Wednesday, September 11, 2019

Brazil’s Interpretation of the One-Year Period under Article 12, Hague Abduction Convention

by Jeremy D. Morley

Brazil has adopted an unusual interpretation of the one-year provision in Article 12 of the Hague Abduction Convention, which creates a significant trap for the unwary.

Article 12 of the Convention provides that if “the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State” where the child is located is more than one year from the date of the wrongful removal or retention, the authority concerned “shall order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”

Courts have generally concluded that the relevant period ends on the date that a judicial proceeding for the child’s return is commenced and that the mere filing of an application with a Central Authority does not “stop the clock” for this purpose, unless the specific administrative tribunal itself has jurisdiction to issue a return order. Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997); V.B.M. v. D.L.J. [2004] N.J. No. 321; 2004 NLCA 56; Re M. (Abduction: Acquiescence) [1996] 1 FLR 315; Perrin v. Perrin 1994 SC 45, 1995 SLT 81, 1993 SCLR 949; Plonit v. Ploni,  Israel Family Appeal 548/04.

However, the Brazilian Central Authority states that Brazilian courts hold that the time period is tolled as soon as an application is received by the Central Authority in Brazil.

In its response to the HCCH questionnaire concerning the practical operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Prel. Doc. No 2 of January 2017), the Brazilian Central Authority states that:

“The most impressive change on the Brazilian jurisprudence noticeable at least since 2013 is the consideration that the 1-year period of article 12 has its "ad quem" term not at the commencement of the judicial procedures, but at the moment that the file has been received at the Brazilian Central Authority. This scenario has a potential effect on reducing the number of cases where the allegation regarding the settlement of the child to his/her new environment is considered.”

The Brazilian claim that this will reduce the number of cases in which the issue is raised of whether or not a child is settled in its new environment is mistaken. Shortening the one-year period will obviously have exactly the opposite effect.

Tuesday, September 10, 2019

NOTES ON LAWS AND PRACTICES OF CHINA

By Jeremy D. Morley
Wǔxīng Hóngqí ("Five-starred Red Flag")
1.                  China does not comply with international norms concerning the return of internationally abducted children.

2.                   China has failed to adopt the Hague Abduction Convention and has failed to enter into any bilateral arrangement with the United States to return abducted children.
3.                  There can be no extradition from China for international child abduction, since there is no extradition treaty between the U.S. and China.
4.                  In most cases, a left-behind parent’s only potential remedy if a child is taken to and wrongfully retained in China is to search for the child him / herself, while seeking the assistance of the Chinese police, and then, if the child is successfully located, to initiate a new plenary case for custody of the Child in China. However, it is often relatively easy for abducting parents to conceal their location with a child in China for extensive periods of time. Child kidnapping is rampant in China.
5.                  The Chinese courts generally refuse to handle family cases concerning foreigners or concerning parties who are not registered as domiciled in China. 
6.                  The courts in China are not required to enforce foreign custody orders and they do not do so. There is no system in China to register foreign custody orders or enforce foreign custody orders. China has entered into treaties with some countries concerning the enforcement of commercial judgments, but they do not extend to family matters.
7.                  There is no law in China similar to the Uniform Child Custody Jurisdiction & Enforcement Act in the United States concerning the recognition of the continuing and exclusive jurisdiction of the courts of another country. The U.S. system whereby a court retains exclusive modification jurisdiction even after a child has become habitually resident in another country is alien to China.
8.                  Any court proceeding in China concerning custody of or access to an abducted child will likely be unpredictable and difficult.
9.                  China does not have any legal mechanism to apply for or issue urgent or emergency orders in family law cases.
10.              It is usual in China for the custody of a child to be awarded to one parent only.
11.              Visitation rights are extremely limited in China, typically being limited to a daytime visit once a month. There is no precedent for any equal sharing of custodial time or for the issuance of a detailed time-sharing arrangement that would provide for the non-residential parent to spend substantial periods of time with the child.
12.              It would be unprecedented for a Chinese court to order that a child should be relocated to a foreign country. Nor is there any realistic likelihood that a Chinese court would compel a Chinese parent to allow permit the Mother to have any visitation outside China.
13.              It is difficult to enforce child custody orders issued by a Chinese court. The enforcement procedures that exist in China can easily be thwarted, so that enforcement can easily be delayed for extended periods of time or permanently. It is a fundamental principle of Chinese law and culture that the state should not normally interfere in private family life.
14.              Judges in China are not independent. They are state employees responsible to the Chinese Communist Party. In 2017 the President of China’s Supreme People’s Court denounced judicial independence as a false Western idea and insisted that the Chinese judiciary is subordinate to the Chinese Communist Party.
15.              There is a high level of corruption in the Chinese legal system. The U.S. State Department reliably and authoritatively reports that in China, “[c]orruption often influenced court decisions, since safeguards against judicial corruption were vague and poorly enforced. Local governments appointed and paid local court judges and, as a result, often exerted influence over the rulings of those judges.”
16.              Courts in England and in Hong Kong have confirmed that foreign custody orders are unenforceable in China and that cross-border child abduction into China is without any meaningful remedy.
17.              If a parent abducts a child to China and retains the child in China, the left-behind parent will normally have grave difficulty in enforcing any rights concerning the child.

