International child abduction in the United States
Encyclopedia
International child abduction
The term international child abduction is generally synonymous with international parental kidnapping, child snatching, and child stealing. However, the more precise legal usage of international child abduction originates in private international law and refers to the illegal removal of children...
s per year than any other country. To address this issue the United States played an active role in the drafting of the 1980 Hague Convention on the Civil Aspects of International Child Abduction
Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted from one member nation to...
(commonly referred to as the Hague Abduction Convention or simply the Abduction Convention.) Although the United States was one of the first nations to sign the Convention in 1981 the Convention did not enter into force until 1988 with the enactment by Congress of the International Child Abduction Remedies Act
International Child Abduction Remedies Act
The International Child Abduction Remedies Act is a United States federal law. H.R. 3971 29 April 1988, was assigned Public law 100-300 in 42 U.S.C...
which translated the Convention into US law.
Under the Hague Abduction Convention the United States is required to fulfill many requirements designed to protect children from the harmful effects of international child abduction. Domestic and foreign parents and attorneys have criticized the United States for its alleged failures to adequately fulfill these obligations on behalf of foreign and domestic families and children and in violation of international law.
United States Legal System and International Abduction
The law of the United States consists of many levels of codified and uncodified forms of lawLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, of which the most important is the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, the foundation of the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. The Constitution sets out the boundaries of federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...
, which consists of constitutional acts of Congress, constitutional treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
ratified by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, constitutional regulations promulgated by the executive branch, and case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
originating from the federal judiciary
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
.
The Constitution and federal law are the supreme law of the land
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
, thus preempting conflicting state and territorial laws in the fifty U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s and in the territories. However, the scope of federal preemption is limited, because the scope of federal power is itself rather limited. In the unique dual-sovereign system of American federalism. Most U.S. law (especially the actual "living law" of contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
, tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
, criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, and family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.
At both the federal and state levels, the law of the United States was originally derived largely from the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, which was in force at the time of the Revolutionary War
American Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...
. However, U.S. law has since diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
innovations.
States are separate sovereigns
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
with their own state constitutions, state government
State government
A state government is the government of a subnational entity in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or be subject to the direct control of the federal government...
s, and state courts (including state supreme court
State supreme court
In the United States, the state supreme court is the highest state court in the state court system ....
s). They retain plenary power
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...
to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
.
In 1922, the Court applied the Supremacy Clause
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
to international treaties, holding in the case of Missouri v. Holland
Missouri v. Holland
Missouri v. Holland, 252 U.S. 416 , the United States Supreme Court held that protection of its quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the...
, 252 U.S. 416
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1920), that the Federal government's ability to make treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
is supreme over any State concerns that such treaties might abrogate states' rights
States' rights
States' rights in U.S. politics refers to political powers reserved for the U.S. state governments rather than the federal government. It is often considered a loaded term because of its use in opposition to federally mandated racial desegregation...
arising under the Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
.
Hague Abduction Convention
The Hague Abduction Convention is a multilateral treatyTreaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
(in force since 1 December 1983) aimed at providing an expeditious method to return a children who are victim of international child abduction. The Convention was drafted to “to secure the prompt return of children wrongfully removed to or retained in any Contracting State" diverse from their country of habitual residence
Habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
, and "ensure that rights of custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Although the United States was one of the first nations to sign the Convention in 1981 the Convention did not enter into force for the United States until 1988 with the ratification of the treaty and enactment by Congress of the International Child Abduction Remedies Act
International Child Abduction Remedies Act
The International Child Abduction Remedies Act is a United States federal law. H.R. 3971 29 April 1988, was assigned Public law 100-300 in 42 U.S.C...
which translated the Convention into US law. This was 5 years after the entry into force of the treaty.
Courts empowered to hear Hague Abduction Convention cases
The United States has two separate court systems, a Federal court system and a State court system. Both types of courts have authority to hear a Hague Abduction Convention case, as established by the International Child Abduction Remedies Act. It is up to the parents of abducted children and their attorneys to decide whether to file a petition for return in State or Federal court.Although the exact implementation varies by state (also because states are free to adopt their own organizational scheme for judicial matters), trial courts are the general court of first instance
Court of first instance
A court of first instance is a trial court of original or primary jurisdiction.Specific courts called the Court of First Instance include:* European Court of First Instance, of the European Union* Court of First Instance...
to hear a Convention case within the State court system.
United States legal precedents in Hague Convention cases
Since the enactment of the ICARAInternational Child Abduction Remedies Act
The International Child Abduction Remedies Act is a United States federal law. H.R. 3971 29 April 1988, was assigned Public law 100-300 in 42 U.S.C...
and simultaneous ratification of the treaty by the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
allowed it to enter into force in 1988, a number of important, and precedent setting decisions have been made on the Hague Convention's interpretation within the United States by federal courts.
Abbott v. Abbott
The only Hague Abduction Convention case to be considered by the United States Supreme Court revolved around a whether or not a child from ChileChile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
was "wrongfully removed," as understood by the Convention, when a ne exeat order existing forbidding the custodial parent from removing the child from the country. The Court found broad acceptance for the view that a ne exeat right, or a right to prevent a child's removal from his country of residence, is roughly equal to "joint custody
Joint custody
Joint custody is a court order whereby custody of a child is awarded to both parties. In joint custody both parents are custodial parents and neither parent is a non-custodial parent, or, in other words, the child has two custodial parents. In the United States, many states recognize two forms of...
" and is, thus, a "right of custody." Accordingly, when the child was removed from Chile in violation of Mr. Abbott's ne exeat right, the child was "wrongfully removed" within the meaning of the Hague Convention.
United States Abduction Statistics
The US State department publishes yearly reports are known as the Hague Abduction Convention Compliance ReportsHague Abduction Convention Compliance Reports
The Hague Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Abduction Convention, is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken illegally from one...
(or: Compliance Reports) in which statistics are presented on child abduction. The publication is a requirement by the US Congress and treats both compliance with the convention by member states and information on child abduction cases in non-member states. The reports highlight countries that they are non-compliant with the convention or exhibit a "pattern of noncompliance." Since 1999, Mexico has been cited every year as being non-compliant or exhibiting "patterns of noncompliance". The reports form the basis for statistics on the United States and international child abduction.
An overview about the number of cases involved is shown in the Table below. The table is followed by a country-specific evaluation of the abduction status in relation to the United States.
EWLINE
|
class="wikitable">
| OUTGOING CASES | ||
|---|---|---|---|---|
| Non-Convention Country | # of New Cases | # of Children | ||
| Algeria Algeria Algeria , officially the People's Democratic Republic of Algeria , also formally referred to as the Democratic and Popular Republic of Algeria, is a country in the Maghreb region of Northwest Africa with Algiers as its capital.In terms of land area, it is the largest country in Africa and the Arab... |
1 | 1 | ||
| Bangledesh | 5 | 7 | ||
| Barbados Barbados Barbados is an island country in the Lesser Antilles. It is in length and as much as in width, amounting to . It is situated in the western area of the North Atlantic and 100 kilometres east of the Windward Islands and the Caribbean Sea; therein, it is about east of the islands of Saint... |
3 | 3 | ||
| Belarus Belarus Belarus , officially the Republic of Belarus, is a landlocked country in Eastern Europe, bordered clockwise by Russia to the northeast, Ukraine to the south, Poland to the west, and Lithuania and Latvia to the northwest. Its capital is Minsk; other major cities include Brest, Grodno , Gomel ,... |
1 | 1 | ||
| Bolivia Bolivia Bolivia officially known as Plurinational State of Bolivia , is a landlocked country in central South America. It is the poorest country in South America... |
3 | 3 | ||
| Cambodia Cambodia Cambodia , officially known as the Kingdom of Cambodia, is a country located in the southern portion of the Indochina Peninsula in Southeast Asia... |
1 | 1 | ||
| China China Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture... |
9 | 9 | ||
| Egypt Egypt Egypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world... |
12 | 18 | ||
| Ethiopia Ethiopia Ethiopia , officially known as the Federal Democratic Republic of Ethiopia, is a country located in the Horn of Africa. It is the second-most populous nation in Africa, with over 82 million inhabitants, and the tenth-largest by area, occupying 1,100,000 km2... |
3 | 3 | ||
| Ghana Ghana Ghana , officially the Republic of Ghana, is a country located in West Africa. It is bordered by Côte d'Ivoire to the west, Burkina Faso to the north, Togo to the east, and the Gulf of Guinea to the south... |
12 | 17 | ||
| Guinea Guinea Guinea , officially the Republic of Guinea , is a country in West Africa. Formerly known as French Guinea , it is today sometimes called Guinea-Conakry to distinguish it from its neighbour Guinea-Bissau. Guinea is divided into eight administrative regions and subdivided into thirty-three prefectures... |
1 | 1 | ||
| Guyana Guyana Guyana , officially the Co-operative Republic of Guyana, previously the colony of British Guiana, is a sovereign state on the northern coast of South America that is culturally part of the Anglophone Caribbean. Guyana was a former colony of the Dutch and of the British... |
3 | 3 | ||
| Haiti Haiti Haiti , officially the Republic of Haiti , is a Caribbean country. It occupies the western, smaller portion of the island of Hispaniola, in the Greater Antillean archipelago, which it shares with the Dominican Republic. Ayiti was the indigenous Taíno or Amerindian name for the island... |
5 | 8 | ||
| India India India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world... |
34 | 41 | ||
| Iraq Iraq Iraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert.... |
5 | 8 | ||
| Jamaica Jamaica Jamaica is an island nation of the Greater Antilles, in length, up to in width and 10,990 square kilometres in area. It is situated in the Caribbean Sea, about south of Cuba, and west of Hispaniola, the island harbouring the nation-states Haiti and the Dominican Republic... |
16 | 20 | ||
| Japan Japan Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south... |
23 | 34 | ||
| Jordan Jordan Jordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing... |
12 | 23 | ||
| Kenya Kenya Kenya , officially known as the Republic of Kenya, is a country in East Africa that lies on the equator, with the Indian Ocean to its south-east... |
9 | 10 | ||
| Lebanon Lebanon Lebanon , officially the Republic of LebanonRepublic of Lebanon is the most common term used by Lebanese government agencies. The term Lebanese Republic, a literal translation of the official Arabic and French names that is not used in today's world. Arabic is the most common language spoken among... |
6 | 8 | ||
| Malaysia | 2 | 3 | ||
| Morocco Morocco Morocco , officially the Kingdom of Morocco , is a country located in North Africa. It has a population of more than 32 million and an area of 710,850 km², and also primarily administers the disputed region of the Western Sahara... |
7 | 8 | ||
| Netherlands Antilles Netherlands Antilles The Netherlands Antilles , also referred to informally as the Dutch Antilles, was an autonomous Caribbean country within the Kingdom of the Netherlands, consisting of two groups of islands in the Lesser Antilles: Aruba, Bonaire and Curaçao , in Leeward Antilles just off the Venezuelan coast; and Sint... |
1 | 2 | ||
| Nicaragua Nicaragua Nicaragua is the largest country in the Central American American isthmus, bordered by Honduras to the north and Costa Rica to the south. The country is situated between 11 and 14 degrees north of the Equator in the Northern Hemisphere, which places it entirely within the tropics. The Pacific Ocean... |
6 | 8 | ||
| Nigeria Nigeria Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in... |
9 | 14 | ||
| Pakistan Pakistan Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan... |
14 | 24 | ||
| Philippines Philippines The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam... |
20 | 25 | ||
| Russia Russia Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects... |
16 | 21 | ||
| Saudi Arabia Saudi Arabia The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World... |
5 | 12 | ||
| Senegal Senegal Senegal , officially the Republic of Senegal , is a country in western Africa. It owes its name to the Sénégal River that borders it to the east and north... |
2 | 3 | ||
| Sierra Leone Sierra Leone Sierra Leone , officially the Republic of Sierra Leone, is a country in West Africa. It is bordered by Guinea to the north and east, Liberia to the southeast, and the Atlantic Ocean to the west and southwest. Sierra Leone covers a total area of and has an estimated population between 5.4 and 6.4... |
4 | 4 | ||
| Singapore Singapore Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the... |
3 | 5 | ||
| South Korea South Korea The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south... |
6 | 7 | ||
| Syria Syria Syria , officially the Syrian Arab Republic , is a country in Western Asia, bordering Lebanon and the Mediterranean Sea to the West, Turkey to the north, Iraq to the east, Jordan to the south, and Israel to the southwest.... |
5 | 8 | ||
| Taiwan Taiwan Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following... |
3 | 6 | ||
| Thailand Thailand Thailand , officially the Kingdom of Thailand , formerly known as Siam , is a country located at the centre of the Indochina peninsula and Southeast Asia. It is bordered to the north by Burma and Laos, to the east by Laos and Cambodia, to the south by the Gulf of Thailand and Malaysia, and to the... |
4 | 4 | ||
| The Gambia The Gambia The Republic of The Gambia, commonly referred to as The Gambia, or Gambia , is a country in West Africa. Gambia is the smallest country on mainland Africa, surrounded by Senegal except for a short coastline on the Atlantic Ocean in the west.... |
4 | 6 | ||
| Trinidad and Tobago Trinidad and Tobago Trinidad and Tobago officially the Republic of Trinidad and Tobago is an archipelagic state in the southern Caribbean, lying just off the coast of northeastern Venezuela and south of Grenada in the Lesser Antilles... |
9 | 14 | ||
| Tunisia Tunisia Tunisia , officially the Tunisian RepublicThe long name of Tunisia in other languages used in the country is: , is the northernmost country in Africa. It is a Maghreb country and is bordered by Algeria to the west, Libya to the southeast, and the Mediterranean Sea to the north and east. Its area... |
4 | 5 | ||
| United Arab Emirates United Arab Emirates The United Arab Emirates, abbreviated as the UAE, or shortened to "the Emirates", is a state situated in the southeast of the Arabian Peninsula in Western Asia on the Persian Gulf, bordering Oman, and Saudi Arabia, and sharing sea borders with Iraq, Kuwait, Bahrain, Qatar, and Iran.The UAE is a... |
7 | 9 | ||
| West Bank West Bank The West Bank ) of the Jordan River is the landlocked geographical eastern part of the Palestinian territories located in Western Asia. To the west, north, and south, the West Bank shares borders with the state of Israel. To the east, across the Jordan River, lies the Hashemite Kingdom of Jordan... |
1 | 3 | ||
| Yemen Yemen The Republic of Yemen , commonly known as Yemen , is a country located in the Middle East, occupying the southwestern to southern end of the Arabian Peninsula. It is bordered by Saudi Arabia to the north, the Red Sea to the west, and Oman to the east.... |
4 | 9 | ||
| Zambia Zambia Zambia , officially the Republic of Zambia, is a landlocked country in Southern Africa. The neighbouring countries are the Democratic Republic of the Congo to the north, Tanzania to the north-east, Malawi to the east, Mozambique, Zimbabwe, Botswana and Namibia to the south, and Angola to the west.... |
1 | 1 | ||
| Totals | 307 | 427 |
Asia
Only Hong Kong, Israel, Macao, Thailand and Sri Lanka, Turkmenistan and Uzbekistan are contracting states to the Child Abduction Convention. Of these, Israel has been named several years as having "enforcement problems" in the complicance reports.Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
is -with India- one of only two non-contracting states to the convention to rank as one of the top ten destination countries for the abduction of American children. Moreover, there is a year by year increase in abduction cases. In 2009, 73 outstanding cases involving 104 children who have been abducted to or retained in Japan by parents were reported. An additional 29 cases involve American parties in Japan with one parent denied access to their child. In the 2010 report 79 child abduction cases were mentioned involving 100 children. A State Department official stated in 2008 that no child has ever been returned to the United States from Japan as a result of diplomatic or legal means The official stated he knew of only three cases where children have returned to America, two involving reconciliation of parents, and one in which a 15 year old child escaped to the American embassy.
Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
is not a signatory of the Hague Abduction Convention nor are there any international or bilateral treaties in force between Saudi Arabia and the United States dealing with international parental child abduction.
In Saudi Arabia, child custody is based on Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
. The primary concern of Saudi courts in deciding child custody cases is that the child be raised in accordance with the Islamic faith
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
. Most custody disputes in Saudi Arabia are handled by the Islamic Sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
courts. In rare cases, the Board of Grievances, the most senior non-Sharia court, has ruled on custody disputes.
Saudi courts generally do not award custody of children to non-Saudi women. If the mother is an Arab Muslim, judges will usually not grant her custody of children unless she is residing in Saudi Arabia, or the father is not a Muslim. All Saudi citizens are considered to be Muslim.
Since Saudi women are prohibited from marrying non-Muslims, custody disputes between a Saudi mother and American father would be heard by the Sharia court, which would usually apply Islamic rules of custody. If the mother wins custody, the father is usually granted visitation rights. According to Saudi law, a child whose mother is Saudi and father is non-Saudi is not granted Saudi citizenship. However, even if an American father wins custody of his children, he may still need permission from the Saudi mother to remove the children from Saudi Arabia.
Normally, under Sharia law, a mother can maintain custody of her male children until the age of nine, and female children until age seven. In practice the courts favor keeping children within a strict Islamic environment. Sharia court judges have broad discretion in custody cases and often make exceptions to these general guidelines.
Even when a mother who is residing in Saudi Arabia is granted physical custody of children, the father maintains legal custody and has the right to determine where the children live and travel. In many cases, the father has been able to assume legal custody of children against the wishes of the mother when she is unable or unwilling to meet certain conditions set by law for her to maintain her custodial rights. For example, if the mother moves to another country, the father is entitled to have custody. A court can sever a mother's custody if it determines that the mother is incapable of safeguarding the child or of bringing the child up in accordance with the appropriate religious standards. The mother can lose custody by re-marrying a non-Muslim, or by residing in a home with non-relatives. Sharia law allows custody of children to be awarded to the closest male relative of a Saudi father in the case of death or imprisonment of the father, even if the Saudi father has made clear his wish that the children's mother have full custody.
Custody orders and judgments of foreign courts are generally not enforceable in Saudi Arabia. Courts in Saudi Arabia will not enforce U.S. court decrees ordering a parent in Saudi Arabia to pay child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
.
Women entering Saudi Arabia with the intent of visiting their children may do so only with the written permission of the father of the children. The father must file a "statement of no objection" with the Saudi Ministry of Interior before the mother will be granted a visa
Visa (document)
A visa is a document showing that a person is authorized to enter the territory for which it was issued, subject to permission of an immigration official at the time of actual entry. The authorization may be a document, but more commonly it is a stamp endorsed in the applicant's passport...
to enter the Kingdom. This includes Muslim fathers who are non-Saudi nationals. If the father refuses to sponsor the mother, or to authorize a child’s travel to another country, there is little that can be done to effect a visit. The U.S. Embassy and Consulates General are not able to help American parents to obtain visas to Saudi Arabia without a no-objection letter. Neither the U.S. State Department nor the U.S. Mission in Saudi Arabia may serve as a woman's sponsor. Women visitors are required to be met by their sponsor upon arrival in Saudi Arabia.
If a non-Saudi father wants to enter the Kingdom to visit his children, he can do so by applying for a Saudi visa with proof that his children are living in Saudi Arabia. Saudi authorities may consult with the mother if she is Saudi, who may be able to prevent issuance of the visa.
Some American Muslim parents have considered traveling to Saudi Arabia on Umrah
Umrah
The Umrah or is a pilgrimage to Mecca, Saudi Arabia, performed by Muslims that can be undertaken at any time of the year. In Arabic, Umrah means "to visit a populated place"...
(religious pilgrimage to Mecca
Mecca
Mecca is a city in the Hijaz and the capital of Makkah province in Saudi Arabia. The city is located inland from Jeddah in a narrow valley at a height of above sea level...
) as a means to visit their children. However, issuance of an Umrah visa does not guarantee that a parent will be permitted to see his or her children once in the Kingdom. If a woman is not divorced, the Saudi Embassy has the right to ask for her husband's permission for another family member (e.g. son) to act as the mother's Mahram. If the mother is divorced, the Saudi Embassy will ask to see the divorce certificate before granting the Umrah visa. Women married to Saudis should keep in mind that even when they enter the Kingdom on an Umrah visa, they would need their Saudi husband's permission to depart the country.
Persons who obtain a visa for business or religious visits (Hajj and Umrah) with the intention of visiting their children may face legal penalties including detention and/or deportation. While visitor visas are issued for approved tour groups following organized itineraries, these visitors are not permitted to travel outside the set itinerary.
Before traveling to Saudi Arabia to visit their children, women should consider whether they obtained a complete Islamic declaration of divorce from the Sharia court in Saudi Arabia. Secular, American divorce orders are not recognized by the Sharia courts. Although an Islamic divorce can be obtained from several mosques within the U.S., it has been the experience of several divorced spouses in the U.S. that the Sharia courts in Saudi Arabia will not recognize orders originating from an American mosque. The purpose of obtaining a Sharia declaration is to establish the legal personal status of the mother prior to traveling to the Kingdom. If an American woman is considered to still be married, the "husband" can prohibit the woman from departing Saudi Arabia.
Exit visas are required to leave Saudi Arabia. The U.S. Embassy or Consulates General cannot obtain exit visas for American citizens. Women must have permission from their husband or father to exit Saudi Arabia. The government of Saudi Arabia has been known to issue international arrest warrants against women who have taken their children from Saudi Arabia without the father's permission.
Europe
.svg.png)
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
. Most of these countries have never been mentioned in the compliance reports. Germany, Greece, Poland and Switzerland are notable exceptions.
Germany
Greece
| Child abduction in Greece | |
|---|---|
 |
|
| Hague Abduction Convention | |
| Signature | October 25, 1980 |
| Entry Into Force | June 1, 1993 |
| In effect with the U.S. | June 1, 1993 |
| Hague Child Protection Convention | |
| Signature | May 1, 2003 |
| Compliance Reports | |
| 2009 | Patterns of Noncompliance |
| 2008 | Patterns of Noncompliance |
| 2007 | Patterns of Noncompliance |
| 2006 | Not Fully Compliant |
| 2005 | Not Fully Compliant |
| 2004 | Country of Concern |
The Hague Convention came into force between the United States and Greece on June 1, 1993. Greece has been cited in the compliance Reports almost every year as either a "Country of Concern," having "Enforcement Problems," or "Demonstrating Patterns of Noncompliance."
Institutionally, the legal framework in Greece seems to support the necessary mechanisms for the Convention to function effectively. The Convention has force of law and has primacy over domestic law; first instance courts can hear Convention cases under expedited procedures (provisional or “emergency” measures), enforcement mechanisms exist and the Greek Central Authority will provide pro-bono legal assistance to victimized parents during Hague proceedings before the appropriate court in Greece.
Poland
| Child abduction in Poland | |
|---|---|
 |
|
| Hague Abduction Convention | |
| Signature | August 10, 1992 |
| Entry Into Force | Nov 1, 1992 |
| In effect with the U.S. | Nov 1, 1992 |
| Hague Child Protection Convention | |
| Signature | Nov 22, 2000 |
| Entry Into Force | Nov 1, 2010 |
| Compliance Reports | |
| 2008 | Patterns of Noncompliance |
| 2007 | Patterns of Noncompliance |
| 2006 | Country of Concern/Enforcement Problem |
| 2005 | Country of Concern/Enforcement Problem |
| 2004 | Country of Concern/Enforcement Problem |
| 2002,2003 | Country of Concern |
| 2002,2003 | Country of Concern |
The Hague Abduction Convention came into force between the United States and Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
on November 11, 1992. Poland has been cited in the compliance Reports for every year from 2000 to 2008 as either a "country of concern," having "enforcement problems" or "demonstrating patterns of noncompliance" with the Hague Abduction Convention resulting in an on-going dialogue between the Polish Consul General and the Office of Children's Issues
Office of Children's Issues
The Office of Children's Issues is an agency of the Bureau of Consular Affairs, which in turn is part of the US Department of State. The Office of Children’s Issues was created in 1994 under the leadership of Assistant Secretary of State for Consular Affairs Mary Ryan and that of her successor...
