REPORT ON
COMPLIANCE WITH
THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF
INTERNATIONAL CHILD ABDUCTION
INTRODUCTION:
Parental child
abduction is a tragedy. When a child is abducted across international
borders, the difficulties are compounded for everyone involved. The
Department of State considers international parental child abduction, as
well as the welfare and protection of U.S. citizen children taken
overseas, to be important, serious matters. We place the highest priority
on the welfare of children who have been victimized by international
abductions.
For some parents, an
important tool in seeking the return from another country of their
abducted or wrongfully retained child is the Hague Convention on the Civil
Aspects of International Child Abduction (the Convention). The United
States was a major force in preparing and negotiating the Convention,
which was finalized in 1980 and entered into force for the United States
on July 1, 1988. Today, the United States has a treaty relationship under
the Convention with fifty-three other countries. The Convention applies to
the wrongful removal or retention of a child that occurred on or after the
date the Convention came into force between the U.S. and the other country
concerned. The date on which the U.S. entered into a treaty relationship
with its many Convention partner countries varies and more countries are
considering becoming parties to the Convention all the time. The U.S. has
actively encouraged countries to accede to the Convention, recognizing its
potential effectiveness not just in resolving cases of international
parental child abduction, but in deterring future abductions.
As mandated by
Section 2803 of Public Law 105-277, (the Foreign Affairs Reform and
Restructuring Act of 1998), as amended by Section 202 of Public Law
106-113 (the Admiral James W. Nance and Meg Donovan Foreign Relations
Authorization Act for Fiscal Years 2000 and 2001) and Section 212 of the
Foreign Relations Authorization Act for Fiscal Year 2003, the Department
of State submits this report on compliance with the Convention by other
party countries. Previous such reports were completed in April 1999,
September 2000, April 2001 and January 2003. The individual cases covered
in
Attachment A of the present report remained unresolved as of September
30, 2003.
This report
identifies those countries in which implementation of the Convention is
incomplete or in which a particular country’s judicial or executive
authorities fail properly to apply the Convention’s requirements, for
reasons specific to each country and to varying degrees. The report also
discusses unresolved applications for the return of children to the United
States that have been filed through the Department of State, which serves
as the U.S. Central Authority for the Convention. Under the Convention,
return and access applications may also be filed either with the Central
Authority of the country in which the child is located or directly with a
properly empowered court in that country. The result is that left-behind
parents may (and frequently do) pursue the return of a child under the
Convention without involving the U.S. Central Authority. In these
circumstances, the U.S. Central Authority may never learn of such
applications or their eventual disposition. This report therefore cannot
give a complete picture of the outcome of all Convention applications for
the return of children to the United States.
The U.S. Central
Authority considers a Convention application to be “filed” on the date on
which the application is forwarded by the U.S. Central Authority to the
appropriate foreign Central Authority, rather than the date of the initial
receipt of the application by the U.S. Central Authority. This is because
in many cases the U.S. Central Authority must obtain further information
and supporting documents from the applicants before the application is
considered complete and ready to forward to the foreign Central Authority
for processing. When such supplementary information is required, the U.S.
Central Authority makes every effort to obtain the needed information
expeditiously.
The U.S. Central
Authority may open a Convention case based on a parent expressing concern
about his/her child abroad, without requiring that a Convention
application be filed or complete. The U.S. Central Authority may forward
to other Central Authorities incomplete applications, even those lacking
critical supporting documents. In such cases the U.S. Central Authority
informs applicant parents that, while other Central Authorities are often
unable to process an application without complete documentation, the other
Central Authority may be able to make limited preliminary inquiries while
parents are gathering the required documents. Thus, a Convention case may
be “open” even if no application has been “filed.” This further
complicates reporting on compliance with the Convention, since an opened
case may be resolved without an application ever being filed. The U.S.
Central Authority is naturally pleased if an abducted or wrongfully
retained child is returned to the U.S. without the need to file an actual
application under the Convention.
As has been the
practice in previous reports, the Department is reporting as “resolved”
cases that are determined by the U.S. Central Authority to be “closed” as
Convention cases or that are “inactive.” This is a technical designation,
and does not necessarily mean an end to the Department’s support of a
left-behind parent’s efforts to resolve a dispute involving an abduction
or wrongful retention. As in other countries party to the Convention, the
U.S. Central Authority closes or inactivates Convention cases for a
variety of reasons. These include: return of the child; parental
reconciliation or agreement; a parent's withdrawal of the request for
assistance; inability to contact the requesting parent after numerous
attempts over a two-year period; exhaustion of all judicial remedies
available under the Convention; the child attaining 16 years of age; or
(in appropriate cases) the granting and effective enforcement of access
rights. In all such cases, regardless of the outcome, no further
proceedings pursuant to the Convention are anticipated. Treating these
cases as “resolved” and closing them as Convention cases is consistent
with the practice of other Convention party countries. More specifically,
we will close a Convention case if the circumstances definitively require
it, such as the return of a child or upon the specific request of the
applicant parent. We will “inactivate” a case when, in the absence of such
definitive circumstances, the facts of the case do not allow, or the
applicant parent does not permit, a further reasonable pursuit of the
case. Two years after inactivation, and in the absence of additional
relevant requests for assistance by the left-behind parent, the case will
be closed.
The exhaustion of
all judicial remedies available under the Convention may result in a case
that is “closed” but that has been resolved in a way that is
unsatisfactory to the applicant parent and the U.S. Central Authority.
Independent of whether the left-behind parent is satisfied with the result
of an application for a child’s return, the judicial and/or administrative
authorities in the country to which a child was abducted or in which a
child was wrongfully retained may or may not have applied the Convention
correctly. Even when a case for the return of a child under the Convention
has been closed, however, the U.S. Central Authority stands ready to
provide assistance to the left-behind parent by helping to facilitate
access to a child (which may be sought under or independently of the
Convention), reporting on the welfare of the child, or assisting the
parent to achieve a more satisfactory solution. When a foreign court
decision on the Convention aspects of a case indicates a misunderstanding
of or failure properly to apply the Convention’s terms, the U.S.
Department of State may register its concern and dissatisfaction with the
decision through the foreign Central Authority and/or through diplomatic
channels. The same is true in circumstances involving the failure by
administrative or other executive officials effectively to enforce court
or other relevant orders arising out of applications under the Convention.