Monday, September 09, 2019

NOTES ON LEBANON AND CHILD ABDUCTION

by Jeremy D. Morley
Return of children abducted to or in Lebanon
  • Jeremy Morley has testified as an expert witness with respect to the laws and practices of Lebanon in respect of international child abduction to Lebanon.
  • There are extreme difficulties in returning a child to the United States from Lebanon when retained by a Lebanese parent.
  • Lebanon is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
  • There are no extradition treaties between Lebanon and the United States.
  • Under Lebanese law, Lebanese nationals may prevent their wives and children (even if they are American citizens) from leaving Lebanon.
  • Lebanon does not recognize international parental kidnapping as a crime.
  • Issues of child custody and divorce in Lebanon are generally decided in religious courts under religious law. Thus, if the father is a Sunni Muslim and the mother is a Christian the custody of their children will normally be decided by a Sunni Muslim court.
  • One might petition a civil court to handle a custody case instead of a religious court. The issue would be whether the religious court has jurisdiction. It could take up to two years to have the civil court assume jurisdiction and a minimum of four to five years to have the case decided.
  • Among Sunni Muslims, the father has physical custody of a daughter over the age of nine and of a boy over the age of seven. For Shia Muslims the father generally has physical custody at for boys at age 2 and for girls at age 7.
  • If a father establishes that the mother is unfit or lacking good moral character, she will lose any right to the child. Muslim law requires a child to be raised in the Muslim faith, and if it were proven that a mother tried to raise the child as a Christian, she could be found unfit.
  • Lebanon does not recognize dual nationality. American/Lebanese dual nationals who carry Lebanese papers will be treated as Lebanese nationals by security authorities.
  • A child who is a dual American and Lebanese citizen would be bound by Lebanese law in the eyes of the Lebanese civil courts.
  • The U.S. State Department cannot offer any real assistance even if there were a United States court order directing the return of the child from Lebanon.

Lebanon & International Child Abduction

Lebanon demonstrated a pattern of noncompliance by persistently failing to work with the United States to resolve abduction cases in 2019.

Lebanon does not adhere to any protocols with respect to international parental child abduction. In 2004, the United States and Lebanon signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children.
In 2018, Lebanon demonstrated a pattern of noncompliance. Specifically, the competent authorities in Lebanon persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 50 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years and one month.
Lebanon was previously cited for demonstrating a pattern of noncompliance in the 2015 and 2016 Annual Reports.
Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Lebanese law, and parents face difficulties resolving custody disputes in local courts.
Enforcement: Judicial decisions in Lebanon were generally not enforced, which contributed to a pattern of noncompliance. There was one case (accounting for 33 percent of the unresolved cases) that has been pending for more than 12 months in which law enforcement has failed to enforce a return order.

