MORTENSEN et al. v. UNITED STATES.
Argued: March 9, 10, 1944.
Mr. Eugene D. O'Sullivan, of Omaha, Neb., for petitioners.
Following their conviction by the jury in the District Court, petitioners filed a notice of appeal to the Circuit Court of Appeals. However, they failed to file a timely bill of exceptions in the District Court. Thereafter they applied to the Circuit Court of Appeals for an order granting them 'the right to have a Bill of Exceptions' and for additional time in which to settle and file it. This application was denied without opinion or explanation. When the case subsequently came before another division of judges of that court for argument on the merits, petitioners renewed their request for permission to file a bill. This was, in effect, a motion for rehearing of the decision of the first division of judges of the court. Counsel was then allowed by the court to leave with it, but not to file, a copy of the reporter's transcript of the evidence 'in order that we might assure ourselves that no fundamental injustice had been done by the previous denial of an extension, and that we would not, because of the absence of a bill of exceptions, be affirming a conviction which was not properly an offense under the Act.' 139 F.2d at page 969, note 1. The court then treated the case as though the transcript were properly before it and sustained petitioners' conviction on the merits. Having reached the conclusion that there was no merit in petitioners' contentions and that the result would have been the same had a bill of exceptions been filed, the court refused to permit the 'purported' transcript to be filed. No other reason was given for this refusal.
Petitioners have raised before us the propriety of the action of the court below, claiming that they thereby have been prevented from urging and arguing certain assignments of error which they wished to urge. It is clear from Rule IV of the Criminal Appeals Rules 2 that the Circuit Court of Appeals has the right to exercise sound judicial discretion in supervising and controlling the proceedings on appeal. Ray v. United States, 301 U.S. 158, 166, 167, 57 S.Ct. 700, 704, 81 L.Ed. 976; Forte v. United States, 302 U.S. 220, 223, 58 S.Ct. 180, 82 L.Ed. 209; Kay v. United States, 303 U.S. 1, 9, 10, 58 S.Ct. 468, 472, 473, 82 L.Ed. 607; Miller v. United States, 317 U.S. 192, 199, 601, 63 S.Ct. 187, 191, 87 L.Ed. 179. This includes the right to grant or deny belated applications for permission to file bills of exceptions. And the court's action in the matter is not reviewable in this Court absent a clear abuse of discretion.
But under the peculiar circumstances of this case it is unnecessary to determine whether the court below abused its discretion in refusing to allow a bill to be filed. When that court examined the transcript of the evidence and conclusively adjudicated the merits, it accomplished in substance all that would have been achieved if the formality of filing the transcript had occurred and the court had then passed upon the merits. In order that petitioners shall not be unfairly deprived of the right to seek a review of that court's determination of the merits, we may consider the court's action as in effect having approved the filing of the transcript as a bill of exceptions. A copy of the transcript has been lodged with the Clerk of this Court and no question has been raised as to its correctness or completeness. In accordance with the Government's suggestion and in the exercise of our supervisory appellate power, we shall treat the transcript as a part of the record before us and consider the case on its merits.
It is undisputed that this was purely a vacation trip, with the two girls paying their own living expenses and petitioners bearing the expenses of transportation. One of the girls had offered to help pay for the transportation, but petitioners refused on the ground that the cost would remain the same even if the girls did not accompany them. No acts of prostitution or other immorality occurred during the two-week trip and there was no discussion of such acts during the course of the journey. Both girls testified that during the trip they gave no consideration to their work as prostitutes and made no plans to abandon such activities. There was also uncontradicted evidence that the two girls were under no obligation or compulsion of any kind to return to Grand Island to work for petitioners. They were free at any time before, during or after the vacation excursion to leave petitioners' employ and engage in their own pursuits. Both girls claimed that Grand Island was their residence, one of them testifying that she boarded her child with a family in that city.
The penalties of Section 2 of the Act are directed at those who knowingly transport in interstate commerce 'any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice.' The statute thus aims to penalize only those who use interstate commerce with a view toward accomplishing the unlawful purposes. To constitute a violation of the Act, it is essential that the interstate transportation have for its object or be the means of effecting or facilitating the proscribed activities. Hansen v. Haff, 291 U.S. 559, 563, 54 S.Ct. 494, 495, 78 L.Ed. 968. An intention that the women or girls shall engage in the conduct outlawed by Section 2 must be found to exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement. And the transportation must be designed to bring about such result. Without that necessary intention and motivation, immoral conduct during or following the journey is insufficient to subject the transporter to the penalties of the Act.
Since the issue as to whether petitioners intended that the two girls should resume their immoral conduct on their return to Grand Island and transported them in interstate commerce for that purpose was submitted to the jury with appropriate instructions we would normally be precluded from reviewing or disturbing the inferences of fact drawn from the evidence by the jury. But we have never hesitated to examine a record to determine whether there was any competent and substantial evidence fairly tending to support the verdict. Cf. Abrams v. United States, 250 U.S. 616, 619, 40 S.Ct. 17, 18, 63 L.Ed. 1173. Our examination of the record in this case convinces us that there was a complete lack of relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt, that petitioners transported the girls in interstate commerce 'for the purpose of prostitution or debauchery' within the meaning of the Mann Act.
It may be assumed that petitioners anticipated that the two girls would resume their activities as prostitutes upon their return to Grand Island. But we do not think it is fair or permissible under the evidence adduced to infer that this interstate vacation trip, or any part of it, was undertaken by petitioners for the purpose of, or as a means of effecting or facilitating, such activities. The sole purpose of the journey from beginning to end was to provide innocent recreation and a holiday for petitioners and the two girls. It was a complete break or interlude in the operation of petitioners' house of ill fame and was entirely disassociated therefrom. There was no evidence that any immoral acts occurred on the journey or that petitioners forced the girls against their will to return to Grand Island for immoral purposes. What Congress has outlawed by the Mann Act, however, is the use of interstate commerce as a calculated means for effectuating sexual immorality. In ordinary speech an interstate trip undertaken for an innocent vacation purpose constitutes the use of interstate commerce for that innocent purpose. Such a trip does not lose that meaning when viewed in light of a criminal statute outlawing interstate trips for immoral purposes.
The fact that the two girls actually resumed their immoral practices after their return to Grand Island does not, standing alone, operate to inject a retroactive illegal purpose into the return trip to Grand Island. Nor does it justify an arbitrary splitting of the round trip into two parts so as to permit an inference that the purpose of the drive to Salt Lake City was innocent while the purpose of the homeward journey to Grand Island was criminal. The return journey under the circumstances of this case cannot be considered apart from its integral relation with the innocent round trip as a whole. There is no evidence of any change in the purpose of the trip during its course. If innocent when it began it remained so until it ended. Guilt or innocence does not turn merely on the direction of travel during part of a trip not undertaken for immoral ends. If the return journey was illegal, so was the outgoing one since all intended, from the beginning, to end the journey where it began, at Grand Island. The outward leg of the trip was interstate transportation. Yet it was not charged, and could not well be, that proof of this part of the trip was a violation of the Act. It differed in no respect from the other part, except in the direction of travel. That is not enough to make the first part innocent, the last part illegal. Criminal intent and purpose must be grounded on something less ingenious than that which is necessary to sustain a finding of such a purpose in making the return interstate journey to Grand Island. 'People not of good moral character, like others, travel from place to place and change their residence. But to say that because they indulge in illegal or immoral acts, they travel for that purpose, is to emphasize that which is incidental and ignore what is of primary significance.' Hansen v. Haff, supra, 291 U.S. at pages 562, 563, 54 S.Ct. 495, 78 L.Ed. 968. Cf. Ex parte Rocha, D.C., 30 F.2d 823.
Courts have no more concern with the policy and wisdom of the Mann Act, 18 U.S.C.A. § 397 et seq., than of the Labor Relations Act, 29 U.S.C.A. § 151 et seq., or any other which Congress may constitutionally adopt. Those are matters for Congress to determine, not the courts. Congress, in enacting the Mann Act, declared in unmistakable terms that any person who should transport across state lines 'any woman * * * for the purpose of prostitution * * * or with the intent and purpose to induce * * * such woman * * * to give herself up to debauchery, or to engage in any other immoral practice * * * shall be deemed guilty of a felony.' 18 U.S.C.A. § 398.
The fact that petitioners, who were engaged in an established business of operating a house of prostitution in Nebraska, took some of its women inmates on a transient and innocent vacation trip to other states, is in no way incompatible with the conclusion that petitioners, in bringing them back to Nebraska, purposed and intended that they should resume there the practice of commercial vice, which in fact they did promptly resume in petitioners' establishment. The record is without evidence that they engaged, or intended to engage in any other activities in Nebraska, or that anything other than the practice of their profession was the object of their return. For this reason the case is controlled by Lapina v. Williams, 232 U.S. 78, 34 S.Ct. 196, 58 L.Ed. 515, rather than by Hansen v. Haff, 291 U.S. 559, 54 S.Ct. 494, 78 L.Ed. 968. The jury was properly instructed, its verdict is supported by ample evidence, and the two courts below rightly sustained it.
Act of June 25, 1910, § 2, 36 Stat. 825, 18 U.S.C. 398, 18 U.S.C.A. § 398.
292 U.S. 661, 663, 18 U.S.C.A. following section 688.
H. Rep. No. 47, p. 10 (61st Cong., 2d Sess.). The same statement appears in S. Rep. No. 886, p. 10 (61st Cong., 2d Sess.). See also 45 Cong.Rec. 805, 821, 1035, 1037.


text:
Children’s wishes and feelings about their habitual residence.
What happens if a local authority wants to make an application for a care order regarding a child who comes from another country? The Courts of England and Wales only have jurisdiction to make care orders if children are ‘habitually resident’ in the UK – mere physical presence is not enough. Although the Supreme Court have repeatedly said this is a ‘simple matter of fact’ it is clear that in practice it is not always easy to establish a child’s habitual residence.
i have no idea what the impact of Brexit will be on any of this; watch this space.
What power does the court have to make orders about children who come from another country?
Jurisdiction derives from habitual residence.
the jurisdictional reach of the courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision.
Jurisdiction was normally determined by the habitual residence or physical presence of the child.
However, this was fundamentally modified by the Regulation Brussels II revised (BIIR) which applies to determine the jurisdiction of the English court in care proceedings, irrespective of whether the other country is a Member State of the European Union: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening)  UKSC 60,  AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening)  UKSC 75,  3 WLR 1597, para 18..
The basic principle, set out in Article 8(1) of BIIR is that jurisdiction is founded on habitual residence. It follows that the courts do not have jurisdiction to make a care order simply because a child is physically present.
The court must deal with this matter at the outset. The court should set out explicitly the basis upon which it has accepted or rejected jurisdiction. A declaration with regard to habitual residence cannot be made by default, concession or agreement but only if the court is satisfied by evidence.
If it is necessary to address the issue before there is time for proper investigation and determination, the following suggested recital should be used: “Upon it provisionally appearing that the child is habitually resident…”.
Habitual residence is a ‘matter of fact’.
The Supreme Court have repeatedly declared that ‘habitual residence’ is no more than a ‘simple fact’ which should be determined without any gloss. That arguably optimistic declaration has to be set against the number of times in fairly recent history that cases involving habitual residence have come before the Supreme Court – suggesting that determination of this ‘simple fact’ is a far from simple exercise and reflects the greater mobility of people in recent times and the wide variety of circumstances which impact on families, their composition and their location.
habitual residence can in principle be lost and another habitual residence acquired on the same day.
habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
the test adopted by the European Court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question. This is the preferred test.
The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
it is possible that a child may have no country of habitual residence at a particular point in time.
For those children who have no habitual residence, Article 13 of Brussels II provides that where a child’s habitual residence cannot be established and jurisdiction cannot be determined under Article 12, the courts of the Member State where the child is present have jurisdiction.
Habitual residence requires physical presence.
Physical presence is a clear necessary precursor to a finding of habitual residence. In In the Matter of A (Children) (AP)  UKSC 60 the Supreme Court by a majority agreed that a new born baby could not claim habitual residence in the UK even though it was his mother’s place of habitual residence and she had been coerced into leaving the country to give birth. However the Supreme Court agreed it was possible in such extreme circumstances to order the child’s return to the UK using the inherent jurisdiction.
must be interpreted as meaning that, in a situation in which a child was born and has been continuously residing with his or her mother for several months in accordance with the joint agreement of the parents in a Greece, while in Italy they had their habitual residence before birth, the initial intention of the parents as to the return of the mother accompanied by the child in Italy cannot allow the child to be regarded as having his or her habitual residence in Italy. The CJEU concludes that in such a situation the refusal of the mother to return to Italy accompanied by the child cannot be regarded as an ‘unlawful displacement or non-return’ within the meaning of Article 11(1).
However this does not mean that the perceptions of older children about where they habitually reside are irrelevant. See Re: LC (Reunite: International Child Abduction Centre intervening)  UKSC 1. Lord Wilson: It will be clear from my formulation of the question in para 1 above that in my view it is, in principle, the state of mind of adolescent children during their residence in a place that may affect whether it was habitual.
However, judicial dicta from other authorities does not support ‘state of mind’ as determinative.
See Re R (A Child)  EWCA Civ 674 where the Court of Appeal considered the circumstances of a 4 year old girl S. She was born in 2010 in Morocco to an American mother, who had lived in England since the age of 13, and a Moroccan father. Shortly, after her birth, the mother travelled to England and fraudulently registered the birth in Kent. Thereafter, she travelled to and from various locations before returning to the UK in March 2013. In October 2013 S suffered serious injuries and was placed in foster care. The local authority did not commence care proceedings until April 2014.
Given by the time protective measures had been taken S and her mother had been living in the UK for over a year, there seems little doubt as a matter of fact that S was habitually resident ‘at the relevant time’ i.e. the making of the care order application but it was argued on behalf of the father that S’s life had been so unhappy with a neglectful mother, that it could not be said she was ‘integrated’ into a social environment and therefore her habitual residence was in fact Morocco.
Mr Justice Hayden decided that the court had jurisdiction to make a care order with respect to S on the basis that S’s habitual residence was, and had been throughout her life, the United Kingdom. The father’s appeal was dismissed. The CoA were critical of the judge’s finding that S had been ‘habitually resident in the UK all her life’ as all that was needed was a finding that S had habitual residence at the relevant time. However, his decision was not ‘perverse’ given the complexities of this case, including the dishonesty of the parents and the mother’s ‘frequent and erratic’ changes of location.
Thus it is conceded that it is not possible to claim that any period of time spent in another country during which a child was unhappy must then automatically preclude a finding of habitual residence in that country.
All of these discussions, while interesting, serve most usefully in my submissions to reflect the profound difficulties of applying general principles to the probably infinite variety of circumstances in which families find themselves.
I suggest that a pragmatic approach must be taken. The importance of habitual residence is clearly underpinned by asking ‘what jurisdiction is best able to make decisions about a child’s welfare’. And that jurisdiction is usually the one where the child actually lives or has spent the most time. However, the court will need to look beyond this starting point and the wishes and feelings, particularly of older children, may well be relevant.
This entry was posted in Other Countries and tagged Brussels II Bis, habitual residence, jurisdiction on February 10, 2019 by Sarah Phillimore.
A case about adoption and the best interests of children.
Judgment in this case was circulated on 17th January 2017. It involved 16 applications against the Russian Federation by 45 US citizens and involved 27 children. The claimants had all been in the final process of adopting Russian children when in 2013 the Russian Federation imposed an unexpected and swift ban on any adoption by US Citizens.
The case ended with the ECtHR agreeing that US parents had been discriminated against and awarding a small amount of damages as ‘just satisfaction’. The arguments about the rights and wrongs of the ban on adoption by US citizens were wide ranging and illustrate, yet again, that the rights of individual children are very often lost in the competing political and social arguments made by adults.
The saddest part of the judgment is where the court notes that the peremptory ban on adoption lead to many of the children remaining in orphanages for months, even years. Some remain in orphanages still.
The death of Dima Yakovlev in 2008 had led to an outcry in Russia and concern over ill-treatment of other Russian children who had been adopted by American citizens. Dima died after being left in a car for 9 hours by his American adoptive father, who was later acquitted of involuntary manslaughter. On 1st January 2013 the Russian Federation introduced a law prohibiting any further adoption by US nationals of Russian children. The US parents argued that preventing them from completing their adoption applications because of their nationality was unlawful discrimination and claimed breach of Article 14 of the ECHR in conjunction with Article 8. They also made a claim arguing breach of Article 3 because the children, many of whom had disabilities, had been deprived of medical treatment in the US.
At the time of the ban, the US State Department issued a statement highlighting its regret, pointing out that some children who had already formed bonds with their potential new families would now not be able to live with them. There was further serious criticism from various human rights agencies such as Amnesty international, who said it was politically motivated and not in the best interests of the children concerned.
Obviously, the impugned Law was a reaction to the political pressure constantly exercised by the US authorities in relation to Russia since 2002, when the Russian authorities started taking steps to reinforce the independence and sovereignty of the country. Finally, in 2015 Russia was officially declared to be one of the most serious threats (together with ISIS and Ebola) to the USA. The US strategy was implemented through political and economic sanctions, cultural isolation, intensive political propaganda demonising the so-called “political regime” in Russia and establishment of military bases surrounding Russian territory.
Inter-country adoption is recognised as a mechanism to promote the welfare of children who cannot otherwise remain with their birth family by Art 21 of the 1989 UN Convention of the Rights of the Child, which was ratified by Russia in 1990. In 2013 the OSCE Parliamentary Assembly adopted a Resolution on Inter Country Adoptions (see jmt para 301) which recognised that ‘a bond forms rapidly between the child and prospective adopters during the adoption process but before legal parent-child relationship has been effected’ and urged participating States to resolve its disputes about inter-country adoption in a way that did not harm the best interests of the child or damage this ‘nascent family’.
All parties agreed that Article 8 right to a family life did not protect a mere wish to start a family (see para 376); it presupposes the existence of a family thus does not support a ‘right’ to adopt. The US applicants had initiated the inter-country adoption processes in 2010-12 so most of them had met the child they were seeking to adopt, had spent time with him or her, and had either submitted the adoption application to a Russian court or had their file ready for submission. They were all therefore in the ‘final stages’ of the adoption procedure (para 422).
Some applicants were clearly further down the road to establish ‘familial ties’ with the children – for example, one family had already adopted the sibling of one of the children and thus had a clear argument on both right to family life and right to a private life.
The court noted at para 383 that the US applicants had a genuine intention to become parents by applying for inter country adoption when it was still lawful in Russia. Therefore the issue was their decision to become parents and ‘their personal development through the role of parents that they wished to assume’. This fell within the scope of ‘private life’ protected by Article 8.
The Court therefore agreed that Article 14 and Article 8 applied and dismissed the arguments of the Russian Federation to the contrary. However, Article 14 could only apply to the US potential parents, who were discriminated against on the grounds of nationality. It could not apply to the children.
The Russian Government argued that the ban on the adoption of Russian children by US nationals was not discriminatory but based on objective and reasonable grounds and the children’s best interests (See para 392). The US citizens could still adopt from elsewhere and other countries had implemented similar blanket bans – for example the UK banned adoption from Cambodia in 2005. Other countries permit inter-country adoption only in exceptional circumstances or subject to strict requirements.
There was also concern that parents in the US had failed to provide reports about the wellbeing of 653 Russian children over the past 3 years and the Russian Government further relied upon reports from NGOs and the US Department of Health and Human Services, of a hidden ‘epidemic of violence’ against children in the USA, citing 5 children who died every day because of abuse or negligence perpetrated by adults (in 80% of cases being biological or adoptive parents). The Russian Government were concerned that at least 20 children adopted from Russia had been killed by American adoptive parents, although they did not have precise statistics to support this figure (para 396).
Thus a ban on adoption of Russian children by US nationals was not discrimination but a measure of last resort, prompted not only by instances of death, injury and sexual abuse of Russian adopted children but also by the lack of co-operation by the US to help ensure their safety and psychological well being (para 398). Also cited was the desire to increase adoptions by Russian nationals.
The claimants responded (para 403) that death and serious injury to Russian adoptive children comprised on a tiny proportion of the overall number of Russian children so adopted and that the Russian Government had not provided any information that the situation was any better for Russian children in any other country, or indeed in Russian orphanages. The claimants rejected the argument that one of the aims behind the ban was to encourage adoption by Russian families as adoption by foreign nationals was only permitted when it was ‘impossible’ to find a Russian family willing to adopt. The claimants argued that the Russian response was disproportionate and excluded an entire category of potentially loving parents for children for whom no adoptive family could be found in Russia (para 405).
The Court agreed that American nationals were being treated differently. Did that have an objective and reasonable justification (para 412)? The Court noted that the ban on adoption came only two months after the introduction of the Bilateral Agreement on Adoption between Russia and the US which was aimed at providing stronger legal safeguards for such inter-country adoptions. Most of the concerning incidents involving Russian children in the US had occurred before the entry into force of that Bilateral Agreement. Thus it was doubtful that the ban on adoption had a reasonable justification (para 420).
The claimants were all in the final stages of the adoption process and their proceedings were brought to an abrupt end because of the automatic ineligibility provided by the ban on adoption that unexpectedly came into force over ten days.
‘No consideration was given to the interests of the children concerned, and those of them who were eventually placed in a different adoptive or foster family were obliged to stay in the orphanage for additional periods ranging from several months to several years. At the date of this judgment, some of them are still in orphanages.
The Russian Government had thus failed to show that there were compelling reasons to justify a blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the US (para 426). The difference in treatment was thus discriminatory in breach of Article 14, in conjunction with Article 8. There was thus no need to examine a separate complaint under Article 8.
The claimants further alleged that most of the children concerned needed specialist medical care that was only available in the US and depriving them of that treatment was a breach of their Article 3 rights, which protects against inhuman or degrading treatment. The Court considered this at para 432 onwards. The Russian Government provided evidence about medical treatment available and conditions in Russian orphanages and rejected the argument that the Russian state could not provide suitable medical care for the children. The claimants relied upon expert statements and academic works concerning the general situation in Russia as the medical files relating to the children were in the Russian Government’s possession.
Submissions of third party intervenors about the importance of early permanence for children.
At para 440 onwards the Court heard argument from the intervenors. The Harvard Law School’s Child Advocacy Program (CAP) and the Bucharest Early Intervention Project (BEIP) argued that extensive research over many years demonstrated the importance of placing children in permanent adoptive homes as early as possible. Nurturing parenting in child’s early months and years is vital to normal physical, emotional and intellectual development. CAP cited particular concerns about Russian orphanages, saying ‘95% of Russian children who grow up in orphanages end up on the streets… and are likely to die shortly after their 18th birthday’. As the world became more global, the idea ‘that children belonged in some essentialist sense with their racial or national groups of origin was outdated’ (para 443).
The Russian Government countered that Article 8 of the UN Convention on the Rights of the Child protected the child’s right to preservation of his or her identity, including nationality. They rejected the arguments about dire outcomes for children in Russian orphanages as ‘unsubstantiated and untrue’ (para 446).
The Court ruled that the complaint based on Article 3 was inadmissible as manifestly ill founded. The information provided by the claimants was largely of a general nature and the evidence from the Russian Government showed that these particular children received adequate medical care in Russia.
The Court awarded the applicants EUR 3,000 in respect of non-pecuniary damage and around $600 dollars for costs and expenses of the court proceedings.
There is a more serious problem in Russia. The Russian Government informed the Court that there were still more than 66,000 children abandoned by their parents and subsequently placed in orphanages. The total number of such children who have been accommodated in orphanages during the last 25 years may be close to 300,000. Obviously this is the result of a structural social problem caused by the deterioration of values and lack of social responsibility. This problem cannot be resolved either by inter-country adoption or by political pressure’.
This entry was posted in Other Countries and tagged Article 14, Article 8, inter-country adoption, Russia, US on January 17, 2017 by Sarah Phillimore.
For what reasons do other countries allow adoption without consent?
We are grateful for this helpful summary of the position in other EU Member states from Claire Fenton – Glynn. See further her post, We are not alone: Every European country permits adoption without parental consent.
BULGARIA Resident in a foster home or institutional care, and parent has not requested the termination or modification of this measure and the return of the child (6 months) Parents continuously fail to provide care for the child, do not provide financial support, or raise and educate the child in a manner harmful to its development.
LATVIA Treat the child especially badly or does not care of the child or does not ensure the supervision of the child and it may endanger the physical, mental or moral development of the child.
This entry was posted in Other Countries and tagged dispensing with consent, forced adoption, grounds for adoption without consent in EU member states on August 9, 2015 by Sarah Phillimore.
We are grateful for this contribution from the Lähemmäs (Closer) project from Finland.
Lähemmäs believes that the child has the right to express who s/he feels close to and the aim is to get those people involved in supporting the child in all stages of child welfare procedures.
Another aim is to challenge the authorities to see the people around the child as positive resources when they prove to be such.
See more at www.pesapuu -a nationwide child welfare association bringing expertise to the field of child welfare.
Adoption is not the solution?
We can see that the important issues and questions being considered in Finland are very similar to those in England – particularly the core value of protecting the best interests of the child and looking at family care as the first resort for children.
The key distinction between UK and Finnish law is that Finland does not permit any kind of formal end to the legal relationship between parent and child although a child has been taken into long-term care. Thus in the Finnish system, children taken into care will NOT be adopted but rather will be in foster care or institutional care.
It would be interesting to compare and contrast in greater detail the different attitudes between the Finnish and the UK approach to what is considered the best long term outcomes for children in care.
EDIT 9th August 2015: To say that Finland does not permit a formal end to the legal relationship between parent and child does not seem to be supported by legal analysis from others. Please see this post by Claire Fenton Glynn. I will attempt to find out more and clarify this position.
(1) The adoption of a child may not be granted unless his/her parents have consented thereto, with the exceptions provided in paragraphs (2) and (3) and section 36(2).
(2) For exceptional reasons, adoption may be granted even if the consent of the parents or one of them has not been obtained or if a previous consent has been withdrawn, if it is deemed that the adoption obviously and definitely is in the best interests of the child and that the refusal or withdrawal of consent by the parent(s) is not sufficiently justified, taking into account the best interests of the child and the interaction between the child and the parent(s), their mutual relationship and its nature.
… you are also correct that in Finland uses long term foster care as the preferred option, and I think the use of this section would be very rare (if you look at cases where Finland has been taken to the ECtHR, even in quite extreme cases foster care is preferred).
Unfortunately, I don’t know full details about how often it is used, and in what circumstances. I think this is the crucial issue, and it is why I don’t really think talking about the mechanisms for adoption in and of themselves is necessary helpful – the only reason I have been emphasising the legal frameworks is that I get annoyed that there is misinformation out there about it not being possible, when I think there needs to be a shift in the discussion – moving away from what is possible (because all frameworks are roughly similar in terms of some kind of parental misconduct or abandonment), to what is actually done.
What we need is a discussion of how these mechanisms are used, and when, and what reaction social services would have in different countries to the same scenario (eg. drug use of parents, developmental delays, problems at school etc). There was one attempt to do so in 2003 by Warman and Roberts, but as far as I am aware, nothing similar has been done since.
How is the information shared between various authorities?
Family care as primary option for the children in care.
The amount of work and customers per social worker ( e.g. the prime assessments of whether there is a need for child protective services are not always done in the timeline stated in the Child Welfare Act).
The need for a strategy plan for improving child welfare.
The experiences of the children, the young and the families who are/have been clients in child welfare services will be taken into account when assessing and improving the quality of child protection services.
In 2012, the number of children placed in care, total of 10,675, stayed at the same level as the year before. The number of new cases of taking into care fell by 143 children, showing a decrease of 4 per cent on 2011.
The number of children in emergency placement has been increasing sharply since 2005, but now the growth has slowed down. There were 3,944 children in emergency placement in 2012, showing an increase of 1.5 per cent on 2011.
During the year, a total of 17,830 children and young people were placed outside the home, an increase of 1.6 per cent on the previous year. There were more boys placed outside the home than girls.
Half of the children in care at the end of 2012 were placed in foster families. Of these children, 11 per cent were placed with relatives or friends.
There were 1.6 child welfare notifications per child in 2012, and the notifications concerned altogether 64,391 children.
Around 87,200 children and young people received support in community care in 2011. This was 7 per cent more than in 2010. Some 7 000 clients in community care received after-care.
Actions should be as discreet as possible and the open care services must be used as primary means of help unless the need of a child requires otherwise. When substitute care is in the best interest of a child it must be arranged without delay. The aim to re-unite the family must be taken into account in substitute care while keeping the best interest of a child in mind.
The basic principle is to help the child and the family so that the children could live in their own homes with their families. These primary services are called support means in open care. They are voluntary and based on co-operation.
The placement away from home may be a short-term solution to a difficult situation. Emergency placement is implemented if a child is in danger. Taking into care is the final option. Taking into care is prepared together with the family and may take a long time. Sometimes taking into care must be done even though the family opposes it. A child taken into care goes to live in a foster family or child protection institution. The child stays in care as long as it is needed but if the circumstances that led to placement away from home change for the better it is necessary to find out whether the child could return home.
it may include support for housing, livelihood, work or studies.
The Survivors’ focus group consists of young volunteers between the ages of 16-26 who are or have been in alternative care. The group was formed in 2008 as part of the Youth in Alternative Care project under the auspices of the Finnish NGO Pesäpuu – Centre of Expertise in Child Welfare which is financed by the Finnish Slot Machine Organisation (RAY).
See ‘Protect your Dreams – Safeguard the Hope: Children’s Contribution to Developing High Quality Alternative Care’ – the Ombudsman for Children in Finland.
The first handbook for children and youth in alternative care in Scandinavia was published in 2010 by the Selviytyjät Survivors Focus and Development Group. The title ‘We Believe in You, So Should You’ served as a basis to a seminar. From this the group developed a special tool to help others develop methods to better hear the needs of children.
See Child and Family Policy in Finland – the aim of Finland’s family policy is to create a safe environment for children to grow up in and to provide parents with the material and psychological means to have and raise children. In recent years, the emphasis has been on reconciling paid employment and family life, strengthening fatherhood and ensuring an adequate level of income for families.
The Finnish Board of Inter-Country Adoption Affairs (Finnish Adoption Board) is the expert body in inter-country adoption affairs in Finland. It is subordinated to the Ministry of Social Affairs and Health. The Board was founded in 1985 and has since 1 July 1997 acted as the central authority meant in the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention). This is what we understand by adoption in Finland.
See also the Association of Adoptive Families in Finland.
The Nordic perspective on child welfare.
Children and families are at the heart of social work all over the world, but, until now Nordic perspectives have been rare in the body of English-language child welfare literature. Is there something that makes child welfare ideas and practices that are in use in the Nordic countries characteristically ‘Nordic’? If so, what kinds of challenges do the current globalization trends pose for Nordic child welfare practices, especially for social work with children and families?
Covering a broad range of child welfare issues, this edited collection provides examples of Nordic approaches to child welfare, looking at differences between Nordic states as well as the similarities. It considers, and critically examines, the particular features of the Nordic welfare model – including universal social care services that are available to all citizens and family policies that promote equality and individuality – as a resource for social work with children and families.
Drawing on contemporary research and debates from different Nordic countries, the book examines how social work and child welfare politics are produced and challenged as both global and local ideas and practices. “Social work and child welfare politics” is aimed at academics and researchers in social work, childhood studies, children’s policy and social policy, as well as social work practitioners, policy makers and service providers, all over the world who are interested in Nordic experiences of providing care and welfare for families with children.
