Emily Rose Hindle: October 2010

No.

In The

SUPREME COURT OF THE UNITED STATES

KARL ERNEST HINDLE,

Petitioner,

Vs.

SHEILA KAY FUITH,

Respondent.

On Petition for a Writ of Certiorari To

The Supreme Court of the State of Florida

PETITION FOR A WRIT OF CERTIORARI

Karl E. Hindle,

Pro Se Petitioner,

Questions Presented

1. Whether the conduct of the courts of the State of Florida hearing this issue have so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power in that a child ordered by the British Supreme Court under an international treaty binding on the United States, to receive medical treatment for an eye condition, has been ignored by the Floridian courts resulting in permanent blindness for the child.

2. Whether upon accepting a child has been internationally abducted to the U.S., can the courts of the State of Florida seize jurisdiction over the matter on the basis no other state in the United States has jurisdiction, despite the constant and continuous objection of the petitioner that England is the proper forum, and does this seizure of jurisdiction constitute a violation of the father and/or child’s rights to due process.

3. Whether a fraudulent application filed under the Hague Convention on the Civil Aspects of International Child Abduction (1980) filed by the mother and a U.S. Department of State official, with the British Government, falsely claiming jurisdiction under that Convention lay in Florida, was an international child abduction under color of law, a further violation of the father and/or child’s Constitutional right to Due Process, and/or a violation of the U.N. Convention on the Rights of the Child regarding “illicit removals”.

Index

Questions Presented iii
Index vi
Citations ix
Opinions Below xii
Basis for Jurisdiction xiii
Constitutional Provisions Involved xiv
International Treaties Involved xv
Statement of Case 1
A. Procedural History 1
B. Facts Presented at Trial 10
a. Abduction from the United 10 Kingdom
b. Blindness 16
c. Pedophile/Unlawful Adoption 18
d. Abduction from the State of 19 Florida & Subsequent Concealment of the Child by the Mother and Barbara Greig of the U.S. Department of State
e. Father’s Arrest and barring 21 from the U.S. by Ms Greig to conceal international abduction under color of law
Reasons for Granting the Writ 22
A. National and International Importance 22
B. Uniformity of Treatment by U.S. 30 Courts Hearing Cases Upon a Return Order
Conclusion 35
Certificate of Compliance 36
Appendix 1: Copy of order of the High Court, London, U.K. (British Supreme Court).
Appendix 2: Copy of the order of the Supreme Court of the State of Florida.
Appendix 3: Copy of the order and opinion of the Fifth District Court of Appeal, Daytona, Florida.
Appendix 4: Copy of the final order of the Volusia County Court, 7th Judicial District, DeLand, Florida.
Appendix 5: Missing and Endangered poster for Emily Rose Hindle.
Appendix 6: Wisconsin Sex Offender’s Register entry for Leslie Merriam.
Appendix 7: Copy of U.S. Department of Homeland Security report on father’s arrest.
Appendix 8: Copy of medical report of Dr. Robert Cordero of Deland, Florida regarding child’s blindness.
Appendix 9: Copy of medical report from British hospital on child’s medical condition and treatment.
Appendix 10: Extract of deposition of Terri Jacobson regarding conversations with Barbara Greig of the Central Authority, U.S. Department of State.
Appendix 11: Extract of deposition of Robert Ozier regarding efforts to change child’s identity through the U.S. Department of State to evade detection when the child was missing and endangered.

