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REPORT ON COMPLIANCE WITHTHE HAGUE CONVENTION ON THE CIVIL ASPECTS OFINTERNATIONAL CHILD ABDUCTION

Response to
Section 2803 of Public Law 105-277, (Foreign Affairs Reform
and Restructuring Act of 1998 ), as amended by
Section 202 of Public Law 106-113 (The Admiral James W.
Nance and Meg Donovan Foreign Relations Authorization Act
for Fiscal years 2000 and 2001)

INTRODUCTION:

As mandated by Section 2803 of Public Law 105-277, (Foreign Affairs Reform and Restructuring Act of 1998), as amended by Section 202 of Public Law 106-113 (The Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act for Fiscal Years 2000 and 2001), the following is a report on compliance by signatory countries with the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), done at The Hague on October 25, 1980.

As required, this report includes discussion of unresolved applications for the return of children to the United States filed through the U.S. Central Authority. It is important to note that under the Convention, return applications may also be filed either directly with the Central Authority of the state where the child is located or with the foreign court with jurisdiction to hear the return request. The left-behind parent may pursue return without involving the U.S. Central Authority. In these circumstances, the U.S. Central Authority may never know about such a request and its disposition. Thus this report cannot give a complete picture of the outcome of all Hague applications for the return of children to the United States.

It also should be noted that the U.S. Central Authority considers a Hague application to be "filed" on the date on which the application is forwarded by the U.S. Central Authority to the appropriate foreign Central Authority, rather than the date of the initial receipt of the application by the U.S. Central Authority. This is because in many cases supplementary materials must be obtained from the applicants before the application is considered complete and can be forwarded. Where this occurs, every effort is made to do so expeditiously.

With regard to the term "unresolved," the November 17, 1999 Conference Report on H.R. 3194 noted that the Department’s previous Compliance Report:

The Department takes this opportunity to clarify any confusion that may arise from the use of the word "resolved" and the Department''s decision to report as "resolved" cases that are determined by the U.S. Central Authority to be "closed" as Hague cases or "inactive." As in other signatory countries, the U.S. Central Authority closes or inactivates Hague cases for a variety of reasons, including: return of child; parental reconciliation; withdrawal of request for assistance; inability to contact the requesting parent after numerous attempts; exhaustion of all judicial remedies pursuant to the Convention; or access rights granted and enforced. In all of these cases, regardless of the outcome, no further proceedings pursuant to the Hague Convention are anticipated. Considering these cases "resolved" and closing them as Hague Convention cases is consistent with the practices of other Convention signatories.

Regrettably, the exhaustion of all judicial remedies pursuant to the Convention may result in a case which is "closed" under the terms of the Convention, but in a resolution that is unsatisfactory to the left-behind parent. The resolution of the case may or may not have been consistent with the Convention''s requirements, independent of whether the left-behind parent is satisfied. Even when the Hague aspects of a case have been closed, however, the U.S. Central Authority stands ready to maintain a non-Hague case to provide assistance to the left-behind parent by facilitating access (which may be sought under or independently of the Convention), reporting on the welfare of the child, or assisting the parent to achieve a more satisfactory solution. When the foreign court decision on the Hague aspects of a case indicates a lack of understanding or consideration of the Convention''s provisions, the U.S. Department of State registers its concern and dissatisfaction with the decision through the foreign Central Authority or diplomatic channels. In several recent cases, additional U.S. government interest has been manifested by the U.S. Central Authority, U.S. Ambassadors and Assistant Secretaries of State, as well as both the President and Secretary of State.

The U.S. Central Authority may open a Hague case based on a parent expressing concern about his/her child abroad, without requiring that a Hague application be filed or complete. The U.S. Central Authority will forward to other Central Authorities incomplete applications lacking critical supporting documents and inform parents that, while other Central Authorities are often unable to process the case without complete documentation, they may be able to make limited preliminary inquiries while parents are gathering the required documents. Thus, a Hague case may be "open" even if no Hague application has been "filed." This further complicates reporting efforts on compliance, since an opened case may be resolved without an application ever being filed. The Department is naturally pleased if a case can be resolved in its earliest stages, even before an actual application need be filed.

Annexed to this report is a list by country of the cases unresolved for more than 18 months, as required in the November 17, 1999, Conference Report. Information that might identify a case to the abducting parent, or to others, has been removed to protect the privacy of the child and applicant parent. Separately, in various places in the text of this report, certain illustrative cases are used to more fully address questions of compliance with the Convention. For the most part, these examples occurred outside the reporting period and are not, therefore, listed in the annex.

The November 17, 1999 Conference Report on H.R. 3194 also notes that:

This report identifies specific areas and cases in which signatory countries have not met the Convention''s goals or in which the Convention has not operated to achieve a satisfactory result for left-behind parents in the United States. The U.S. Department of State has taken steps in the past year to promote better information sharing and more consistent practices among signatory countries. The Department hosted in September 2000 a judicial conference that gathered judges and other high level officials from six common law countries and observers from 23 other nations to discuss how to foster consistency in interpreting and implementing the Convention. The Department of State is also developing a more efficient and reliable means of tracking information about international parental abduction cases. This new case management tracking system will allow collection of better information and statistics on specific country performance and abduction factors. It is hoped that, as the system is perfected, future Compliance Reports under Section 2803 will contain increasingly comprehensive information.

In addition to applications for the return of children, this report also discusses applications for access to children. While the 1980 Convention did not treat in depth questions of parental access and thus is less specific about terms of access than terms of return, the Department of State recognizes the importance of children having open and meaningful access to both parents. Last month’s conference devoted considerable attention to access issues. The Department will pursue access in every appropriate fora, including the upcoming March 2001 quadrennial meeting on the Hague Convention.

RESPONSE TO SECTION 2803(a):

Section 2803(a)(1) requests "the number of applications for the return of children submitted by applicants in the United States to the Central Authority for the United States that remain unresolved more than 18 months after the date of filing."

Taking into account the above clarifications, as of July 31, 2000, there were 30 applications that remained unresolved 18 months after the date of filing with the relevant foreign Central Authority.

Section 2803 (a)(2) requests "a list of the countries to which children in unresolved applications described in paragraph (1) are alleged to have been abducted, are being wrongfully retained in violation of United States court orders, or which have failed to comply with any of their obligations under such Convention with respect to applications for the return of children, access to children, or both, submitted by applicants in the United States."

The 30 applications identified above for the return of children that remain unresolved, 18 months after the date of filing, as of July 31, 2000, pertain to nine countries: Australia, Bahamas, Canada, Colombia, Mexico, Panama, Poland, Spain, and Switzerland. The extent to which these countries and others appear to present additional issues of compliance under the Hague Convention is discussed further in Sections (a)(3), (a)(4) and (a)(6), below.

In considering the question of compliance and court orders, it should be noted that, while most Hague cases involve a custody right by court order or exercise of law, a custody or other court order is not a requirement for filing a Hague application. The recognition of rights of custody and access under the law of other signatory countries is a goal of the Convention, but the Convention does not itself require enforcement of foreign custody or visitation orders by states party. The U.S. Central Authority does not, therefore (and cannot fully) record and monitor whether foreign countries recognize U.S. custody or other court orders. The Department recognizes that this information, systemically collected, could prove useful to further efforts and will undertake to do so whenever possible. When fully developed, the new case management tracking system, previously described in this report, may enable the U.S. Central Authority to provide better information in the future about wrongful retention of children in violation of United States court orders.

Section 2803 (a)(3) requests "a list of the countries that have demonstrated a pattern of noncompliance with the obligations of the Convention with respect to applications for the return of children, access to children, or both, submitted by applicants in the United States to the Central Authority for the United States."

There are many factors involved in implementing the provisions of the Convention, not least because the executive, legislative and judicial branches of each state party have important and varying roles. A country may thus perform well in some areas and poorly in others. The Department of State, building on recommendations of an inter-agency working group on international parental child abduction, has identified the elements involved in implementing the provisions of the Convention and has used these as factors for evaluating country performance. The elements are: the existence and functioning of implementing legislation, Central Authority performance, judicial performance, and enforcement of orders. "Implementing legislation" can be evaluated as to whether, after ratification of the Convention, implementing legislation has been enacted that enables the executive and judicial branches to carry out their Convention responsibilities. "Central Authority performance" involves the speed of processing applications; procedures for assisting left-behind parents in obtaining knowledgeable, affordable legal assistance; judicial education or resource programs; responsiveness to U.S. Central Authority and left-behind parent inquiries; and success in promptly locating abducted children. "Judicial performance" comprises the timeliness of first hearings and subsequent appeals and whether courts apply the Convention and its articles appropriately . "Enforcement of orders" involves the prompt enforcement of civil court orders by civil or police authorities and the existence and effectiveness of sanctions compelling compliance with orders. Specific instances of failure to enforce orders since April 1999 are addressed in section (a) (6) below.

