set out in the New York Convention.

New Arbitral Procedures

Although the force of law will still be maintained by executive powers within South Africa, arbitral procedures between international parties will be governed by the laws outlined in the UNCITRAL Conciliation Rules, essentially freeing up the local judiciary and offering commercial parties to settle disputes on their own terms. With the Act in place, foreign arbitral awards will not require government authorization with regards to their enforcement. Additionally, arbitral awards will need to be made an order of the court where parties are acting in good faith. They are not required to make an order of the court if the subject matter is not arbitrable in South Africa.

The new Act, some may say, has been a long time coming, and will certainly make South Africa an inviting location for international dispute resolution.

If you require the services of a dispute resolution attorney or a legal professional with experience in mediation and arbitral procedures, then make sure you contact Ivan Zartz Attorneys as soon as possible.

For more information regarding family law dispute resolution take a look at our dispute resolution page here.

19 May

Be Careful Of Illegally Obtained Information

Although a legal professional will know exactly what constitutes as illegally obtained information, some of these views are lost on the layman who may not understand the implications of possessing information that was illegally obtained. Take a look at what constitutes illegally obtained information, and make sure that you know of the implications should your illegally obtained information be brought to light in court.

The court will expect both the defendant as well as the plaintiff to produce evidence that has a bearing on the case at hand. However, during cases involving divorce as well as child custody in South Africa, either one or both parties often believe that their partners or ex-partners will withhold information that is critical to the trial. Some feel that it is necessary to “self-help”, and find evidence or information that the other party may be hiding from the court.

How they come about this information may be described as theft by the other party. In such cases, not only would the individual’s credibility be questioned in court, but they may even be found guilty of committing a criminal offense. Some of the actions that are seen as criminal involve illegally accessing electronic devices, illegally accessing a person’s online and bank accounts, contacting an employer/colleague/associate to find out information regarding the partner/ex-partner and divulging information about an ongoing court case, and in certain events breaking and entering the premises or workspace of a partner/ex-partner. Taking documents and hard-copy information made out to the partner/ex-partner is also considered theft if done without their knowledge and approval.

How to avoid such a situation is simple. If an individual suspects that the partner/spouse/ex-partner is withholding information that is critical regarding the court’s proceedings, then the individual must bring such claims to the court’s attention. It is the duty of solicitors, attorneys, and sheriffs of the court to follow up on claims and gather evidence through the proper (and legal) channels. If illegally obtained information is brought to a family law attorney regarding a case of divorce or child custody in South Africa, the attorney is obliged to turn the evidence in at court, and notify the spouse/ex-spouse’s attorney about the information.

If you require any information regarding illegally obtained information with cases regarding child custody law and family law, make sure you contact Ivan Zartz Attorneys as soon as possible.

Take a look at how Ivan Zartz Attorneys is the most well-known child custody practice in South Africa. 

16 May

Child Workers And Attorneys Should Report Child Abuse

Should professionals, who work with children, be required to report child abuse where there are suspicion and evidence of its occurrence? In the past, this was a contentious issue whereby confidentiality sometimes restricted how much the legal and social professional could do in such a situation. However, new laws are being championed in the West (the UK and the USA in particular), whereby reporting child abuse is to become compulsory.

This may seem like a long time coming, but ‘reasonable cause to suspect’ child abuse was not often adequate enough to be able to protect the child and prosecute the guilty party. However, governments have now ensured that even a suspicion has to be reported to the necessary authorities such as child protection services or police. Not doing so could result in the arrest of the child worker or attorney themselves.

There are moves to include child neglect as one of the issues that require reporting. By reporting neglect, a lot of legal professionals believe that this will assist in protecting children from future cases of physical and sexual abuse. Unfortunately, previous laws have only enforced reporting duties to those who work with the ill, infirm and elderly with regards to neglect, so making the reporting of child neglect compulsory is considered important progress.

Those most affected by these changes are not legal professionals and social workers. Those working in these fields have long been supporting such a necessary change. Those that are affected most are reporters and investigators who are often described as being ‘whistleblowers’ when they do report incidents. Understandably, by making reporting compulsory, the law actually protects these whistleblowers as they have no choice regarding the matter; they are expected to report their findings regardless.

There are those who believe that compulsory reporting may lead to a large amount of ‘finger pointing’ and false allegations, taking up time that may otherwise be used to protect children who are facing real threats of abuse. However, evidence of the successful conviction of a large number of abusers through compulsory reporting in countries like Australia (who have compulsory reporting laws established), means that making the reporting of child abuse compulsory a positive move.

If you require a child custody attorney with ample experience in the field, then make sure you contact Ivan Zartz Attorneys as soon as possible!