Citations

Karl Hindle-v-Sheila Kay Fuith, 2 In Re ERH (A Minor) FD03P02163 Before the British High Court, London, UK
Karl Ernest Hindle-v-Sheila Kay Fuith 3
Florida Supreme Court (SC10-982)
Karl Ernest Hindle-v-Sheila Kay Fuith 5,10 Florida 5th DCA (5D08-3850)
Karl Ernest Hindle-v-Sheila Kay Fuith 3
Volusia County Court 7th Judicial Circuit
(2003-12692 FMDL)
Blondin v. Dubois, 238 F. 3d 153, n. 8 (2nd Cir. 2001) 3
Duquette v. Tahan, 600 A.2d 472 (N.J. Super. Ct. App. Div. 1991) 12
Holder v. Holder, 305 F.3d 854, 860 (9th Cir. 2002) 16
T.B. v. Department of Children & Families 718 So.2d 397 7
Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005) 32
Vagenas v. Continental Gin Company, 988 F.2d 104 (11th Cir. 1993) 7,10
14th Amendment to the U.S. Constitution xiv,6
Full Faith and Credit Clause of Article IV, s1 xiv,7
The Hague Convention on the Civil Aspects of International Child Abduction (1980)
• Article 1 xv,14
• Article 3 15
• Article 7 xvi
• Article 13(b) xviii,31
• Article 19 xix,15,30
• Article 21 xx
• Article 31 xx,6
Article 9 of The United Nations Convention on the Rights of the Child (1990) xxi,6
18 U28 U.S.C. 1257(a) xii
28 U.S.C. § 242 11,12
International Child Abduction Remedies Act, 42 U.S.C. § 11601 13,22
42 U.S.C. s.11601 (a) (1), (2) 22
Uniform Child Custody Jurisdiction & Enforcement Act (1997)
• Section 105. International Applications xxiii
• Section 201. Initial Child-Custody Jurisdiction xxiv
House Resolution 1326 26

Opinions Below

The order of the British Supreme Court sending the child to the State of Florida, including an order for medical treatment for the child’s eye condition is reproduced as appendix 1.
The order denying hearing by the Supreme Court of the State of Florida is reproduced as appendix 2.
The opinion and judgment of the Fifth District Court of Appeals of the State of Florida is reproduced as appendix 3.
The final order of the Volusia County Court, 7th Judicial Circuit of the State of Florida is reproduced as appendix 4.

Basis for Jurisdiction

The orders of the Florida State courts, entered July 12, 2010 by the Supreme Court of Florida denying review of the Fifth District Court of Appeal’s judgment of April 23, 2010 (claiming jurisdiction on the basis of no other state of the United States holding jurisdiction) and the court of first instance, entered on October 6th, 2008 (claiming jurisdiction based upon residency).
The petitioner seeks review of the judgment of these courts, including the judgment by the highest State court in which a decision could be had and invokes this Honorable Court’s jurisdiction under 28 U.S.C. 1257(a).

Constitutional Provisions Involved

Fourteenth Amendment to the United States Constitution

“All person born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws..”

Faith and Credit Clause of Art. IV, § 1

Section 1.
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
International Treaties Involved

The Hague Convention on the Civil Aspects of International Child Abduction (1980) - herein referred to as the “Hague Convention”.

Article 1

“The objects of the present Convention are -
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Article 7

“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures -
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

Article 19

“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”

Article 21 (Extract)

“The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.”

Article 31

In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units -
a) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
b) any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.

The United Nations Convention on the Rights of the Child (1990)
– herein referred to as the “UN Convention”.

Article 9

“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.”

Federal Statutes Involved

Uniform Child Custody Jurisdiction and Enforcement Act (1997)

SECTION 105. INTERNATIONAL APPLICATION OF [ACT].

(a) A court of this State shall treat a foreign country as if it were a State of the United States for the purpose of applying [Articles] 1 and 2.

(b) Except as otherwise provided in subsection (c), a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3.

SECTION 201. INITIAL CHILD-CUSTODY JURISDICTION.

(a) Except as otherwise provided in Section 204, a court of this State has jurisdiction to make an initial child-custody determination only if:

(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) a court of another State does not have jurisdiction under paragraph (1), or a court of the home State of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 207 or 208, and:

(A) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

(B) substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 207 or 208; or

(4) no court of any other State would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.

Statement of Case

A. Procedural History

After the child, Emily Rose Hindle, was unilaterally removed from the U.K. to the U.S. by the mother in February 2003, the father attempted to seek relief in the Minnesota courts in March 2003, but was denied due to lack of jurisdiction in the United States.

Subsequently, he sought relief before the Wisconsin courts in April 2003 but was denied due to lack of jurisdiction in the United States.

