Friday, 29 August 2008

Non- compliant Hague countries: US State Department

The US State Department in its 2008 report as to compliance with the Hague Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention, has listed the following countries on its shame list:

Countries not compliant

Honduras

Amazing what a year can do. In last year's report, the State Department identified Honduras, plus Austria, Ecuador, Mauritius and Venezuela.

Countries demonstrating patterns of non-compliance

Brazil

Bulgaria

Chile

Ecuador

Germany

Greece

Mexico

Poland

Venezuela

Last year, Brazil, Colombia, Greece, Mexico, Panama, and Turkey were deemed "not fully compliant; countries of concern were Hungary,Poland,Romania,Spain and The Bahamas; and there were enforcement problems in Germany,France,Israel,Poland, Sweden and Switzerland.

The State Department details current issues with Austria, Germany, latin American countries, the Czech Republic, Colombia, Israel, the Netherlands, Saint Kitts and Nevis (where given the tiny size of the country, the country it is alleged that the child cannot be located!)and Slovakia.

Honduras

Honduras does not have a functioning
Central Authority, which severely limits its ability to meet Convention
obligations. Although the Honduran Institute of Children and Family
(IHFNA) is charged with handling Convention applications as the
named Honduran Central Authority, the USCA is not aware of any
staff that performs the required functions. In spite of numerous attempts
by the USCA to contact Central Authority staff members through
diplomatic channels, to date we have received no response from the
Central Authority.
Two long-standing unresolved abductions from the United States show
a misunderstanding of the Convention by Honduran courts. These
cases, which are discussed in the “Unresolved Cases” section of this
report, are examples of the institutional weakness of the Convention
process in Honduras that must be resolved for Honduras to become
compliant. Courts continue to prove unreliable in adjudication of
first instance Convention claims, and reviewing courts have rejected
meritorious claims without adhering to valid Convention principles.
Finally, Honduras has failed to pass legislation implementing the
Convention in Honduran law. While the Honduran legislature
introduced a decree to approve the National Law to Resolve
International Child Abduction Cases, as of the end of the reporting
period, that law has not been passed.

Brazil

Brazil continued to demonstrate patterns of noncompliance with the
Convention in its judicial performance. The USCA notes several
instances during FY 2007 in which Brazilian courts treated Convention
cases as custody decisions, rather than applying the principles of
wrongful removal or retention laid out in the Convention. In two cases,
Brazilian judges refused returns to the United States, citing the “best
interests of the child.” These decisions contradict the Convention, as
the Preamble of the Convention declares that the interest of children
is attained through their return to their country of habitual residence.
In addition, the USCA notes that judges in some cases continued to
demonstrate a bias towards mothers and towards Brazilian citizens.
Further, the judicial process is excessively lengthy, with cases going on
well beyond the six weeks mandated by the Convention. The appeals
process adds many months—and sometimes more—to Convention
cases. For cases to proceed more quickly, the USCA finds that parents
filing the application for return of their child need to hire a private
attorney with experience handling Convention cases.
The Brazilian Central Authority is attempting to limit the number of
judges who have authority to hear Convention cases. Additionally, a
number of judges participated in a judicial seminar in December 2006,
which was sponsored by the Hague Permanent Bureau and attended by
a representative of the USCA. Despite these efforts, three abductions
from the United States, initially reported in 2004 still remain
unresolved (as detailed in the Unresolved Cases section of this report).

Bulgaria

Bulgaria demonstrated patterns of noncompliance in its judicial
performance during FY 2007. Convention cases from the United States
are delayed excessively in Bulgarian courts. Additionally, the courts
have a tendency to treat Convention cases as custody determinations,
failing to apply the Convention principles of wrongful removal or
retention in deciding whether or not to return a child. Document
requests by the courts indicate that the judges are amenable to
considering evidence that is not relevant to the criteria enumerated
by the Convention (but would be relevant in a custody decision). The
Bulgarian judiciary would benefit from additional training about the
Convention, but the USCA is not aware of efforts by the Bulgarian
Central Authority to try to improve the judiciary’s understanding
of the Convention.


Chile

Convention cases continue to be
improperly treated as custody decisions by the court. In addition, U.S.
parents continue to experience a bias in courts in favor of the Chilean
parent, especially Chilean mothers. This pattern of noncompliance in
judicial performance is particularly noteworthy because the Chilean
Supreme Court is involved. Appeals to the Supreme Court caused
significant delays in cases. In some cases, these delays were significant
enough that the Supreme Court found a child to be well settled in his/
her new environment, a finding that excuses a court from ordering a
return under the Convention.
The Chilean Central Authority (CCA) is working to address the
compliance failures of the Chilean judiciary. In one ongoing case, the
CCA filed a disciplinary action against a Family Court judge who had
ignored the established procedural rules and requested evidence beyond
the scope of the Convention. The CCA is working to implement the
use of liaison judges to act as resources for other judges in Convention
cases.

Ecuador

The Department finds that Ecuador demonstrated patterns of
noncompliance with the Convention during FY 2007 in both its judicial
performance and its central authority performance. 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 improperly treat cases as custody decisions, rather than a
determination of the appropriate jurisdiction to decide custody.
During the reporting period, three cases from the United States were
resolved by Ecuador’s courts—all resulting in the denial of the child’s
return to the United States. In two of these cases, the rulings were
based upon the testimony of the child. In the third case, the petition was
submitted in December 2005, but a hearing was not held until October
2006, an excessive delay of ten months. Due to this delay, the judge
found that the child was resettled in his new environment and denied
the return.
Efforts to communicate about these cases with the Ecuadorian
Central Authority (ECA) have not been effective. The ECA has been
consistently unresponsive to the USCA’s 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.

Germany

Germany continued to demonstrate patterns of noncompliance with
the Convention in FY 20007. The Department continues to observe
unwillingness on the part of some judges, law enforcement personnel,
and others within the child welfare system in Germany to vigorously
enforce German orders granting parental access or return of childen in
both Convention and non-Convention cases. American parents often
obtain favorable court judgments regarding access and visitation, but
the German courts’ decisions can remain unenforced for years. Since
physical force cannot be used to enforce court orders and legal sanctions
are rare, taking parents can and do avoid allowing court-ordered access.
As a result, a number of U.S. parents still face problems obtaining access
to and maintaining a meaningful parent-child relationship with their
children who remain in Germany.
Enforcement of court-ordered access and returns remains a continued
topic of discussion at US-Germany bilateral meetings. The USCA
notes that the German Ministry of Justice continues to pursue a judicial
outreach program aimed at addressing these issues.

Greece

Greece’s record of compliance with the Convention in FY 2007
was mixed, involving both successful returns as well as cases in
which Greece appears to have been non-compliant with Convention
principles. Our most serious and systematic concern involves lengthy
delays in Convention proceedings on virtually all cases. In addition,
in our assessment, the judiciary too frequently denies returns based
on routine acceptance of an Article 13(b) . While these patterns of
noncompliance indicate that the Greek judiciary requires further
education about the Convention, we note steps taken by the Ministry
of Justice to train sitting judges and students training to be judges
on Convention procedures at the School of Judges in Thessaloniki,
including two workshops which were held during FY 2007.

Mexico

Many of the systemic problems mentioned in previous compliance reports
persist. Locating children or taking parents in Mexico continues to be
a serious impediment for Convention applicants, and often takes years.
Of the USCA’s 31 unresolved cases from Mexico, 23 remain unresolved
because the taking parents and the children have not been located (see
the “Unresolved Cases” section of this report for more information).
This inability to locate abducted children taken to Mexico remains the
single largest frustration that left-behind parents in the United States
face. Inadequate resources are devoted to locating missing children,
severely undermining successful implementation of the Convention in
Mexico. Cases can remain unresolved for years, as the taking parent
and the child/ren are not located. Even in cases in which parents
and children are located, taking parents often hide successfully when
ordered to appear before a judge for a Convention hearing. Mexico
must recognize the critical need to devote more resources to locating
missing children and bringing abducting parents to justice in order to
become compliant with the Convention.
The Department also continues to note patterns of noncompliance in
Mexico’s judicial system. Abuses of the Amparo appeal system during this
reporting period often led to excessive delays in Convention cases and
further increased the legal costs incurred by the left-behind parent. In
the few successful cases that led to the return of the child to the United
States, the left-behind parent turned to a private attorney who better
understood the principles of the Convention.

Poland

Specifically, compliance failures in Poland stem from the Polish courts
inability to enforce court ordered returns under the Convention. In
more than one case, Polish authorities were unable to locate the children
and their taking parents after courts ordered the return of a child.
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
taking parents. For several years, the Polish Central Authority has
told the USCA that they intend to propose legislation to criminalize
parental abduction, but the USCA is not yet aware that such legislation
has been introduced.

Venezuela

The USCA finds communication with the Venezuelan Central Authority
(VCA) to be an ongoing challenge. For example, the VCA did not
report a return order issued and executed in May to the USCA until
October, despite the USCA’s repeated requests for information on the
progress of the case. The USCA also notes patterns of noncompliance
in Venezuela’s judicial performance. Custody provisions are regularly
incorporated into Convention decisions. In addition, despite return
orders issued by lower courts, the taking parents can and do take
advantage of the prolonged appeals process to significantly delay the
child’s return. 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 can languish in the courts
indefinitely. For example, an application submitted in March 2007 is
still pending without a hearing date.

Mediation

The USCA believes that mediation could be a
good tool to reduce litigation in Convention
cases, lowering the level of conflict between
the parties and speeding up the resolution
of the cases. Several intercountry mediation
projects have shown that parents can reach
agreement for custody and visitation, with
proper professional intervention, can reach
agreement for custody and visitation. The
Department has seen encouraging results from
mediated settlements in France, Germany, and
the United Kingdom.

No comments: