Wednesday, 16 May 2007

Non-compliant Hague countries: US

The US State Department has issued a report setting out non-compliant Hague countries.

The Hague Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention, is the prime tool in signatory countries to get children back to the country where they came from, if the children have been wrongfully removed or retained.

It is fair to say that the world is divided into two halves- those people living in Hague countries, and those living in non-Hague countries.

The Convention relies upon each country to set up a Central Authority, which helps prosecute each case, and upon the courts to act presumptively: if there has been wrongful removal or retention, then ordinarily the child must go back.

Obviously if your child has been abducted by the other parent, you would rather take your chances fighting for the return of your child in a Hague country than in a non-Hague country.

The list by the State Department is rather worrying.

In its 2006 report it says that the following countries are "non-compliant":

Austria



As in the past, the United States continues to view Austria as “noncompliant” in its implementation of the Convention. Our primary concern in the past has been with the capabilities and willingness of the Austrian authorities and legal system to enforce judicial orders for return or for access. These concerns are best exemplified in a long-outstanding access case that resulted from earlier compliance problems (as outlined in previous Compliance Reports). In this case, the left-behind parent has taken the matter to the European Court of Human Rights (ECHR) twice and won on both occasions. In one such ruling in April 2003, the ECHR determined that Austria had violated the rights of both the left-behind parent and the child to a family life under the European Convention for the Protection of Human Rights and Fundamental Freedoms.


Ecuador

Ecuador’s performance in implementing the Convention was previously cited as “noncompliant” due to the lack of a functioning Central Authority and lack of progress in resolving cases. This designation is likewise appropriate for the current report. The Government of Ecuador (GOE) abolished its Central Authority in April 2003. Although U.S. Embassy Quito and the USCA were advised of the establishment of temporary central authorities during the reporting period, all the functions normally fulfilled by a Central Authority were not performed; for example, assisting left-behind parents, educating judges on their Convention responsibilities, liaising with law enforcement agencies, and keeping the USCA apprised on developments in Convention cases.


Honduras

During most of the rating period covered in this report, Honduras had no functioning Central Authority and no designee with whom to communicate on Convention issues. Consequently, functions normally fulfilled by a Central Authority were not performed, such as assisting left-behind parents, educating judges on their Convention responsibilities, liaising with law enforcement agencies, and keeping the USCA apprised of developments in Convention cases. In June 2005, a Central Authority was officially designated and an attorney was appointed to lead the office. Under her leadership the Honduran Central Authority (HCA) has become very responsive to inquiries from the USCA, and since the re-establishment of the HCA, there has been some recent progress in informing judges of their responsibilities under the Convention. Although concerns still exist with respect to a remaining shortage of staff and resources, it is important to note that since the end of reporting period the HCA has acted on all open cases, and the USCA is encouraged by this progress.


Mauritius

In the 2005 Convention compliance report, Mauritius was designated as "noncompliant.” There is no basis for changing our assessment of Mauritius’ performance under the Convention for the current rating period. Since 1993, when Mauritius became a party to the Convention, only two cases have been forwarded to the Mauritian Central Authority (MCA), one in 1998 and the other in 1999. In June 2004, six years after the initial filing of a Convention application, the Mauritian Supreme Court decided in the first case to deny the application for return on the grounds that no domestic implementing legislation was in effect at the time the application was filed (1998). This decision placed Mauritius in violation of its obligation to the United States under international law, because Article 35 of the Convention obliges a signatory country to apply the Convention to all abductions occurring as of the country’s signing of the Convention.


Venezuela

Venezuela was not mentioned in the 2005 Convention compliance report because there were no active cases during the time frame covered by the report. For the period covered by the 2006 report, however, serious compliance problems became evident. The Venezuelan Central Authority (VCA) typically failed to be responsive to inquiries by the USCA, U.S. Embassy Caracas, or left-behind parents. The USCA is not aware of any judicial training program for judges or prosecutors. Applications are not handled by the VCA in an expeditious manner nor are any measures being taken to improve processing of applications. Long delays in case proceedings are indicative of larger systemic problems in the Venezuelan court system. For neither of the two outstanding cases during the period of review was a court hearing scheduled. One case, now more than a year old, has never been heard in court, and in another case, a voluntary return was accomplished after ten months (no court hearing was held). With regard to enforcement of return orders, under Venezuelan law, parents can be subject to imprisonment and fines for not complying with court orders. With no cases heard during the rating period, however, there were no return orders issued or enforced. U.S. Embassy Caracas met with officials from the Ministry of Foreign Relations twice during the reporting period to discuss problems with case proceedings, once in May 2005 and again in September 2005, but no substantive information was received as a result of these efforts. As a result the USCA has determined that, during the most recent rating period, Venezuela was “noncompliant” with regard to its duties under the Convention.