On June 6th 2003, the father petitioned Chelmsford County Court, Essex, England (where the child had been born and lived until her unilateral removal to the United States). That court seized jurisdiction and issued the father with parental responsibility order on August 14, 2003.

The child was voluntarily returned to the U.K. on September 19, 2003 and placed into the father’s care by British police. The father returned to the English court for a permanent residency order on September 24, 2003, however these proceedings were stayed by the British High Court (the British Supreme Court).

The British Supreme Court received an application on September 24, 2003 under the Hague Convention filed by Barbara J. Greig, a U.S. Department of State official, on behalf of the mother claiming the State of Florida held jurisdiction on the basis of her six month’s residency in that state.

On October 3, 2003 the British Supreme Court “returned” the child to the State of Florida on the basis of that application, and also vacated the father’s English orders based on lack of jurisdiction as Florida held it. The Hague Convention order includes a series of orders, known as “undertakings”, which included that the child was to receive medical treatment “forthwith” for her eye condition, upon arrival and that proceedings were to be filed in the State of Florida to determine the child’s future. Blondin v. Dubois, 238 F. 3d 153, n. 8 (2nd Cir. 2001), explains the term "undertaking".

On November 10, 2003 the father filed in Volusia County Court, 7th Judicial Circuit, Florida for primary residency and other issues.

On April 20, 2004 the court accepted a certified copy of the foreign order of the British Supreme Court and both mother and father’s attorneys argued there was no jurisdiction in the State of Florida based on mother’s lack of residency in the state.

It transpired that far from residing for six months or more in Florida, as she and the U.S. Government’s Barbara Greig claimed to the British Supreme Court, residency had been approximately six weeks if at all.

Nevertheless, the Lower Court ignored the lack of jurisdiction and continued proceedings, which were then substantially delayed by the arrest and deportation of the father at the request of Barbara Greig of the U.S. Department of State, his subsequent life-time ban from travel to the U.S. and when overcome, the further abduction of the child out of state and further concealment of the child by the mother and Ms. Greig in 2005.

The father was awarded a temporary sole custody order on October 26, 2005.

The child was located and returned to Florida in December 2006; however the father had again to depart the country due to visa restrictions placed upon him by the U.S. Department of State.

He was subsequently denied entry to the U.S. until May 2008 again at the behest of the Ms Greig and others at the Office of Childrens Issues, the U.S. Central Authority.

Final judgment was issued on October 6, 2008 after a hearing on May 23, 2008. The Lower Court claimed jurisdiction on basis of mother’s six month residency in the State prior to filing of the action and stated, “In this County, we’re provincials. We don’t do the Hague Convention.”

No enforcement of the British Supreme Court order for medical treatment for the child’s blindness is provided at any time during proceedings or in the final judgment of the Lower Court, despite the father’s continuous efforts.

Father appeals to Fifth District Court of Appeal on a timely basis on November 7, 2008. In his briefs filed with that Court, the father argued lack of jurisdiction of the Florida court based on six month residency not being satisfied and the fraudulent claim of the mother and before the British Supreme Court that Florida held jurisdiction (cf art 31)..

The father further argued that his and/or the child’s 14th Amendment rights had been violated by the arbitrary seizure of jurisdiction by the Lower Court and that the removal of the child from the U.K. on both occasions constituted “wrongful removal” for the purposes of the Hague Convention, an “illicit removal” for the purposes of the U.N. Convention on the Rights of the Child and such seizure of jurisdiction was also not in conformity with the U.C.C.J.A. or U.C.C.J.E.A. as subsequently enacted, i.e. to prevent forum shopping and the wrongful removal and retention of children across jurisdictional borders.

The father also argued that the lower court had not held fair hearings, nor had it acted in a timely fashion as required under Florida judicial standards nor the Hague Convention for speedy resolution of issues, having taken almost 5 years to issue a final judgment.