Director in Washington, D.C. and U.S. Embassy officials and Ministry of Justice officials in Warsaw. Several high-level meetings between U.S. Embassy Warsaw and the Polish Ministry of Justice have been held where Ministry representatives indicated an intent to address many of these compliance issues and improve Poland’s Convention performance. Officials from the U.S. Department of State and the U.S. Embassy in Poland have raised compliance issues and individual abduction cases with high-ranking officials from the Polish Government through diplomatic notes, formal demarches, and communications with the Polish Central Authority with former assistant Secretary for Consular Affairs Maura Harty
Maura Harty
Maura Ann Harty was United States Assistant Secretary of State for Consular Affairs, from November 21, 2002 to February 29, 2008. She was a career member of the senior Foreign Service. She currently serves as the President and CEO of the Mid-Atlantic Chapter of the Make a Wish Foundation.Harty is...
raising the issue during bilateral meetings with her Polish counterpart.
Among the issues cited in the Compliance Reports, there is no specific legislation that implements the Convention in Poland. Unless there is a voluntary return, children normally remain in Poland during the entire Hague process, which often takes years. There is a perception that there is a gender bias in favor of mothers when they are abducting parents. Even though enforcement legislation has been passed, there appears to be reluctance on the part of officials to follow through with enforcement. A faulty translation into Polish of Article 13 of the Convention which 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. Furthermore, Polish law does not permit courts to consider resources for child welfare and protection in the country of habitual residence when asked to consider the grave risk defense.
Polish authorities are often unable to locate the children and their abductors after courts ordered the return of a chid. Law enforcement in Poland is limited by the fact that neither parental abduction nor the failure to comply with a Convention return order is a criminal offense in Poland. Consequently, Polish authorities have fewer investigative resources available to locate children and their abducting parents. 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.)
Refusing to obey an order seems to carry few negative consequences for the taking parent. In some instances, the court rewarded the taking parent who refused to comply with a court order by ultimately ruling that, because so much time had elapsed, it was not in the child's best interests to be returned after all.
Even in cases where the left-behind parent has provided specific information about where the child is located, the ability of the Polish authorities to verify it is ineffective. Further, once a child is located, there does not appear to be any mechanism to ensure that abducting parents cannot further abscond or conceal the child's whereabouts. This is largely due to the fact that international parental child abduction is merely a civil offense in Poland.
Courts routinely order psychological evaluations and home studies. In one U.S. case an abducting parent in hiding was able to protest a return order in court while also collecting child support payments from the government. This situation indicates that institutionally there is a disturbing lack of coordination among local law enforcement, the Polish Central Authority, and social welfare agencies.
The Polish procedure does limit the number of courts that can hear Hague cases in an attempt to allow judges to develop Hague expertise and the Polish Central Authority will provide pro bono legal assistance for victim parents during Hague proceedings before the appropriate court in Poland.
Switzerland
SwitzerlandSwitzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
has been frequently cited in the compliance reports as either a "Country of Concern," having "Enforcement Problems," or "Demonstrating Patterns of Noncompliance." In the 2010 report it was noted that: "delays in processing and enforcement often go on for weeks or months years, Swiss courts often treat Convention cases as custody decisions, invoking the child's “best interests” as a reason for denying return, and performing merits-based custody assessments, Swiss courts - up to and including Switzerland's highest court, often show bias toward the abducting parent, especially when the taking parent is the mother". High-level Swiss officials have defended this practice citing the “special relationship” between mothers and young children as influencing its decision to uphold the lower court's denial of the left-behind parent's application for return of an abducted child to the United States. The report also observed that Swiss authorities are reluctant to actively enforce orders granting return to the United States or access to the child by the left-behind parent. Law enforcement has made only cursory efforts to locate taking parent and abducted children.
Latin America
According to the statistics in the US Department of State's Compliance ReportsHague Abduction Convention Compliance Reports
The Hague Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Abduction Convention, is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken illegally from one...
, as of 2010, 721 out of 1194, or 60%, of the children abducted from the United States to a Hague Convention partner were taken to Latin America
Latin America
Latin America is a region of the Americas where Romance languages – particularly Spanish and Portuguese, and variably French – are primarily spoken. Latin America has an area of approximately 21,069,500 km² , almost 3.9% of the Earth's surface or 14.1% of its land surface area...
with Mexico
Mexico
The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
alone accounting for 474 or 40%.
Brazil
| Child abduction in Brazil | |
|---|---|
.svg.png) Brazilian coat of arms |
|
| Hague Abduction Convention | |
| Ratification | October 19, 1999 |
| Entry Into Force | January 1, 2000 |
| In effect with the U.S. | December 1, 2003 |
| Compliance Reports | |
| 2010 | Not Compliant |
| 2009 | Patterns of Noncompliance |
| 2008 | Patterns of Noncompliance |
| 2007 | Patterns of Noncompliance |
| 2006 | Not Fully Compliant |
The Child Abduction Convention entered into force between Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
with the United States in 2003. The US Department of State denoted Brazil as a country demonstrating "patterns of noncompliance" with the Hague Abduction Convention in 2008 and 2009. In 2010 the status of Brazil's compliance was downgraded to that of "non-compliant." According to a 2009 New York Times report, there were at the time around fifty unsolved Convention cases for children abducted from the United States to Brazil. The report notes that in spite of Brazil's history of non-compliance, and the Brazilian judiciary's general inability to adjudicate a final and unappealable decision in Convention cases, the Solicitor-General's Office, also known as AGU (from Portuguese Advocacia-Geral da União,) provides competent legal representation to foreign parents of children abducted to Brazil.