The Secretary of State, other senior Department officials and U.S.
Ambassadors and Consuls have repeatedly raised international parental
child abduction issues and specific cases with appropriate foreign
government officials.
Annexed to this
report as
Attachment A is a list by country of the cases submitted pursuant to
the Convention that remained unresolved for more than 18 months as of
September 30, 2003. Specific details that might identify the parties to a
case or relevant others, have been removed to protect the privacy of the
child and the applicant parent.
This report
identifies specific countries and individual cases in which countries
party to the Convention have not complied with its terms or in which the
result for applicant parents in the United States has been inconsistent
with the purposes and objectives of the Convention. The U.S. Department of
State continues to take steps to promote better information sharing and
more consistent practices among countries party to the Convention. The
Department works in close cooperation with the Hague Permanent Bureau on
judicial education issues and the formulation of Best Practices guides for
states party to the Convention. In coordination with the Hague Permanent
Bureau, the United States and Germany co-sponsored an October 2003
judicial training conference on Convention enforcement issues for judges
and Central Authority officials from the U.S., Canada, Israel, and a
number of European countries.
Supplementing the
treatment of matters relating to applications for the return of children
under the Convention,
Attachment
B of this year's report provides a discussion of several key issues
relating to parental access to children as they relate to our Convention
partner countries. While the Convention does not treat in depth many of
the questions surrounding access, the Department of State recognizes the
critical importance of children having meaningful access to both parents.
Reporting
Period:
This report covers
the period from October 1, 2002 to September 30, 2003. The information
provided herein is that available to the U.S. Central Authority within
these dates. In some instances, updates are provided to include
developments subsequent to September 30, 2003.
RESPONSE TO
SECTION 2803 (a):
Section
2803(a)(1) of Public Law 105-277, as amended, requires that we
report “the number of applications for the return of children submitted by
applicants in the United States to the Central Authority for the United
States that remain unresolved more than 18 months after the date of
filing.”
Taking into account
the above clarifications, as of September 30, 2003, there were forty-one
(41) applications for return in U.S. Central Authority records that
remained open and active eighteen months after the date of filing with the
relevant foreign Central Authority. This total includes several cases that
became known to the U.S. Central Authority through contacts with parents
or local and state officials, but that were actually filed by California
authorities directly with a foreign Central Authority.
Section 2803
(a)(2) requests “a list of the countries to which children in
unresolved applications described in paragraph (1) are alleged to have
been abducted, are being wrongfully retained in violation of the United
States court orders, or which have failed to comply with any of their
obligations under such convention with respect to applications for the
return of children, access to children, or both, submitted by applicants
in the United States.”
The forty-one
applications identified above that remain unresolved eighteen months after
the date of filing, as of September 30, 2003, involved fourteen countries:
Colombia, Ecuador, France, Germany, Honduras,
Ireland, Israel, Mauritius, Mexico, Poland, South Africa, Spain, Turkey,
and Zimbabwe. The extent to which these countries and others appear
to present additional, systemic problems of compliance with the Convention
is discussed further in the passages concerning Sections 2803(a)(3),
(a)(4) and (a)(6), below.
In considering the
question of compliance with the Convention and the treatment of court
orders of custody, it should be noted that adjudications of return
applications under the Convention are not custody proceedings. Rather, the
basic obligation under the Convention to return a child arises if a child
is removed to or retained in a country party to the Convention in
violation of rights of custody existing and actually exercised in (and
under the law of) the child’s country of habitual residence. Most
Convention cases filed by parents seeking the return of a child to the
United States are premised on the existence of rights of custody held by
the applicant parent that arise by operation of law, typically because the
applicable state law creates joint rights of custody in both parents. A
court order of custody in favor of a left-behind parent is not a
requirement for pursuing a return application under the Convention. In
effect, the Convention requires that foreign countries recognize rights of
custody arising under U.S. law (if the child is habitually resident in the
U.S.) to the extent that such rights provide the basis for an application
and the rationale for return. Courts adjudicating applications for return
under the Convention are not permitted to examine or rule on the merits of
an underlying custody dispute.
Section 2803
(a)(3) requests “a list of countries that have demonstrated a
pattern of noncompliance with the obligations of the Convention with
respect to the applications for the return of children, access to
children, or both, submitted by applicants in the United States to the
Central Authority of the United States.”
There are many
factors relevant to evaluating whether a country has properly implemented
and is effectively applying the Convention, not least because the
executive, legislative and judicial branches of each party country have
important and varying roles. A country may thus perform well in some areas
and poorly in others. The Department of State, building on the
recommendations of an inter-agency working group on international parental
child abduction, has identified certain elements of overall performance
relating to the Convention’s most important requirements and has used
these as factors to evaluate each country’s compliance.
These elements are:
the existence and effectiveness of implementing legislation; Central
Authority performance; judicial performance; and enforcement of orders.
“Implementing legislation” can be evaluated as to whether, after
ratification of the Convention, the Convention is given the force of law
within the domestic legal system of the country concerned, enabling the
executive and judicial branches to carry out the country’s Convention
responsibilities. “Central Authority performance” involves the speed of
processing applications; the existence of and adherence to procedures for
assisting left-behind parents in obtaining knowledgeable, affordable legal
assistance; the availability of judicial education or resource programs;
responsiveness to inquiries by the U.S. Central Authority and left-behind
parents; and success in promptly locating abducted children. “Judicial
performance” comprises the timeliness of first hearing and subsequent
appeals of applications under the Convention and whether courts apply the
law of the Convention appropriately. “Enforcement of orders” involves the
prompt enforcement of civil court or other relevant orders issued pursuant
to applications under the Convention by administrative or law enforcement
authorities and the existence and effectiveness of mechanisms to compel
compliance with such orders. Countries in which failure to enforce orders
is a particular problem are addressed in the passages concerning Section
(a)(6) below.
This report
identifies those countries that the Department of State has found to have
demonstrated a pattern of noncompliance or that, despite a small number of
cases, have such systemic problems that the Department believes a larger
volume of cases would demonstrate continued noncompliance constituting a
pattern. In addition, the Department recognizes that countries may
demonstrate varying levels of commitment to and effort in meeting their
obligations under the Convention. The Department considers that countries
listed as noncompliant are not taking effective steps to address serious
deficiencies.
Applying the
criteria identified above, and as discussed further below, the Department
of State considers Austria, Colombia, Ecuador,
Honduras, Mauritius, Mexico, and Turkey to be “Noncompliant” and
Romania and Switzerland to be “Not Fully
Compliant” with their obligations under the Convention. The Department of
State has also identified several “Countries of Concern” that have
inadequately addressed significant aspects of their obligations under the
Convention. These countries are Greece, Hungary,
Israel, Panama, Poland, and The Bahamas.
Note
Regarding Comparisons to the 2002 Report:
Ecuador, Greece, Hungary, Israel, Romania, and Turkey
have been added to the list of countries we have identified with
compliance problems since the last report.
In view of
Germany's significant improvement since 2000
in its application of the Convention in the context of return
applications, the Department has removed Germany from the discussion of
Countries of Concern. Problems in Germany with enforcement of access
orders persist and are covered in the Enforcement section of this report.
Specific systemic
changes that have produced positive results in Germany’s processing and
adjudication of return cases include consolidating the number of courts
that hear Convention cases, streamlining the processing of applications,
and educating judges about their role in applying the Convention.
Moreover, the German Central Authority has been prompt in responding to
requests from the U.S. Central Authority, efficient in moving Convention
applications forward for resolution, and available to discuss and proposed
solutions for difficult or problematic cases. The U.S.-Germany bi-national
working group continues to meet semi-annually to discuss specific
long-standing cases, new cases and/or other issues as they relate to the
Convention. Increasingly since 2000, and including in the past year,
German courts have consistently rendered decisions that are consistent
with the law of the Convention and have ordered the return of children
wrongfully removed from the U.S. or retained in Germany. Bailiffs and
police now more effectively intervene to enforce return orders when
necessary in comparison with prior reporting periods. The latter
development reflects a greater awareness among German authorities of the
means at their disposal for enforcing orders and a greater sensitivity to
the need to exercise the available legal authority to ensure that
court-ordered returns in fact take place.
The Department will
continue to meet regularly with German officials regarding Convention and
related child custody case concerns, to monitor closely return and access
cases submitted to the German Central Authority, and to seek German
assistance in addressing long-outstanding and unresolved cases.
Spain, cited as a
country of concern in the 2002 Report, has also demonstrated improvement
during the reporting period. The Spanish Central Authority was more
responsive to inquiries from the U.S. Central Authority and more recent
Hague cases have been positively and efficiently addressed. Through the
U.S. Embassy in Madrid, the Department is actively engaged with the
Spanish Central Authority to build on Spain’s progress in meeting its
Hague Abduction Convention obligations. As a result of this general
improvement and Spain’s efforts, the Department has removed Spain as a
country of concern from this year’s Report.
Noncompliant
Countries
AUSTRIA
Austria has been
identified as noncompliant in all of the Department’s previous compliance
reports. The Department’s concerns about Austrian compliance and
willingness to address chronic problems persist.
Bilateral
interaction has increased in the past year regarding a long outstanding
access case that, although not currently being pursued under the
Convention, resulted from earlier compliance problems. Numerous Austrian
officials have proved willing to meet to discuss the case, but the need
for repeated approaches from U.S. officials to produce any movement
towards improved access for the left-behind parent is troubling. Top U.S.
officials, including the Secretary of State, the Attorney General, and
State Department officials at the Under Secretary and Assistant Secretary
levels, as well as the U.S. Ambassador, have pressed the matter with
Austrian officials, including the Austrian Chancellor, Foreign Minister,
Justice Minister, Interior Minister, the Austrian Ambassador in
Washington, and officials at the Under Secretary and Assistant Secretary
levels.
In this case,
Austrian courts at every level up to the Supreme Court ordered the return
of the child to the United States under the Convention. The taking parent
appealed enforcement of the return order. Austria’s courts then determined
that the return order should not be enforced because the delays in the
case had caused the child to become “settled” in Austria and return would
cause the child psychological harm. After denial of the child’s return to
the United States, the left-behind parent sought access to his child under
the Convention. Austrian courts finally granted very limited access in
Austria.
The taking parent
has repeatedly rebuffed efforts to increase contact between the
left-behind parent and the child, and criticized both the U.S. and
Austrian governments for their intervention in the matter. The left-behind
parent filed a complaint with the European Court of Human Rights, which in
April 2003 determined that Austria had violated the left-behind parent's
and the child's right to a family life under the European Convention for
the Protection of Human Rights and Fundamental Freedoms. In response to
the repeated urgings of U.S. officials, including meetings held during the
visit of Assistant Secretary Maura Harty to Vienna in July 2003, Austrian
officials have provided their good offices to bring about a meeting with
the abducting parent. Nevertheless, we are aware of no developments that
indicate the frequency or reliability of access for the left-behind parent
has improved.
Legislative changes
that would consolidate Convention return case adjudications in fewer
courts remained pending throughout the reporting period. In November 2003,
the Austrian Parliament passed legislation to this effect, limiting the
number of courts empowered to hear Convention return cases to sixteen
(Convention access cases were not restricted to these courts), down from
over two hundred. As part of the new law’s implementation, the Austrian
Central Authority is also to provide the courts with special training to
educate judges about Convention case issues. These changes are not
scheduled to go into effect before 2005, so it maybe several years before
we can begin to determine the effects of the legislation on judicial
processing of return applications.
COLOMBIA
The U.S. Central
Authority is concerned about systemic problems in resolving Convention
cases regarding children taken from the U.S. to Colombia. Two major
obstacles to returning children from Colombia in a manner consistent with
the Convention have been mentioned in previous compliance reports, which
focused on the judiciary's insistence on applying Colombian family and
custody law to Convention return cases and a lack of responsiveness by the
Colombian Central Authority (CCA). However, problems associated with the
judiciary’s treatment of return applications under the Convention are more
extensive than previously reported and have resulted in Colombia's listing
as a noncompliant country in this year's report.
Judicial processing
of return cases is slow and not geared toward meeting the goals of the
Convention. Colombia's current implementing legislation does not
facilitate judicial action on return applications. The jurisdiction of the
courts to hear Convention cases remains unclear. The courts’ willingness
and ability expeditiously to hear and issue a decision on Convention
applications is a key component in the effective application of the
Convention. The lack of clear jurisdictional guidance to Colombia’s courts
has been evident in cases that have been transferred from one court to
another repeatedly as judges decline jurisdiction. The Colombia
Constitutional Court ruled in 2002 that Civil Circuit courts, not the
Family Ombudsmen or Family courts, have jurisdiction in Convention cases.