In addition, the father argued that comity should have been granted for the British Supreme Court order for the child to receive medical treatment for her blindness (Vagenas v. Continental Gin Company, 988 F.2d 104 (11th Cir. 1993)- treaty between United States and Greece elevated foreign judgment to status of sister state judgment). Further, that the mother allowing the child to go blind precluded an award of custody based on T.B. v. Department of Children & Families 718 So.2d 397. Other matters were argued including child support and visitation costs.

The Appellate court issued a judgment and opinion on April 23, 2010 reversing in part and affirming in part. The Appellate court agreed that the child had been abducted from the U.K. by the mother (referring to the mother’s “unilateral removal” from the U.K., this being the language of the U.C.C.J.E.A. for ‘child abduction’), but then proceeded to claim jurisdiction on the basis no other state in the United States held it, whilst ignoring the fraud on the British Supreme Court which resulted in the child physical presence in Florida. The father also claimed that his and/or the child’s due process rights had been violated as a consequence.

The Appellate court agreed to review the child support and visitation cost issues and reversed, but refused to review any other matter, including the failure to enforce the British Supreme Court order for medical treatment for the child’s blindness.

The father issued a timely appeal to the Supreme Court of the State of Florida on May 25, 2010 based on the conflict of the Lower Court’s decision with the British Supreme Court order for medical treatment for the child’s blindness (lack of comity), lack of jurisdiction and violation of his and the child’s rights to due process.

On June 24, 2010 that Honorable Court struck the British Supreme Court order from the record.

Subsequently, that Honorable Court refused review on July 12, 2010.

The father/petitioner subsequently files a timely application for writ of certiorari with the Supreme Court of the United States.

B. Facts Presented at Trial

Abduction from the United Kingdom

The petitioner reproduces the opinion issued by the Fifth District Court of Appeal:
“The child was born in the United Kingdom where the father resides and removed to Florida by the mother’s unilateral decision.” (p.5, para.2, line 3).

“Unilateral removal” is the language of the U.C.C.J.A. for child abduction (see sec. 1(a)(5)).
The child resided with her father and mother from birth until the child’s “other unilateral removal” in February 2003 in England which is elevated to the status of “Sister State” in this instance. See Vagenas v. Continental Gin Company, 988 F.2d 104 (11th Cir. 1993) (treaty between United States and Greece elevated foreign judgment to status of sister state judgment).

The mother and officials of the U.S. Department of State did cause an “other unilateral removal” of the child from England to the United States in February 2003 without the knowledge or consent of the father to gain sole physical custody, and deny the rights of the child to her father, and any rights the father may have or subsequently acquire, as a color of law fraud to deprive the father and child of their rights (see 18 U.S.C. § 242).

The child was subsequently sent to the State of Florida after representations by the mother to the British High Court and a Hague Convention application filed by the U.S. Government (Barbara Greig) claimed the child was subject to the jurisdiction of the State of Florida which was clearly false. This was an additional fraud on the part of the mother and Barbara Grieg of the U.S. Department of State who filed the Hague Convention application to get the child sent to the State of Florida in an international child abduction under color of law (again 18 U.S.C. § 242).
In 1988, the United States entered the Convention, the text of which can be found in Duquette v. Tahan, 600 A.2d 472 (N.J. Super. Ct. App. Div. 1991). The objects of the Convention are to "secure the prompt return of children wrongfully removed to or retained in any Contracting State, and to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States." The father clearly had rights of custody for the purposes of the Hague Convention due to his parental responsibility order issued by Judge Hallett, Chelmsford County Court in England on August 14th 2003 and which was quashed by the British High Court due to the fraudulent claim that the State of Florida held jurisdiction.

Congress implemented the treaty in 1988 by enacting the International Child Abduction Remedies Act, often referred to as ICARA. See 42 U.S.C. § 11601 et seq. ICARA vests concurrent jurisdiction over claims brought under the Convention in the United States District Courts and in the courts of the states.

Congress has found that the international abduction or wrongful retention of children is harmful to their well-being and that persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention. 42 U.S.C. §11601 (a) (1), (2).

Article 1 of the Hague Convention states the removal of a child is considered wrongful if it is "in breach of rights of custody . . . under the law of the State in which the child was habitually resident immediately before the removal . . . ."

