Sunday, June 20, 2010

Improving Compliance with the Hague Convention

We All Have Lessons to Learn

As pressure continues to be applied to Japan to accede to the Hague Convention with the forthcoming economic summits (G7 & G20), perhaps now is an appropriate time to consider how we can improve international compliance with the primary, international child abduction treaty.

It is not only Japan which is flagged a "black hole", by the supporters of BACHome - the group of parents and supporters dealing with the non-existent framework which allows non-custodial parents to have access to their children in Japan, never mind petition for the return of their abducted children. Other countries should be under the spotlight for non-compliance and it is clear from the latest release of UK and US figures that compliance is observed more in the breach.

Not only is international child abduction a global scourge, non-compliance is also a global problem and found in many signatories to the treaty.

For parents with children in Japan, this is bad news unless they can achieve a major coup and bring Japan into the Hague Convention fold AND have a compliant Japan to boot. Unless compliance is observed by Japan, the majority of parents (if not all) will simply find themselves in the same position as those with children abducted to Mexico - all the legal paper and processes in place, but no substantive relief to be had, only an expensive road to nowhere.

Gaining International Compliance: Carrot & Stick?

Congressman Chris Smith (D-NJ) has sponsored H.R. 3240, a piece of US federal legislation which has the potential for achieving a sea-shift in the American approach to international child abduction. Of all the various pieces of legislation which are on the horizon in this arena, this has the greatest potential for positive impact on compliance...for American Left-Behind Parents (LBP's).

It MAY have a positive impact for LBP's coming to the US to recover their children (note that "may").

H.R. 3240 introduces a sliding scale of sanctions (not particularly onerous but sanctions nevertheless) and ties performance in Hague Convention proceedings to the Department of State, who will now have to report treaty partner compliance in something approaching plain English. There is also provision for an Ambassador at Large to represent parent's interests within the Department of State.

H.R.3240 is not yet law, but hopefully it will impact on one of the Department of State's great works of fiction - the Annual Compliance Report. The latest report was published earlier this month and it has made many readers deeply unhappy, not least for how "non-compliant" and "patterns of non-compliance" status has been awarded to various countries, especially Mexico with whom the U.S. has the largest numbers of abduction cases.

In this regard, H.R.3240 may be viewed as a "stick", not only for treaty partners but also for the much-maligned, Department of State (justifiably maligned in the opinion of this writer and many other LBP's).

I'm loathe to view international diplomatic and legal relations in Trumanesque terms, particularly when children are involved, however as the Sean Goldman case ably demonstrated, it was the economic stick of a multi-billion dollar trade deal getting held up that pushed the Brazilian jurisdiction over the edge into complying with returning that lucky young man to his rightful father in New Jersey.

If this is part of the "stick" approach, where is the carrot?

Surely the carrot must be a fair system to protect all of our children from the "scourge" of international child abduction.

How Do We Improve International Compliance?

Creating and using a stick is relatively simple to do, but exercising sanctions requires a responsible and moral vantage point to operate from.

No country has a monopoly on compliance with the Hague Convention - not the UK (which almost all recognize has a "good" record) and certainly not the United States.

For American readers, I should be clear here - I am British and dealing with my child taken to America - I am not a critic of Uncle Sam in respect of its dealings with myself and more importantly, my little girl, I am a bitter, vociferous and fierce critic of U.S. compliance and practice generally.

That said, where do we go from here? Do we sit in a corner and whine about our respective, personal situations and how our children are being abused in such-and-such a country?

Extraordinary times such as those LBP's experience require an exceptional response.

It is natural and understandable for there to be anger and rage, frustration and deep misery, but in 7 years I have not seen anger prevail in recovering any child. LBP's may feel and experience anger for years after their children are abducted, but what motivates them in the final analysis is love for their children, not anger against the abductor or the country acting as a safe-haven. The loving bond between parent and child has to be one of the most powerful forces on earth and is extraordinary in every sense of the word.