This report identifies those countries that the Department of State has found to have demonstrated a pattern of noncompliance or that, despite a small number of cases, have such systemic problems that the Department believes a larger volume of cases would demonstrate continued noncompliance constituting a pattern. In addition, the Department recognizes that countries may demonstrate varying levels of commitment to and effort in meeting their obligations under the Convention. The Department considers that countries listed as noncompliant are not taking effective steps to address deficiencies.

As discussed further below, the Department of State considers Austria, Honduras, Mauritius, and Panama to be noncompliant using this standard, and Germany, Mexico and Sweden to be not fully compliant. The Department of State has also identified several countries of concern which, while not having demonstrated a pattern of noncompliance, have inadequately addressed some aspects of their obligations under the Hague Convention. These countries are Colombia, Poland, and Switzerland.

Noncompliant Countries AUSTRIA: Austria was identified as noncompliant in the Department’s previous Compliance Report to Congress because of delays in case processing which the Department believed reflected a lack of understanding by the Austrian judiciary of the Convention and indifference to the importance of expeditiously handling cases. This suggested the need for the Austrian Central Authority to better meet its Convention obligation under Article 7 to provide information about the Convention to the judiciary. In addition, Hague court orders were neither enforced adequately, nor were sanctions applied against an abducting parent who defied court orders. The Department’s concerns about Austrian compliance continue, despite assurances that Austria’s Central Authority has undertaken measures to educate the judiciary. Bilateral exchanges at high levels with the Austrian Government have produced a more forthcoming stance by the Central Authority. Whether this will produce satisfactory results remains in question. In particular, the Department clearly differs with the Austrian Government on interpretation of Article 13 of the Hague Convention, which addresses protection of the abducted child. The Department notes considerable efforts by Ambassador Hall and Secretary of State Albright to raise our concerns at the highest levels of the Austrian Government.

One particular case suggests that the previously cited problems remain systemic. In this case, Austrian courts to the highest court ordered the return of the child to the United States. The taking parent appealed the enforcement of the return order. The courts then determined that the Austrian return order should not be enforced because the delays in the case had caused the child to become settled in Austria. After the Austrian court denied the child''s return to the United States, the left-behind parent sought access rights under the Hague Convention. The courts finally granted very limited access in Austria. It is not yet clear whether a new, more expansive access order will be granted and, if granted, will be effective in promoting the child''s access to both parents. The Department of State notes that, at the time of the writing of this report, Austria’s Minister of Justice Boehmdorfer has offered to assist the parties in this case to seek a resolution that will allow both parents to participate more fully in the life of their child. The United States is encouraged by the Minister’s initiative and hopes that it will succeed.

HONDURAS: Honduras was cited as noncompliant in the previous Compliance Report to Congress. Since that time, there has been no change and the Honduran government has taken no actions with regard to applications for assistance pursuant to the Convention. Honduras acceded to the Convention on March 1, 1994. On July 1, 1996, the Honduran government notified The Hague that it had designated its Junta Nacional de Bienestar Social, now known as the Instituto Hondureno de La Ninez y la Familia, as the Central Authority for the Convention in Honduras. The Honduran executive branch, however, has never submitted the Convention to the Honduran legislature for ratification. Hague Convention records state that the Convention entered into force bilaterally between the U.S. and Honduras on June 1, 1994. The government of Honduras, however, has not submitted domestic legislation to implement the provisions of the Convention in effect between the United States and Honduras. Since June 1994, the U.S. Central Authority has attempted to deliver to Honduras four Hague return applications on which the Honduran Government has taken no action. In August 2000, the U.S. Ambassador met with the Honduran Foreign Minister and expressed his concerns about Honduras not recognizing its own accession to the Convention.

MAURITIUS: Mauritius was cited in the previous Compliance Report to Congress because it had not taken the necessary steps to properly implement the Convention. Although Mauritius passed implementing legislation in July 2000, local law still requires the President''s signature and publication in the official gazette before it enters into force. In addition, this legislation does not include a provision making it applicable retroactively. Consequently, it is uncertain whether Mauritian courts will apply the law to two outstanding cases involving U.S. citizens that have not been handled in accordance with the provisions of the Convention, notwithstanding that they arose after the Convention entered into force between Mauritius and the United States. To date, Mauritian courts have ruled that the absence of implementing legislation has made the Convention inapplicable in Mauritius even though Mauritius has been a party to the Convention since 1993. The Department notes that recent elections in Mauritius may result in a change of decision-makers whose views on this issue may differ from those of the previous Administration. The Department, through its Chief of Mission, will continue to vigorously represent our views. The Department further notes the participation of an observer from the Government of Mauritius to our recent Judicial Conference and hopes such participation may also result in some possible movement forward.

There are two outstanding U.S. cases that have been presented to the Mauritian Central Authority. The Central Authority refused to accept them as Hague cases. In the first case, the Mauritian court rejected return of the child. This rejection was upheld in the appeals court, and the Privy Council refused to hear the case further. The Department and the U.S. Embassy continue to pursue this case. The government of Mauritius is holding the second U.S. case pending the outcome of the first case.

PANAMA: The U.S. has received conflicting indications from Panamanian authorities as to whether the Panamanian Government believes the Convention is or is not in force. The Convention entered into force between the United States and Panama in 1994. Since then, nine Hague return applications have been filed by left-behind parents in the United States. In only one case was a child returned pursuant to orders under the Convention.

The Panamanian Government has not adopted implementing legislation clarifying the role of the Central Authority vis-a-vis the judicial system. Without such legislation, the Panamanian code of family justice takes precedence over the Convention. There is also an apparent lack of understanding among the Panamanian judiciary about the Convention, suggesting the need for judicial education. In January 2000, a Panamanian superior court overturned a lower court ruling of "international restitution" on the basis of appellant''s arguments that included an incorrect claim the Convention was not in force between the United States and Panama at the time of the child’s removal, and that cited the absence of a child custody order at the time of removal (not a prerequisite for Hague compliance).

The Department and U.S. Embassy officials have raised problems with the Convention in bilateral and other meetings with the Secretary General of the Panamanian Foreign Ministry, including the May 2000 bilateral meeting on social issues. The U.S. Embassy has engaged high level Panamanian officials in discussion on better implementation of the Convention. The Department of State is encouraged by these sessions and that the Panamanian Central Authority has begun conducting training on the Convention for family court judges. The Department of State notes that the Panamanian Central Authority has recognized that there is no linkage between Hague Convention compliance and negotiations on a bilateral child support arrangement, which Panama seeks in order to compel U.S. service members formerly stationed in Panama, as well as other U.S. citizens, to pay child support in accordance with Panamanian court decisions.

Countries That Are Not Fully Compliant

GERMANY: The President and Secretary of State have raised the issue of international parental child abduction with their German counterparts. As a result, a binational working group of experts on this issue is conducting ongoing discussions and developing a specific list of actions to take to improve the situation. German authorities have been forthcoming in sharing views and information with the United States. For instance, German authorities recently confirmed that the number of courts authorized to hear Hague Convention cases is being significantly reduced in an effort to encourage greater judicial familiarity and expertise in Hague cases. The Department of State finds these developments to be promising, but is unable to find Germany fully compliant until there is concrete progress in addressing the problems discussed below.

There has been a lack of understanding among the German judiciary about the Convention, and a reluctance in the German Central Authority to provide the judiciary with explanatory materials about effective implementation of the Convention. In a number of cases in Germany there has been an unconscionably broad use of the Convention''s exceptions to return. Parents seeking return of their abducted children are sometimes asked to prove that return would not harm the child, even though the Convention places the burden of proof on the abducting parent. German courts have often used a traditional "best interests of the child" analysis to justify refusing to return children, thereby wrongly addressing those issues as if they were custody issues, while asserting that non-return is on the basis of Article 13b (grave risk of psychological or physical harm). The central point of the Convention is that it is the country of habitual residence, not the country to which the child has been abducted, that is the appropriate venue to make a judgment about the child''s best interests and custody. The wishes of children as young as five years old have been given excessive consideration in German courts, despite the Convention''s requirement that the child must have "attained an age and degree of maturity at which it is appropriate to take account of its views." In other cases, courts have denied the return of abducted children because of evidence provided by individuals with an interest in the case. Left-behind parents also often have difficulty obtaining effective legal counsel to represent them in German courts.

In access proceedings under Article 21 of the Convention, some German court orders do not provide for children to have a meaningful relationship with both their parents and both their cultures. Access is often limited and conditional to a point of causing emotional stress to both parents and children. Even when access orders are issued by the courts, the systemic failure to enforce contempt of court sanctions allows abducting parents to resist enforcement of orders indefinitely.

To illustrate, in one case that is outside the reporting period, the abducting parent took the child to Germany in 1996. The left-behind parent filed for the return of the child. Shortly thereafter, the lower German court ordered the return of the child to the United States. The abducting parent appealed the decision. The German judge took testimony from an interested party at face value and reversed the return decision.

The left-behind parent then requested access rights, which were ordered by both the lower and higher courts. The abducting parent failed to comply with the orders. Finally, in May 2000, the abducting parent allowed the left-behind parent to see the child for the first time since 1996. The left-behind parent hopes to be able to see the child regularly but, without sanctions for failure to comply with court orders, the abducting parent remains able to deny access.

In another case illustrative of German attitudes, which is only partially a Hague case, a German citizen abducting parent took two children from the United States to Germany in July 1992. In August 1992, the children were placed in the custody of the German Youth Agency and subsequently placed in foster care. The German authorities did not notify the Embassy that two American citizen children were facing difficulties in Germany. The American citizen parent began to seek legal means to regain the custody of the children. In March 1995, the local German court determined that the children were to remain with the German foster parents. It further said that if the American parent were successful in establishing a close relationship with the children, they would be returned to him. In July 1995, the U.S. Embassy requested the assistance of the German Foreign Ministry in returning the children to the U.S. The American citizen parent recently filed an application for access to his children under the Hague Convention. Through the recently established German-American Bi-National Working Group, the U.S. is vigorously working to pursue the reunification of the American father and the children.

MEXICO: Mexico was listed in the previous Compliance Report to Congress as noncompliant with its responsibilities under the Convention. While systemic problems continue and a large number of cases remain unresolved, Mexico has shown impressive efforts to better meet its Convention responsibilities. Mexican and U.S. Central Authority officials have met four times to discuss better procedures for dealing with cases, resulting in better and more frequent communication and case updates. The Department of State is further encouraged by recent discussions with the Mexican Central Authority regarding plans by the Mexican foreign ministry to allocate additional resources to the program.

Twenty-five of the 34 cases listed in the previous Compliance Report have been closed, with approximately one-third resulting in the return of the children to the United States. There have been ten Hague court hearings since Fall 1999, with all children except one returned to the U.S. In one case, children were returned to the United States only six months after the abduction. In addition, there have been voluntary returns in more than 30 cases, with the existence of a pending Hague case a factor in the voluntary return decision. Once a child has been located, the taking parent must be notified of the hearing date. Mexico’s new procedure of taking children into custody at that time has been very effective in ensuring that the taking parent does not go into hiding with the children.

Progress has occurred primarily in cases recently filed with the Mexican Central Authority. The six cases raised by the U.S. delegation in the Binational Commission meetings illustrate the delays in cases when the location of the child is not known and/or an amparo appeal (a provision of the Mexican Constitution where a claim is made that a civil right has been violated) is filed. There has been progress in one of those cases.

Mexico has no implementing legislation integrating the Convention into the Mexican legal system. This lack of a legal structure facilitating the Convention’s operation is a major obstacle to the Convention’s effective implementation in Mexico.

Most cases go a year or more without resolution. The Central Authority does not have law enforcement powers and must rely on federal and state police to locate children. Mexican law enforcement agencies do not consistently undertake serious efforts to locate parentally abducted children. In addition, the amparo has been abused by taking parents to block Hague proceedings indefinitely.

These concerns were raised at the 1999 Binational Commission (BNC) meeting, the 1999 follow-up meeting to the BNC, and the 2000 BNC meeting.

SWEDEN: Sweden was cited in the previous Compliance Report as noncompliant. Progress has been made in resolving cases and returning children and the Central Authority has been increasingly cooperative. However, the Department of State remains concerned about the commitment of Swedish authorities to act promptly to locate children and enforce return and access orders issued under the Convention. The U.S. Ambassador to Sweden met with Swedish justice officials and appeared on Swedish television to press the U.S. interest in prompt action on Hague cases. In one case, a child was located in Sweden and returned to the United States, but only after a lengthy delay and despite initial assurances by Swedish authorities that the child was not in Sweden. In another case, after a lengthy period with no progress, Swedish authorities assisted the U.S. Embassy and U.S. law enforcement in a multi-country search that resulted in a child’s return to the U.S. from a third country.

One older case continues, nevertheless, to illustrate the potential for disputes over interpretation of the Hague Convention and enforcement of custody orders, which the convention does not address. The Regeringsratten, the Supreme Administrative Court in Sweden, denied a petition by an American parent for the return of a child to the United States. Return would have been required under an existing U.S. joint custody order that included a consensual agreement that the United States would remain the child’s habitual residence and that a U.S. court would maintain continuing and exclusive jurisdiction to resolve all future custody issues, but that allowed the Swedish parent to take the child to Sweden for a two-year period. The Swedish parent filed a petition in a Swedish court seeking to establish sole custody of the child and refused to return the child to the parent in the United States in August 1995, as agreed to in the U.S. custody order. The U.S. parent filed a petition under the Convention with the Swedish Central Authority. Although the lower courts in Sweden ordered the child’s return to the United States, the Regeringsratten found that Sweden had become the child’s place of habitual residence, stating that a determination of habitual residence is a finding of fact that cannot be legally agreed upon in advance. The Department protested to the Swedish Ministry of Foreign Affairs that the failure to recognize the United States as the habitual residence was inconsistent with the goals of the Convention and with the fact that the United States was, in fact, the habitual residence when the custody dispute arose. The child has never been returned to the United States. The applicant in this case subsequently obtained a Swedish court order for unsupervised access, but enforcement of the order depends on the acquiescence of the abducting parent who as of the time of this report has not permitted access.

The lack of effective measures in the Swedish judicial system to grant and enforce access rights compounds the negative consequences for the left-behind parent of a judicial decision not to return a child under the Convention. Swedish courts appear reluctant even to consider permitting access in the United States, in spite of the fact that judicial arrangements could be made in the United States to help ensure the return of a child to Sweden. In the absence of contempt of court sanctions, the abducting parent can, in any case, effectively disregard court ordered access.

Senior officials of the Swedish foreign ministry have visited the United States to meet with the U.S. Central Authority and members of Congress to discuss U.S. concerns on Sweden’s implementation of the Convention. Despite the resolution of several long-outstanding cases, the failure to grant and enforce access rights, and the lack of effective contempt-of-court sanctions in access cases, and instances where Swedish courts refuse to honor U.S. court orders even when both parents have agreed to a U.S. venue for custody determinations, are areas for continuing concern .

Countries of Concern

COLOMBIA: Colombian courts frequently request a home study of the left-behind parent in the United States before ordering a child''s return to the United States. Such inquiries go to the merits of custody and are inappropriate for consideration in the context of a Hague proceeding, and are properly left to the courts of the country of habitual residence, as per Convention Article 16. A Hague Convention case is not a child custody case but a mechanism to return a child to his or her country of habitual residence so that the courts there may decide contested custody issues. In addition, the U.S. Central Authority often has difficulty reaching the Colombian Central Authority and in receiving responses to routine inquiries.

POLAND: The Polish Central Authority is extremely cooperative and responsive in its dealings with the U.S. Central Authority. However, the U.S. Central Authority has informed the Polish Central Authority of concerns that the Polish judiciary is not fulfilling its obligations under the Convention.

Hague cases are sometimes not handled expeditiously. Unless there is a voluntary return, children normally remain in Poland during the entire appeals process, which usually takes a minimum of two years. In addition, in almost every Hague case, Polish courts require the left-behind parent to undergo psychological testing, and in many cases have also requested home studies of left-behind parents. Such inquiries go to the merits of custody and are thus inappropriate for consideration in the context of a Hague proceeding, and are properly left to the courts of the country of habitual residence, as per Convention Article 16. Enforcement of Hague decisions is also problematic, as there is no entity charged with enforcement of Hague rulings. Because these are civil matters, police will not intervene to enforce Hague orders.

SWITZERLAND: Switzerland is a federal country with powerful cantons. Authorities at the federal level, including the Swiss Central Authority, are cooperative and responsive, but there are problems with cantonal-level governments, courts and child welfare agencies, which have favored the Swiss parent in some international parental abduction cases. While federal authorities understand and take the Hague Convention seriously, there is a reluctance to intervene to enforce U.S. court orders that are in opposition to Swiss (federal or cantonal) court decisions.

In the specific case cited in section (a)(6) below, the Swiss federal court ruled that the child must be returned to the left-behind parent in the United States, and the cantonal court of original jurisdiction rejected the taking parent''s appeal of this decision. When the taking parent moved to another canton and jurisdiction was transferred to the new place of residence, this new canton refused to implement the federal court order. In addition, the cantonal court recently ordered a psychological examination of the child. The examination gave considerable weight to statements made by the eight-year-old child, and concluded that return of the child would cause grave psychological harm because the child had by then become integrated in Switzerland. The court has not yet made a ruling subsequent to the psychological examination. As a result of such delays it has been four years since filing of the Hague application for return.

The above-referenced case was raised by the Charge d''Affaires with the highest Swiss non-elected children''s issues official in October 1999. The Embassy is preparing to approach cantonal authorities directly. The Embassy maintains ongoing close contacts with the Swiss Central Authority on children''s issues.

Section 2803 (a)(4) requests "detailed information on each unresolved case described in paragraph (1) and on actions taken by the Department of State to resolve each such case, including the specific actions taken by the United States chief of mission in the country to which the child is alleged to have been abducted." The information requested under this section is attached in Attachment A.

Section 2803 (a)(5) requests "information on efforts by the Department of State to encourage other countries to become signatories to the Convention." Working for greater foreign participation in multi-lateral treaties, such as the Hague Convention, is a strategic goal in the FY 1999-2000 Performance Plan of the Bureau of Consular Affairs. The Department avails itself of appropriate opportunities that arise in bilateral contacts to persuade other countries not party to the Convention of the advantages that would derive from ratification or accession. The Assistant Secretary for Consular Affairs routinely raises the Convention in talks with foreign officials on other bilateral consular matters. The Director of the Office of Children''s Issues described the advantages of accession to the Convention in an address before the Consular Corps of Washington. The Department maintains a library of talking points and materials for its overseas posts to use in explaining to foreign governments the advantages of adhering to the Convention. The Department and its overseas posts have worked with the following countries in the past year to encourage accession, ratification, or passage of implementing legislation: Costa Rica, El Salvador, Ghana, Guatemala, Japan, Lithuania, Nicaragua, Panama, Peru, and Trinidad. Subsequently, Trinidad acceded to the Convention and Peru''s legislature ratified the Convention.

Section 2803 (a)(6) requests "a list of the countries that are parties to the Convention in which, during the reporting period, parents who have been left-behind in the United States have not been able to secure prompt enforcement of a final return or access order under a Hague proceeding, of a United States custody, access, or visitation order, or of an access or visitation order by authorities in the country concerned, due to the absence of a prompt and effective method for enforcement of civil court orders, the absence of a doctrine of comity, or other factors."

The reporting period is considered as the period from the date of submission of the last report on April 30, 1999 until July 30, 2000. The information provided is that available to the U.S Central Authority within these dates.

CANADA: In one case, local Tribal police refused to enforce a Provincial court order for return of a child.

GERMANY: Orders for parental access are sometimes not enforced due to a lack of effective sanctions for failure to comply with orders.

ISRAEL: Orders for return have not been enforced due to difficulty in locating the child and taking parent. In several cases, orders for return have been overturned on appeal or not executed because of provisions in the orders requiring guarantees regarding the taking parent''s immigration and employment status upon return to the U.S. with the child.

SPAIN: In several cases, orders for return have not been enforced because local law enforcement officials have not been aggressive in locating the children.

SWITZERLAND: Federal court orders for return and access must be enforced by local officials. In one significant case, local officials have failed to enforce an order for return issued by the federal courts.

Section 2803 (a)(7) requests "a description of the efforts of the Secretary of State to encourage the parties to the Convention to facilitate the work of nongovernmental organizations within their countries that assist parents seeking the return of children under the Convention." The Department of State works closely with the National Center for Missing and Exploited Children (NCMEC) through a cooperative agreement and through collaborative efforts in areas not covered by the agreement. The Department has offered to assist the International Center for Missing and Exploited Children (ICMEC) as it expands its overseas presence and work. The Department and ICMEC will continue to explore ways in which the Department can be supportive of ICMEC''s work, while ensuring that the ICMEC meets its goal of preserving its identity and integrity as a nongovernmental organization.

 

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