REPORT ON COMPLIANCE WITH
THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF
INTERNATIONAL CHILD ABDUCTION

INTRODUCTION:

Parental child abduction is a tragedy. When a child is abducted across international borders, the difficulties are compounded for everyone involved. The Department of State considers international parental child abduction, as well as the welfare and protection of U.S. citizen children taken overseas, to be important, serious matters. We place the highest priority on the welfare of children who have been victimized by international abductions.

For some parents, an important tool in seeking the return from another country of their abducted or wrongfully retained child is the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The United States was a major force in preparing and negotiating the Convention, which was finalized in 1980 and entered into force for the United States on July 1, 1988. Today, the United States has a treaty relationship under the Convention with fifty-three other countries. The Convention applies to the wrongful removal or retention of a child that occurred on or after the date the Convention came into force between the U.S. and the other country concerned. The date on which the U.S. entered into a treaty relationship with its many Convention partner countries varies and more countries are considering becoming parties to the Convention all the time. The U.S. has actively encouraged countries to accede to the Convention, recognizing its potential effectiveness not just in resolving cases of international parental child abduction, but in deterring future abductions.

As mandated by Section 2803 of Public Law 105-277, (the 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) and Section 212 of the Foreign Relations Authorization Act for Fiscal Year 2003, the Department of State submits this report on compliance with the Convention by other party countries. Previous such reports were completed in April 1999, September 2000, April 2001 and January 2003. The individual cases covered in Attachment A of the present report remained unresolved as of September 30, 2003.

This report identifies those countries in which implementation of the Convention is incomplete or in which a particular country’s judicial or executive authorities fail properly to apply the Convention’s requirements, for reasons specific to each country and to varying degrees. The report also discusses unresolved applications for the return of children to the United States that have been filed through the Department of State, which serves as the U.S. Central Authority for the Convention. Under the Convention, return and access applications may also be filed either with the Central Authority of the country in which the child is located or directly with a properly empowered court in that country. The result is that left-behind parents may (and frequently do) pursue the return of a child under the Convention without involving the U.S. Central Authority. In these circumstances, the U.S. Central Authority may never learn of such applications or their eventual disposition. This report therefore cannot give a complete picture of the outcome of all Convention applications for the return of children to the United States.

The U.S. Central Authority considers a Convention 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 the U.S. Central Authority must obtain further information and supporting documents from the applicants before the application is considered complete and ready to forward to the foreign Central Authority for processing. When such supplementary information is required, the U.S. Central Authority makes every effort to obtain the needed information expeditiously.

The U.S. Central Authority may open a Convention case based on a parent expressing concern about his/her child abroad, without requiring that a Convention application be filed or complete. The U.S. Central Authority may forward to other Central Authorities incomplete applications, even those lacking critical supporting documents. In such cases the U.S. Central Authority informs applicant parents that, while other Central Authorities are often unable to process an application without complete documentation, the other Central Authority may be able to make limited preliminary inquiries while parents are gathering the required documents. Thus, a Convention case may be “open” even if no application has been “filed.” This further complicates reporting on compliance with the Convention, since an opened case may be resolved without an application ever being filed. The U.S. Central Authority is naturally pleased if an abducted or wrongfully retained child is returned to the U.S. without the need to file an actual application under the Convention.

As has been the practice in previous reports, the Department is reporting as “resolved” cases that are determined by the U.S. Central Authority to be “closed” as Convention cases or that are “inactive.” This is a technical designation, and does not necessarily mean an end to the Department’s support of a left-behind parent’s efforts to resolve a dispute involving an abduction or wrongful retention. As in other countries party to the Convention, the U.S. Central Authority closes or inactivates Convention cases for a variety of reasons. These include: return of the child; parental reconciliation or agreement; a parent's withdrawal of the request for assistance; inability to contact the requesting parent after numerous attempts over a two-year period; exhaustion of all judicial remedies available under the Convention; the child attaining 16 years of age; or (in appropriate cases) the granting and effective enforcement of access rights. In all such cases, regardless of the outcome, no further proceedings pursuant to the Convention are anticipated. Treating these cases as “resolved” and closing them as Convention cases is consistent with the practice of other Convention party countries. More specifically, we will close a Convention case if the circumstances definitively require it, such as the return of a child or upon the specific request of the applicant parent. We will “inactivate” a case when, in the absence of such definitive circumstances, the facts of the case do not allow, or the applicant parent does not permit, a further reasonable pursuit of the case. Two years after inactivation, and in the absence of additional relevant requests for assistance by the left-behind parent, the case will be closed.

The exhaustion of all judicial remedies available under the Convention may result in a case that is “closed” but that has been resolved in a way that is unsatisfactory to the applicant parent and the U.S. Central Authority. Independent of whether the left-behind parent is satisfied with the result of an application for a child’s return, the judicial and/or administrative authorities in the country to which a child was abducted or in which a child was wrongfully retained may or may not have applied the Convention correctly. Even when a case for the return of a child under the Convention has been closed, however, the U.S. Central Authority stands ready to provide assistance to the left-behind parent by helping to facilitate access to a child (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 a foreign court decision on the Convention aspects of a case indicates a misunderstanding of or failure properly to apply the Convention’s terms, the U.S. Department of State may register its concern and dissatisfaction with the decision through the foreign Central Authority and/or through diplomatic channels. The same is true in circumstances involving the failure by administrative or other executive officials effectively to enforce court or other relevant orders arising out of applications under the Convention. The Secretary of State, other senior Department officials and U.S. Ambassadors and Consuls have repeatedly raised international parental child abduction issues and specific cases with appropriate foreign government officials.

Annexed to this report as Attachment A is a list by country of the cases submitted pursuant to the Convention that remained unresolved for more than 18 months as of September 30, 2003. Specific details that might identify the parties to a case or relevant others, have been removed to protect the privacy of the child and the applicant parent.

This report identifies specific countries and individual cases in which countries party to the Convention have not complied with its terms or in which the result for applicant parents in the United States has been inconsistent with the purposes and objectives of the Convention. The U.S. Department of State continues to take steps to promote better information sharing and more consistent practices among countries party to the Convention. The Department works in close cooperation with the Hague Permanent Bureau on judicial education issues and the formulation of Best Practices guides for states party to the Convention. In coordination with the Hague Permanent Bureau, the United States and Germany co-sponsored an October 2003 judicial training conference on Convention enforcement issues for judges and Central Authority officials from the U.S., Canada, Israel, and a number of European countries.

Supplementing the treatment of matters relating to applications for the return of children under the Convention, Attachment B of this year's report provides a discussion of several key issues relating to parental access to children as they relate to our Convention partner countries. While the Convention does not treat in depth many of the questions surrounding access, the Department of State recognizes the critical importance of children having meaningful access to both parents.

Reporting Period:

This report covers the period from October 1, 2002 to September 30, 2003. The information provided herein is that available to the U.S. Central Authority within these dates. In some instances, updates are provided to include developments subsequent to September 30, 2003.

RESPONSE TO SECTION 2803 (a):

Section 2803(a)(1) of Public Law 105-277, as amended, requires that we report “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 September 30, 2003, there were forty-one (41) applications for return in U.S. Central Authority records that remained open and active eighteen months after the date of filing with the relevant foreign Central Authority. This total includes several cases that became known to the U.S. Central Authority through contacts with parents or local and state officials, but that were actually filed by California authorities directly with a 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 the 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 forty-one applications identified above that remain unresolved eighteen months after the date of filing, as of September 30, 2003, involved fourteen countries: Colombia, Ecuador, France, Germany, Honduras, Ireland, Israel, Mauritius, Mexico, Poland, South Africa, Spain, Turkey, and Zimbabwe. The extent to which these countries and others appear to present additional, systemic problems of compliance with the Convention is discussed further in the passages concerning Sections 2803(a)(3), (a)(4) and (a)(6), below.

In considering the question of compliance with the Convention and the treatment of court orders of custody, it should be noted that adjudications of return applications under the Convention are not custody proceedings. Rather, the basic obligation under the Convention to return a child arises if a child is removed to or retained in a country party to the Convention in violation of rights of custody existing and actually exercised in (and under the law of) the child’s country of habitual residence. Most Convention cases filed by parents seeking the return of a child to the United States are premised on the existence of rights of custody held by the applicant parent that arise by operation of law, typically because the applicable state law creates joint rights of custody in both parents. A court order of custody in favor of a left-behind parent is not a requirement for pursuing a return application under the Convention. In effect, the Convention requires that foreign countries recognize rights of custody arising under U.S. law (if the child is habitually resident in the U.S.) to the extent that such rights provide the basis for an application and the rationale for return. Courts adjudicating applications for return under the Convention are not permitted to examine or rule on the merits of an underlying custody dispute.

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

There are many factors relevant to evaluating whether a country has properly implemented and is effectively applying the Convention, not least because the executive, legislative and judicial branches of each party country have important and varying roles. A country may thus perform well in some areas and poorly in others. The Department of State, building on the recommendations of an inter-agency working group on international parental child abduction, has identified certain elements of overall performance relating to the Convention’s most important requirements and has used these as factors to evaluate each country’s compliance.

These elements are: the existence and effectiveness 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, the Convention is given the force of law within the domestic legal system of the country concerned, enabling the executive and judicial branches to carry out the country’s Convention responsibilities. “Central Authority performance” involves the speed of processing applications; the existence of and adherence to procedures for assisting left-behind parents in obtaining knowledgeable, affordable legal assistance; the availability of judicial education or resource programs; responsiveness to inquiries by the U.S. Central Authority and left-behind parents; and success in promptly locating abducted children. “Judicial performance” comprises the timeliness of first hearing and subsequent appeals of applications under the Convention and whether courts apply the law of the Convention appropriately. “Enforcement of orders” involves the prompt enforcement of civil court or other relevant orders issued pursuant to applications under the Convention by administrative or law enforcement authorities and the existence and effectiveness of mechanisms to compel compliance with such orders. Countries in which failure to enforce orders is a particular problem are addressed in the passages concerning 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 serious deficiencies.

Applying the criteria identified above, and as discussed further below, the Department of State considers Austria, Colombia, Ecuador, Honduras, Mauritius, Mexico, and Turkey to be “Noncompliant” and Romania and Switzerland to be “Not Fully Compliant” with their obligations under the Convention. The Department of State has also identified several “Countries of Concern” that have inadequately addressed significant aspects of their obligations under the Convention. These countries are Greece, Hungary, Israel, Panama, Poland, and The Bahamas.

Note Regarding Comparisons to the 2002 Report:

Ecuador, Greece, Hungary, Israel, Romania, and Turkey have been added to the list of countries we have identified with compliance problems since the last report.

In view of Germany's significant improvement since 2000 in its application of the Convention in the context of return applications, the Department has removed Germany from the discussion of Countries of Concern. Problems in Germany with enforcement of access orders persist and are covered in the Enforcement section of this report.

Specific systemic changes that have produced positive results in Germany’s processing and adjudication of return cases include consolidating the number of courts that hear Convention cases, streamlining the processing of applications, and educating judges about their role in applying the Convention. Moreover, the German Central Authority has been prompt in responding to requests from the U.S. Central Authority, efficient in moving Convention applications forward for resolution, and available to discuss and proposed solutions for difficult or problematic cases. The U.S.-Germany bi-national working group continues to meet semi-annually to discuss specific long-standing cases, new cases and/or other issues as they relate to the Convention. Increasingly since 2000, and including in the past year, German courts have consistently rendered decisions that are consistent with the law of the Convention and have ordered the return of children wrongfully removed from the U.S. or retained in Germany. Bailiffs and police now more effectively intervene to enforce return orders when necessary in comparison with prior reporting periods. The latter development reflects a greater awareness among German authorities of the means at their disposal for enforcing orders and a greater sensitivity to the need to exercise the available legal authority to ensure that court-ordered returns in fact take place.

The Department will continue to meet regularly with German officials regarding Convention and related child custody case concerns, to monitor closely return and access cases submitted to the German Central Authority, and to seek German assistance in addressing long-outstanding and unresolved cases.

Spain, cited as a country of concern in the 2002 Report, has also demonstrated improvement during the reporting period. The Spanish Central Authority was more responsive to inquiries from the U.S. Central Authority and more recent Hague cases have been positively and efficiently addressed. Through the U.S. Embassy in Madrid, the Department is actively engaged with the Spanish Central Authority to build on Spain’s progress in meeting its Hague Abduction Convention obligations. As a result of this general improvement and Spain’s efforts, the Department has removed Spain as a country of concern from this year’s Report.

Noncompliant Countries

AUSTRIA

Austria has been identified as noncompliant in all of the Department’s previous compliance reports. The Department’s concerns about Austrian compliance and willingness to address chronic problems persist.

Bilateral interaction has increased in the past year regarding a long outstanding access case that, although not currently being pursued under the Convention, resulted from earlier compliance problems. Numerous Austrian officials have proved willing to meet to discuss the case, but the need for repeated approaches from U.S. officials to produce any movement towards improved access for the left-behind parent is troubling. Top U.S. officials, including the Secretary of State, the Attorney General, and State Department officials at the Under Secretary and Assistant Secretary levels, as well as the U.S. Ambassador, have pressed the matter with Austrian officials, including the Austrian Chancellor, Foreign Minister, Justice Minister, Interior Minister, the Austrian Ambassador in Washington, and officials at the Under Secretary and Assistant Secretary levels.

In this case, Austrian courts at every level up to the Supreme Court ordered the return of the child to the United States under the Convention. The taking parent appealed enforcement of the return order. Austria’s courts then determined that the return order should not be enforced because the delays in the case had caused the child to become “settled” in Austria and return would cause the child psychological harm. After denial of the child’s return to the United States, the left-behind parent sought access to his child under the Convention. Austrian courts finally granted very limited access in Austria.

The taking parent has repeatedly rebuffed efforts to increase contact between the left-behind parent and the child, and criticized both the U.S. and Austrian governments for their intervention in the matter. The left-behind parent filed a complaint with the European Court of Human Rights, which in April 2003 determined that Austria had violated the left-behind parent's and the child's right to a family life under the European Convention for the Protection of Human Rights and Fundamental Freedoms. In response to the repeated urgings of U.S. officials, including meetings held during the visit of Assistant Secretary Maura Harty to Vienna in July 2003, Austrian officials have provided their good offices to bring about a meeting with the abducting parent. Nevertheless, we are aware of no developments that indicate the frequency or reliability of access for the left-behind parent has improved.

Legislative changes that would consolidate Convention return case adjudications in fewer courts remained pending throughout the reporting period. In November 2003, the Austrian Parliament passed legislation to this effect, limiting the number of courts empowered to hear Convention return cases to sixteen (Convention access cases were not restricted to these courts), down from over two hundred. As part of the new law’s implementation, the Austrian Central Authority is also to provide the courts with special training to educate judges about Convention case issues. These changes are not scheduled to go into effect before 2005, so it maybe several years before we can begin to determine the effects of the legislation on judicial processing of return applications.

COLOMBIA

The U.S. Central Authority is concerned about systemic problems in resolving Convention cases regarding children taken from the U.S. to Colombia. Two major obstacles to returning children from Colombia in a manner consistent with the Convention have been mentioned in previous compliance reports, which focused on the judiciary's insistence on applying Colombian family and custody law to Convention return cases and a lack of responsiveness by the Colombian Central Authority (CCA). However, problems associated with the judiciary’s treatment of return applications under the Convention are more extensive than previously reported and have resulted in Colombia's listing as a noncompliant country in this year's report.

Judicial processing of return cases is slow and not geared toward meeting the goals of the Convention. Colombia's current implementing legislation does not facilitate judicial action on return applications. The jurisdiction of the courts to hear Convention cases remains unclear. The courts’ willingness and ability expeditiously to hear and issue a decision on Convention applications is a key component in the effective application of the Convention. The lack of clear jurisdictional guidance to Colombia’s courts has been evident in cases that have been transferred from one court to another repeatedly as judges decline jurisdiction. The Colombia Constitutional Court ruled in 2002 that Civil Circuit courts, not the Family Ombudsmen or Family courts, have jurisdiction in Convention cases. Despite that decision, courts appear to remain uncertain about which courts have jurisdiction and according to what standards and procedures Convention applications should be adjudicated. The Civil Circuit courts have not received training on the Convention and there is no legislation governing how courts are to deal with Convention cases.

Proceedings in those cases that are heard in court are often characterized by lengthy delays; Colombian courts frequently request a home study of left-behind parents in the United States before ordering a child’s return to the United States. Such inquiries, which tend to go to the merits of custody, are properly left to the courts of the country of habitual residence and are inappropriate in the context of a Convention return proceeding.

The Colombian Central Authority is slow in forwarding Hague applications to the courts and does not assist applicant parents in obtaining legal assistance for the case's judicial phases. The U.S. Central Authority often has difficulty reaching the Colombian Central Authority and in receiving responses to routine inquiries. When responses eventually arrive, they are usually outdated and often not responsive to the original request for information.

There has been no evidence of positive change in Colombia’s implementation or application of the Convention in recent years despite repeated approaches from the U.S. Central Authority and the U.S. Embassy relating concerns about Colombia's handling of Convention cases. Moreover, a review of U.S. Central Authority case records reveals that very few children, given the volume of applications that have been forwarded to Colombia, actually return to the United States. In view of the persistent and grave nature of these problems, the U.S. Central Authority considers Colombia noncompliant with the Convention.

The U.S. Embassy reports that the Colombian Ministry of Foreign Relations has recently indicated a commitment to making the adoption of implementing legislation a matter of urgency. Our assessment of compliance in future reports will depend on whether cases are resolved in a manner consistent with the Convention and the above-noted systemic problems are addressed.

ECUADOR

Ecuador has not been responsive in providing status reports on cases submitted by the U.S. Central Authority for some time. After repeated unsuccessful attempts by the U.S. Central Authority in 2003 to obtain case status reports from the Ecuador Central Authority, the U.S. Central Authority requested U.S. Embassy assistance in contacting the Ecuador Central Authority for case information. U.S. Embassy officials learned that the Children’s Court, which had been designated to hear Convention cases and to act as the Ecuador Central Authority, was abolished in April 2003 without any provision for an alternate agency to assume its Convention-related responsibilities. No court or other entity has since been responsible for hearing Convention cases or performing the other critical tasks necessary to fulfill the Convention’s obligations and normally performed by a Central Authority.

During the reporting period there was no progress in resolving Convention cases submitted in Ecuador by parents from the United States, one of which dates back as far as 1995. Parents in Ecuador currently forward their own Hague requests for return of children unlawfully removed from Ecuador to foreign Central Authorities through Ecuador's embassies abroad. By failing to provide for an effective Central Authority to oversee application of the Convention in Ecuador and to assist parents with applications for the return of their abducted children from Ecuador, Ecuador clearly is not complying with even its most fundamental Convention obligations.

The removal of Ecuador from the list of noncompliant countries in the future will require evidence that Ecuador is undertaking steps to fulfill its responsibilities under the Convention, beginning with designating a Central Authority, ensuring timely processing and adjudication of incoming applications, enforcing return orders and providing timely information to parents and foreign Central Authorities regarding case processing.

HONDURAS

During the reporting period, Honduras took no action to resolve the pending applications submitted on behalf of left-behind parents from the United States. U.S. Embassy efforts to assist the U.S. Central Authority in moving the cases forward resulted in repeated assertions by the Honduran Central Authority that the Hague Abduction Convention was not in effect between Honduras and the United States because the Honduran government never ratified the Convention. These assertions are contrary to Honduras' accession to the Convention on March 1, 1994, and the U.S. acceptance of the Honduran accession effective June 1, 1994; both acts are reflected in corresponding instruments deposited in accordance with the Convention’s terms of accession. Finally, in early 2004, the Honduran Congress ratified the Convention.

A case submitted to the Honduras Central Authority in 1994 was resolved in 2002 after the taking grandparent was extradited to the United States and the child was returned; Convention procedures were not used. A 1998 application for a child’s return is still pending, although the taking parent is back in the United States facing criminal charges related to the abduction. Two new applications submitted to the Honduras Central Authority in 2003 also remain pending.

Until the Honduran government takes concrete action to resolve outstanding and future cases submitted by the U.S. Central Authority in a manner consistent with its Convention obligations, Honduras will continue to be listed as a noncompliant country in our annual report to Congress.

MAURITIUS

As in previous years, Mauritius remains noncompliant because it has not taken proper steps to apply the Convention and ensure the processing of cases in accordance with its terms. Mauritius became a party to the Convention in 1993, but only adopted implementing legislation in July 2000. The U.S. Central Authority submitted two cases (one in June 1998 and the second in February 1999) to the Mauritian Central Authority after Mauritius became party to the Convention, but before it adopted implementing legislation. Although the U.S. Central Authority has only forwarded two applications to Mauritius, both cases have been characterized by lengthy processing delays and neither case was resolved by the courts before the end of the reporting period.

The Department of State and the U.S. Embassy in Mauritius are following these cases closely and communicating with the Mauritian government regarding next steps. Most recently, in January 2004, U.S. Embassy officials met with the head of the Mauritian Central Authority to underline U.S. concerns about the long delays in processing applications for the return of children to the U.S. and Mauritius' failure to take appropriate measures to apply the Convention.

The removal of Mauritius from the category of noncompliant countries will require concrete action to resolve long outstanding cases and any future cases in a manner consistent with Mauritius' Convention obligations.

MEXICO

Mexico remains the destination country of the greatest number of children abducted from or wrongfully retained outside the United States by parents or other relatives. Despite coordinated efforts undertaken by the U.S. Embassy, the U.S. Central Authority, and senior Department of State officials to press for more expeditious processing and resolution of cases, the systemic problems in Mexico's handling of Convention applications that were detailed in the 2002 Compliance Report persisted during the reporting period. The Department’s experience is that, relative to the large number of pending Convention cases in Mexico, the number of cases resolved annually in Mexico is quite small. Most Convention return applications remain pending and never progress to the point of a definitive adjudication. Among the U.S. Central Authority's greatest concerns is Mexico's inability to locate children. Other problems include long delays in adjudication of return applications, the Mexican Central Authority's lack of adequate resources to perform its role effectively, the absence of implementing legislation integrating the Convention into the Mexican legal system, and an apparent lack of understanding of the Convention among many Mexican judges, which has resulted in Convention cases being treated as custody matters or mishandled in other ways.

Mexico's inability to obtain better results in locating children and taking parents is particularly troubling. Many Convention return applications forwarded by the U.S. Central Authority have languished for years; when children and taking parents are not located, Mexican courts will not rule on the application. As a result, and despite persistent efforts by the U.S. Central Authority to prompt Mexican authorities to address these cases, numerous parents have waited for years with no contact or information about the whereabouts of their children. Of the return applications submitted to the Mexican Central Authority that remained unresolved after eighteen months or longer, approximately half remain in limbo because Mexican authorities have not located the children. As a practical matter, the left-behind parent or someone working on his/her behalf must develop most leads pertaining to the possible location of abducted children without the help of Mexican authorities. In some cases, Mexican authorities profess an inability to find children even when the family or the U.S. Embassy has shared concrete information with the Mexican Central Authority on the child's whereabouts.

If the whereabouts of an abducted or wrongfully retained child cannot be established, for whatever reason, Mexican courts return the case file to the Mexican Central Authority, which in turn refers the case to Mexican law enforcement. The U.S. Central Authority is not aware of even a single case in which Mexican law enforcement, once the Mexican Central Authority forwarded a Convention case to them, located the children.

Those cases that do result in a court hearing face further obstacles, including lengthy court delays. Lack of implementing legislation to integrate the Convention into the Mexican legal system remains a problem. The amparo (a special appeal claiming a violation of an individual's constitutional rights) has been used by taking parents to block Convention proceedings indefinitely pending a ruling by another court as to whether the parent's constitutional rights have been violated. In addition, Mexican courts are able to reconsider at any stage of the proceedings factual determinations made by lower courts, producing additional delay. Both problems highlight the degree to which the lack of implementing legislation in Mexico has hampered the Convention’s effectiveness.

Another problem (also compounded by the absence of implementing legislation) is the apparent lack of understanding by many judges in Mexico of the law of the Convention. Mexican judges frequently seem to ignore the fact that a case before them arises out of a return application under the Convention, and instead simply apply the procedural and substantive law that would govern a Mexican custody dispute. The result is almost always that those courts deny return without evaluating the merits of the application under the law of the Convention. U.S. Embassy officials report that the Mexican Central Authority has taken some preliminary steps to address this problem. The Mexican Central Authority actively participated in June 2003 in a conference hosted by the U.S. Embassy to educate family law judges about the Hague Convention. The Mexican Central Authority has also started to contact judges it believes may be presiding over a Convention case for the first time to provide support and guidance, and, in particular, to emphasize the distinction between the court's role in Convention cases and its role in domestic custody determinations.

Mexican Central Authority officials discuss the Convention with the judiciary and attorneys, monitor proceedings, and provide the U.S. Embassy with updates on active case processing. However, the Mexican government dedicates limited resources to the Mexican Central Authority, including insufficient staff to handle the volume of cases. The Mexican Central Authority’s ability to help bring about successful resolution of individual cases involving children taken from the U.S. is correspondingly limited. U.S. Embassy officials meet monthly with Mexican Central Authority personnel to obtain updates on pending cases but, even with regular and continued embassy involvement, the Mexican Central Authority clearly is overburdened. Improvement in this area seems unlikely unless the Mexican government commits more resources to the Central Authority.

TURKEY

The United States accepted Turkey’s accession to the Convention in 2000. Although only nine cases have been submitted for return of children to the United States, the problems experienced in those cases indicate that Turkey is not fulfilling its responsibilities under the Convention. Applications for return of children to the U.S. are subject to long and repeated court delays, and courts allow consideration of issues unrelated to Convention criteria when adjudicating return applications. There have also been indications of the use of political influence over the courts and other government officials involved in case processing. Turkey has not implemented the Convention into its domestic law. In addition, Turkish officials have consistently been unable to locate abducted children, and throughout much of the reporting period, the Turkish Central Authority was not responsive to frequent and direct requests from the U.S. Central Authority for information and assistance.

The Department of State and the U.S. Embassy in Ankara are fully engaged at all levels on the problems related to return of children from Turkey under the Convention. The Department has discussed individual cases and broader compliance issues with Turkish embassy officials. The U.S. Ambassador to Turkey raised the problems with Turkey’s implementation and application of the Convention and the status of pending applications from the United States with the Minister of Justice on several occasions. Embassy officials have stressed with members of the Turkish Parliament the importance of adopting implementing legislation. Assistant Secretary for Consular Affairs Maura Harty also discussed compliance concerns with the Turkish Minister of Justice in December 2003.

Countries Not Fully Compliant

ROMANIA

Romania was not cited in previous Compliance Reports. However, over the past year, the U.S. Central Authority has observed significant problems in Romania's handling of Convention applications for the return of children to the United States. Romanian courts appear to have either a limited understanding of the Convention or an unwillingness to apply the Convention properly when doing so would require the return of a child to another country.

Specific compliance problems include judges who routinely order psychological evaluations and treat Convention return cases as child custody disputes, and the appearance of bias in court decisions in favor of taking parents who are Romanian nationals. Also, courts have denied return in cases that remain unresolved after one year of judicial processing, thereby penalizing the left-behind parent for the slowness of the courts. According to U.S. Central Authority records, in the past six years, out of seven applications forwarded to the Romanian Central Authority for return of children to the U.S., there have been no court-ordered returns and only one voluntary return.

The U.S. Central Authority also noted problems in getting the Romanian Central Authority to respond to requests for status reports and clarifications of court proceedings during the reporting period. Late in 2003, the Romanian Central Authority's responsiveness did improve, however.

In the coming year, the U.S. Central Authority and the U.S. Embassy will monitor closely Romania's actions on Hague return applications submitted by parents in the U.S. The removal of Romania from the category of not fully compliant countries will require concrete action demonstrating that Romanian courts adjudicate Hague return applications expeditiously and in a manner consistent with the Convention.

SWITZERLAND

Switzerland remains in the category of countries not fully compliant with the Convention due to the fact that the most significant problem outlined in last year’s report—lengthy court delays arising in part from the inability of the Swiss federal government to prevent cantons from re-opening Hague cases following a return order—has not been resolved.

Switzerland has a federal system of government with powerful and independent cantons. Authorities at the federal level, including the Swiss Central Authority, are cooperative and responsive, but there are problems with the cantonal governments, courts and child welfare agencies, which have favored the Swiss parent in some parental abduction cases. Taking parents have been able to resist enforcement of return orders issued by the courts of one canton by moving to another canton to re-litigate issues already addressed in the judicial decision issued under the Convention. Swiss federal authorities appear unable to compel cantonal authorities to obey federal court orders relating to the Convention.

The Department views the inability to date of the Swiss legal system to prevent such re-litigation and to require mutual recognition and enforcement of federal and cantonal orders for return as inconsistent with Switzerland's obligations under the Convention. It suggests a systemic problem in the Swiss judiciary that can lead to decisions and outcomes that are inconsistent with the objects and purposes of the Convention.

Recently, Swiss courts have begun issuing enforcement orders to accompany return orders. This change may make it more difficult for taking parents to re-open their cases in other cantons, and thus could lead to resolving cases more quickly. Also, in 2003, Switzerland founded an institute to train Swiss judges on how to handle cases brought under the Convention. These developments may foster improved cooperation between courts and the Swiss Central Authority. While the Department welcomes these positive steps, it is too soon to determine what effect they will have on Swiss application of the Convention.

The removal of Switzerland from the category of not fully compliant countries will require evidence that measures taken by Swiss authorities are addressing effectively Switzerland’s systemic problems that have allowed taking parents to avoid returning children by moving to another canton and re-litigating Convention cases.

Countries of Concern

GREECE

Greece is cited for the first time this year. Judicial processing of Hague return applications is slow, with particularly lengthy delays at the appeal level. In reviewing the final court action in cases submitted to the Greek Central Authority (GCA) in recent years, U.S. Central Authority (USCA) records reveal a worrying trend on the part of Greek courts to deny Hague applications for return. Greek courts of first instance have typically denied rather than granted return. Although the GCA provides free legal representation, translators and written translations to the left-behind parent throughout the court process, it can take up to six months to obtain translated copies of court decisions to share with left-behind parents. This in effect hinders parents from learning the basis for the lower court decision, knowledge that might prompt them to pursue an appeal. Under Greek law appeals must be filed within thirty days of the lower court's decision.

During the reporting period ending September 2003, the USCA also found communication with the GCA difficult, due apparently to GCA infrastructure constraints. However, since October 2003, the communication and responsiveness problems experienced during the reporting period have been eliminated, thanks in large part to upgrades in the GCA's computer systems and an increase in GCA staffing.

HUNGARY

Hungary was not cited in previous reports and the volume of cases involving children abducted from the U.S. to Hungary remains low (the Department is aware of nine cases of abduction since 2000). However, based on Hungary’s treatment of applications submitted by U.S. parents in recent years, including during the reporting period, the Department is concerned that Hungarian judges adjudicating Convention cases have a limited understanding of the Convention or an unwillingness to apply the Convention to facilitate return of children from Hungary to their country of habitual residence.

The U.S. Central Authority has observed problems in the way Hungarian judges have handled return requests under the Convention, including by ordering psychological evaluations and treating cases as child custody disputes rather than according to the law of the Convention. According to U.S. Central Authority records, six Convention applications for return of children to the United States since 1998 have resulted in two voluntary returns and four applications submitted for judicial decision. In two of the four adjudicated cases, the court determined that Hungary was the place of the child's habitual residence. In the other two cases, the court based its decision to deny the return application on the perception that returning the child to the United States would inflict psychological harm on the child as a result of separating the child from the taking parent. This is an improper application of the limited exception to the obligation to return provided for under Article 13(b) of the Convention for situations in which return would expose the child to a "grave risk" of harm. The courts’ decisions also indicate that the judges considered matters relating to the merits of custody that are not relevant in return proceedings under the Convention. Hungarian judges have also demonstrated an apparent willingness to accept a taking parent's claims of abuse without requiring substantiating evidence, putting the left-behind parent who filed the Convention application at a severe disadvantage.

The U.S. Central Authority and the U.S. Embassy will continue to monitor the treatment of applications for return in Hungary to determine whether Hungarian judges are applying the Convention properly.

ISRAEL

The Department has two principal concerns regarding Israeli performance in acting on Convention return applications. With increasing frequency, Israeli courts request psychological evaluations in initial hearings related to return applications, and courts frequently condition return on broad “undertakings” that place an onerous burden on left-behind parents and tend to lengthen court proceedings.

During the reporting period, some Israeli courts began requesting psychological evaluations of both parents and children before rendering a decision on return applications. Although such reviews caused minimal delays in the proceedings, the practice of requiring psychological evaluations during the initial hearing is inconsistent with the purposes and objectives of the Convention. Unless part of a carefully circumscribed inquiry in response to a taking parent’s assertion of defenses under the Convention’s Article 13.b. (generally considered only at later stages of a return proceeding), such psychological evaluations go to the merits of custody and parental “fitness” and are properly left to the courts of the country of habitual residence, consistent with Article 16 of the Convention.

Israeli courts also frequently require left-behind parents to agree to numerous and often burdensome “undertakings” before issuing an order for return. Undertakings are conditions that a court may require a left-behind parent to meet before the court will issue an effective return order. For example, Israeli courts have required confirmation that no criminal charges relating to the child’s abduction have been or will be filed against the taking parent—a matter over which private citizens often have little or no control. Taking parents have asked courts to require assurances that they will be able to return to the U.S. to resume residence and seek employment. Court-imposed undertakings have also included requiring the left-behind parent to pay expenses associated with travel to or living in the U.S. Left-behind parents are often unable to fulfill some preconditions for return, such as requiring assurances that a taking parent will receive a visa or be able to reside lawfully in the U.S. While a left-behind parent's agreement to undertakings may ultimately result in a return order, negotiating the exact nature and extent of undertakings, in light of the taking parent's requests and the left-behind parent's ability to address those requests, often increases the length of court proceedings.

PANAMA

In the 2001 and 2002 reports, Panama was found noncompliant. Panama's handling of Convention cases has significantly improved since mid-2002 and thus this year the Department considers Panama a country of concern. Panama's steady improvement in its commitment to adhering to the Convention began with the passage of domestic implementing legislation in November 2001. The Panamanian Central Authority has improved its responsiveness to requests for information and three children were returned in the fall of 2002. The Government of Panama has limited jurisdiction to adjudicate Convention applications to one central court, provided training for judges, and participated in international meetings focusing on improved implementation of the Hague Convention.

Despite these signs that the Panamanian government has focused on applying appropriate measures and resources to implement and apply the Convention, problems in locating missing children and taking parents persist. According to the Panamanian Central Authority, authorities tasked with locating taking parents and abducted children lack the human and technological resources to conduct searches. Delays in adjudication also remain a problem. Backlogs of cases that are systemic throughout the court system also occur in Convention cases, delaying decisions on applications for the return of children to the U.S. Hague applications submitted in 2003 have remained pending in the courts for over six months without any court ruling.

POLAND

During this reporting period, Poland continued to demonstrate problems in its implementation and application of the Hague Convention. These problems stem primarily from three factors: (a) Polish court caseload constraints that result in prolonged delays in reaching decisions on Convention return applications; (b) the lack of an adequate domestic statutory framework with enforcement mechanisms (e.g., a parent who becomes a fugitive to avoid complying with a final return judgment does not commit a "crime" -- and therefore cannot be the subject of a fugitive warrant -- unless the parent has been stripped of parental rights); and (c) a faulty translation into Polish of Article 13 of the Convention (the Polish translation radically lowers the standard for refusing returns by saying that return can be denied if it would put the child in an "unfavorable" rather than an "intolerable" situation) that some courts still use four years after the Ministry of Justice agreed in 1999 to distribute an accurate translation.

Improvements in the Polish Central Authority's responsiveness that were noted in the 2002 Report have continued and our contacts with central government officials indicate a recognition of the importance of handling Convention cases effectively. But adjudication of return applications under the Convention is still characterized by lengthy delays, courts still deny return applications based on a faulty interpretation of the Convention, and enforcement problems have not been resolved.

Officials from the Department of State in Washington and the U.S. Embassy in Poland have raised compliance issues and individual abduction cases with high-ranking officials from the Polish government repeatedly over the past year. By diplomatic note and formal demarche, the Department and the U.S. Embassy have underlined the need for the Polish government to ensure that judges adjudicating return applications use only the correct translation of the Convention’s text and that the Justice Ministry remind the courts of the corrected translation.

THE BAHAMAS

At the end of the reporting period there were no pending applications for return of children to the U.S. from The Bahamas. However, the Bahamian Central Authority was unresponsive to U.S. Central Authority and U.S. Embassy inquiries concerning the most recent return applications submitted in previous years. Long judicial and administrative authority delays were also typical in previous cases. There have been no recent cases to demonstrate that the systemic problems noted in the 2001 and 2002 reports have been resolved. The U.S. Central Authority will maintain The Bahamas on its list of Countries of Concern and will monitor closely the Bahamian Central Authority's responsiveness and judicial actions until The Bahamas processes Hague applications for return of children to the U.S. in a manner consistent with the Convention.

Unresolved Return Cases

Section 2803 (a)(4) requests “[d]etailed information on each unresolved case described in paragraph (1) and on actions taken by the Department of State to resolve each such case, including 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 provided in Attachment A.

Encouraging Use of the Convention

Section 2803 (a)(5) requests “information on efforts by the Department of State to encourage other countries to become signatories to the Convention.”

The Department avails itself of appropriate opportunities that arise in bilateral contacts to persuade other countries of the advantages that would derive from becoming parties to the Convention. The Assistant Secretary for Consular Affairs routinely raises the Convention in talks with foreign officials on other bilateral consular matters. 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.

When a country accedes to the Convention, the Department does not automatically accept it as a Convention partner. The Department assesses whether the country has established the necessary legal and institutional framework for carrying out its Convention responsibilities. In 2003, the U.S. completed its assessments of Malta and Brazil and accepted their accessions. Assessments of Uruguay's, Costa Rica's, and Bulgaria's accessions are currently underway. The Department has also been in contact with Peru and Trinidad & Tobago regarding the assessment process the Department undertakes before it can accept their accession. Department officials have also discussed the Convention with the governments of The Philippines, Azerbaijan, and Zambia, which have yet to accede. States that acceded to the Convention since September 2002 include Bulgaria (August 2003), Lithuania (September 2002) and Thailand (November 2002). The Department of State is reviewing these countries’ implementation of the Convention to determine whether to recognize their accessions.

Enforcement problems

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 Convention directs contracting states to ensure that rights of custody and or access are effectively respected. The Convention requires that other countries recognize U.S. custody rights, including rights of access and visitation, to the extent that such rights provide the basis for applications and the rationale for return. Adjudication of a return case by a foreign court under the Convention is not a decision whether to enforce a custody order.

