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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.
