Saturday, September 22, 2007

Germany's Pattern of Noncompliance with Hague Child Abduction Convention

In an open letter to U.S. Secretary of State Condoleezza Rice in May 2006, this author vehemently protested what he asserted was Germany's noncompliance with its treaty obligations under the Hague Convention on the Civil Aspects of International Child Abduction.

The letter focused on a pattern of lengthy delays and stalling that was preventing the author’s client from securing the return of a child abducted from New Mexico to Germany.

Now, in its 2007 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, the Department of State has listed Germany as one of seven countries that are “Demonstrating Patterns of Noncompliance,” citing the New Mexico case as a “particularly egregious example” of the problems.

Specifically, the Report states that:

"The Department finds that Germany demonstrated patterns of noncompliance in FY 2006. Specifically, Germany’s noncompliance relates to the unwillingness of some courts to enforce orders for the return of children, or access to children, under the Convention. Leftbehind parents are unable to secure prompt enforcement of a final return or access order. Since physical force cannot be used to enforce court orders in Convention cases, taking parents can and do avoid allowing court-ordered returns and access. One particularly egregious example can be read about in the “Notable Cases” section of this report. Enforcement of court-ordered returns and access remains a recurrent topic of discussion at the U.S.-German Bilateral Meetings, which are described in the “Efforts to Expand and Strengthen the Convention” section of this report.”

The Report describes the author’s client’s case as follows:

"The mother abducted the child to Germany on September 25, 2004. On November 16, 2004, the left-behind parent filed a Convention application for return, which was denied by the District Court in Celle in June 2005. The basis of the Court’s decision was that the left-behind parent had not seen his daughter on many occasions and had not paid child support, thus he never in fact exercised his custody rights. The left-behind parent appealed to the Higher Regional Court in Celle, which held two hearings on the matter. On February 27, 2006, the Higher Regional Court issued an order directing that the taking parent return the child immediately to the United States. The taking parent subsequently appealed to the Federal Constitutional Court leading the Higher Regional Court to announce that it would not enforce the return order until the Federal Constitutional Court decided whether it would accept the appeal. The case is still pending.

UPDATE AFTER THE REPORTING PERIOD: In November 2006, after the close of the reporting period, both parents attended a mediationsession during which they came to an interim agreement regarding visitation that would be valid until July 2007."

One hopes and expects that better results will now be forthcoming from Germany.