In the context of a return application, the Convention specifically limits consideration of custody matters to the question of whether the applying parent was actually exercising rights of custody (under the applicable law in the child’s country of habitual residence) at the time the child was wrongfully removed to or retained in another country. Our evaluation of compliance with the Convention’s requirements concerning the return of abducted or wrongfully retained children and corresponding enforcement issues does not, therefore, evaluate the extent to which U.S. court orders are recognized and enforced as such. Attachment B provides further discussion of access (including visitation) and custody issues, and the recognition and enforcement of custody and access orders.

GERMANY

Since 2000, Germany has demonstrated strong performance in application of the Convention regarding applications for the return of children to the U.S. Despite this improvement, we continue to observe unwillingness on the part of some judges, law enforcement personnel and others within the child welfare system in Germany to enforce German orders granting parental access in both Convention and non-Convention access cases. American parents often obtain favorable court judgments regarding access and visitation, but the German courts' decisions remain unenforced for years. A taking parent can defy an access order with impunity. As a result, a number of U.S. parents still face problems obtaining access to and maintaining a positive parent-child relationship with their children who remain in Germany.

In one particularly high-profile access case, the foreign parent living in Germany with physical custody of two children had defied valid German court orders permitting visitation by a U.S. parent. The parent in Germany monitored all contacts between the children and other persons and prevented the children from meeting or communicating with the U.S. parent for almost eight years. U.S. officials sought assistance from German officials at all levels. In a breakthrough in early 2004, following years of sustained efforts by the German-U.S. bi-national working group, the Assistant Secretary for Consular Affairs and the U.S. Ambassador to Germany, local authorities removed the children from the foreign parent's care and are now assessing the best way to reacquaint the children with the U.S. parent after their prolonged separation. The Department will monitor other German access cases to evaluate whether this action by local German authorities to seek a court order with enforcement powers serves as an example for other German child welfare officials who are charged with enforcing court-ordered custody or access.

ISRAEL

The Israeli Central Authority has been cooperative and responsive in its dealing with the U.S. Central Authority. As noted previously, however, the Israeli court's order for a child's return in one long-standing case has not been enforced due to an inability to locate the child and taking parent.

POLAND

As noted above, Poland’s domestic legal framework does not permit the consistent, effective enforcement of orders for return. As a practical matter, a taking parent who flees or hides a child in defiance of a final return order cannot be compelled to comply with the order unless the parent is first stripped of his/her parental rights.

SPAIN

In one case of note a long standing order for return was not enforced during the reporting period because local law enforcement officials could not locate the child. In April 2004, Spanish authorities found the child and resumed action on the case.

SWEDEN

Sweden’s significantly improved record on enforcing return orders was noted in the 2002 Compliance Report. As discussed in Attachment B, however, enforcement problems remain a barrier to access. Arrest or physical removal of the child from the violator's care is rarely used and Sweden does not have the equivalent of a "contempt of court" ruling. In the Department of State’s experience, Swedish courts have enforced very few of the rulings favorable to American fathers.

SWITZERLAND

Local officials are responsible for enforcing court orders for return and access. As noted above, enforcement of orders in one canton issued in another canton is a systemic and serious problem. In one significant case, local officials refused to enforce an order for return issued by the federal courts.

Non-governmental Organizations

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 non-governmental organizations within their countries that assist parents seeking the return of children under the Convention.”

Efforts in this particular area are carried out under the auspices and direction of the Secretary of State by the Office of Children’s Issues in the Department of State’s Bureau of Consular Affairs. One significant problem is the lack, in some party countries, of non-governmental organizations that could assist parents seeking the return of children under the Convention. Where non-governmental organizations that deal with abuse, abduction or disappearance of children do operate, there is also a general reluctance of domestic organizations abroad to put themselves in the position of arguing for the return of children that are citizens of their country to another country, especially in the face of conflicting claims that are not easily settled outside a legal framework. The Department believes that most non-governmental organizations abroad accept the fact that their countries have given responsibility to governmental Central Authorities as the most effective means to assist parents with the return of their children.

At the same time, there are non-governmental organizations, such as International Social Services (ISS), that work with U.S. and foreign officials and parents to facilitate contact with and return of children. ISS currently has national branch offices or bureaus in 146 countries (including most of our Hague Convention partner countries) to assist families who are separated, including separation resulting from child abduction. When appropriate, the Department and U.S. consular officials refer parents to ISS for additional support or work directly with ISS. In some cases, ISS has been actively involved in arranging escorts for returning children and in working to establish better communication between parents or between a parent and child.

In 2003, the Office of Children's Issues met with U.K. officials and discussed the ways in which non-governmental organizations in the United Kingdom and the United States assist in work involved in Convention and other child abduction cases. Non-governmental organizations are very actively involved in working with government authorities and parents, as well as in educating the public regarding child abduction issues, in the United Kingdom and France. In November 2002, several British and French non-governmental organizations jointly organized a conference to discuss how parents and children can maintain contact after abduction to countries not party to the Convention. The conference brought together government officials from the European Union, Mahgreb and Middle Eastern countries to discuss bilateral cooperative efforts that achieve the return of abducted children and, when return is not achieved, visitation rights for left-behind parents.

Representatives of the Office of Children's Issues attended a conference in fall 2003 to learn more about Canadian government and non-governmental organization efforts to assist parents and children to prevent child abduction. The Office of Children's Issues also contacted U.S. embassies and consulates in a number of Hague Convention and non-Hague Convention party countries to share non-governmental organization information that the National Center for Missing and Exploited Children had developed and to request suggestions regarding other non-governmental organizations in-country that might assist parents and children in child abduction cases.

Go to Attachment A

Go to Attachment B