Wednesday, September 04, 2019

INDIA: SAFE HAVEN FOR INTERNATIONAL PARENTAL CHILD ABDUCTION

Jeremy D. Morley
jmorley@international-divorce.com
I have long asserted that India is a safe haven for international child abduction. See, e.gI have frequently provided expert evidence on this issue, including in cases in many U.S. states, as well as Canada and Australia.
In May 2019, the U.S. Department reported, in its Annual Report on International Child Abduction, that India does not adhere to any protocols with respect to international parental child abduction and has demonstrated “a pattern of noncompliance” within the meaning of the  International Child Abduction Prevention and Return Act. That legislation requires the Secretary of State to submit to Congress, within 90 day of its Annual Report, an “Action Report” that describes the specific actions that the State Department has taken against countries determined to have been engaged in a pattern of noncompliance.

In July 2019, the Department submitted its Action Report. Unfortunately, the purported “actions” that it has listed with respect to India are mere requests and a couple of diplomatic protests.
The Department describes the actions as follows:
  • Throughout the year, officials at the highest levels of the Department engaged with the Government of India on the issue of international parental child abduction. Department officials pressed India to assist with resolving abduction cases and to accede to the Convention.
  • In July 2018 and March 2019, the U.S. Embassy in New Delhi delivered diplomatic notes requesting India’s assistance in resolving existing abduction cases. Since February 2019, U.S. Embassy New Delhi has attended sessions of the Indian government’s Mediation Cell at the request of the Indian government to observe the processing of requests submitted to the Mediation Cell.
  • In March 2019, the United States delivered a demarche and letter to the Indian government urging India’s accession to the Convention. The letter was signed by the U.S. Ambassador and 38 other Ambassadors or acting Chiefs of Mission representing like-minded countries.
  • In May 2019, the Department hosted an IVLP delegation composed of Indian government officials and attorneys. The Department discussed the Convention with the participants, and provided an overview of abduction and prevention resources in the United States, including child-location assistance, attorney referrals, and two parent consent regulations. The participants came away with a clearer understanding of the Department’s views on IPCA, the Convention, and its importance.
  • Upon release of the 2019 Annual Report, U.S. Embassy New Delhi delivered a demarche notifying the Indian government that the Department had cited India in the 2019 Annual Report for demonstrating a pattern of noncompliance and once again requesting India’s assistance with resolving existing cases.

The problems concerning India and international child abduction are not merely the fact that India has refused to sign the Hague Abduction Convention. The challenges include the following: The Indian jurisprudence in custody cases concerning internationally abducted children is both confused and confusing. 
  • Court proceedings in India in such cases are generally exceedingly slow, unpredictable and difficult, and require the repeated personal presence of the left-behind parent over extended periods of time.
  • The courts in India will not normally honor or enforce foreign child custody court orders.
  • The courts in India assume custody jurisdiction over internationally abducted children and do not recognize the continuing and exclusive jurisdiction of foreign courts to handle matters concerning the custody of such children
  • The courts in India do not issue mirror custody orders.
In my opinion, when the country in question is a well- recognized safe haven for international child abduction such as India, far less evidence that any specific parent is a potential international child abductor should be required in order to justify – and indeed require – a court to take effective steps to prevent a potential child abduction than if the country in question is a compliant party to the Hague Convention.

Tuesday, September 03, 2019

Preventing International Child Abduction in Divorce

My article, Preventing International Child Abduction in Divorce, which was originally published in the American Bar Associations's GPSolo Magazine, is now available here.

Thursday, August 22, 2019

UAE NONCOMPLIANCE AS TO INTERNATIONAL CHILD ABDUCTION


by Jeremy D. Morley

The United Arab Emirates UAE does not adhere to any protocols with respect to international parental child abduction and has failed to adopt the Hague Abduction Convention.
The U.S. State Department has determined and reported to the U.S. Congress that, in 2018, the UAE “demonstrated a pattern of noncompliance” within the meaning of the International Child Abduction Prevention and Return Act.
Specifically, the State Department has reported that the competent authorities in the UAE “persistently failed” to work with it to resolve abduction cases, and that, as a result of this failure, 100 percent of U.S. requests for the return of abducted children remained unresolved for more than 12 months. Indeed, on average, these cases were unresolved for two years and seven months.

In its July 2019 “Action Report,” the State Department has reported that:
  • Throughout the year, officials at the highest levels of the Department pressed the Government of the United Arab Emirates to assist with resolving abduction cases and to accede to the Convention.
  • In October 2018, the Assistant Secretary for Consular Affairs traveled to the United Arab Emirates where he met with his counterparts to discuss the resolution of existing abduction cases and to encourage the United Arab Emirates to accede to the Convention.
  • In December 2018, U.S. Embassy Abu Dhabi delivered a diplomatic note requesting the United Arab Emirates’ assistance in resolving existing abduction cases.
  •  Upon release of the 2019 Annual Report, U.S. Embassy Abu Dhabi delivered a demarche to the Emirati government noting that the Department had cited the United Arab Emirates in the 2019 Annual Report for demonstrating a pattern of noncompliance and requesting assistance in resolving existing abduction cases.
Jeremy D. Morley has frequently appeared as an expert witness on international child abduction prevention, international child abduction recovery, international divorce jurisdiction and international family law. He has opined as to the dangers, in terms of potential parental child abduction, of allowing children to visit certain specific countries, including the UAE. 


Friday, August 16, 2019

Barbados Accedes to Hague Abduction Convention


On 11 July 2019, Barbados deposited its instrument of accession to the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Child Abduction Convention”). The Child Abduction Convention, which now has 101 Contracting Parties, will enter into force for Barbados on 1 October 2019.

However, pursuant to Article 38 of the Convention, the accession will not have effect with respect to any other specific country until such country the first day of the third calendar month after the deposit of such country’s formal notice of acceptance with the Foreign Ministry of the Netherlands.

Friday, June 21, 2019

EXPERT TESTIMONY ON INDIA CHILD CUSTODY LAW


The Federal Circuit Court of Australia has issued a ruling denying a mother’s application for overseas travel from Australia to India to attend her marriage ceremony.
The decision was based in large part on my expert testimony concerning the child custody laws of India and the risks of international parental child abduction for a child traveling to India.
The decision, dated June 14, 2019, is reported at [2019] FCCA 1577.

Thursday, May 30, 2019

State Department's Annual Report on International Child Abduction: UAE

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our ninth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today’s country is United Arab Emirates.
Country Summary: The United Arab Emirates does not adhere to any protocols with respect to international parental child abduction. In 2018, the United Arab Emirates demonstrated a pattern of noncompliance. Specifically, the competent authorities in the United Arab Emirates persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 100 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years and seven months. The United Arab Emirates was previously cited for demonstrating a pattern of noncompliance in the 2018 Annual Report.
Initial Inquiries: In 2018 the Department received two initial inquiries from parents regarding possible abductions to the United Arab Emirates for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018. 
Central Authority: In 2018, the competent authorities in the United Arab Emirates regularly failed to work with the Department of State toward the resolution of pending abduction cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.
Location: The Department of State did not request assistance with location from Emirati authorities.
Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Emirati law, and parents face difficulties resolving custody disputes in local
courts.
Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Emirati authorities.
Department Recommendations: The Department will continue to encourage the United Arab Emirates to accede to the Convention.

Tuesday, May 28, 2019

Cite for Morley Kuwait Expert Testimony Case


The citation for the recent Arizona appeal case which accepted me as an expert witness on the laws and practices of Kuwait as to child custody in international matters, and relied on my expert testimony about Kuwaiti law, is Lehn v. Al-Thanayyan, 438 P.3d 646 (Ariz. App. 2019). 

