Sunday, 21 June 2009

Non-compliant Hague countries: US State Dept report

Every year the US State Department releases the (only) report about countries that fail to comply with the 1980 International Convention on the Civil Aspects of International Child Abduction (the Hague convention).

The Hague Convention is a very useful tool as it allows the quick return of a child to a signatory State who have been wrongfully detained or retained in another signatory State. Each signatory country has a Central Authority to ensure compliance with the convention.

As seen from the State Department's map in the report, many countries are not Hague convention members.

The State Department has recently released its 2009 report, and it's enlightening reading. This year, there are two categories: non-compliant countries and countries with patterns of concern.
Australia was not named and shamed. There were 26 children allegedly abducted or removed from the US to Australia, and 14 from Australia to the US.

Jargon:
  • reference to CA is to Central Authority
  • "LBP" means left behind parent
  • "TP" means taking parent

Non-compliant country

This year, it's only one: Honduras. Honduras, it must be said, is consistent- it also was listed as non-compliant in 2007 and 2008.

This is what the State Department said this year:


As in FY 2007, the Department finds Honduras not compliant with the
Convention in FY 2008. The Honduran Central Authority has made
little progress toward meeting its obligations under the Convention.
After many months of inability to communicate with members of the
Honduran Central Authority, the USCA has successfully reestablished
communication with a staff member of the Honduran Central Authority,
but it is apparent that the Honduran Central Authority has inadequate
staff to perform the required functions set forth in the Hague Permanent
Bureau’s Guide to Good Practice. The USCA notes that it is difficult
to learn of the outcome of Convention proceedings or the efforts of law
enforcement due to this communication barrier.

Honduras has not passed legislation implementing the Convention in
Honduran law [despite acceding to the Convention in 1993!]. The Honduran legislature introduced a decree to approve
the “National Law to Resolve International Child Abduction Cases” before
the end of FY 2007, but the legislature has not yet passed that law. During
FY 2008, the Ministry of Foreign Affairs agreed to accept the transfer
of the Central Authority responsibilities from the Honduran Institute of
Children and Family. New legislation reflecting this change in the MFA’s
responsibilities and establishing specific legal procedures in implementing
the Convention is currently under consideration.

Patterns of noncompliance

Brazil

Brazil, it must be said, is also consistent, being named in this category also in 2007 and 2008.

Here is part of what the US State Department said this year:


In FY 2008, Brazil demonstrated patterns of noncompliance with the
Convention in the areas of Central Authority performance and judicial
performance. Additionally, the USCA has concerns about Brazil’s law
enforcement performance. The Brazilian Central Authority (BCA)
has advised the USCA that because of a case backlog in the Brazilian
court system due to a shortage of public prosecutors, LBPs should hire a
private attorney to speed the processing of applications for the return of
children under the Convention. The Hague Permanent Bureau’s Guide
to Good Practice indicates that one of the roles of the requested Central
Authority is to either arrange for or assist the applicant to obtain legal
representation, and to monitor progress of proceedings brought pursuant
to the application. The USCA observes that once an LBP retains a
private attorney, the BCA reduces its involvement and does not appear
to engage in monitoring the progress of the application. With respect to
its communication and cooperation with the USCA, the BCA has been
extremely attentive and very responsive to the USCA’s inquiries. In a
recent case, much of the activity of which took place after the end of FY
2008, the BCA collaborated closely with the USCA and showed persistent
support for the child’s return to the United States. In addition, the BCA
has met with several Brazilian judges to discuss best practices to uphold the
Convention....


The USCA observed during the reporting period that Brazil’s courts
exhibit widespread patterns of bias towards Brazilian mothers in
Convention cases. Brazilian courts continue to be amenable to considering
evidence relevant to custody determinations but not relevant to the criteria
to be applied in a Convention case, including looking at what solution is
in the “best interests” of the child.

Chile

Chile escaped the hit list in 2008, but was also in the patterns of noncompliance list in 2007.

Here is part of what the State Department said this year:


Chilean courts delay
Convention cases and often improperly treat them as custody 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. As the Convention
focuses on returning a child to his or her country of habitual residence, the
USCA 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 LBP 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 LBP and the child. To take an example during
the reporting period, a Chilean court ordered a scheduled access visit
by the LBP, and the LBP purchased and confirmed his plane ticket and
accommodations for the trip. Hours before the LBP was scheduled to
board the plane for Chile, the Chilean Central Authority (CCA) notified
him that the Chilean judge had suspended the scheduled visitation.

Greece

Greece is also consistent, having been on this hitlist in 2007 and 2008.

Here is part of what the State Department said in 2009:


These patterns of judicial noncompliance arise from procedural
complexities and hindrances in Greek law. Respondent TPs often
influence the judicial timeline refusing to cooperate with summons and
orders. Lengthy appeals processes further prolong cases. These significant
delays in Convention proceedings continue to be the Department’s main
concern. The Hague Permanent Bureau’s Guide to Good Practice states that
parties’ obligation to process return applications expeditiously also extends
to appeal procedures.
In addition, the Greek judiciary frequently denies requests for return under
the Convention by finding that there would be a grave risk of physical
or psychological harm for the child if returned, or that return would
otherwise place the child in an “intolerable situation.”

Mexico

Mexico is also a 3 out of 3 case, having also been placed on this hitlist in 2007 and 2008. Here is part of what the State Department said in 2009:


Many of the systemic problems identified in previous compliance reports persist. Locating
children and TPs in Mexico continues to be a serious obstacle for Convention applicants and often takes years. There are instances in which TPs flee into hiding when ordered to appear in court for a hearing on a Convention application. Of the USCA’s 47 unresolved cases concerning
Mexico, 34 involve TPs and children who have not been located (see the “Unresolved Return Applications” section of this report for more information). Mexico devotes inadequate resources to locating missing children, severely impeding successful implementation of the Convention.
In order to comply with the Convention, it is imperative for Mexico to devote more resources to locate missing children and bring TPs to justice.

Although there are states in Mexico where judges have a better
understanding of the Convention and have ordered returns under
the Convention, the USCA continues to note an overall pattern of
noncompliance in Mexico’s judicial system. In the few cases that led to
the return of the child to the United States, the LBP retained a private
attorney with a greater understanding of the Convention’s principles
than Mexican public prosecutors have tended to exhibit. Mexican courts
delay Convention cases and often improperly treat them as custody
decisions.

Slovakia

Slovakia did not get named and shamed in 2007 or 2008. Here is part of what the State Department said in 2009:


Slovakia’s noncompliance with the Convention in FY 2008 is evident in
its judicial performance. The Department notes systemic, lengthy delays
in judicial proceedings in Slovakia. To meet the Convention’s aim for
the “prompt return” of children to their country of habitual residence,
see Convention, art. 1(a), more efficient processing of Hague petitions is
necessary.
In FY 2008, one case in particular demonstrates this judicial pattern of
compliance. In this case, which began in FY 2006, a first hearing did
not take place until eight months after the wrongful removal of the child.
Although the Slovakian court ordered the child returned, the TP appealed
the decision twice. The appellate court in the first appeal, which it did
not hear until nine months after the original decision, upheld the return.
However, the court in the second appeal, heard yet another eight months
afterwards, overturned the return order based on Article 13(a) of the
Convention, which states that the child’s preferences may be considered
once he reaches sufficient “age and degree of maturity.” As a result, the
child remains in Slovakia.
Ultimately, the length of the judicial process, which spanned more than
two years in this case, may have led to the denial of the return. The
Convention envisions returns taking place within six weeks.

Switzerland

Switzerland had previously been named as a country with enforcement issues in 2007. Here is part of what the State Department said in 2009:


Switzerland demonstrated patterns of noncompliance with the Convention
during FY 2008 in judicial performance and law enforcement performance.
The USCA noted delays in the overall processing of Convention
applications. For example, even though a Swiss court issued an order for
return of a child to the United States under the Convention in November
2007, the order had not been enforced as of the end of FY 2008. Other
delays have also presented serious concerns, as proceedings in lower courts
often go on for weeks or months.
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. Such assessments are outside the
purview of the Convention. See Convention, art. 16 (court deciding
Convention application shall not decide merits of custody rights).
Additionally, Swiss courts - up to and including Switzerland’s highest
court, the Federal Court - often show bias toward the TP, especially
when the TP is the mother.

Venezuela

Venezuela is now 3 out of 3, being non-compliant in 2007, and a country with patterns of noncompliance in 2008.

Here is part of what the State Department said in 2009:


As in FY 2007, Venezuela demonstrated patterns of noncompliance in the
areas of Central Authority performance and judicial performance in FY
2008. Channels of communication improved between the USCA and
the Venezuelan Central Authority (VCA) at the beginning of FY 2008,
but by the latter part of the reporting period, the USCA had difficulty
contacting the VCA. One of the key operating principles listed in the
Hague Permanent Bureau’s Guide to Good Practice for Central Authority
performance is the need for cooperation between Central Authorities,
including clear and effective communication.
Venezuelan judges often misinterpret return and access applications under
the Convention as a request for them to determine custody or visitation
rights, in contravention of the Convention. See Convention, art. 16
(court deciding Convention application shall not decide merits of custody
rights).

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