The subject of child abduction between the United States and Brazil received sustained media attention during 2009 and early 2010 as a result of the Goldman child abduction case. US Congress introduced H.R. 2702, legislation to suspend Brazil's Generalized System of Preferences
Generalized System of Preferences
The Generalized System of Preferences, or GSP, is a formal system of exemption from the more general rules of the World Trade Organization ,...
trading benefit. The case was also discussed on the US House of Representatives floor with a statement from Congressman Chris Smith (Republican, New Jersey), a staunch supporter of David Goldman, a New Jersey resident; U.S. Secretary of State Hillary Clinton
Hillary Rodham Clinton
Hillary Diane Rodham Clinton is the 67th United States Secretary of State, serving in the administration of President Barack Obama. She was a United States Senator for New York from 2001 to 2009. As the wife of the 42nd President of the United States, Bill Clinton, she was the First Lady of the...
treated the case as a diplomatic issue of Brazil's obligations under the Hague Convention. After nearly six years of litigation in Brazil, U.S. Senator Frank Lautenberg
Frank Lautenberg
Frank Raleigh Lautenberg is the senior United States Senator from New Jersey and a member of the Democratic Party. Previously, he was the Chairman and Chief Executive Officer of Automatic Data Processing, Inc.-Early life, career, and family:...
of New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
placed a hold on a trade bill which allows certain countries, including Brazil, to export certain products to the United States duty-free. Days later, by a decision of Brazil's Supreme Court, Sean was handed over to his father on December 24, 2009.
Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
signed the Hague Abduction Convention in 1994 and it entered into force with the United States in the same year. The US Department of State has denoted Chile as a country demonstrating "patterns of noncompliance" or a "not fully compliant" with the Hague Abduction Convention every year during the five period between 2005 and 2009 for its judicial Performance.
Chilean courts delay Convention cases and often improperly treat them as child custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
decisions, citing the UN Convention on the Rights of the Child. U.S. parents often experience bias by the courts in favor of Chilean parents, especially Chilean mothers. In addition, it is customary in Chilean courts to order psychological or social evaluations in all cases involving minor children, regardless of whether there is evidence of possible risk to the child in being returned to his or her country of habitual residence. Because the Hague Convention focuses on returning a child to his or her country of habitual residence, the United States Central Authority
Central Authority
A Central Authority is an agency or organization that is designated to play a key facilitating role in the implementation and operation of an international treaty in private international law....
takes the view that psychological evaluations are unnecessary, and cause inappropriate delays in processing cases, if there is no evidence of risk to the child should the court order the child’s return.
Another trend is for Chilean courts to deny Convention applications upon finding that the child is well settled in the new environment. This result, which could be avoided if Chilean courts handled Convention cases more expeditiously, leaves the victim parent with the much less desirable option of filing an application under the Convention for mere access to the child, or for visitation, and even these applications in some cases have not resulted in contact between the left behind family and the child. In 2008, a Chilean court ordered a scheduled access visit by the LBP, and the left behind parent purchased and confirmed his plane ticket and accommodations for the trip. Hours before the parent was scheduled to board the plane for Chile, the Chilean Central Authority notified him that the Chilean judge had suspended the scheduled visitation. In April 2008, the Chilean Central Authority sponsored a seminar on the Convention and its application in Chile, including topics such as the emotional impact of international child abduction on children and parents, and the role of “network judges” in promoting the correct application of the Convention in Chile. Several months after the seminar, the Chilean Supreme Court designated a family court judge to serve as Chile’s network judge for Convention cases.
Colombia
International parental abduction is covered in the Colombian Penal Code as kidnapping, with circumstances that can increase or reduce the punishment. Colombia does not consider international parental kidnapping as an extraditable offense.
In contrast to United States requirements, a Colombian passport for a minor child can be obtained with only one parent's consent, though Colombia restricts the departure of Colombian children from the country when they are not in the company of both parents. Although this prevents misuse of a Colombian passport to abduct children from Colombia it facilitates abductions from countries like the United States who have no exit controls. If a parent wishes to prevent the issuance of a Colombian passport to their minor child, they must submit a request to the Ministerio de la Proteccion Social, Instituto Colombiano de Bienestar Familiar (ICBF). If the ICBF concurs with the parent's request, it will notify the Colombian passport office and Colombian Embassies and Consulates to place a hold on the issuance of a passport to the minor child. Parents may only submit a request through ICBF, not through a Colombian Embassy or Consulate.
Costa Rica
All children born in Costa Rica acquire Costa Rican citizenship at birth and, to prevent international child abduction, may only depart the country upon presentation of an exit permit issued by immigration authorities.
Dominican Republic
Dominican Republic
The Dominican Republic is a nation on the island of La Hispaniola, part of the Greater Antilles archipelago in the Caribbean region. The western third of the island is occupied by the nation of Haiti, making Hispaniola one of two Caribbean islands that are shared by two countries...
.
The Dominican Republic
Dominican Republic
The Dominican Republic is a nation on the island of La Hispaniola, part of the Greater Antilles archipelago in the Caribbean region. The western third of the island is occupied by the nation of Haiti, making Hispaniola one of two Caribbean islands that are shared by two countries...
signed and ratified the Abduction Convention in 2004 and it entered into force with the United States in 2007. Since the treaty went into effect the Dominican Republic ranks in the top ten list of countries that are the source and destination of abducted children between the United States.
In their 2010 Compliance Report, the State Department added an outgoing child abduction case with the Dominican Republic to their new "Notable Cases" section. They noted the Dominican Republic's Central authority evinced an "incorrect understanding of various articles of the Convention" and that requests for clarification from their Central Authority did not receive any substantive responses.
Ecuador
Ecuador
Ecuador , officially the Republic of Ecuador is a representative democratic republic in South America, bordered by Colombia on the north, Peru on the east and south, and by the Pacific Ocean to the west. It is one of only two countries in South America, along with Chile, that do not have a border...
and the United States on March, 1 1992. Over the years Ecuador has been cited in a number of Compliance Reports as a "noncompliant" country or a country demonstrating a "pattern of noncompliance." In the year period covered by the 2010 Report there were 24 children abducted from the U.S. to Ecuador and 7 children abducted from Ecuador to the U.S.