State Department's Annual Report on International Child Abduction: Peru

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our eighth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.” Today’s country is Peru.
Country Summary: The Convention has been in force between the United States and Peru since 2007. In 2018, Peru demonstrated a pattern of noncompliance. Specifically, the Peruvian Central Authority and judicial authorities persistently failed to implement and abide by the provisions of the Convention. As a result of this failure, 50 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for two years and seven months. Peru was previously cited for demonstrating a pattern of noncompliance in the 2014-2017 Annual Reports.
Initial Inquiries: In 2018, the Department received four initial inquiries from parents regarding possible abductions to Peru for which no completed applications were submitted to the Department.
Significant Developments: In September 2018, the Peruvian Central Authority hosted a seminar for Peruvian family law judges to discuss best practices for Convention implementation, including ways to improve judicial delays.
Central Authority: There have been serious delays in the processing of cases by the Peruvian Central Authority and a lack of effective communication with the U.S. Central Authority regarding IPCA cases, which contributed to a pattern of noncompliance. In addition, the Central Authority, which is within the Ministry of Women and Vulnerable Populations, has reported that because its mandate includes protecting victims of domestic violence, it will not facilitate the institution of judicial proceedings if there are domestic violence claims by the alleged taking parent, despite an obligation to take all appropriate measures to initiate or facilitate the institution of proceedings under the Convention.
Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2018, two abduction cases were resolved through voluntary means. 
Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. The average time to locate a child was 31 days.
Judicial Authorities: There were serious delays by the Peruvian judicial authorities in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year, contributing to a pattern of noncompliance.
Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Peruvian authorities. Department Recommendations: The Department will continue intense engagement with the Peruvian authorities to address issues of concern.

Friday, May 24, 2019

State Department's Annual Report on International Child Abduction: Lebanon

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our seventh post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Lebanon.
Country Summary: Lebanon does not adhere to any protocols with respect to international parental child abduction. In 2004, the United States and Lebanon signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. In 2018, Lebanon demonstrated a pattern of noncompliance. Specifically, the competent authorities in Lebanon persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 50 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years and one month. Lebanon was previously cited for demonstrating a pattern of noncompliance in the 2015 and 2016 Annual Reports.
Initial Inquiries: In 2018 the Department received one initial inquiry from a parent regarding a possible abduction to Lebanon for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018.

Central Authority: In 2018, the competent authorities in Lebanon worked closely with the Department of State to discuss improvements to the resolution of pending abduction cases. However, the options for resolving these cases under Lebanese law are limited.
Voluntary Resolution: In 2018, one abduction case was resolved through voluntary means.
Location: The Department of State did not request assistance with location from the Lebanese authorities.
Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Lebanese law, and parents face difficulties resolving custody disputes in local courts.
Enforcement: Judicial decisions in Lebanon were generally not enforced, which contributed to a pattern of noncompliance. There was one case (accounting for 33 percent of the unresolved cases) that has been pending for more than 12 months in which law enforcement has failed to enforce a return order.
Department Recommendations: The Department will continue to encourage Lebanon to accede to the Convention

Thursday, May 23, 2019

State Department's Annual Report on International Child Abduction: Jordan

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our sixth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Jordan.
Country Summary: Jordan does not adhere to any protocols with respect to international parental child abduction. In 2006, the United States and Jordan signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. In 2018, Jordan demonstrated a pattern of noncompliance. Specifically, the competent authorities in Jordan persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 67 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for two years and seven months. Jordan was previously cited for demonstrating a pattern of noncompliance in the 2014-2018 Annual Reports.

Initial Inquiries: In 2018, the Department received eight initial inquiries from parents regarding possible abductions to Jordan for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018.
Significant Developments: In 2018, the Government of Jordan began offering mediation services to parents involved in international parental child abductions through the Family Mediation Directorate. Mediation is voluntary, and both parents must agree to participate. The United States is not aware of any abductions cases that were resolved through this service in 2018. 

Central Authority: In 2018, the competent authorities in Jordan discussed with the United States ways to improve the resolution of pending abduction cases. However, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.
Voluntary Resolution: In 2018, four abduction cases were resolved through voluntary means. Location: The Department of State did not request assistance with location from the Jordanian authorities. 
Judicial Authorities: The United States is not aware of any abduction cases brought before the Jordanian judiciary in 2018. Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Jordanian authorities.
Department Recommendations: The Department will continue to encourage Jordan to accede to the Convention.

Wednesday, May 22, 2019

State Department's Annual Report on International Child Abduction: India

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our fifth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is India.
Country Summary: India does not adhere to any protocols with respect to international parental child abduction. In 2018, India demonstrated a pattern of noncompliance. Specifically, the competent authorities in India persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 71 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for 2 years and 10 months. India was previously cited for demonstrating a pattern of noncompliance in the 2014-2018 Annual Reports.
Initial Inquiries: In 2018, the Department received 16 initial inquiries from parents regarding possible abductions to India for which no additional assistance was requested or necessary documentation was not received as of December 31, 2018.

Significant Developments: In July 2018, India’s Ministry of Women and Child Development directed the National Commission for Protection of Child Rights to constitute a mediation cell to resolve international child custody disputes. Since its inception, this group has been accepting applications from parents in order to assist them with mediating their cases. Mediation is voluntary, and both parents must agree to participate. The United States is not aware of any abduction cases that were resolved through this service in 2018.
Central Authority: In 2018, the competent authorities in India regularly failed to work with the Department of State toward the resolution of pending abduction cases. Moreover, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.

Voluntary Resolution: In 2018, six abduction cases were resolved through voluntary means. Location: The Department of State did not request assistance with location from the Indian authorities.
Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Indian law, and parents face difficulties resolving custody disputes in local courts. Some left-behind parents reported difficulty with serving taking parents in India causing delays in court proceedings. Additionally, judicial action in custody cases in India has been slow, and Indian courts tend to default to granting custody to the taking parent. 
Enforcement: While courts in India sometimes granted rights of access to left-behind parents, rights of access were generally not enforced. The United States is not aware of any abduction cases in which a judicial order relating to the return of a child needed to be enforced by the Indian authorities. 
Department Recommendations: The Department will continue intense engagement with the Indian authorities to address issues of concern. The Department will continue to encourage India to accede to the Convention.

Tuesday, May 21, 2019

State Department's Annual Report on International Child Abduction: Egypt

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our fourth post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Egypt.
Country Summary: Egypt does not adhere to any protocols with respect to international parental child abduction. In 2003, the United States and Egypt signed a Memorandum of Understanding to encourage voluntary resolution of abduction cases and facilitate consular access to abducted children. In 2018, Egypt demonstrated a pattern of noncompliance. Specifically, the competent authorities in Egypt persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 91 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for three years and nine months. Egypt was previously cited for demonstrating a pattern of noncompliance in the 2015 and 2016 Annual Reports.
Initial Inquiries: In 2018, the Department received one initial inquiry from a parent regarding a possible abduction to Egypt for which no additional assistance was requested or necessary  documentation was not received as of December 31, 2018.


Central Authority: In 2018, the competent authorities in Egypt worked closely with the United States to discuss ways to improve the resolution of pending abduction cases. However, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.
Voluntary Resolution: In 2018, two abduction cases were resolved through voluntary means.
Location: The competent authorities of Egypt failed to take appropriate steps to locate a child after the United States submitted a request for assistance, which contributed to a pattern of noncompliance. As of December 31, 2018, there is one case (accounting for ten percent of the unresolved cases) where the Egyptian authorities remain unable to initially locate a child.
Judicial Authorities: There is no clear legal procedure for addressing international parental child abduction cases under Egyptian law, and parents face difficulties resolving custody disputes in local courts.
Enforcement: A judicial decision in Egypt was not enforced in one case, which contributed to a pattern of noncompliance. This case (accounting for 10 percent of the unresolved cases) has been pending for more than 12 months.
Department Recommendations: The Department will continue to encourage Egypt to ratify the Convention.

