TAIWAN AND CHILD ABDUCTION
We work with counsel in Taiwan on international family matters between the United States and Taiwan.
Taiwan is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is by far the most significant international treaty pertaining to the prevention of international child abduction--indeed, at least 100 countries are party to the Convention, including the United States.
The U.S State Department has stated in its most recent report to Congress on international child abduction issued a specific warning to parents concerning Taiwan that:
“Due to its unique status, Taiwan cannot become party to the Convention. Therefore, the remedies available under the Convention are not available with respect to Taiwan. While Taiwan does not adhere to any protocols with respect to international parental child abduction, Taiwan authorities are seeking to identify other approaches to resolve abduction issues. In 2019, the American Institute in Taiwan and Taipei Economic and Cultural Representative Office (TECRO) signed a Memorandum of Understanding on cooperation on international parental child abduction.”
The U.S. – Taiwan Memorandum of Understanding does not require Taiwan to return children who are abducted to Taiwan. Indeed, the agreement expressly states that, “This MOU creates no legal rights or obligations.” It merely promotes communication between the two offices in question and the Taiwanese authorities might assist in locating a missing child in Taiwan. Certainly, the MOU is not binding on any court in Taiwan. It remains to be seen whether or not the existence of the MOU will be considered by courts in Taiwan in determining how to resolve cases in which children have been taken to Taiwan, or retained in Taiwan, without the consent of a left-behind parent.
Article 4-1 of Taiwan's Compulsory Enforcement Act provides that:
Petitions for the compulsory enforcement on the grounds of an irrevocable foreign court judgment is permissible for compulsory enforcement only when none of the conditions enumerated under Article 402 of the Code of Civil Procedure apply and a court of the Republic of China has approved the enforcement by a judgment.
Article 402 of the Code of Civil Procedure states that:
“A final and binding judgment rendered by a foreign court shall be recognized, except in case of any of the following circumstances:
- Where the foreign court lacks jurisdiction pursuant to the R.O.C. laws;
- Where a default judgment is rendered against the losing defendant, except in the case where the notice or summons of the initiation of action had been legally served in a reasonable time in the foreign country or had been served through judicial assistance provided under the R.O.C. laws;
- Where the performance ordered by such judgment or its litigation procedure is contrary to R.O.C. public policy or morals;
- Where there exists no mutual recognition between the foreign country and the R.O.C.”
The provision of the preceding paragraph shall apply mutatis mutandis to a final and binding ruling rendered by a foreign court.
In a case in 2015, the Supreme Court of Taiwan ruled that the exception based on “R.O.C. public policy or morals” did not bar the recognition of an Australian divorce judgment based on divorce grounds that were significantly different from those that applied in Taiwan.
It is also significant that Article 128 of the Compulsory Enforcement Act contains language that refers specifically to the enforcement of foreign orders for the return of abducted children. It specifically provides that, “Where the enforcement title orders the debtor to turn over the children or abductees, the court may, aside from applying the provisions of the first paragraph, take the children or abductees by direct compulsory means and hand them over to the creditor.”
It remains to be seen whether the Taiwanese courts will now apply the principles of the Hague Abduction Convention when considering whether to return internationally-abducted children
It should also be noted that the challenges that arise from child visits to Taiwan are exacerbated when the abducting parent is a Taiwanese mother. In Taiwan, custody is invariably given to a mother. The U.S. State Department has reported that "in Taiwan, parents who are legally married share the custody of their children. If they are not married, by law the custody is granted to the mother unless there are known facts of inappropriate behavior, mental or social problems."