This entry was posted in Other Countries and tagged Finland on May 6, 2014 by Sarah Phillimore.

matches:
UKSC
UKSC
UKSC
CJEU
UKSC
EWCA
Art 21


text:
Turbulence is an ubiquitous phenomenon that can be observed on a huge range of scales, from galaxy clusters down to micro- and nano-fluidics. It is observed mostly in neutral flows, but also in charged, magnetized flows such as astrophysical plasmas. The study of turbulence requires a multiple approach: theoretical, experimental, based on data analysis and on numerical simulations. All these aspects are exploited here, with particular focus on space and laboratory turbulent plasmas.
Most of the visible matter in the universe is in the state of plasma. Often times, astrophysical plasmas have highly turbulent dynamics, resulting in a large number of interesting processes such as: energy dissipation, particle acceleration, excitation of electromagnetic waves, particle heating, magnetic reconnection, formation of shocks. All these phenomena can be studied in-situ only in space plasma, where instruments on-board scientific space missions can take measurements. Data can be studied using specific diagnostic tools, which allow the validation of theories and models. A substantial use of numerical simulations is also necessary. The study of turbulence in the interplanetary space is therefore of broad interest for the understanding of the dynamics of astrophysical plasmas, but also for its implications on laboratory plasmas and for the Sun-Earth interaction.
The study of space plasmas turbulence is based on three main approaches: the analysis of data provided by the scientific mission; the development of theoretical models and novel data analysis techniques; the use of numerical simulations (massive computational resources are often required; these are provided by large facilities for high performance computing, such as CINECA, or the UNICAL HPCC. Examples are the full characterization of intermittency in solar wind turbulence [Sorriso-Valvo et al. 1999; 2015], and the validation of the theoretical prediction for the scaling law of the energy flux in solar wind turbulence [Sorriso-Valvo et al., 2007].
Bruno, D. Telloni, L. Primavera, E. Pietropaolo, R. D’Amicis, L. Sorriso-Valvo, V. Carbone, F. Malara and P. Veltri, Radial evolution of intermitency of density fluctuations in the fast solar wind, The Astrophysical Journal 786, 53 (2014), DOI: 10.1088/0004-637X/786/1/53.
H. K. Chen, L. Sorriso-Valvo, J. Safrankova, Z. Nemecek, Intermittency of solar wind density fluctuations from ion to electron scales, The Astrophysical Journal Letter 789, L8 (2014), DOI: 10.1088/2041-8205/789/1/L8.
De Vita, L. Sorriso-Valvo, F. Valentini, S. Servidio, L. Primavera, V. Carbone and P. Veltri, Analysis of cancellation exponents in two-dimensional Vlasov turbulence, Physics of Plasmas 21, 072315 (2014), DOI: 10.1063/1.4891339.
Yordanova, S. Perri, L. Sorriso-Valvo and V. Carbone, Multipoint observation of anisotropy and intermittency in solar-wind turbulence, EPL 110, 19001 (2015), DOI: 10.1209/0295-5075/110/19001.
Chasapis, A. Retinò, F. Sahraoui, A. Vaivads, Y. Khotyaintsev, D. Sundkvist, A. Greco, L. Sorriso-Valvo, P. Canu, Thin current sheets and associated electron heating in turbulent space plasma, The Astrophysical Journal Letters 804, L1 (2015), DOI: 10.1088/2041-8205/804/1/L1.
Sorriso-Valvo, R. Marino, L. Lijoi, S. Perri and V. Carbone, Self-consistent Castaing distribution of solar wind turbulent fluctuations, The Astrophysical Journal, 807, 86 (2015), DOI: 10.1088/0004-637X/807/1/86.
De Vita, A. Vecchio, L. Sorriso-Valvo, C. Briand, L. Primavera, S. Servidio, F. Lepreti and V. Carbone, Journal of Space Weather and Space Climate, 5, A28 (2015), DOI: 10.1051/swsc/2015029.
Rossi, F. Califano, A. Retinò, L. Sorriso-Valvo, P. Henri, S. Servidio, F. Valentini, A. Chasapis, and L. Rezeau, Two-fluid numerical simulations of turbulence inside Kelvin-Helmholtz vortices: intermittency and reconnecting current sheets, Physics of Plasmas, 22, 122303 (2015), DOI: 10.1063/1.4936795.
Leonardis, L. Sorriso-Valvo, F. Valentini, S. Servidio, F. Carbone and P. Veltri, Multifractal scaling and intermittency in hybrid Vlasov-Maxwell simulations of plasma turbulence, Physics of Plasmas, 23, 022307 (2016), DOI: 10.1063/1.4942417.
Pucci, F. Malara, S. Perri, G. Zimbardo, L. Sorriso-Valvo and F. Valentini, Energetic particle transport in the presence of magnetic turbulence: influence of spectral extension and intermittency, Month. Notes R. Astron. Soc. 459, 3395 (2016), DOI: 10.1093/mnras/stw877.
Vaivads et al., Turbulence Heating ObserveR – satellite mission proposal, J. Plasma Phys. 82, 905820501 (2016), DOI: 10.1017/S0022377816000775.
Sorriso-Valvo, V. Carbone, P. Veltri, G. Consolini, R. Bruno, Intermittency in the solar wind turbulence through probability distribution functions of fluctuations, Geophysical Research Letters 26, 1801-1804 (1999), DOI: 10.1029/1999GL900270.
Carbone, L. Sorriso-Valvo, E. Martines, V. Antoni, P. Veltri, Intermittency and turbulence in a magnetically confined fusion plasma, Physical Review E 62, R49-R52 (2000), DOI: 10.1103/PhysRevE.62.R49.
Sorriso-Valvo, R. Marino, V. Carbone, A. Noullez, F. Lepreti., P. Veltri, R. Bruno, B. Bavassano, Pietropaolo E., Observation of Inertial Energy Cascade in Interplanetary Space Plasma, Physical Review Letters 99, 115001-1-115001-4 (2007), DOI: 10.1103/PhysRevLett.99.115001.
Alexandrova, V. Carbone, P. Veltri, L. Sorriso-Valvo, Small-scale energy cascade of the solar wind turbulence, The Astrophysical Journal 674, 1153-1157 (2008), DOI: 10.1086/524056.
Carbone, R. Marino, L. Sorriso-Valvo, A. Noullez, R. Bruno, Scaling laws of turbulence and heating of fast solar wind: the role of density fluctuations, Physical Review Letters 103, 061102 (2009), DOI: 10.1103/PhysRevLett.103.061102.
