Friday, May 26, 2017
Extraordinary Delays in U.S. Hague Abduction Convention Cases
By Jeremy D. Morley
Cases brought under the Hague Abduction Convention should be heard promptly and disposed of expeditiously. Unfortunately, U.S. courts – especially some federal circuit courts and even the U.S. Supreme Court itself – do not always comply with that requirement.
The Sixth Circuit recently ruled, in a Hague case that has been pending for more than two years, that because it and the district court have permitted - and indeed caused - such extreme delays, the case must be remanded to the district court for a further examination of the issue of whether the children would face a grave risk of harm if they are returned to Mexico even though that very issue had previously been determined by the district court. The Sixth Circuit’s reason for the remand order is that both it and the district court had permitted and caused such extreme delays in deciding the case that the facts had significantly changed in the interim. Neumann v. Neumann, 2017 WL 1162926 (6th Cir. 2017).
The case was commenced in June 2015, with the father alleging that his wife had removed the children from their habitual residence in Mexico without his consent and had taken them to live in Michigan. The mother asserted the grave risk exception to the treaty, and also disputed the assertion that Mexico was the habitual residence. Not until one year later, in May 2016, did the district court decide the case. It ruled that the children should be returned to Mexico; that the children’s habitual residence had been in Mexico; and that although the father had been violent to the mother, there was no sufficient evidence that to return the children to Mexico would expose them to a grave risk of physical and/or psychological harm. The respondent then appealed to the Sixth Circuit, which granted an emergency stay of the return order. However, the Sixth Circuit did not hold oral argument until the end of December and did not render its decision until several months thereafter.
At the oral argument, the Sixth Circuit learned that the petitioner had left Mexico, was living in the United States, and might move to India. The Court eventually held that these new facts were highly significant to the conditions that the children would face if they were to be returned to Mexico, and that a further hearing on the grave risk issue was accordingly required, which will obviously cause further extensive delays as well as substantial expense. Thus, the case is still pending. Meanwhile one of the children has reached the age of 16 and so the case has been ended with respect to that child.
The Convention is very clear that speedy resolution of return applications is a central obligation assumed by all treaty partners. The preamble to the Convention states that, “The States signatory to the present Convention … Desiring … to establish procedures to ensure their prompt return to the State of their habitual residence …”
Article 1 of the Convention states that, “The objects of the present Convention are - a. to secure the prompt return of children wrongfully removed to or retained in any Contracting State.”
Article 2 of the Convention requires Contracting States to “use the most expeditious procedures available” to implement the objects of the Convention.
Article 11 of the Convention states that, “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.”
The Hague Conference Guide to Good Practice under the Convention, Part II – Implementing Measures repeatedly demands that states act expeditiously in such cases. In particular, the Guide to Good Practice insists that:
-“Expeditiousness is essential at all stages of the Convention process including appeals.”
-“Expeditious procedures should be viewed as procedures which are both fast and efficient.”
In Chafin v. Chafin, 133 S.Ct. 1017 (2013), the U.S. Supreme Court instructed that, ““Importantly, whether at the district or appellate court level, courts can and should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation. Many courts already do so.”
The International Child Abduction Prevention and Return Act of 2014, 22 U.S.C. §§ 9001–11, requires the U.S. State Department to scrutinize diligently the performance of other countries in returning abducted children expeditiously and to employ enhanced methods to cause non-complying countries to improve their performance. The statute expressly states that ““[i]t is the sense of Congress that the United States should set a strong example for other Convention countries in the timely location and prompt resolution of cases involving children abducted abroad and brought to the United States.” However, the Act does not require the State Department to evaluate U.S. compliance with the treaty.
The delays in the Neumann case are extraordinary but certainly not unique. Many Hague Convention cases in the United States are not concluded until many weeks and often several months and even years after the cases are initiated. Delays are especially prevalent at the federal appellate level.
Indeed, Abbott v. Abbott, 130 S. Ct. 1983 (2010), the first U.S. Supreme Court Hague case illustrates the problem all too well. The child, then aged 9 or 10, was allegedly abducted from Chile to the United States in August 2005. A Hague case was commenced in a U.S. District Court in Texas in May 2006. The district court rendered its decision in July 2007, a delay of 14 months. The Fifth Circuit rendered its decision in September 2008, a delay of another 14 months. The Supreme Court granted certiorari in June 2009, a delay of another 9 months. The Supreme Court rendered its decision in May 2010, a delay of another 11 months. Its decision was to remand the case for further hearings. The Supreme Court granted certiorari in June 2009, a delay of another 9 months. It ruled on the case in May 2010, a delay of another 11 months, but it merely remanded the case to the Fifth Circuit. In August 2010 the Fifth Circuit remanded the case to the original district court. The case may well have then died of its own accord, since the child had reached the age of 16.
Such delays are in plain derogation of the duty of the judicial and administrative authorities to returned internationally-abducted children promptly and to decide Hague cases expeditiously. The United States may well be in violation of its obligation under the treaty. Such delays certainly make it harder for left-behind parents in the United States to complain effectively of the delays in other countries in returning internationally-abducted children. People in glass houses should not throw stones.