The father had a parental responsibility order issued by the English court which seized the matter in June 2003 and which was quashed by the High Court as a consequence of the fraudulent representations on her residency in Florida by the mother and Barbara Greig of the U.S. Department of State.

The mother attempted to wrongly domesticate the Hague Convention order as a custody order in the State of Florida on April 13th 2004 and stated her address history for the prior five years which clearly demonstrates a lack of residency in any U.S. State or Florida and clearly identifies England as the “home state”. According to that declaration, the mother had been living in the State of Florida since August 2003 i.e. only one month at the time of filing the Hague Convention application (September 2003) and only 3 months prior to the father filing the case at issue in November 2003. (Article 19 of the Hague Convention states that “A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.)

The Hague Convention and UCCJA (supplanted by the UCCJEA) specifically attempt to remove the creation of safe harbors for abductors and jurisdiction shoppers which has been allowed to fail in the case at issue. Article 3 of the Hague Convention seeks to deter parental abductions by eliminating the primary motivation for abductions, which is to obtain an advantage in custody proceedings by commencing them in another country. Holder v. Holder, 305 F.3d 854, 860 (9th Cir. 2002). In this instance, the other country is the United States.

Blindness

The father presented to the Lower Court on April 20th, 2003 and at final hearing on May 28th, 2008, the British Supreme Court order issued October 3rd, 2003 for the child’s medical treatment “forthwith” in Florida, and which was continuously referred to by the father throughout the protracted litigation of this matter.

The father presented a British eye hospital medical report (a report of Broomfield Eye Clinic, Broomfield Hospital, Chelmsford, UK) and American medical eye doctor (Dr. Robert Cordero of DeLand, Florida), on the child’s medical condition and need for medical treatment, including what that treatment consisted of and the prognosis for continued lack of treatment, i.e. blindness. This was presented at trial, however the Lower Court refused to accept any evidence from the father during the protracted proceedings despite ordering an independent medical examination on January 13, 2006 which further concluded the child was treatable (this was performed by Dr. Robert Cordero above).

The father presented 2 depositions of the mother, the child’s prospective “adoptive” mother, Shannon Merriam together with the child’s prospective “adoptive” grandfather, Leslie Merriam, on the need for medical treatment for the child at final trial.

The Lower Court excluded all the above evidence from the record after trial and prior to judgment.

The Appellate Court granted the father’s motion to supplement the record with this evidence on April 13, 2009 then refused to review it.

The Supreme Court of Florida refused review as stated above.

Pedophile/Adoption

At trial, the father submitted the depositions of Leslie Merriam, a convicted pedophile who testified to the proposed “adoption” of the child in March/April 2003 by the mother to his son and daughter-in-law, Shannon Merriam. A deposition from Shannon Merriam affirming the efforts to adopt the child and her physical placement with herself and her husband was also submitted.

The entry of Leslie Merriam in the Wisconsin Sex Offenders Registry was also submitted.
The Lower Court excluded all this evidence after trial and before judgment.

The Appellate Court granted the father’s motion to supplement the record with this evidence on April 13, 2009, while the Supreme Court of Florida refused review as stated above.

Abduction from Florida and Subsequent Concealment of the Child by the Mother and Barbara Greig of the U.S. Department of State

The depositions of Terri Jacobson (owner of the home where the mother and child hid in Kansas), together with that of Robert Ozier (the mother’s cohabitating boyfriend in Kansas) were submitted at trial on May 28, 2010.

Both witnesses testified to the mother’s contact with the U.S. Department of State, and efforts involving that agency to change the child’s identity to evade detection as well to keep the petitioner out of the country. Ms Jacobson specifically testified to speaking with Barbara Greig at least once, wherein Ms Jacobson was advised by Ms Greig that everything “was on the up and up”, that no laws were being broken and that the allegations against the petitioner of sexual abuse of his children, domestic violence and so forth, were true.

At this time, the petitioner had legal custody of the child, who was classified as Missing & Endangered by the authorities.

These depositions were submitted at trial on May 28, 2010, but excluded by the Lower Court after trial and before judgment.

The Appellate Court granted the petitioner’s motion to supplement the record with them on April 13, 2009, but then subsequently refused to review, while the Florida Supreme Court refused review as stated above.

Father’s arrest and barring from the United States by mother and Barbara J Greig to conceal an international child abduction under color of law

Letters from the mother’s attorney of record to Ms. Greig and the U.S. Department of Homeland Security, requesting variously denial of visas to travel to the U.S.; refusal of entry to the U.S.; claiming he was a threat to the mother and his child (after the mother had lost a domestic violence injunction application and was admonished by the Lower Court for her behavior) were submitted at trial on May 28, 2010.

A fax from Ms. Greig to the arresting agents of the U.S. Department of Homeland Security on the day of the petitioner’s arrest was also submitted.

Reasons for Granting the Writ

National & International Importance

The U.S. Department of State and the Congressional Tom Lantos Commission on Human Rights have both stated that there are several thousand American children abducted and retained overseas. Equally, similar numbers are abducted to the United States. Additionally, significant numbers of children are returned to the United States by Hague Convention partners complying with the Convention.

At the Congressional Tom Lantos Commission on Human Rights, Ernie Allen, President of the National Center for Missing and Exploited Children testified on December 2, 2009 regarding serious improvement steps he felt should be taken to encourage returns of abducted children to the United States:

“Fourth, we should educate all judges – both in the U.S. and internationally - about their responsibilities under the Hague Convention. This training should focus on how swift resolution of these cases best serves the child victims.”
And

“Fifth, we can play an important role in encouraging other countries to return abducted American children by reciprocating when their children are abducted into the United States. As we seek to find the best ways to resolve abductions involving American children who are taken abroad, we must be equally vigilant in resolving cases in which children are abducted from another country and brought into the United States. To better fulfill this responsibility, we should educate U.S. state and local law enforcement about the issue of international child abduction and the obligations of the United States under the Hague Convention.”

The Hague Convention relies on trust between signatory partners. Trust that the Convention aims will be respected and met by participants and most of all, that the children subjected to it will be protected.

U.S. Government officials must not involve themselves in assisting in the abduction and concealment of children to the United States, nor in partisan activities designed not to protect the children, but to thwart the aims of international and domestic law and then to protect themselves from discovery.

The British Supreme Court justice, Sir Justice Johnson stated, “It is inconceivable to me that an American court will not enforce the order for medical treatment.”

The inconceivable has been conceived in the Floridian courts and while the petitioner is justifiably angry at the inordinate delay in proceedings, such is not the sole fault of the Florida legal process, but also that of the arbitrary, unlawful and prejudicial involvement of Barbara Greig and others of the U.S. Department of State.

Such has been the impact of the unfolding evidence of this matter that questions were tabled in the British Parliament and the British Foreign & Commonwealth Office dispatched a senior diplomat to Washington D.C. to seek assurances from the U.S. Department of State Assistant Secretary of State Maura Harty.

It takes enormous amounts of political, legislative and diplomatic effort to encourage countries, such as Japan, to accede to the Convention. In Japan’s case, H.R.1326 condemning Japan for non-accession was recently passed by the House; however Japan and many other countries have still not signed the Convention.

Recently, the Sean Goldman case achieved national and international significance. Sean was abducted and retained in Brazil (a Hague Convention signatory) from his custodial father, David Goldman of New Jersey. A constant theme of the Brazilian family retaining Sean was that the child would be better protected in Brazil; that fairer court proceedings would take place in Brazil; that American courts would be biased against the Brazilian family and act only in favor of the American father’s interests and much more. After several years, the vigorous efforts of Congressman Christopher Smith and Congress, and the monumental effort of the father, David Goldman and thousands of supporters worldwide, did Sean finally come home for Christmas 2009.

Such xenophobic claims are commonplace for American parents traveling overseas in their efforts to recover their children and the example of this case reinforces those impressions. It is imperative that the United States demonstrates a continuous example of fairness towards foreign parents, and especially, that the children who are entrusted to its courts are protected in fact. Building on the reputation the U.S. has for disregarding the Hague Convention when it is “inconvenient” (whether true or not), does a great disservice to children abducted overseas, to children abducted to the U.S., or entrusted to it under the Hague Convention, not to mention all of the parents involved.

Many countries cite concerns over protection of the child, and fair treatment of their own citizen parent in the United States if the treaty is signed or if a child is sent to the United States.
This case demonstrates those concerns are justified, i.e. a U.S. government official assisting in the removal of a child from her proper home state and concealing her in the U.S.; allowing a child to become permanently blinded for the sake of simple, basic medical treatment; allowing the child to be endangered by being placed up for unlawful sale/adoption and into the care and contact of a convicted pedophile, denying a relationship between the child and her foreign parent; undue delay in proceedings; orchestration of arrest and deportation of the foreign parent; obstructing access to the U.S. courts by manipulating visa issuance; misuse of the criminal justice, child protection and domestic violence systems to threaten and intimidate the foreign parent and obstruct the litigation in the child’s best interests.

To date, this child has only been allowed to see her father on one occasion in the last four years due to the conduct of the mother, the U.S. Government and the State of Florida, whose courts appear impotent and incapable of substantive action to protect the child and uphold the law.

Uniformity of Treatment by U.S. Courts hearing Cases Upon a Return Order

When a child is “returned” to the United States under the Hague Convention, this is not the end of the matter, but rather the beginning. The Hague Convention makes no distinction as to which of the two parents is more fit; a ruling under the Hague Convention is specifically not a determination of parental fitness (see art.19 Hague Convention).

Serious issues may remain, and indeed, the parent who successfully initiates a Hague Convention action may, in fact, be unfit as a parent and the child placed at substantial, but not ‘grave and intolerable risk” (cf, Art 13(b) Hague Convention).

When a child is returned to their country of habitual residence, proceedings should be allowed to take place speedily, without “artificial” interference, but with proper deference to the purpose of the Hague Convention, to the trust implicitly rendered in a return order and the concerns for the protection of the children involved.

Five years to obtain a final order is shameful and egregious. Ignoring a child’s serious medical condition to the point of blindness is disgusting, barbaric and uncivilized.

An order for medical treatment has been ignored resulting in a child’s blindness while presiding judge, Judge John V. Doyle, claimed, “In this County, we’re provincials. We don’t do the Hague Convention,” and then excluded all the medical evidence which subsequent state courts refused to review. His Honor is thankfully no longer in office having been compelled to resign after suspension from hearing certain civil matters, and amidst ongoing controversy over his conduct. However, this case is beyond one judge or one court.

There are few cases on the subject of “undertakings” and those that are extant deal with undertakings when ordering a child to a foreign Hague Convention signatory. There appear to be none on undertakings upon a return order to the United States being issued by a foreign court.
However, in Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005) where the Court stated, "the rendering court [can] satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser's custody," the court should refuse to grant the Hague petition, leads to a conclusion that the child should not have been returned to the United States by the British Supreme Court because she has “in fact” been seriously and permanently harmed, i.e. blinded (even assuming jurisdiction had rightfully vested in Florida).

This is not a reputation American courts and authorities should risk acquiring, for it will, if not already, adversely impact the successful return to America of hundreds of internationally abducted children.

I end this with the words of Mr Ernie Allen, President of the NCMEC in his December 2, 2009 testimony before the Congressional Tom Lantos Commission on Human Rights”

“It is critical that the United States continue to improve our response to international child abduction so that we are able to serve as a model for other countries. We are encouraged by the Department of State’s improvements to build capacity to handle these cases. The United States plays an important role in the world community. Once we ensure that our own house is in order – that our law enforcement officers and judges consistently apply the policies and best practices of the Hague Convention – we can stand on the world stage and bring others to the table for the benefit of all children.”

Conclusion

For the reasons stated above, the writ should be granted and the case set down for argument.

Respectfully submitted,

Karl Hindle
Pro se petitioner,

Emily Rose Hindle

Tuesday, October 12, 2010

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