Zimbardo, A. Greco, L. Sorriso-Valvo, S. Perri, Z. Voros, G. Aburjania, K. Chargazia, O. Alexandrova, Magnetic Turbulence in the Geospace Environment, Space Science Reviews 156, 89 (2010), DOI: 10.1007/s11214-010-9692-5.
Maruca, S. D. Bale, L. Sorriso-Valvo, J. C. Kasper, M. L. Stevens, Collisional Thermalization of Hydrogen and Helium in Solar-Wind Plasma, Physical Review Letters 111, 241101 (2013), DOI: 10.1103/PhysRevLett.111.241101.

matches: V. V. V. V. V. V. V. V. V.


text:
This lawsuit was initiated by shareholders in the Oakmark Funds, alleging that the investment adviser was charging advisory fees that were "disproportionate to the services rendered" and "not within the range of what would have been negotiated at arm's length in light of all the surrounding circumstances."
The case was dismissed by the District Court and upheld by the U.S. Court of Appeals for the Seventh Circuit. In a dissenting opinion, Judge Richard Posner urged a re-examination of the issues in this case and expressed concern that Harris Associates charges its retail funds more than twice what it charges institutional investors. The Seventh Circuit decision was then appealed to the U.S. Supreme Court.
In a unanimous decision, the Supreme Court upheld the Gartenberg standards that have been used in these cases for years and described the fiduciary duty owed to investors by an investment adviser as a test of "whether or not under all the circumstances the transaction carries the earmarks of an arm's length bargain."
This case was remanded back to the Seventh Circuit. On August 6, 2015, the Court affirmed the 2007 decision by the District Court in favor of Harris Associates. The Court stated that the Supreme Court's approach to 36(b) cases does not allow a court to assess the fairness or reasonableness of advisers' fees. Instead, the goal is to identify the "outer bounds of arm's length bargaining and not engage in rate regulation." The record before the District Court indicated that the fees charged by Harris Associates were comparable to that produced by bargaining at other mutual fund complexes, which the Court argued was the "bargaining range."
On August 6, 2015, the Seventh Circuit Court of Appeals affirmed the 2007 ruling by the District Court in favor of Harris Associates. The Court restated the Supreme Court's approach to Rule 36(b) cases and found that the record before the District Court established that Harris's fees were within a reasonable "bargaining range."
On June 23, 2010, the plaintiffs filed a supplemental statement with the Seventh Circuit Court of Appeals.
On June 14, 2010, the defendants filed a supplemental statement with the Seventh Circuit Court of Appeals.
On May 24, 2010, the defendants filed a statement of position with the Seventh Circuit Court of Appeals.
On May 24, 2010, the plaintiffs file a statement of position with the Seventh Circuit Court of Appeals.
On March 30, 2010, the U.S. Supreme Court issued its decision in Jones v. Harris Associates. In a unanimous ruling, the Court upheld and clarified the Gartenberg standards for evaluating the compensation paid to investment advisers to a mutual fund. The basic standard advocated by the Court is "whether or not under all the circumstances the transaction carries the earmarks of an arm's length bargain." This case was remanded back to the Seventh Circuit Court of Appeals.
On November 2, 2009, the U.S. Supreme Court heard oral arguments in Jones v. Harris Associates.
On September 28, 2009, the plaintiffs filed a reply brief in Jones v. Harris Associates before the U.S. Supreme Court.
On September 3, 2009, the Mutual Fund Directors Forum filed an amicus brief with the U.S. Supreme Court in support of defendant in Jones v. Harris Associates.
On September 3, 2009, the CATO Institute filed an amicus brief with the U.S. Supreme Court in support of the defendant in Jones v. Harris Associates.
On September 3, 2009, the Investment Company Institute filed an amicus brief with the U.S. Supreme Court in support of the defendant in Jones v. Harris Associates.
On September 3, 2009, the Fidelity Management & Research Company filed an amicus brief with the U.S. Supreme Court in Jones v. Harris Associates.
On September 3, 2009, the Independent Directors Council filed an amicus brief with the U.S. Supreme Court in support of the defendant in Jones v. Harris Associates.
On September 3, 2009, the U.S. Chamber of Commerce filed an amicus brief with the U.S. Supreme Court in support of the defendant in Jones v. Harris Associates.
On September 3, 2009, a group of law and finance professors and scholars filed an amicus brief with the U.S. Supreme Court in support of the defendant in Jones v. Harris Associates.
On August 27, 2009, the Securities Industry and Financial Markets Association (SIFMA) filed an amicus brief with the U.S. Supreme Court in support of the defendant in Jones v. Harris Associates.
On August 27, 2009, the defendant Harris Associates filed its brief with the U.S. Supreme Court.
On June 17, 2009, three professors and academics—Robert Litan, Joseph Mason, and Ian Ayres—filed an amici brief with the U.S. Supreme Court in support of the plaintiff in Jones v. Harris Associates.
On June 17, 2009, the North American Securities Administrators Association (NASAA) filed an amicus brief with the U.S. Supreme Court in support of the plaintiff in Jones v. Harris Associates.
On June 17, 2009, the National Association of Shareholder and Consumer Attorneys (NASCAT) filed an amicus brief with the U.S. Supreme Court in support of the plaintiff in Jones v. Harris Associates.
On June 17, 2009, two law professors—Deborah DeMott and Mark Ascher—filed an amici brief with the U.S. Supreme Court in support of the plaintiff in Jones v. Harris Associates.
On June 15, 2009, several scholars at American law schools filed an amici brief with the U.S. Supreme Court in support of the plaintiff in Jones v. Harris Associates.
On June 15, 2009, the American Association of Retired Persons (AARP) and the Consumer Federation of America (CFA) filed an amicus brief with the U.S. Supreme Court in support of the plaintiff in Jones v. Harris Associates.
On June 15, 2009, the United States filed its brief with the U.S. Supreme Court in Jones v. Harris Associates.
On June 15, 2009, Vanguard founder John C. Bogle filed an amicus brief with the U.S. Supreme Court in support of the plaintiff in Jones v. Harris Associates.
On June 10, 2009, the plaintiffs filed their writ of certiorari brief with the U.S. Supreme Court in Jones v. Harris Associates.
On August 8, 2008, the Seventh Circuit Court of Appeals denied the petition for rehearing. Five judges, including Judge Richard Posner, dissented on the denial of the rehearing en banc. In his dissenting opinion, Judge Posner raised concerns about the investment adviser charging its "captive" funds more than twice what it charges independent funds (i.e. institutional investors). The case was appealed to the U.S. Supreme Court and the Court accepted the case on March 9, 2009.
