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.

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.

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

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.

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.

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.

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. 

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.

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.

Abduction from Hong Kong of the Children of Unmarried Fathers

Jeremy D. Morley

In Hong Kong, an unmarried father has no rights of custody over his son or daughter unless and until he brings a court case and succeeds in obtaining a court order that provides him with express rights. This appears to apply even if the mother has added the name of the father to the child’s birth certificate.

This means that if the child is removed from a habitual residence in Hong Kong, and even though Hong Kong is a party to the Hague Abduction Convention, the Convention cannot be used to secure the child’s return to Hong Kong because the father has no “rights of custody” within the meaning of the Convention.

Hong Kong’ s law on the guardianship and custody of children dates back to the late 1970s. Section 3 (c) of Hong Kong’s Guardianship of Minors Ordinance provides that “where the minor is illegitimate … a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father…” The Act provides that the child’s mother automatically has sole custody.

If, after the unilateral removal of a child from Hong Kong, the left-behind father obtains a court order providing him with rights of custody over the child and requiring the child’s return to Hong Kong, that may not cure the problem concerning the Hague Convention.

However, the Hong Kong post - “abduction” order could normally be registered and enforced in courts in the United States pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (or predecessor statute in Massachusetts). But similar laws do not exist outside the United States. Also, Hong Kong has not adopted the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.