Ecuador has demonstrated noncompliance both in its judicial performance and its Central Authority
Central Authority
A Central Authority is an agency or organization that is designated to play a key facilitating role in the implementation and operation of an international treaty in private international law....
performance. Convention case hearings are excessively delayed, in violation of the Convention’s principle of
promptly returning children to their habitual country of residence. In addition, courts treat cases as custody decisions, rather than a determination of the appropriate jurisdiction to decide custody. Having delayed proceedings themselves, the courts of Ecuador have been known to determine that, due to the delay, children have resettled in their new environment.
Efforts of the United States to communicate about cases with the Ecuadorian Central Authority (ECA) for the Abduction Convention have not been effective with ECA consistently being unresponsive to the US Central Authority's (USCA) requests for case updates and copies of court rulings. The USCA is not aware of any efforts by the ECA to train judges about the Convention.
Honduras
Honduras
Honduras is a republic in Central America. It was previously known as Spanish Honduras to differentiate it from British Honduras, which became the modern-day state of Belize...
and the United States in 1994. Honduras is the only country to be listed in every singled Compliance Report as non-compliant since the reports began in 1999. The implementation of the Hague Convention in Honduras is broken on every level. It has an executive branch and legislature that is, at various times, unsure if it has actually signed the Convention. Its Central Authority
Central Authority
A Central Authority is an agency or organization that is designated to play a key facilitating role in the implementation and operation of an international treaty in private international law....
sometimes does not exist at all and when it is reestablished does not fulfill any of its roles and is chronically understaffed. The judiciary demonstrates a complete lack of understanding of the treaty and, even in the rare case that a return order is issued, it is not enforced.
In 11 years of reporting on Convention compliance in Honduras there has not been a single case where a return was judicially ordered and enforced. Like with Mexico, would be abductors of children to Honduras can legally take children across the southern land border without the permission of the other parent or even a passport.
Mexico
| Child abduction in Mexico | |
|---|---|
 |
|
| Hague Abduction Convention | |
| Signature | June 20, 1991 |
| Entry Into Force | September 1, 1991 |
| In effect with the U.S. | October 1, 1991 |
| Compliance Reports | |
| 2010 | Noncompliant |
| 2009 | Patterns of Noncompliance |
| 2008 | Patterns of Noncompliance |
| 2007 | Patterns of Noncompliance |
| 2006 | Not Fully Compliant |
| 2005 | Not Fully Compliant |
| 2004 | Noncompliant |
| 2003 | Noncompliant |
| 2002 | Noncompliant |
| 2001 | Not Fully Compliant |
The Hague Abduction Convention entered into force between Mexico
Mexico
The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
and the United States in 1991. Mexico is the number one destination for international child abductions from the United States and the United States is the number one destination for children abducted from Mexico. The U.S. State Department reports that 65% of all outgoing international parental abductions from the United States to Hague Convention countries are to Mexico, and that 41% of all incoming international parental abductions to the United States are from Mexico. Mexico is the only country that has been found to be "Noncompliant, "Not Fully Compliant" or having a "Pattern of Noncompliance" in every single Compliance Report compiled by the US Department of State since they began in 2001.
One of the primary road blocks to Mexico's successful implementation of the Hague Abduction Convention is its inability to locate children. This issue has been cited numerous times in the US State Department's annual Compliance Reports. In some cases, the US State Department has reported providing Mexican authorities with detailed information on the whereabouts of abducted children including the exact address where they are living but Mexican authorities still report an inability to locate the children. In late 2009 the Mexican Central Authority gave a presentation at an international symposium on international child abduction where they cited improvements in this area as a result of turning over the responsibility of locating children to the Mexican Federal Police (AFI), rather than exclusively using Interpol who has no authority and must request the involvement of Mexican law enforcement to take any real measures in Mexico.
Of particular relevance to Hague Convention litigation in Mexico is the Mexican Amparo
Amparo (law)
The writ of amparo is a remedy for the protection of constitutional rights, found in certain jurisdictions...
, which translates to "protection" or "help." It is a Mexican legal procedure to protect constitutional rights that was incorporated into the 1847 national constitution. Mexico's "recurso de amparo" is found in Articles 103 and 107 of the Mexican Constitution Any Mexican citizen can file an amparo claiming that a Mexican authority is violating their constitutional rights. Federal District courts are available in every state in Mexico and always have secretaries available to receive an Amparo. In cases of international child abduction an amparo can be filed at any point and effectively blocks progression of legal procedures until it has been heard, often many months, or even years later. The decision in an Amparo trial can also be further appealed and multiple amparos may be filed during legal proceedings under the Hague Convention.
Corruption is an intrinsic part of the problem with international child abduction in Mexico and affects every other aspect of the issue from locating children and judicial decisions to enforcing court orders for repatriation in the rare cases where the obstacles of locating children and judicial noncompliance have been overcome.
There is an Extradition Treaty between the United States of America and the United Mexican States (see 31 U.S.T. 5061) that, like many such treaties, provides for the extradition of a party who has been charged with or found guilty of an offense committed in one country. An offense is extraditable if it is a crime in both countries and punishable by incarceration for a period of one year or more. In theory this allows for the extradition of child abductors who have absconded to Mexico as child abduction is a federal crime there. In practice, US authorities rarely request extradition in preference of Hague Convention litigation, despite Mexico's gross noncompliance with the Convention and, even when they do, Mexico is not bound to deliver up its nationals and will frequently refuse to do so across the board, particularly in child abduction cases.
Additionally U.S.–Mexico border has the highest number of both legal and illegal crossings of any land border in the world. Although the border is guarded on the United States' side by more than seventeen thousand border patrol agents, they only have "effective control" of less than 700 miles of the 1,954 mile border. In terms of international child abduction from the US into Mexico specifically, the problem of poor border security in general is compounded by the fact the United States does not have exit controls; American children may be taken across the southern border of the United States without having the necessary documentation to get back into the country and there is no accounting for children taken across the border into Mexico, leading to thousands of missing children posters with the words "may have traveled to Mexico" on them.
Panama
Panama’s performance in implementing the Convention was previously cited as “non-compliant”. However, progress has been noted in Panama’s handling of its Convention responsibilities during the 2005 reporting period and the United States presently considers Panama to be “not fully compliant” in its implementation of the Convention.Venezuela
Venezuela
Venezuela , officially called the Bolivarian Republic of Venezuela , is a tropical country on the northern coast of South America. It borders Colombia to the west, Guyana to the east, and Brazil to the south...
and the United States at the start of 1997. According to the compliance Reports, Venezuela has was cited as a country "non-compliant" with the Hague Convention in 2006 and as demonstrating "patterns of noncompliance" in 2008 and 2009. The Venezuelan Central Authority
Central Authority
A Central Authority is an agency or organization that is designated to play a key facilitating role in the implementation and operation of an international treaty in private international law....
typically failed to be responsive to inquiries regarding abduction caseds by the United States Department of State
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
, the US Embassy in Caracas, or victimized parents. Venezuelan judges often misinterpret return and access applications under the Convention as a request for them to determine custody or visitation rights and have been observed to have a nationalistic bias in favor of the Venezuelan parent.
In addition, despite return orders issued by lower courts, the abducting parents can and do take advantage of prolonged appeals processes to significantly delay the return of children. These delays are particularly pronounced in cases in which the left-behind parent can not afford to retain a private attorney. Without the use of a private attorney, cases take very long.
United States Government Handling of Abduction cases
The United States government generally, and the U.S. Department of State specifically, have been subject to sustained criticism for not doing enough to prevent the abduction of American children or support American parents of internationally abducted children in their recovery efforts. They have also been criticized for, conversely, catering to foreign countries and parents with abducted children taken to the United States, and not doing enough to facilitate the recovery efforts of foreign parents.United States Department of State
American parents complain that they are essentially alone in dealing with foreign courts and legal systems. The US State Department has a virtual monopoly on information in such cases, but refuses to act as a vigorous advocate for left-behind American parents while also preventing the National Center for Missing and Exploited ChildrenNational Center for Missing and Exploited Children
The National Center for Missing and Exploited Children is a private, non-profit organization established in 1984 by the United States Congress.-Establishment and overview:...
or anyone else from playing that role. State Department attorney Thomas Johnson remarked that when he reminded one senior State Department official with Child Abduction Convention responsibilities that she works for the American people, her immediate response was: "I don’t work for the American people; I work for the Secretary of State", demonstrating the Department’s inherent conflict of interest (i.e., a desire to maintain "good" bilateral foreign relations for their own sake that overrides assertive and effective advocacy on behalf of American citizens).
Dangerous Diplomacy
The journalist Joel Mowbray wrote the book "Dangerous Diplomacy" on the role and culture of the US State Department. Mowbray's second chapter in "Dangerous Diplomacy", titled "Cold Shoulder: State's Smallest Victim's", is dedicated to an analysis of the assistance provided to American parents left in the wake of an international child abduction. It describes State's overriding desire to appease foreign governments and maintain "good relations" as having a conflict of interest between their responsibility to internationally abducted children as the designated United States Central Authority under the Hague Convention. This inherent conflict of interest between the two roles is magnified by what the book defines as the "culture of state", a culture characterized by extreme moral relativism, valuing process over substance and misplaced priorities that reward failures by promotions or high paying jobs "consulting" for the foreign government of the country that they'd previously been paid to advocate America's interests in.United States Congress
Extracts from Congressional testimony
Bernard W. AronsonBernard W. Aronson
Bernard William Aronson was United States Assistant Secretary of State for Inter-American Affairs from 1989 to 1993.-Early life and education:...
, Assistant Secretary of State for Inter-American Affairs (1989–1993)
"..the current system to secure the return of these abducted American children does not work and will not work unless it is changed profoundly. I don't doubt the sincerity or the dedication of the professionals in the State Department who have lead responsibility for this problem, but they do not have the tools and powers to do their job effectively. And unless Congress gives them the power and the tools we will be back here in five years or 10 years with another set of hearings, another group of parents with broken hearts and devastated dreams, and we will be making the same statements we are making today."
"the principal reason other nations, whether they are signatories to the Hague Convention or not, refuse to cooperate with the United States in returning abducted American children is that there are no real consequences for failing to do so."
"Let me be blunt, a diplomatic request for which there are no consequences for refusal is just a sophisticated version of begging. And there are no consequences today for Brazil or any other nation which refuses to return American children."
See also
- Office of Children's IssuesOffice of Children's IssuesThe Office of Children's Issues is an agency of the Bureau of Consular Affairs, which in turn is part of the US Department of State. The Office of Children’s Issues was created in 1994 under the leadership of Assistant Secretary of State for Consular Affairs Mary Ryan and that of her successor...
- Hague Abduction Convention
- Hague Convention 1996Hague Convention 1996The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children or Hague Convention 1996 is a convention of the Hague Conference on Private International Law...
- Human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
- KidnappingKidnappingIn criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
- National Center for Missing and Exploited ChildrenNational Center for Missing and Exploited ChildrenThe National Center for Missing and Exploited Children is a private, non-profit organization established in 1984 by the United States Congress.-Establishment and overview:...
- International child abduction in MexicoInternational child abduction in MexicoMexico is amongst the world's most popular sources and destinations for international child abduction while also being widely regarded as having one of the least effective systems of protecting and returning internationally abducted children within its borders....
- International child abduction in BrazilInternational child abduction in BrazilInternational child abduction in Brazil comprises cases in which the removal of a child by one of the joint holders of custody or non-custodial or contested parents to Brazil in contravention of other laws of other countries and/or the desires of other custody claimaints...
- International child abduction in Japan
- Trafficking of childrenTrafficking of childrenTrafficking of children is a form of human trafficking. It is defined as the recruitment, transportation, transfer, harboring, or receiving of children for the purpose of exploitation....
- Take RootTake RootTake Root, a non-profit organization established on a grant from the United States Department of Justice, is the first missing-child organization ever founded by former abducted children...
- Hague Abduction Convention Compliance ReportsHague Abduction Convention Compliance ReportsThe Hague Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Abduction Convention, is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken illegally from one...
- Not Without My DaughterNot Without My DaughterNot Without My Daughter is a film released in 1991 depicting the escape of American citizen Betty Mahmoody and her daughter from her husband in Iran. The film was shot in the United States and Israel, and the main characters are played by Sally Field and Alfred Molina...