On May 19, 2008, the Seventh Circuit Court of Appeals affirmed the District Court decision in Jones v. Harris Associates.
On February 27, 2007, the District Court granted the Defendant's Motion for Summary Judgment and dismissed the case.
On October 10, 2006, the plaintiffs filed their brief in opposition to the defendants’ Motion for Summary Judgment.
On September 12, 2006, the defendant filed a Motion for Summary Judgment.
On April 7, 2005, the District Court denied the defendant's Motion to Dismiss.
On March 15, 2005, the plaintiffs filed Part II of their Memorandum in Opposition to the defendant’s Motion to Dismiss.
On March 15, 2005, the plaintiffs filed Part I of their Memorandum in Opposition to the defendant’s Motion to Dismiss.
On March 1, 2005, the defendant filed its Motion to Dismiss the lawsuit.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


FINES: A base fine of $390 - $1,000. Usually, the prosecutor will ask for a higher base fine on a second offense. Prosecutors may offer $390 or up to $500, but that’s only the base fine. That amount is then substantially increased by penalties and assessments. It comes out to somewhere around $2,300 in LA county, and it’s over $3,500 in Ventura county.
JAIL: The minimum jail time on a second offense DUI is 96 hours of county jail, with probation. Your attorney may request to break up the 96 hours into two 48 hour increments, which can be completed over the weekend at a “private jail” if permitted by the court. This must be permitted by the Judge, and is waived if not requested. There is a maximum of one year in county jail for a second offense. This is important to note because even though most people don’t have to serve much jail time on a second offense DUI, they must know that if they violate the terms of their probation, they subject themselves to a maximum punishment of jail time. In Santa Barbara county, the courts notify defendants at the time of a plea, that they will do a certain amount of jail time if they violate the terms of their probation.
ALCOHOL PROGRAM: Someone who is convicted of a second DUI, must complete an 18 month alcohol program, known as the “SB38.” This program is significantly longer and much more burdensome than the first offender program. A skilled DUI attorney from The Law Office of Ben Mironer can fight to reduce your DUI charges, and potential prevent you from having to take an 18 month alcohol program. If your attorney can reduce your second offense DUI charges to a “Wet Reckless” driving, then you will not be required to complete the SB38 alcohol program. Prosecutors make it much more difficult to get your second offense DUI charges reduced because they know how burdensome the 18 month alcohol program requirement is. Our office has had many successful results, where our clients charged with a second offense DUI, never had to complete the SB38 alcohol program.
DRIVER’S LICENSE SUSPENSION: The “mandatory action” by the DMV is the required suspension that automatically starts the day someone is convicted of a second DUI, in court. The mandatory action suspension on a second offense DUI is a two year drivers license suspension. There is an opportunity to get a restricted drivers license. After 90 days, a second offender may obtain a restricted driver’s license under California Vehicle Code §13352. The DMV must receive proof that an Ignition Interock Device (IID) was installed, along with proof of insurance, and proof of enrollment in the sb38. Once an IID is installed, the licensee can drive anywhere at any time. Another option is to get a restricted license, without an IID, after 12 months. This is permitted under California Vehicle Code §13352.5, and allows the licensee to drive to work and back, and to the alcohol program and back.
ADMINISTRATIVE DRIVER’S LICENSE SUSPENSION: The “administrative action” by the DMV, is the suspension that the DMV hearing officer decides whether to impose, after an Administrative Per Se (“APS”) hearing is conducted. The license suspension associated with a second offense administrative action is a one year suspension, with no eligibility for a restricted license. However, if you are convicted in court of the second offense, you may get the restricted license under California Vehicle Code §13352 or 13352.5. Only a knowledgeable DUI attorney can inform you of all of your options. An attorney at The Law Office of Ben Mironer will fight your case in court and at the DMV, all while keeping you informed about the proceedings and your legal rights.
REFUSAL: The consequences for a refusal in court, on a second offense, are worse than a regular second DUI. Aside from the sentencing enhancement, it is an enhancing factor that the prosecutor considers in making an offer. An attorney at The Law Office of Ben Mironer can truly help someone charged with a Refusal, because these cases tend to have less evidence for a prosecutor. In a second offense, a person facing mandatory jail if they plead guilty, may find it worthwhile to take their chances at trial. It is usually more difficult to prove levels of impairment, without chemical evidence. This is why it is crucial to have an attorney that the prosecutors know will not hesitate to take a good case to trial.
The suspension from the DMV is a one year driving suspension for the Refusal, and another year for the second DUI. This means no driving at all for TWO years. Unlike a regular administrative suspension, a suspension for a refusal can’t be reversed in criminal court, even if found to be not guilty after trial. The only way to reverse a DMV suspension for a Refusal, is to petition the California Superior Court with a Petition for Writ of Mandate. Our office is proud to be one of the few offices in California to have the Superior Court grant our petitions for writ of mandate. Another key note is that these suspensions (Court and DMV) do not run concurrently, which means if you start serving one, you don’t accumulate credit for the other one. Each suspension basically starts a no driving suspension.
UNDER AGE 21 DUI: Someone who is under 21 must follow California’s zero tolerance laws. A DUI either under California Vehicle Code §23152, California Vehicle Code §23140 (.05% - .07% BAC), or California Vehicle Code §23136 carries a “mandatory action” of a one year driver’s license suspension, on a second offense as well. On the DMV side, the licensee again faces a one year administrative driver’s license suspension. A request to run the suspensions concurrently must be made with the court, otherwise it is waived. The court has discretion to run these suspensions at the same time, and they usually will allow that. On a good note, after 30 days of suspension, a licensee has an opportunity to get a “critical need” restricted driver’s license from the DMV. This request must be approved by the DMV and by the Court. The case has to be put on calendar in court, to request permission from the Judge. The licensee must also complete an application and submit it to the DMV. The application must give detailed responses as to why there is a critical need for licensee to drive. Typically, there must be a substantial need to drive, and the DMV often limits the amount of driving permitted under the critical need restricted license.
A seasoned second DUI attorney from the Law Office of Ben Mironer knows how critical it is in second DUI cases to keep a close eye on how the court case impacts the DMV side, and vice versa. This is one of the reasons it’s imperative to hire an attorney that focuses on second DUI defense. An attorney from our office will help ease your mind by explaining all of the legal issues in your case. For more information, contact us here.