Wednesday, May 15, 2019

State Department's Annual Report on International Child Abduction: Ecuador


The U.S. State Department has recently released their annual report on International Child Abduction. Below is our third post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Ecuador.
Country Summary: The Convention has been in force between the United States and Ecuador since 1992. In 2018, Ecuador demonstrated a pattern of noncompliance. Specifically, the judiciary persistently failed to implement the provisions of the Convention. As a result of this failure, 33 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for one year and five months. Ecuador was previously cited for demonstrating a pattern of noncompliance in the 2015-2018 Annual Reports. 
Initial Inquiries: In 2018, the Department received two initial inquiries from parents regarding possible abductions to Ecuador for which no completed applications were submitted to the Department. Significant Developments: Ecuador enforced the return of one child to the United States in one case in 2018, resolving a six-year-long Convention application. The Ecuadorian Central Authority (ECA) and Ecuador’s specialized law enforcement unit for children, Dirección Nacional de Policía Especializada para Niños, Niñas y Adolescentes (DINAPEN), coordinated with the Department to ensure the safe return of the child. In the reporting year, the ECA and other IPCA stakeholders in Ecuador expressed interest in additional support and training for judges in Ecuador. In July 2018, members of the ECA and DINAPEN visited the United States on a week-long child abduction focused International Visitor Leadership Program. Additionally, the Special Advisor for Children’s Issues traveled to Quito for high-level meetings to discuss Ecuador’s noncompliance with the Convention with the ECA, the Ecuadorian Hague Network Judge, the Ministry of Foreign Affairs, DINAPEN, and the president of the National Court of Justice. Finally, the ECA moved from the Ministry of Justice to the Secretariat of Human Rights in December 2018.
Central Authority: The United States and the Ecuadorian Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. In 2018, the Department noted substantial improvement in information sharing and improved coordination with the ECA.

Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2018, one abduction case was resolved through voluntary means.
Location: The United States and the Ecuadorian Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. The average time to locate a child was 59 days. As of December 31, 2018, there is one case where the Ecuadorian authorities remain unable to initially locate a child.
Judicial Authorities: The Ecuadorian judicial authorities issued a series of decisions that were not consistent with the Convention, and there were serious delays in deciding Convention cases, which contributed to a pattern of noncompliance. As a result, cases may be pending with the judiciary for over one year. Some of the language in a decision issued by the court raised concerns that defenses to return under the Convention may be interpreted too broadly, in contrast with the commonly held understanding that exceptions to return must be narrowly interpreted to maintain the efficacy of the Convention. Additionally, the judicial decision suggested that the enforcement of Ecuadorian domestic laws and the interpretation of other treaties took priority over implementation of the Convention.
Enforcement: Decisions in Convention cases in Ecuador were generally enforced in a timely manner. In some cases, Ecuadorian authorities reportedly encountered difficulties attempting to enforce judicial orders and/or locate children, either due to lack of authority or lack of clear procedures.
Access: In 2018, the U.S. Central Authority acted on a total of two open access cases under the Convention in Ecuador. Of these, one case was opened in 2018. This case has been filed with the Ecuadorian Central Authority. This case was filed in 2018. By December 31, 2018, both cases remained open.
Department Recommendations: The Department will continue intense engagement with the Ecuadorian authorities to address issues of concern. 

Tuesday, May 14, 2019

State Department's Annual Report on International Child Abduction: Brazil

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our second post in a series here focusing on the nine countries classified as “demonstrating patterns of noncompliance.”  Today’s country is Brazil.
Country Summary: The Convention has been in force between the United States and Brazil since 2003. In 2018, Brazil demonstrated a pattern of noncompliance. Specifically, the Brazilian judicial authorities persistently failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 44 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for five years and 10 months. Brazil was previously cited for demonstrating a pattern of noncompliance in the 2006-2017 Annual Reports
Significant Developments: In September 2018, the Brazilian Ministry of Justice, Ministry of External Relations, and judiciary along with officials from the U.S. Central Authority and a U.S. Hague Network Judge participated in the second annual judicial seminar aimed at providing judges with additional guidance related to the Convention. The National Council for Justice also drafted and issued guidelines to the Brazilian judiciary focused on expediting Convention cases. 
Central Authority: The United States and the Brazilian Central Authority have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention.
Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. The average time to locate a child was three months and six days. As of December 31, 2018, there is one case where the Brazilian authorities remain unable to initially locate a child. 
Judicial Authorities: There were serious delays by the Brazilian judicial authorities in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year, contributing to a pattern of noncompliance. 
Enforcement: While courts in Brazil ordered returns under the Convention, the Brazilian judicial authorities were not always able to enforce these orders. In one notable case, after nine years of litigation at all levels of the Brazilian judiciary, the Brazilian court still failed to enforce its own order for return. 
Access: In 2018, the U.S. Central Authority acted on a total of seven open access cases under the Convention in Brazil. Of these, one case was opened in 2018. This case was filed with the Brazilian Central Authority in 2018. By December 31, 2018, four cases (57% percent) have been resolved. Of those resolved, two were a result of a voluntary agreement between the parents. As of December 31, 2018, three cases remained open. Two cases have been pending with the Brazilian authorities for more than 12 months. 
Department Recommendations: The Department will continue intense engagement with the Brazilian authorities to address issues of concern.