Countries not fully compliant

Brazil

Brazil was not cited in the 2005 Convention compliance report because the Convention was not in effect for Brazil during the entire assessment period. However, the current rating period, October 2004 through September 2005, has revealed serious problems with Brazil’s compliance, both in the Brazilian Central Authority (BCA) and in the Brazilian courts. Long delays occur at most steps of the processing and adjudication of Convention applications and the BCA is consistently not responsive to inquiries by the USCA. Additionally, during the rating period there was no judicial education available for Brazilian judges deciding Convention cases. Finally, Interpol Brasilia does not confirm the location of abducted children in Brazil in an expeditious manner.


Chile

The responsiveness and competence of the Chilean Central Authority continue to be commendable, and Convention applications are processed expeditiously. It is with the Chilean judicial performance that the USCA continues to observe the same serious problems that have been cited in earlier compliance reports. Chilean courts consistently handle Convention return cases more as custody determinations than as decisions regarding wrongful removal and habitual residence of the child, in clear contradiction of the letter and spirit of the Convention. The courts often order psychological or social evaluations of abducted children and in some instances of the left-behind parent, and in most cases in the absence of any evidence of risk or harm to the child. Chilean courts have allowed taking parents to submit unsubstantiated affidavits regarding the character of the left-behind parent and have ordered that left-behind parents respond to interrogatories (pliego de posiciones) relating to their fitness as a parent. Such evaluations, unless part of a carefully circumscribed inquiry in response to a taking parent’s assertion of exceptions to return under Article 13(b) of the Convention, are inappropriate in context of a Convention proceeding. As they go directly to merits of custody, they properly should be left to the courts in the country of habitual residence.


Colombia

As indicated in last year’s report, the Colombian Central Authority, located in the Colombian Family Welfare Institute (ICBF), continues to show a greater degree of cooperation on Convention cases. In 2005, the ICBF facilitated a consular officer’s welfare/whereabouts visit with two abducted children and successfully mediated a voluntary return in a Convention case. The Colombian Congress likewise completed work on new Convention implementing legislation, clarifying which courts have jurisdiction over Convention cases. The law, which was signed by President Uribe in January 2006, assigns administrative responsibility for Convention cases to the ICBF and judicial responsibility for Convention cases to Colombia’s family courts, or to civil courts in those locations outside the geographic range of family courts. The USCA hopes that the law will end the chronic delays that occurred in the past, when courts would avoid assuming jurisdiction and Convention cases languished for years in the judicial system.


Greece

As in the 2005 compliance report, Greece remains a country “not fully compliant” with its Convention obligations. While the Greek Central Authority processes Convention applications in a satisfactory manner, court hearings are seriously delayed. Of particular concern is the inordinately long period of time that elapses between a hearing and notification of the court’s decision. Such delays violate Article 11 of the Convention requiring expeditious proceedings, and exacerbate the impact of child abductions.
In addition, rather than restricting their consideration to the question of habitual residence of abducted children, Greek courts typically treat Convention cases as custody matters, and base their decisions on the best interests of the child or other criteria outside the boundaries of the Convention. Moreover, the courts exhibit a nationalistic bias in favor of Greek parents and take into account other inappropriate considerations of the home environment, such as the alleged benefits of the child living surrounded by his or her extended Greek family. We also find that Article 13(b) is used excessively to refuse returns. Greek courts frequently accept taking parents’ claims that the left-behind parent was abusive or generally unfit to be a parent without clear evidence in support of these assertions. Courts do not fully investigate these claims or consider alternative methods – such as the availability of social services – to protect the child and the taking parent so that a return can be ordered and custody can be properly determined in the child’s country of habitual residence. As a result, we see a very low rate of Convention return decisions.


Mexico

Primarily, our greatest concern remains the inability to locate missing children and taking parents in Mexico.


Panama

court decisions in Panama continued to be slow and inefficient. In contradiction to the goals of the Convention, courts also continued to treat Convention cases as custody matters, ordering psychological evaluations of the left-behind parent and interviews of the child. Judicial delays are likewise problematic, with cases pending in the court of first instance for six months with no decision.


Turkey

In the last compliance report, Turkey was cited as “noncompliant.” We find that some of the same problems remained during the most recent period. For example, the USCA finds that the Turkish Central Authority is only responsive when U.S. Embassy Ankara intervenes. Turkey continues to lack implementing legislation for the Convention, although such legislation is currently on the Turkish Parliament agenda. Locating children continues to be problematic and Turkish law requires the prosecutor to locate the children before a court case can be opened in that geographic district. Taking parents may file for divorce in one court and custody in a different court, inhibiting the Convention process. Return orders are often not enforced which requires continued close monitoring.


Countries of concern

Hungary
Poland
Romania
Spain
The Bahamas



Enforcement problems

Germany
France
Israel
Poland
Sweden
Switzerland

For a copy of the full report click here.

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