Despite that decision, courts appear to remain uncertain about which
courts have jurisdiction and according to what standards and procedures
Convention applications should be adjudicated. The Civil Circuit courts
have not received training on the Convention and there is no legislation
governing how courts are to deal with Convention cases.
Proceedings in those
cases that are heard in court are often characterized by lengthy delays;
Colombian courts frequently request a home study of left-behind parents in
the United States before ordering a child’s return to the United States.
Such inquiries, which tend to go to the merits of custody, are properly
left to the courts of the country of habitual residence and are
inappropriate in the context of a Convention return proceeding.
The Colombian
Central Authority is slow in forwarding Hague applications to the courts
and does not assist applicant parents in obtaining legal assistance for
the case's judicial phases. The U.S. Central Authority often has
difficulty reaching the Colombian Central Authority and in receiving
responses to routine inquiries. When responses eventually arrive, they are
usually outdated and often not responsive to the original request for
information.
There has been no
evidence of positive change in Colombia’s implementation or application of
the Convention in recent years despite repeated approaches from the U.S.
Central Authority and the U.S. Embassy relating concerns about Colombia's
handling of Convention cases. Moreover, a review of U.S. Central Authority
case records reveals that very few children, given the volume of
applications that have been forwarded to Colombia, actually return to the
United States. In view of the persistent and grave nature of these
problems, the U.S. Central Authority considers Colombia noncompliant with
the Convention.
The U.S. Embassy
reports that the Colombian Ministry of Foreign Relations has recently
indicated a commitment to making the adoption of implementing legislation
a matter of urgency. Our assessment of compliance in future reports will
depend on whether cases are resolved in a manner consistent with the
Convention and the above-noted systemic problems are addressed.
ECUADOR
Ecuador has not been
responsive in providing status reports on cases submitted by the U.S.
Central Authority for some time. After repeated unsuccessful attempts by
the U.S. Central Authority in 2003 to obtain case status reports from the
Ecuador Central Authority, the U.S. Central Authority requested U.S.
Embassy assistance in contacting the Ecuador Central Authority for case
information. U.S. Embassy officials learned that the Children’s Court,
which had been designated to hear Convention cases and to act as the
Ecuador Central Authority, was abolished in April 2003 without any
provision for an alternate agency to assume its Convention-related
responsibilities. No court or other entity has since been responsible for
hearing Convention cases or performing the other critical tasks necessary
to fulfill the Convention’s obligations and normally performed by a
Central Authority.
During the reporting
period there was no progress in resolving Convention cases submitted in
Ecuador by parents from the United States, one of which dates back as far
as 1995. Parents in Ecuador currently forward their own Hague requests for
return of children unlawfully removed from Ecuador to foreign Central
Authorities through Ecuador's embassies abroad. By failing to provide for
an effective Central Authority to oversee application of the Convention in
Ecuador and to assist parents with applications for the return of their
abducted children from Ecuador, Ecuador clearly is not complying with even
its most fundamental Convention obligations.
The removal of
Ecuador from the list of noncompliant countries in the future will require
evidence that Ecuador is undertaking steps to fulfill its responsibilities
under the Convention, beginning with designating a Central Authority,
ensuring timely processing and adjudication of incoming applications,
enforcing return orders and providing timely information to parents and
foreign Central Authorities regarding case processing.
HONDURAS
During the reporting
period, Honduras took no action to resolve the pending applications
submitted on behalf of left-behind parents from the United States. U.S.
Embassy efforts to assist the U.S. Central Authority in moving the cases
forward resulted in repeated assertions by the Honduran Central Authority
that the Hague Abduction Convention was not in effect between Honduras and
the United States because the Honduran government never ratified the
Convention. These assertions are contrary to Honduras' accession to the
Convention on March 1, 1994, and the U.S. acceptance of the Honduran
accession effective June 1, 1994; both acts are reflected in corresponding
instruments deposited in accordance with the Convention’s terms of
accession. Finally, in early 2004, the Honduran Congress ratified the
Convention.
A case submitted to the Honduras Central Authority in 1994 was resolved in
2002 after the taking grandparent was extradited to the United States and
the child was returned; Convention procedures were not used. A 1998
application for a child’s return is still pending, although the taking
parent is back in the United States facing criminal charges related to the
abduction. Two new applications submitted to the Honduras Central
Authority in 2003 also remain pending.
Until the Honduran
government takes concrete action to resolve outstanding and future cases
submitted by the U.S. Central Authority in a manner consistent with its
Convention obligations, Honduras will continue to be listed as a
noncompliant country in our annual report to Congress.
MAURITIUS
As in previous
years, Mauritius remains noncompliant because it has not taken proper
steps to apply the Convention and ensure the processing of cases in
accordance with its terms. Mauritius became a party to the Convention in
1993, but only adopted implementing legislation in July 2000. The U.S.
Central Authority submitted two cases (one in June 1998 and the second in
February 1999) to the Mauritian Central Authority after Mauritius became
party to the Convention, but before it adopted implementing legislation.
Although the U.S. Central Authority has only forwarded two applications to
Mauritius, both cases have been characterized by lengthy processing delays
and neither case was resolved by the courts before the end of the
reporting period.
The Department of
State and the U.S. Embassy in Mauritius are following these cases closely
and communicating with the Mauritian government regarding next steps. Most
recently, in January 2004, U.S. Embassy officials met with the head of the
Mauritian Central Authority to underline U.S. concerns about the long
delays in processing applications for the return of children to the U.S.
and Mauritius' failure to take appropriate measures to apply the
Convention.
The removal of
Mauritius from the category of noncompliant countries will require
concrete action to resolve long outstanding cases and any future cases in
a manner consistent with Mauritius' Convention obligations.