Monday, May 13, 2019

State Department's Annual Report on International Child Abduction: Argentina

The U.S. State Department has recently released their annual report on International Child Abduction. The Department of State leads the U.S. government’s efforts to prevent and resolve international parental child abductions, as part of the Department’s mission to advance the interests and safety of the American people.
The 2019 Annual Report on International Child Abduction illustrates the Department of State’s efforts to prevent and resolve international parental child abductions during 2018. Despite continued progress, during 2018 some countries demonstrated a pattern of noncompliance as defined in the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014. This Report cites nine such countries.

ARGENTINA

Country Summary: The Convention has been in force between the United States and Argentina since 1991. In 2018, Argentina demonstrated a pattern of noncompliance. Specifically, the Argentine judicial authorities failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 25 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for nine years and 10 months. Argentina was previously cited for demonstrating a pattern of noncompliance in the 2014-2018 Annual Reports. Initial Inquiries: In 2018, the Department received three initial inquiries from parents regarding possible abductions to Argentina for which no completed applications were submitted to the Department.

Significant Developments: Argentina ordered the return of one child in one case in 2018, resolving a six-year-long Convention application. The Argentine Central Authority, together with the broader Argentine Ministry of Foreign Affairs and Worship, coordinated with the Department to ensure the safe return of the child. The U.S. Embassy in Buenos Aires organized an International Visitor Leadership Program focused on the Convention, inviting officials from the executive and judicial branches of the Government of Argentina to the United States to learn about Convention implementation in the United States. Argentina’s Supreme Court issued a decision on one Convention case from the United States, holding, among other things, that Convention cases should be heard in provincial family court circuits rather than in Argentine federal court. The impact of this decision on the Department’s longstanding concern over judicial delays remains to be seen. Additionally, during this reporting period the Argentine executive branch submitted a draft national procedural law on child abduction cases, designed to reduce delays in judicial procedures, to the Argentine Congress. 
Central Authority: The United States and the Argentine Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. 


Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. The average time to locate a child was one year and three
months. This average is a result of one case where law enforcement failed to locate the child until
this reporting period, after four years and nine months. In another case, the child has not been
located at the address provided, and, during this reporting period, law enforcement has failed to
locate the child, leading to delays in judicial proceedings.
Judicial Authorities: There were serious delays by the Argentine judicial authorities in deciding
Convention cases. As a result of these delays, cases may be pending with the judiciary for over one
year, contributing to a pattern of noncompliance.
Enforcement: While courts in Argentina ordered returns under the Convention, Argentine
authorities were not always able to enforce these orders. Argentina’s legal system allows multiple
appeals both on the merits of the decision and on the manner in which the decisions are enforced,
thereby creating excessive delays. In this reporting period, Argentina did promptly enforce the
court-ordered return of one child in one case.
Access: In 2018, the U.S. Central Authority had one open access case under the Convention in
Argentina. This case was opened in 2018. This case has been filed with the Argentine Central
Authority. This case was filed in 2018. By December 31, 2018, this case remained open.
Department Recommendations: The Department will continue intense engagement with the
Argentine authorities to address issues of concern.