Friday, April 24, 2009

International Child Abductions Are a Two-Way Street - US Compliance is Not a Rule But an Exception!

This article is written as a counterpoint to those written by fellow contributor, Tim Weinstein - the views are my own and given in a spirit of education and awareness with a positive outlook on improving matters for children and parents subject to international child abductions of which there are many today and many more to come.

The Sean Goldman case has catapulted the issue of international child abduction into the public eye, particularly in the United States from where the little boy was abducted by his mother to Brazil. The subsequent death of the mother and continued retention of Sean Goldman by his stepfather, a noted Brazilian lawyer specializing in Hague Convention cases has sparked an international controversy between the two countries.

Much has been made of the lack of compliance by the Brazilian authorities with the Hague Convention as well as numerous and repeated findings of non-compliant behavior of Brazil and other Hague Convention signatories the United States has partnered with.

Little has been noted of the record of non-compliance of the United States.

International child abduction is an emotive and divisive issue with tempers and attitudes rapidly polarized along nationalistic lines but the road runs two ways; children are abducted to the United States as much as are abducted from it so what happens when positions are reversed and a child is abducted to the major signatory and advocate of the Hague Convention?

First of all the accurate answer is nothing happens.

Abducting a child to the US is not a criminal offence here; there is no legislation making it unlawful or a criminal offence as abducting a child out of the US provides through federal legislation such as the International Parental Kidnapping Act. The only recourse a left-behind parent has is to initiate the Hague Convention for the return of the child or to follow the domestic process here in the United States.

US Hague Convention 90% return record

Then Assistant Secretary of State Maura Harty testified to Congress that approximately 90% of children abducted to the United States are returned. Despite numerous enquiries and requests for evidence to support this staggering statistic, the US Department of State has never produced any evidence to back up this golden glowing record. The US Government Accountability Office (GAO) has repeatedly criticized the Office of Childrens Issues for its performance even going as far as describing it as a "dysfunctional office".

 

Professor Nigel Lowe is a researcher and lecturer at Cardiff Law School, UK and has compiled a comparative study of return rates amongst Hague Convention signatories. The United States is ranked as average with a meager return rate of 52% but this is still a long way from the truth as many abductions fail to be treated as Hague Convention cases simply because of the manner in which they are classified or the inability to use the treaty in the United States. It is conceivable, though a stretch, that the return rate may not be 90% but closer to 10%; wherever the true figure lies it is a lot less than is claimed which begs the questions, what is the United States actually doing and where are all the millions of US taxpayers dollars actually getting spent?

Invoking the Hague Convention in the US

A left-behind parent has their child taken to the United States; what do they do?

Cry, tremble, suffer shock and disbelief, experience depression, anger and helplessness and much, much more.

Ask David Goldman what it feels like. Ask any parent in this situation.

When the mind has cleared sufficiently to act, the police are called or the lawyers as surely there must be a law somewhere which will cause the machinery to turn and swoop into action to recover and return the child? If a left-behind parent is fortunate, they learn of the Hague Convention and invoke it; an application is filed with the Central Authority which for the US is the Office of Childrens Issues in the US Department of State. Form filling and international correspondence will follow and assuming you know where the child is, lawyers can be retained and a Hague application filed and served on the abducting parent.

A US court will hear the case and order a return and the matter then is transferred back to the country from which the child has been abducted and all within the 6 weeks allotted by the Hague Convention standards for which Brazil has been rightly and thoroughly castigated.

A sad episode with a happy ending; except this is rarely seen in practice.

Though the Hague Convention is ratified by the US it is second in authority to the US Constitution which requires the due process of law; though Hague Convention proceedings are summary in nature, that is, you get into court, have a hearing and get a ruling almost immediately (a few days in any event), this simply cannot happen in practice - US Hague Convention proceedings can take many months creating even more strain on the left-behind parent financially and emotionally leading to collapse of the effort to recover their child - in legal parlance it is known by the misnomer, "acquiescence".

The legal delays do not cease there as the US Constitution dominates the Hague Convention leading to issues of constitutional law being considered when in fact, establishing which country has jurisdiction and sending the child to that jurisdiction BEFORE domestic legislation is applied was the intent of the treaty.

A pro-American parent bias is seen repeatedly in such cases, demonstrated by the US authorities (including the State Department) as well as the US courts, even though the American parent is the abductor and ultimately leading to serious injustices and repercussions for the child in question and the reputation for American parents subsequently traveling overseas and asking foreign courts to give them their child back.

The Hague Convention in Practice

First of all, the United States as the dominant advocate for this international treaty and with the most to gain or lose from its implementation, is one of only a handful of countries which reserved on a major treaty requirement designed to make it work.

The United States will not pay legal fees or provide legal representation for the left-behind parent invoking the Hague Convention in the United States.

The United States does not provide for legal representation unlike most of its treaty partners; for instance, a parent coming to the United Kingdom invoking the Hague Convention is required to pay nothing for legal representation or any other legal costs - they are borne in full by the UK taxpayer. Even much-maligned Brazil provides a mechanism to provide left-behind parents no-cost legal representation coming to that country and invoking the Hague Convention (though many left-behind parents and observers question what use representation is in a "rigged game" of a Brazilian court).

Not so for a foreign parent coming to the US and with a Hague Convention hearing costing from $30,000 and upwards to hundreds of thousands in legal fees and costs, what use is the treaty in the US if most left-behind parents simply do not have the financial legs to pay for it?

The question is rhetorical - in truth many cases are never heard and the US abductor succeeds because the Hague Convention is never invoked due to the cost involved. This also results in far less abductions being classified as such and helps to depress the return rates claimed by the United States even further though by how much, no-one knows or at least, the Department of State is not saying. Though the US cannot be said to be non-compliant in this respect, after all they have reserved on this condition, the practical impact is to render the treaty beyond the reach of the majority of left-behind parents seeking the return of their children abducted to America.

This begs another question: how serious is the US government in really tackling international child abduction if the major tool to thwart it has been emasculated?

Concerns with State Department Staff Conduct

There are two main concerns regarding State Department staff - concern with the level of instances of US passport issuance to minors overseas resulting in abductions to the US, and secondly, serious concerns regarding the probity and honesty of staff at the US Central Authority.

Issuing a US passport to a child overseas is not as uncommon as you may initially think. Many children are born overseas to American parents and so qualify through their parents for US citizenship and a US passport. Many US residents in the UK for instance, have made their home overseas and married or cohabit with a British citizen; children result naturally and by they are entitled to dual citizenship of both countries - a situation replicated around the world.

Issuing a US passport to a child overseas requires the consent of both parents, American and foreign; this is a provision enacted in legislation specifically to prevent the abduction of children from overseas to the US. In practice, it is simply and conveniently by-passed by several exceptions used by overseas consular staff when considering issuing a US passport - the most notable one is the exception where there is "a credible pattern of domestic violence"; but what constitutes a credible pattern and what constitutes domestic violence?

These are matters for a consular officer to decide based on one parent's claims (the American parent) with no hearing or notice to the other side (notably the foreign parent) - a simple claim of domestic violence or simply a claim of being in fear have resulted in issuance of US passports to children who then have been abducted from their homes to the US.

This issue persists to this day and getting it unblocked is problematical as upon being removed to the US the left-behind foreign parent, already painted by the State Department as an "abuser" must get the same US agency to implement the Hague Convention to return the children so removed.

There is a clear conflict of interests within the State Department - they are gatekeepers and protectors but control who gets entry to the US and who can and will be allowed to find and seek the return of children abducted with the assistance of their own officials.

Misconduct of US Government Officials and a Culture of Ignorance

Mistakes will happen with any organization - it is human nature to make mistakes but to continually make mistakes upon learning of the error moves beyond the realm of human error and into misconduct and eventually criminal conduct. Has the State Department made mistakes? Of course, this is understandable but what happens when a mistake is made and identified?

In 2007, a child born in the United States to a Swedish mother and American father was taken from the US to Sweden; the mother claimed she had been deserted by the father and had no job or means of support. Several months later the American father realizing what had happened invokes the Hague Convention and the Swedish court ordered the return of the child to America - at this point it is important to note that Sweden has a long history of non-compliance with the Hague Convention as far as the US Department of State is concerned.

The child back in America with the American dad - a success?

Except certain matters start to come to light.

The father did not travel to Sweden either for the proceedings or to collect the child for return to America - the reason kept quiet was he could not get a US passport because he was a wanted felon with a lengthy criminal history and is barred from having a US passport as a consequence. For several weeks after return to the US the child lives with the father in a car!

Eventually, the father, a convicted rapist and drug dealer abandons the child with another girlfriend who contacts the Swedish mother who duly comes, collects the child and returns to Sweden - the then 3 year old child reportedly saying, "Hands up mother*******!" given the number of times the home he stayed at had been raided by the US police.

Moves to have the child returned again appear to have fizzled out but why was this child put through such an ordeal in the very first instance and why was the child not properly protected in America?

Emily Rose Hindle was removed from the UK in February 2003 with the assistance of a US passport issued in London; police reports across the United States and filed subsequently, demonstrate State Department officials were involved in removing the child and hiding her in America claiming her British father was an abuser and not to know where his child was in the US.

The child was voluntarily returned to the UK after the British court seized jurisdiction only for a team leader, Barbara Greig to file a Hague Convention application claiming abduction from Florida and that state had jurisdiction based on 6 months residency of the mother. The High Court in London accepted this claim during Hague Convention proceedings and duly sent the child to Florida for custody hearings to take place and conditional upon the child receiving medical treatment for a condition rendering her blind in one of her eyes.

No medical treatment was forthcoming and while proceedings were filed in Florida the British father could not access the legal process firstly because Ms Greig arranged for his visas to be denied to come to court or for visitation with the child and when he was successful, requested and successfully arranged his arrest and deportation by US immigration services - after the American court found he was not a danger, not violent and the American mother was making false allegations dismissed no less than 7 times by the court.

Subsequently it was also discovered that far from living in Florida for the 6 months required the mother had been in Florida for 6 weeks - there had been no jurisdiction and therefore no abduction by the British father, the entire Hague Convention proceedings being a fraud by the mother and the US government official now keeping the father out of the country and away from his child and the American court.

The child subsequently disappeared to become classified as missing and endangered and upon being discovered in Kansas, depositions taken of witness living with the mother testified to Ms Greig being in contact with them and the mother while she was in hiding and helping conceal the mother and child from the Floridian court. The child became permanently blinded while the efforts of Ms Greig delayed court proceedings for 5 years resulting in the child settling with the American parent and effectively destroying the parental relationship with the British father - the child now calls another man "Daddy" and has lost her family and heritage - a prime goal of international child abductors.

Notwithstanding the lack of jurisdiction, the lack of medical treatment, the efforts of the mother to adopt the child out and into the care of a convicted pedophile not the serious issues confronting the child or the claims of the American judge claiming to be a "provincial who does not do the Hague Convention" the child remains in Florida and is unlikely to see her home and family again.

Why Does this Matter to American Parents?

This matters for American parents seeking the return of children abducted to these countries - Scott McIntyre had his daughter Lili abducted to the UK but could not meet the requirements of the British High Court which included getting a ruling from the state from which the child was allegedly abducted. The child's home state did not understand what it was being asked to do and issued an order stating it had no jurisdiction because the child was no longer in its jurisdiction - the High Court accepted this and struck out the Hague proceedings keeping the child in the UK.

The High Court now purposely requests such jurisdictional rulings of US courts as a matter or routine to avoid the fraud previously perpetrated upon it with Emily Rose Hindle and the State Department - this costs more time, more money and increases the uncertaintly for American parents.

Increasingly, foreign jurisdictions distrust the agencies involved here in the US when it comes to returning a child - the history of returns of children leading to the children not being protected or fair proceedings being denied in the US either by visa difficulties, unfairness or ignorance in an American court room or simple lack of enforcement for existing orders and conditions has created a poor perception and reputation for the US - American parents must work even harder to overcome this when asking for their children back.

 

Mistakes of the Past Must Not Haunt the Future

 

With a change in administration at the White House and a promise of more open, more responsible government time will certainly tell but for hundreds and thousands of foreign parents dealing with international custody issues within the United States, change will come too late to make any substantive difference to the shattering of their families.

 

Let us be clear - what has been done cannot be undone however, the future is fat with international child abductions yet to occur and given the nature of international relationships, all are in agreement - the rate of abductions will increase.

 

Abductions are a two way street both into and out of the United States - the track record of the US in handling both instances is lamentable, particularly for abductions into the country.  Today is another day and we must look to the future and seek to improve matters for all concerned.  The Department of State is not the appropriate agency to be handling these cases - diplomacy and ignorance are a dangerous mix to confront for when the government is wrong and the citizen right, then the citizen beware!

 

The Department of Justice has long asked for the remit for incoming and outgoing abduction cases; a claim vigorously fought off by the State Department but this would be a step in the right direction for many children, parents and respect for international law which ranks only second in authority to the Constitution of the United States and bottom of the ladder in the expedient minds of State Department officials with their own agenda.

5 comments:

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

1. Many parent's whose children
are 'abducted' or 'returned'
to the US, lose all contact
with their kids: not because
they are 'bad' parent's or
their children do not need
them in their lives, but
because they're too 'poor' to
be able to afford the legal
fees needed in any future
child custoy court proceedings!
2. Many parent's also lose contact
with their children because
they have previously lived
illegally in the US and no one
makes it 'easy' for them to
obtain status to return and
fight for their abducted
children (losing 'time' and
subsequently custody, under
local child custody
proceedings.
3. Some abducted children have
been returned to the 'care'
of U.S. children's protective
services: because the abducting
parent awaits extradition and
the other parent is unfit to
care for them!
4. Some parent's lose all contact
with their child because an
arrest Warrant awaits them in
the US or Canada and lawyers
(outside of the USA/Canada) do
not make provisions to remove
the Warrants before a Hague
'return' is enforced.
5. Many (foreign) Judges deny a
US 'return' under the Hague
because they're aware of this
'return at any/all costs' US
attitude, in fear that future
parent/child contact will be
denied due to 'US Nationalism"
i.e. "this is an American child
first and foremost" and their
(safe) knowledge that the
foreign parent could never
afford US legal fees.
6. All of the above applies too to
non-Hague cases.
7. The Hague Secretariat needs to
'monitor' - not only it's
number of successful 'returns'
and 'compliant' countries but
also to take a very serious
look at what happens to the
kids (and parent's) its civil
law was designed to 'protect'.
By that I do not mean some
pathetic 'sample' of 20
abductions I saw in one
published 'study'!
In this regard, watch this
space for a very lengthy soon-
to-be-published questionnaire
for all 'isolated' (from their
children) parents to complete
that seeks data on their
whole 'abduction' experience:
from lawyers to law enforce-
ment; courts; non-profits;
recovery agents; government
departments and all experts
and 'professionals' they have
dealth with!

Emily's Dad said...

Whoever left this comment please email me at karl4work@gmail.com

Karl

Little J said...

Dear Ntranced_limbo,

This is a very informative article. I would like to quote you in a report I am currently writing and wonder if you could:
a) tell me your name so I can credit you properly and cite your article in the bibliography
b) provide the case numbers, more details or links to two of the cases you mention; namely, Scott McIntyre and Swedish/US criminal father. (I have been unable to trace them.)
Thank you for your help.
Cathy

david said...

The bottom line is the Hague Treaty only works when certain planets are properly aligned, the tradewinds are favorable, and divine luck prevails. There is no uniformity or accountability, and as it stands today, the Hague Treaty is a fraud and a farce. Very few member countries act in good faith and in the true 'best interests of the child.' The 'best interests' of the abducting parent, the citizen abductor, is the primary consideration for nationalistic courts. As abductions inevitably increase, so will the instances of attempted re-abductions and extra-legal measures by left-behind parents (think kidnappings for the ransom of having one's child returned). It will surely take multiple international incidents of this kind to get the attention of the apathetic and indifferent politicians and governments, and even then I doubt that the Hague Treaty will be re-crafted to be effective and useful for its intended purposes. As a left-behind parent (U.S. father whose son was abducted to Switzerland), I can testify first-hand that the current Hague Treaty system is broken beyond repair. It simply does not work.