MEXICO
Mexico remains the
destination country of the greatest number of children abducted from or
wrongfully retained outside the United States by parents or other
relatives. Despite coordinated efforts undertaken by the U.S. Embassy, the
U.S. Central Authority, and senior Department of State officials to press
for more expeditious processing and resolution of cases, the systemic
problems in Mexico's handling of Convention applications that were
detailed in the 2002 Compliance Report persisted during the reporting
period. The Department’s experience is that, relative to the large number
of pending Convention cases in Mexico, the number of cases resolved
annually in Mexico is quite small. Most Convention return applications
remain pending and never progress to the point of a definitive
adjudication. Among the U.S. Central Authority's greatest concerns is
Mexico's inability to locate children. Other problems include long delays
in adjudication of return applications, the Mexican Central Authority's
lack of adequate resources to perform its role effectively, the absence of
implementing legislation integrating the Convention into the Mexican legal
system, and an apparent lack of understanding of the Convention among many
Mexican judges, which has resulted in Convention cases being treated as
custody matters or mishandled in other ways.
Mexico's inability
to obtain better results in locating children and taking parents is
particularly troubling. Many Convention return applications forwarded by
the U.S. Central Authority have languished for years; when children and
taking parents are not located, Mexican courts will not rule on the
application. As a result, and despite persistent efforts by the U.S.
Central Authority to prompt Mexican authorities to address these cases,
numerous parents have waited for years with no contact or information
about the whereabouts of their children. Of the return applications
submitted to the Mexican Central Authority that remained unresolved after
eighteen months or longer, approximately half remain in limbo because
Mexican authorities have not located the children. As a practical matter,
the left-behind parent or someone working on his/her behalf must develop
most leads pertaining to the possible location of abducted children
without the help of Mexican authorities. In some cases, Mexican
authorities profess an inability to find children even when the family or
the U.S. Embassy has shared concrete information with the Mexican Central
Authority on the child's whereabouts.
If the whereabouts
of an abducted or wrongfully retained child cannot be established, for
whatever reason, Mexican courts return the case file to the Mexican
Central Authority, which in turn refers the case to Mexican law
enforcement. The U.S. Central Authority is not aware of even a single case
in which Mexican law enforcement, once the Mexican Central Authority
forwarded a Convention case to them, located the children.
Those cases that do
result in a court hearing face further obstacles, including lengthy court
delays. Lack of implementing legislation to integrate the Convention into
the Mexican legal system remains a problem. The amparo (a special
appeal claiming a violation of an individual's constitutional rights) has
been used by taking parents to block Convention proceedings indefinitely
pending a ruling by another court as to whether the parent's
constitutional rights have been violated. In addition, Mexican courts are
able to reconsider at any stage of the proceedings factual determinations
made by lower courts, producing additional delay. Both problems highlight
the degree to which the lack of implementing legislation in Mexico has
hampered the Convention’s effectiveness.
Another problem
(also compounded by the absence of implementing legislation) is the
apparent lack of understanding by many judges in Mexico of the law of the
Convention. Mexican judges frequently seem to ignore the fact that a case
before them arises out of a return application under the Convention, and
instead simply apply the procedural and substantive law that would govern
a Mexican custody dispute. The result is almost always that those courts
deny return without evaluating the merits of the application under the law
of the Convention. U.S. Embassy officials report that the Mexican Central
Authority has taken some preliminary steps to address this problem. The
Mexican Central Authority actively participated in June 2003 in a
conference hosted by the U.S. Embassy to educate family law judges about
the Hague Convention. The Mexican Central Authority has also started to
contact judges it believes may be presiding over a Convention case for the
first time to provide support and guidance, and, in particular, to
emphasize the distinction between the court's role in Convention cases and
its role in domestic custody determinations.
Mexican Central
Authority officials discuss the Convention with the judiciary and
attorneys, monitor proceedings, and provide the U.S. Embassy with updates
on active case processing. However, the Mexican government dedicates
limited resources to the Mexican Central Authority, including insufficient
staff to handle the volume of cases. The Mexican Central Authority’s
ability to help bring about successful resolution of individual cases
involving children taken from the U.S. is correspondingly limited. U.S.
Embassy officials meet monthly with Mexican Central Authority personnel to
obtain updates on pending cases but, even with regular and continued
embassy involvement, the Mexican Central Authority clearly is
overburdened. Improvement in this area seems unlikely unless the Mexican
government commits more resources to the Central Authority.
TURKEY
The United States
accepted Turkey’s accession to the Convention in 2000. Although only nine
cases have been submitted for return of children to the United States, the
problems experienced in those cases indicate that Turkey is not fulfilling
its responsibilities under the Convention. Applications for return of
children to the U.S. are subject to long and repeated court delays, and
courts allow consideration of issues unrelated to Convention criteria when
adjudicating return applications. There have also been indications of the
use of political influence over the courts and other government officials
involved in case processing. Turkey has not implemented the Convention
into its domestic law. In addition, Turkish officials have consistently
been unable to locate abducted children, and throughout much of the
reporting period, the Turkish Central Authority was not responsive to
frequent and direct requests from the U.S. Central Authority for
information and assistance.
The Department of
State and the U.S. Embassy in Ankara are fully engaged at all levels on
the problems related to return of children from Turkey under the
Convention. The Department has discussed individual cases and broader
compliance issues with Turkish embassy officials. The U.S. Ambassador to
Turkey raised the problems with Turkey’s implementation and application of
the Convention and the status of pending applications from the United
States with the Minister of Justice on several occasions. Embassy
officials have stressed with members of the Turkish Parliament the
importance of adopting implementing legislation. Assistant Secretary for
Consular Affairs Maura Harty also discussed compliance concerns with the
Turkish Minister of Justice in December 2003.
Countries Not Fully Compliant
ROMANIA
Romania was not
cited in previous Compliance Reports. However, over the past year, the
U.S. Central Authority has observed significant problems in Romania's
handling of Convention applications for the return of children to the
United States. Romanian courts appear to have either a limited
understanding of the Convention or an unwillingness to apply the
Convention properly when doing so would require the return of a child to
another country.
Specific compliance
problems include judges who routinely order psychological evaluations and
treat Convention return cases as child custody disputes, and the
appearance of bias in court decisions in favor of taking parents who are
Romanian nationals. Also, courts have denied return in cases that remain
unresolved after one year of judicial processing, thereby penalizing the
left-behind parent for the slowness of the courts. According to U.S.
Central Authority records, in the past six years, out of seven
applications forwarded to the Romanian Central Authority for return of
children to the U.S., there have been no court-ordered returns and only
one voluntary return.
The U.S. Central
Authority also noted problems in getting the Romanian Central Authority to
respond to requests for status reports and clarifications of court
proceedings during the reporting period. Late in 2003, the Romanian
Central Authority's responsiveness did improve, however.
In the coming year,
the U.S. Central Authority and the U.S. Embassy will monitor closely
Romania's actions on Hague return applications submitted by parents in the
U.S. The removal of Romania from the category of not fully compliant
countries will require concrete action demonstrating that Romanian courts
adjudicate Hague return applications expeditiously and in a manner
consistent with the Convention.
SWITZERLAND
Switzerland remains
in the category of countries not fully compliant with the Convention due
to the fact that the most significant problem outlined in last year’s
report—lengthy court delays arising in part from the inability of the
Swiss federal government to prevent cantons from re-opening Hague cases
following a return order—has not been resolved.
Switzerland has a
federal system of government with powerful and independent cantons.
Authorities at the federal level, including the Swiss Central Authority,
are cooperative and responsive, but there are problems with the cantonal
governments, courts and child welfare agencies, which have favored the
Swiss parent in some parental abduction cases. Taking parents have been
able to resist enforcement of return orders issued by the courts of one
canton by moving to another canton to re-litigate issues already addressed
in the judicial decision issued under the Convention. Swiss federal
authorities appear unable to compel cantonal authorities to obey federal
court orders relating to the Convention.
The Department views
the inability to date of the Swiss legal system to prevent such
re-litigation and to require mutual recognition and enforcement of federal
and cantonal orders for return as inconsistent with Switzerland's
obligations under the Convention. It suggests a systemic problem in the
Swiss judiciary that can lead to decisions and outcomes that are
inconsistent with the objects and purposes of the Convention.
Recently, Swiss
courts have begun issuing enforcement orders to accompany return orders.
This change may make it more difficult for taking parents to re-open their
cases in other cantons, and thus could lead to resolving cases more
quickly. Also, in 2003, Switzerland founded an institute to train Swiss
judges on how to handle cases brought under the Convention. These
developments may foster improved cooperation between courts and the Swiss
Central Authority. While the Department welcomes these positive steps, it
is too soon to determine what effect they will have on Swiss application
of the Convention.
The removal of
Switzerland from the category of not fully compliant countries will
require evidence that measures taken by Swiss authorities are addressing
effectively Switzerland’s systemic problems that have allowed taking
parents to avoid returning children by moving to another canton and
re-litigating Convention cases.
Countries of
Concern
GREECE
Greece is cited for
the first time this year. Judicial processing of Hague return applications
is slow, with particularly lengthy delays at the appeal level. In
reviewing the final court action in cases submitted to the Greek Central
Authority (GCA) in recent years, U.S. Central Authority (USCA) records
reveal a worrying trend on the part of Greek courts to deny Hague
applications for return. Greek courts of first instance have typically
denied rather than granted return. Although the GCA provides free legal
representation, translators and written translations to the left-behind
parent throughout the court process, it can take up to six months to
obtain translated copies of court decisions to share with left-behind
parents. This in effect hinders parents from learning the basis for the
lower court decision, knowledge that might prompt them to pursue an
appeal. Under Greek law appeals must be filed within thirty days of the
lower court's decision.
During the reporting
period ending September 2003, the USCA also found communication with the
GCA difficult, due apparently to GCA infrastructure constraints. However,
since October 2003, the communication and responsiveness problems
experienced during the reporting period have been eliminated, thanks in
large part to upgrades in the GCA's computer systems and an increase in
GCA staffing.
HUNGARY
Hungary was not
cited in previous reports and the volume of cases involving children
abducted from the U.S. to Hungary remains low (the Department is aware of
nine cases of abduction since 2000). However, based on Hungary’s treatment
of applications submitted by U.S. parents in recent years, including
during the reporting period, the Department is concerned that Hungarian
judges adjudicating Convention cases have a limited understanding of the
Convention or an unwillingness to apply the Convention to facilitate
return of children from Hungary to their country of habitual residence.
The U.S. Central
Authority has observed problems in the way Hungarian judges have handled
return requests under the Convention, including by ordering psychological
evaluations and treating cases as child custody disputes rather than
according to the law of the Convention. According to U.S. Central
Authority records, six Convention applications for return of children to
the United States since 1998 have resulted in two voluntary returns and
four applications submitted for judicial decision. In two of the four
adjudicated cases, the court determined that Hungary was the place of the
child's habitual residence. In the other two cases, the court based its
decision to deny the return application on the perception that returning
the child to the United States would inflict psychological harm on the
child as a result of separating the child from the taking parent. This is
an improper application of the limited exception to the obligation to
return provided for under Article 13(b) of the Convention for situations
in which return would expose the child to a "grave risk" of harm. The
courts’ decisions also indicate that the judges considered matters
relating to the merits of custody that are not relevant in return
proceedings under the Convention. Hungarian judges have also demonstrated
an apparent willingness to accept a taking parent's claims of abuse
without requiring substantiating evidence, putting the left-behind parent
who filed the Convention application at a severe disadvantage.
The U.S. Central
Authority and the U.S. Embassy will continue to monitor the treatment of
applications for return in Hungary to determine whether Hungarian judges
are applying the Convention properly.
ISRAEL
The Department has
two principal concerns regarding Israeli performance in acting on
Convention return applications. With increasing frequency, Israeli courts
request psychological evaluations in initial hearings related to return
applications, and courts frequently condition return on broad
“undertakings” that place an onerous burden on left-behind parents and
tend to lengthen court proceedings.
During the reporting
period, some Israeli courts began requesting psychological evaluations of
both parents and children before rendering a decision on return
applications. Although such reviews caused minimal delays in the
proceedings, the practice of requiring psychological evaluations during
the initial hearing is inconsistent with the purposes and objectives of
the Convention. Unless part of a carefully circumscribed inquiry in
response to a taking parent’s assertion of defenses under the Convention’s
Article 13.b. (generally considered only at later stages of a return
proceeding), such psychological evaluations go to the merits of custody
and parental “fitness” and are properly left to the courts of the country
of habitual residence, consistent with Article 16 of the Convention.
Israeli courts also
frequently require left-behind parents to agree to numerous and often
burdensome “undertakings” before issuing an order for return. Undertakings
are conditions that a court may require a left-behind parent to meet
before the court will issue an effective return order. For example,
Israeli courts have required confirmation that no criminal charges
relating to the child’s abduction have been or will be filed against the
taking parent—a matter over which private citizens often have little or no
control. Taking parents have asked courts to require assurances that they
will be able to return to the U.S. to resume residence and seek
employment. Court-imposed undertakings have also included requiring the
left-behind parent to pay expenses associated with travel to or living in
the U.S. Left-behind parents are often unable to fulfill some
preconditions for return, such as requiring assurances that a taking
parent will receive a visa or be able to reside lawfully in the U.S. While
a left-behind parent's agreement to undertakings may ultimately result in
a return order, negotiating the exact nature and extent of undertakings,
in light of the taking parent's requests and the left-behind parent's
ability to address those requests, often increases the length of court
proceedings.
PANAMA
In the 2001 and 2002
reports, Panama was found noncompliant. Panama's handling of Convention
cases has significantly improved since mid-2002 and thus this year the
Department considers Panama a country of concern. Panama's steady
improvement in its commitment to adhering to the Convention began with the
passage of domestic implementing legislation in November 2001. The
Panamanian Central Authority has improved its responsiveness to requests
for information and three children were returned in the fall of 2002. The
Government of Panama has limited jurisdiction to adjudicate Convention
applications to one central court, provided training for judges, and
participated in international meetings focusing on improved implementation
of the Hague Convention.
Despite these signs
that the Panamanian government has focused on applying appropriate
measures and resources to implement and apply the Convention, problems in
locating missing children and taking parents persist. According to the
Panamanian Central Authority, authorities tasked with locating taking
parents and abducted children lack the human and technological resources
to conduct searches. Delays in adjudication also remain a problem.
Backlogs of cases that are systemic throughout the court system also occur
in Convention cases, delaying decisions on applications for the return of
children to the U.S. Hague applications submitted in 2003 have remained
pending in the courts for over six months without any court ruling.
POLAND
During this
reporting period, Poland continued to demonstrate problems in its
implementation and application of the Hague Convention. These problems
stem primarily from three factors: (a) Polish court caseload constraints
that result in prolonged delays in reaching decisions on Convention return
applications; (b) the lack of an adequate domestic statutory framework
with enforcement mechanisms (e.g., a parent who becomes a fugitive to
avoid complying with a final return judgment does not commit a "crime" --
and therefore cannot be the subject of a fugitive warrant -- unless the
parent has been stripped of parental rights); and (c) a faulty translation
into Polish of Article 13 of the Convention (the Polish translation
radically lowers the standard for refusing returns by saying that return
can be denied if it would put the child in an "unfavorable" rather than an
"intolerable" situation) that some courts still use four years after the
Ministry of Justice agreed in 1999 to distribute an accurate translation.
Improvements in the
Polish Central Authority's responsiveness that were noted in the 2002
Report have continued and our contacts with central government officials
indicate a recognition of the importance of handling Convention cases
effectively. But adjudication of return applications under the Convention
is still characterized by lengthy delays, courts still deny return
applications based on a faulty interpretation of the Convention, and
enforcement problems have not been resolved.
Officials from the
Department of State in Washington and the U.S. Embassy in Poland have
raised compliance issues and individual abduction cases with high-ranking
officials from the Polish government repeatedly over the past year. By
diplomatic note and formal demarche, the Department and the U.S. Embassy
have underlined the need for the Polish government to ensure that judges
adjudicating return applications use only the correct translation of the
Convention’s text and that the Justice Ministry remind the courts of the
corrected translation.
THE BAHAMAS
At the end of the
reporting period there were no pending applications for return of children
to the U.S. from The Bahamas. However, the Bahamian Central Authority was
unresponsive to U.S. Central Authority and U.S. Embassy inquiries
concerning the most recent return applications submitted in previous
years. Long judicial and administrative authority delays were also typical
in previous cases. There have been no recent cases to demonstrate that the
systemic problems noted in the 2001 and 2002 reports have been resolved.
The U.S. Central Authority will maintain The Bahamas on its list of
Countries of Concern and will monitor closely the Bahamian Central
Authority's responsiveness and judicial actions until The Bahamas
processes Hague applications for return of children to the U.S. in a
manner consistent with the Convention.
Unresolved
Return Cases
Section 2803
(a)(4) requests “[d]etailed information on each unresolved case
described in paragraph (1) and on actions taken by the Department of State
to resolve each such case, including specific actions taken by the United
States chief of mission in the country to which the child is alleged to
have been abducted.”
The information
requested under this section is provided in
Attachment
A.
Encouraging
Use of the Convention
Section 2803
(a)(5) requests “information on efforts by the Department of
State to encourage other countries to become signatories to the
Convention.”
The Department
avails itself of appropriate opportunities that arise in bilateral
contacts to persuade other countries of the advantages that would derive
from becoming parties to the Convention. The Assistant Secretary for
Consular Affairs routinely raises the Convention in talks with foreign
officials on other bilateral consular matters. The Department maintains a
library of talking points and materials for its overseas posts to use in
explaining to foreign governments the advantages of adhering to the
Convention.
When a country
accedes to the Convention, the Department does not automatically accept it
as a Convention partner. The Department assesses whether the country has
established the necessary legal and institutional framework for carrying
out its Convention responsibilities. In 2003, the U.S. completed its
assessments of Malta and Brazil and accepted their accessions. Assessments
of Uruguay's, Costa Rica's, and Bulgaria's accessions are currently
underway. The Department has also been in contact with Peru and Trinidad &
Tobago regarding the assessment process the Department undertakes before
it can accept their accession. Department officials have also discussed
the Convention with the governments of The Philippines, Azerbaijan, and
Zambia, which have yet to accede. States that acceded to the Convention
since September 2002 include Bulgaria (August 2003), Lithuania (September
2002) and Thailand (November 2002). The Department of State is reviewing
these countries’ implementation of the Convention to determine whether to
recognize their accessions.
Enforcement
problems
Section 2803
(a)(6) requests “[a] list of the countries that are parties to
the Convention in which, during the reporting period, parents who have
been left-behind in the United States have not been able to secure prompt
enforcement of a final return or access order under a Hague proceeding, of
a United States custody, access, or visitation order, or of an access or
visitation order by authorities in the country concerned, due to the
absence of a prompt and effective method for enforcement of civil court
orders, the absence of a doctrine of comity, or other factors.”
The Convention
directs contracting states to ensure that rights of custody and or access
are effectively respected. The Convention requires that other countries
recognize U.S. custody rights, including rights of access and visitation,
to the extent that such rights provide the basis for applications and the
rationale for return. Adjudication of a return case by a foreign court
under the Convention is not a decision whether to enforce a custody order.
In the context of a
return application, the Convention specifically limits consideration of
custody matters to the question of whether the applying parent was
actually exercising rights of custody (under the applicable law in the
child’s country of habitual residence) at the time the child was
wrongfully removed to or retained in another country. Our evaluation of
compliance with the Convention’s requirements concerning the return of
abducted or wrongfully retained children and corresponding enforcement
issues does not, therefore, evaluate the extent to which U.S. court orders
are recognized and enforced as such.
Attachment
B provides further discussion of access (including visitation) and
custody issues, and the recognition and enforcement of custody and access
orders.
GERMANY
Since 2000, Germany
has demonstrated strong performance in application of the Convention
regarding applications for the return of children to the U.S. Despite this
improvement, we continue to observe unwillingness on the part of some
judges, law enforcement personnel and others within the child welfare
system in Germany to enforce German orders granting parental access in
both Convention and non-Convention access cases. American parents often
obtain favorable court judgments regarding access and visitation, but the
German courts' decisions remain unenforced for years. A taking parent can
defy an access order with impunity. As a result, a number of U.S. parents
still face problems obtaining access to and maintaining a positive
parent-child relationship with their children who remain in Germany.
In one particularly
high-profile access case, the foreign parent living in Germany with
physical custody of two children had defied valid German court orders
permitting visitation by a U.S. parent. The parent in Germany monitored
all contacts between the children and other persons and prevented the
children from meeting or communicating with the U.S. parent for almost
eight years. U.S. officials sought assistance from German officials at all
levels. In a breakthrough in early 2004, following years of sustained
efforts by the German-U.S. bi-national working group, the Assistant
Secretary for Consular Affairs and the U.S. Ambassador to Germany, local
authorities removed the children from the foreign parent's care and are
now assessing the best way to reacquaint the children with the U.S. parent
after their prolonged separation. The Department will monitor other German
access cases to evaluate whether this action by local German authorities
to seek a court order with enforcement powers serves as an example for
other German child welfare officials who are charged with enforcing
court-ordered custody or access.
ISRAEL
The Israeli Central
Authority has been cooperative and responsive in its dealing with the U.S.
Central Authority. As noted previously, however, the Israeli court's order
for a child's return in one long-standing case has not been enforced due
to an inability to locate the child and taking parent.
POLAND
As noted above,
Poland’s domestic legal framework does not permit the consistent,
effective enforcement of orders for return. As a practical matter, a
taking parent who flees or hides a child in defiance of a final return
order cannot be compelled to comply with the order unless the parent is
first stripped of his/her parental rights.
SPAIN
In one case of note
a long standing order for return was not enforced during the reporting
period because local law enforcement officials could not locate the child.
In April 2004, Spanish authorities found the child and resumed action on
the case.
SWEDEN
Sweden’s
significantly improved record on enforcing return orders was noted in the
2002 Compliance Report. As discussed in
Attachment
B, however, enforcement problems remain a barrier to access. Arrest or
physical removal of the child from the violator's care is rarely used and
Sweden does not have the equivalent of a "contempt of court" ruling. In
the Department of State’s experience, Swedish courts have enforced very
few of the rulings favorable to American fathers.
SWITZERLAND
Local officials are
responsible for enforcing court orders for return and access. As noted
above, enforcement of orders in one canton issued in another canton is a
systemic and serious problem. In one significant case, local officials
refused to enforce an order for return issued by the federal courts.
Non-governmental Organizations
Section 2803
(a)(7) requests “[a] description of the efforts of the Secretary
of State to encourage the parties to the Convention to facilitate the work
of non-governmental organizations within their countries that assist
parents seeking the return of children under the Convention.”
Efforts in this
particular area are carried out under the auspices and direction of the
Secretary of State by the Office of Children’s Issues in the Department of
State’s Bureau of Consular Affairs. One significant problem is the lack,
in some party countries, of non-governmental organizations that could
assist parents seeking the return of children under the Convention. Where
non-governmental organizations that deal with abuse, abduction or
disappearance of children do operate, there is also a general reluctance
of domestic organizations abroad to put themselves in the position of
arguing for the return of children that are citizens of their country to
another country, especially in the face of conflicting claims that are not
easily settled outside a legal framework. The Department believes that
most non-governmental organizations abroad accept the fact that their
countries have given responsibility to governmental Central Authorities as
the most effective means to assist parents with the return of their
children.
At the same time,
there are non-governmental organizations, such as International Social
Services (ISS), that work with U.S. and foreign officials and parents to
facilitate contact with and return of children. ISS currently has national
branch offices or bureaus in 146 countries (including most of our Hague
Convention partner countries) to assist families who are separated,
including separation resulting from child abduction. When appropriate, the
Department and U.S. consular officials refer parents to ISS for additional
support or work directly with ISS. In some cases, ISS has been actively
involved in arranging escorts for returning children and in working to
establish better communication between parents or between a parent and
child.
In 2003, the Office
of Children's Issues met with U.K. officials and discussed the ways in
which non-governmental organizations in the United
Kingdom and the United States assist in work involved in Convention
and other child abduction cases. Non-governmental organizations are very
actively involved in working with government authorities and parents, as
well as in educating the public regarding child abduction issues, in the
United Kingdom and France. In November 2002,
several British and French non-governmental organizations jointly
organized a conference to discuss how parents and children can maintain
contact after abduction to countries not party to the Convention. The
conference brought together government officials from the European Union,
Mahgreb and Middle Eastern countries to discuss bilateral cooperative
efforts that achieve the return of abducted children and, when return is
not achieved, visitation rights for left-behind parents.
Representatives of
the Office of Children's Issues attended a conference in fall 2003 to
learn more about Canadian government and
non-governmental organization efforts to assist parents and children to
prevent child abduction. The Office of Children's Issues also contacted
U.S. embassies and consulates in a number of Hague Convention and
non-Hague Convention party countries to share non-governmental
organization information that the National Center for Missing and
Exploited Children had developed and to request suggestions regarding
other non-governmental organizations in-country that might assist parents
and children in child abduction cases.
Go to Attachment A
Go to Attachment B
