Thursday, March 08, 2007

Emily's Dad Quoted on Opinio Juris

Karl Hindle quoted extensively by Opinio Juris

Roger Alford of Pepperdine School of Law quoted Karl Hindle in full on a recent posting on international child abduction:

Roger Alford (mail):
I received this thoughtful email from a reader and I forward it to you without attribution (but with permission):

Hi Roger:

Noted your post on Opinio Juris and I have these suggestions in response to how to further prevent international abductions:

Prevention i.e. before a child is removed
1. Rigorous enforcement of the two parent signature law (Nance/Donovan etc) for passport issuance to minors within and without the US (removal of passport issuance function from the Department of State);
2. Cessation of domestic violence exception in 8 CFR 51 for issuance of passports to minors
3. Exit controls at point of departure from locations within the US (currently there are none - have passport will travel);
4. Federal level legislation and control - (at the State level it is worthless as it is so easily by-passed and if a child is removed from the US, federal level intervention alone will carry weight with a non-US jurisdiction, State warrants are practically useless) cf Synclair-Cannon Law, California (Larry Synclair and Josef Cannon - put either name in google and you'll find the legislation) - further unilateral state legislation eg Nebraskan LB 341 sponsor Senator Schimek, can compromise international cooperation between the whole of the US and another HC contracting state.

Cure i.e. after a child is taken
1. Rigorous enforcement of the Hague Convention and obligations imposed upon the US in the event of a return of a child to the United States - currently it is a take it or leave it buffet, once a child is sent to the US for proceedings an abducting parent subsequently has very little chance of fair proceedings in the US which is causing "disquiet" abroad;
2. Removal of administration and functions of the US Central Authority from the Department of State to the Department of Justice - in practice, the US has a reputation for operating a three-tier system in regard to international abductions based upon a sliding scale of diplomatic expediency, then gender and claims of domestic violence and thereafter you have a catch-all - this is not appropriate, a legalistic approach to the Hague Convention is required not a diplomatic one (note the US is the only contracting state to the HC that has the Central Authority embedded in it's foreign service and not the justice department);
3. Full adoption of the HC by the US - at present it has reserved on certain aspects such as providing free legal representation for HC hearings (in the UK it is fully expensed by the UK taxpayer and in many other contracting states but this is not reciprocated); and
4. Full accounting by the US Central Authority of returns and access orders granted AND enforced - currently the US claims a 90% return rate (Asst Sec of State Maura Harty &Ernie Allen NCMEC) however no substantive evidence to support this has ever been provided despite censure by Congress and the GAO - the only study of comparative return rates I am aware of is that of Professor Lowe, Law Professor Cardiff University UK which indicates that under reported HC cases a return of 52% from the US is demonstrated - this is an average result for the largest budget in the world.

These suggestions do not directly assist US parents in recovery but the first thing the HC is about is mutual trust not custody issues - to this end it is interesting to read what foreign judges have had to say about returning children to the US (as it is after all a non-US judge that will determine a return or not) cf Tom Johnson and Sweden non-return (google him); Josef Cannon in the High Court London UK non-return to the US.

Presently, the US is perceived by many in the EU and elsewhere as a major violator of the HC, not officially of course, but judges, practitioners and civil servants abroad are not stupid and many EU states only allow a small pool of judges to hear HC cases who have gained experience of events after a US return is made, it does not generally make for happy reading - there have been several cases of children sent to the US on the basis that it will protect a child and has failed, several spring to mind involving Sweden, UK, Germany and Spain.

Suggestions for HC Development
1. Reciprocal agreements between contracting states regarding use of their jurisdictions as safe havens - ICARA/IKPA deal with abductions out of the US but not to it, I think this is a fundamental weakness in the current HC aproach of dealing with the issue after the child has been taken - imposing sanctions on a parent who abducts to your jurisdiction may be a better way of preventing an abduction to begin with rather than the current cat-and-mouse game with an abducting parent simply hiding until a child is settled in the new environment;
2. Sanctions against non-compliant contracting states e.g. suspension of returns, demand for monetary damages enforceable and mandated at the Hague, enforcement powers at the Hague for dispute resolution;
3. Contracting states provide "attributable rights" to foreign parents litigating in the jurisdiction - by this I mean, a right to freely enter and leave a contracting state (i.e. no visas or no revocation of spousal visas upon divorce cf Japan); same rights and protections as a native of a contracting state would enjoy eg privacy (US Privacy Act and current State Department practice as outlined in FAM 7 denies a right to privacy for a non-citizen for instance) - this develops art 7 &21 and the removal of obstructions by contracting states to resolution;
4. Change the name of the HC from "Child Abduction" to "Jurisdiction for Child Hearings" as with the UCCJA/UCCJEA - abduction = kidnapping in laymans eyes, even for law enforcement and social services and it is not - it benefits no-one to make this a more emotive affair.

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