An equally extraordinary approach should be adopted in terms of improving international compliance with the Hague Convention.

One Solution Suggestion

As many U.S. LBP's recognized with the Tom Lantos Human Rights Congressional hearings held in Washington D.C. earlier this year; the names and faces have changed, but the problems being testified too are the same as those of parents going all the way back to the Seventies.

There has been a lot of marketing and PR hype about, "What State is doing now about international child abduction", but very little of substance. If anything, this recognition is a good thing, though it must be a very bitter pill for American LBP's to swallow. This recognition comes in tandem with H.R.3240 and a general raising of public awareness of international child abduction as a general, social issue in terms of the broad problem, not simply focusing on a select few cases.

This recognition is a positive development because by recognizing there is a deficiency, something can be done to deal with it. There is also the issue of how badly many American LBP's are treated by their own government, which ought to raise the question as to how badly are foreign LBP's being treated by the U.S. government (a lot worse).

Broadly, the U.S. blandly considers itself compliant with the Hague Convention, but what evidential basis exists for this assumption is unclear. The Department of State does not compile a report of it's own compliance with the Hague Convention after all. For many American readers, it comes as a surprise, even an insult, that in some quarters the U.S. is not regarded as a paragon of Hague Convention compliance by the rest of the world.

I urge such readers to suspend their disbelief and read this article on US compliance by a US Hague Convention lawyer, Jeremy Morley in New York.

Being insulting is not my game here - I'm trying to make a point.

No-one is perfect, and to gain compliance from partners needs something more than "stick" - ity needs something "extraordinary".

What is needed is a shining example of compliance.

The world simply does not have that example, though some countries do make greater efforts than others and have achieved good results.

But this is an issue where being "good" is simply not good enough.

What we are looking for is near-perfect.

The U.S. does not have an enviable return track-record - around 50% (some 30% of British children abducted to the U.S. are still unresolved from last year and being marked as "resolved" does not mean the children were returned).

The U.S. has reserved on the Hague Convention requirement to provide free legal representation to foreign LBP's coming to the U.S. to recover their children.

There are many issues regarding conduct of U.S. courts in terms of speed and post-return performance in dealing with the issues confronting a child once that child is returned from overseas to the U.S. jurisdiction.

Just as Japan does not recognize international child abduction to Japan as a crime, it is also not a crime to abduct a child to the United States - it is a crime only to abduct a child from America.

I would personally prefer to see the U.K. achieve status of being a virtuous paragon of compliance, but the U.S. doing so would really make a global difference for everyone. The extraordinary solution I propose, and which I truly believe will help every child and LBP, is for the U.S. to strive towards gaining that exemplary status which other countries are encouraged to emulate.

  • Hague cases should be heard by experienced judges in an expedited fashion with distinct time limits on how long the case can last.
  • It should be a crime to parentally abduct a child to the United States and not just from it.
  • LBP's should have their legal fees and ancillary costs paid for.
  • Return rates of children abducted to the United States should be monitored in exactly the same way as it is for other countries under H.R.3240 - in fact, any monitoring requirement applied by the U.S. to its treaty partners should also be applied to itself.
  • In a similar fashion, access rights should be monitored and enforced in the U.S. (currently, no Federal court will deal with an access case under the Hague Convention).

There is obviously a lot more too, but the primary point is this - to exert moral authority over the rest of the world, one must first be moral - the U.S. has not been "moral" in this context, but there is absolutely no reason why it should not or cannot be.

I believe many of my American friends already agree with me, and as a "legal alien" in America, Americans are fundamentally fair and that ought to be taken as huge compliment.

The U.S. Department of State is not "moral" in this regard, which is something which needs to be addressed before America can go forward and claim the leadership role which it ought to have done decades ago for all of our children's benefit.

The challenge is to lead by example, to encourage, to cajole, to educate and when that fails, then and only then, whip out the "Big Stick".

No comments: