[Senate Hearing 106-988]
[From the U.S. Government Publishing Office]
S. Hrg. 106-988
THE JUSTICE DEPARTMENT'S RESPONSE TO INTERNATIONAL PARENTAL KIDNAPING
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
THE JUSTICE DEPARTMENT'S RESPONSE TO INTERNATIONAL PARENTAL CHILD
KIDNAPING
__________
OCTOBER 27, 1999
__________
Serial No. J-106-56
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
70-986 DTP WASHINGTON : 2001
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
______
Subcommittee on Criminal Justice Oversight
STROM THURMOND, South Carolina, Chairman
MIKE DeWINE, Ohio CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama PATRICK J. LEAHY, Vermont
Garry Malphrus, Chief Counsel
Glen Shor, Legislative Assistant
(ii)
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Thurmond, Hon. Strom, U.S. Senator from the State of South
Carolina....................................................... 1
DeWine, Hon. Mike, U.S. Senator from the State of Ohio........... 2
CHRONOLOGICAL LIST OF WITNESSES
Panel consisting of James K. Robinson, Assistant Attorney
General, Criminal Division, U.S. Department of Justice,
Washington, DC, accompanied by Richard A. Rossman, Chief of
Staff, Criminal Division, U.S. Department of Justice,
Washington, DC; and Jamison S. Borek, Deputy Legal Adviser,
Department of State, Washington, DC............................ 4
Panel consisting of Catherine I. Meyer, co-chair, International
Centre for Missing and Exploited Children, Washington, DC;
Laura Kingsley Hong, Squire, Sanders and Dempsey, Cleveland
Heights, OH; John J. Lebeau, Jr., Palm Beach Gardens, FL; Craig
E. Stein, attorney at law, Miami Beach, FL; and Ernie Allen,
president and chief executive officer, National Center for
Missing and Exploited Children, Alexandria, VA................. 28
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Allen, Ernie:
Testimony.................................................... 239
Prepared statement........................................... 241
Borek, Jamison S.:
Testimony.................................................... 10
Prepared statement........................................... 12
Hong, Laura Kingsley:
Testimony.................................................... 54
Prepared statement........................................... 56
Attachment: Case of American Citizen Rhonda Mei Mei Lan
Zhang.................................................. 61
Lebeau, John J., Jr.:
Testimony.................................................... 101
Prepared statement........................................... 103
Various attachments submitted............................ 149
Meyer, Catherine I.:
Testimony.................................................... 28
Prepared statement........................................... 31
Letter from Prof. Dr. Herta Daubler-Gmelin, MdB, German
Ministry of Justice, dated Sept. 9, 1999............... 30
Status of various cases.................................. 40
Robinson, James K.:
Testimony.................................................... 4
Prepared statement........................................... 7
Stein, Craig E.:
Testimony.................................................... 236
Prepared statement........................................... 238
APPENDIX
Questions and Answers
Responses of James K. Robinson to Questions from Senators:
Thurmond..................................................... 251
DeWine....................................................... 254
Responses of Jamison Borek to Questions from Senators:
Thurmond..................................................... 255
DeWine....................................................... 260
Responses of Lady Meyer to Questions from Senators:
Thurmond..................................................... 260
DeWine....................................................... 264
Responses of Ernie Allen to Questions from Senators:
Thurmond..................................................... 266
DeWine....................................................... 267
Additional Submissions for the Record
Prepared Statement of Thomas A. Johnson, Parent of Wrongly
Retained Child................................................. 269
Letter to Rob Chestnut, Chief, General Crime Section, Office
of the U.S. Attorney, Eastern District of Virginia, dated
April 25, 1997............................................. 281
Summary of the Swedish Government System of International
Abduction and Wrongful Retention of Children............... 282
Prepared statement of Paul Marinkovich, Parent of Illegally
Abducted Son................................................... 304
Front page article from the Ventura County Star in Southern
California, dated Oct. 22, 1998............................ 307
Letter to Inspector General Michael Bromwich, from
International Child Rescue League, dated Oct. 21, 1998..... 308
Prepared statement of Attorney Jan Rewers McMillan, On Behalf of
Thomas R. Sylvester............................................ 309
Prepared statement of The International Centre for Missing and
Exploited Children............................................. 311
Various documents and newspaper articles..................... 313
Letters to Senator Thurmond from:
David L. Levy, president, Children's Rights Council, dated
Oct. 27, 1999.............................................. 327
Michael C. Berry and Associates, P.A., dated Oct. 26, 1999... 330
Case of Danny and Michelle Cooke................................. 327
House of Representatives Report No. 103-390 on International
Parental Kidnaping Crime Act of 1993........................... 335
Chart of statistics compiled by U.S. Attorney and Federal Bureau
of Investigation for cases under the 1993 International
Parental Kidnaping Crime Act................................... 342
News article by Timothy A. Maier, dated Nov. 29, 1999............ 343
THE JUSTICE DEPARTMENT'S RESPONSE TO INTERNATIONAL PARENTAL KIDNAPING
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WEDNESDAY, OCTOBER 27, 1999
U.S. Senate,
Subcommittee on Criminal Justice Oversight,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:45 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Strom
Thurmond (chairman of the subcommittee) presiding.
Also present: Senators DeWine, and Leahy.
OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Thurmond. The subcommittee will come to order. I am
pleased to hold this hearing today regarding the Justice
Department's response to international parental kidnaping.
Parental abduction is widely recognized in America as a
serious criminal act that is very harmful to a child's well-
being. It is a growing problem for America, as more and more
children are taken to live in a foreign country in blatant
violation of the legal rights of custodial parents in the
United States.
In these situations, children are often forcefully removed
from familiar surroundings and taken to another country and
another culture. It can be extremely traumatic and difficult
for children to adapt, especially while being deprived of their
custodial parents. Meanwhile, the left-behind parents undertake
long, expensive court battles in a foreign country to try to
get their children back. Most never succeed.
It is a complex undertaking to work with independent
sovereign nations and their judicial systems. Clearly, the
preferred approach is for the parent to undertake an action
pursuant to the Hague Convention. This treaty helps eliminate
national bias by requiring that children be immediately
returned to the country of habitual residence, where all
custody determinations are to be made. Unfortunately, many
countries are not signatories to this treaty. Also, many
countries that are, including some European countries, do not
fulfill their obligations under it.
Children are returned to the United States in only about 30
percent of these cases. I want to repeat that. Children are
returned to the United States in only about 30 percent of these
cases. Clearly, the Hague Convention is insufficient to address
the problem and the State Department must work diligently to
improve the treaty and increase the number of countries that
abide by it.
The purpose of this hearing is to assess the role of the
Department of Justice in addressing parental abduction. In
1993, the Congress passed the International Parental Kidnaping
Act, which makes it a Federal crime to remove a child from the
United States in an attempt to obstruct parental rights.
The law is rarely used. The administration discouraged the
Congress from passing this statute, which is evident from the
Department's reluctance to enforce it. Although thousands of
children have been abducted from the United States in recent
years, charges have been brought against only about a dozen
people per year since the law went into effect.
Although the top priority is the return of the child, we
should not underestimate the significance of bringing the
abductors to justice. As with other criminal offense, enforcing
IPKA could deter future parents from breaking the law.
Moreover, once an abductor is convicted in America, the court
may order the offender to return the child as a condition of
release.
The Justice Department should develop a consistent policy
of enforcing the law when the case can be proven and it will
not interfere in Hague remedies. Also, the Justice Department
must work closely with the State Department to extradite those
charged. Currently, many countries recognize the almost
certainty that they face no real world consequences or even
adverse publicity from their failure to cooperate.
Moreover, the criminal process is the only effective means
to stop an abduction in progress and may be critical to
discovering the whereabouts of the child. Through the criminal
process, the FBI, which has extensive resources and offices in
many countries, can assist. Also, passports can be revoked, the
abductor can be entered into the NCIC database, provisional
arrest can be sought, and color notices can be issued through
INTERPOL. There are many reasons to use the criminal process in
many cases.
We cannot know if the statute will succeed in bringing the
children home until we adopt a policy of aggressive
enforcement. Abductors must not be permitted to blatantly
violate American courts with impunity. They cannot be permitted
to achieve through illegal means what they could not achieve
legally through the child custody process.
I welcome our witnesses here today. I would also like to
thank Senator DeWine for his personal commitment to this issue.
I now call upon him.
STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, thank you very much. I want
to thank you for holding this hearing on this very, very
important issue.
As you pointed out, this is an issue that is devastating
for the families that are affected. It is devastating, though,
not only for the left behind parent. It is also devastating to
the child who has been denied illegally the love of one of his
or her parents. Sadly, with an increasing number of cross-
national marriages and divorces, international parental
kidnapings are likely to occur with more and more frequency in
the future.
When the international kidnaping of a child occurs, the
parent left behind often has no idea where to turn or to whom
to turn to for assistance. And when the parent does find where
to turn, he or she often receives conflicting information from
different governmental sources. Worse still, past experiences
have shown that once a child is kidnaped and taken across
international borders, the likelihood, as the Chairman has
pointed out, the likelihood of having that child returned to
the other parent diminishes over time. It is crucial that the
left-behind parent receives accurate, immediate, timely
information and assistance.
I learned about the difficulties that left-behind parents
face when two left-behind parents from Ohio, one of whom is
here with us today, came to my office for assistance. These
parents have faced many obstacles in their fights to get their
children back. Many of their troubles have been the result of
foreign laws and cultural differences, but sadly, sadly, the
conduct of U.S. Government agencies many times has been of no
help in overcoming the legal and bureaucratic obstacles these
left-behind parents have encountered.
Can our government do a better job on behalf of these
parents? I believe that we can. I am most interested today to
hear from the State Department and the Department of Justice
and to hear them discuss how their efforts can be of more
assistance to parents seeking the safe return of their children
from abroad.
I am not alone in the belief that this government can and
should and must do more for these parents. Earlier this year,
Mr. Chairman, the Subcommittee on International Child Abduction
of the Federal Agency Task Force on Missing and Exploited
Children and the Policy Group on International Child Abduction
issued a report to the Attorney General on international
parental kidnapings. This report identified gaps, gaps in the
Federal response to these cases, and they made some
recommendations on how to fill these gaps. The report
acknowledged that the Federal Government could do more for
these families, and must do more.
I am interested, Mr. Chairman, in knowing how quickly the
report's recommendations will be implemented. I also find it
interesting that the international parental kidnaping statute
and law enforcement response is not mentioned as one of these
gaps, and I intend to ask some questions about this, as well.
But I especially want to hear from the parents, parents who
will be testifying today, as to what they perceive are the gaps
in our Federal response. It is their suggestions that I hope
will lead to improved government response.
Let me thank you again, Mr. Chairman, for convening this
very important hearing today. I am anxious to get to the bottom
of some of these issues and to learn more from the families who
have faced the tragic loss of a child from an international
kidnaping. Again, I thank you, Mr. Chairman.
Senator Thurmond. Our first witness today is James
Robinson, Assistant Attorney General for the Criminal Division
at the Department of Justice. Following graduation from Wayne
State University Law School, Mr. Robinson clerked on the
Michigan Supreme Court and the Sixth Circuit. He served as U.S.
Attorney for the Eastern District of Michigan during the Carter
administration. Before assuming the current position, Mr.
Robinson was dean and professor of law at Wayne State
University Law School. Mr. Robinson is accompanied by Mr.
Richard Rossman, his Chief of Staff to the Criminal Division.
Our second witness is Ms. Jamison Borek, Deputy Legal
Advisor at the Department of State, where she has worked in the
office of the Legal Adviser since 1979. Ms. Borek holds a law
degree from the University of California at Berkeley and a
bachelor's degree from the University of California at San
Diego.
I ask that the witnesses please limit your opening
statements to 5 minutes. Your written testimony will be placed
in the record, without objection, in full.
I want to start with Mr. Robinson. Mr. Robinson, we would
be glad to hear from you.
PANEL CONSISTING OF JAMES K. ROBINSON, ASSISTANT ATTORNEY
GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC, ACCOMPANIED BY RICHARD A. ROSSMAN, CHIEF OF
STAFF, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC; AND JAMISON S. BOREK, DEPUTY LEGAL ADVISER,
DEPARTMENT OF STATE, WASHINGTON, DC
STATEMENT OF JAMES K. ROBINSON
Mr. Robinson. Thank you, Mr. Chairman and Senator DeWine. I
am pleased to appear before the committee today to address the
important subject of international parental child abduction,
and I appreciate your receiving my prepared statement, which
covers the spectrum of Department of Justice activities and
programs which are underway to address this difficult subject.
I will concentrate my brief introductory remarks on the
Department's criminal enforcement effort.
I also appreciate the chair acknowledging the presence with
me of Richard Rossman. Mr. Rossman joined me a little over a
year ago in the Criminal Division. He and I go way back. He was
my chief assistant when I was the U.S. Attorney in Detroit, and
then succeeded me as the U.S. Attorney for the Eastern District
of Michigan.
Because of the great importance of this topic to me and to
the Attorney General, and one which I must say I had
conversations with Senator DeWine about during my confirmation
hearings in which he made it clear his very, very intense
interest in this topic, I asked Mr. Rossman to lead the
Criminal Division's efforts in this area on all policy and
interagency initiatives on international parental abduction,
and I think that reflects the importance that I place on this
topic. In fact, just a few weeks ago, Mr. Rossman testified
before the House International Relations Committee on these
subjects.
At the end of my brief remarks today and after Ms. Borek's
remarks and during the questions, Mr. Rossman and I will be
pleased to answer the questions and I would defer to the
superior understanding of some of the details of this to Mr.
Rossman.
As the chairman noted, in 1993, Congress passed the
International Parental Kidnaping Act. This statute has proven
to be a very useful supplement to the laws in all 50 States,
criminalizing parental child abduction. IPKA can be
particularly helpful because it reaches wrongful abduction or
retention, even in the absence of preexisting custody orders,
an option not always available under State parental kidnaping
laws.
However, it is also crucial to understand that this Federal
criminal statute is not a substitute for civil remedies in
obtaining the return of internationally abducted children.
Prosecutions under this statute, as with any Federal criminal
statute, are brought by Federal prosecutors on their own
merits, evaluating the facts of the case in relationship to the
legal requirements of the law. Once Federal prosecutors
determine that IPKA charges may be appropriate under the facts
of a particular case, and only then is it appropriate to
consider the impact of such charges on the very worthy but
quite different goal of obtaining the return of the child.
We agree with Congress, as was stated in its sense of the
Congress which accompanied the passage of IPKA, that when
available, the Hague Convention should remain the option of
first choice for a parent who actually seeks the return of his
or her child. Even when the involved foreign country is not a
party to the Hague Convention, it is not necessarily the case
that IPKA criminal charges will facilitate rather than
frustrate child recovery efforts, as the chairman indicated in
his opening remarks.
For example, there is at least some anecdotal evidence that
some foreign judges are reluctant to order the return of a
child to the United States when one of the parents faces
criminal prosecution and potential incarceration. Moreover,
there are real cases in which IPKA prosecutions, even when
successful, have not resulted in the return of the abducted
child.
For example, in 1995, in the Eastern District of New York,
a father who abducted his children and moved with them to Egypt
was arrested, tried, and convicted after he reentered the
United States. That is the Ahmed Amir case. He was sentenced to
24 months' incarceration followed by 1 year of supervised
release with the special condition that he return the children
to New York. He served his term, he was released, he violated
his probation by not returning his children, and then he served
additional time and he now is once again a free man and the
children remain abroad.
Despite these limitations, IPKA can, in appropriate cases,
provide an effective vehicle for charging and punishing
abducting parents. While the number of indictments brought
pursuant to this still relatively new statute, 62, as we
continue to train agents and prosecutors on its existence and
availability, we expect the numbers will grow. It will remain
the case, however, that IPKA supplements and was not intended
to preempt the State statutes which criminalize parental
abduction.
Moreover, the resources of the Department of Justice,
whether the investigatory resources of the FBI or the Criminal
Division's resources in securing the arrest and extradition of
offenders, are equally available in State cases. Thus, we will
continue to seek international extradition when possible and
appropriate for violations of State parental kidnaping laws and
the Federal IPKA statute.
However, once again, it is important to keep in mind that
extradition of the abducting parent will often not result in
the return of the abducted child. We do make efforts to
coordinate the extradition process with the Hague Convention or
other civil recovery efforts in the foreign country, but, of
course, there are no clear guarantees.
The initial decision to seek criminal charges, whether to
seek extradition, is a decision made on the merits of the facts
of each case, taking into account all of the relevant
considerations and the applicable laws and treaties. In each
case, we will need to determine whether parental kidnaping is
an extraditable offense under the applicable treaty and whether
the other requirements for extradition can be met.
Thus, we are reluctant to seek extradition from countries
in which we have no reasonable basis to believe the fugitive is
located or from countries with which we know that our treaty
does not cover the offense. Such requests would often be futile
and, indeed, maybe perceived as bordering on a bad faith
request.
Also, it is sometimes the case that the abducting parent is
located in his or her country of citizenship and we know that
the country will not extradite its own nationals. Such
obstacles, however, do not mean we close our case. If the
parent moves to another jurisdiction, then extradition may
become possible and should be sought.
Thanks to recent action by Congress, extradition for
parental kidnaping may now be possible from several countries
from which we could not request such extraditions just a short
time ago. Last year, Congress passed the Extradition Treaties
Interpretation Act of 1998, and pursuant to it, we may now
interpret the crime of kidnaping in our old list treaties to
include parental kidnaping. So far, officials in 11 foreign
countries have responded to a State Department survey
indicating that they agree with the United States that parental
kidnaping is covered by an existing list treaty. Thus,
extradition may now be possible on such charges from places
like Luxembourg and New Zealand and possibly soon from other
countries which have not yet responded to the State
Department's survey.
In short, while the Justice Department enforcement efforts
targeting abducting parents cannot and should not take the
place of civil efforts to obtain the return of abducted
children, we will continue to make such efforts, including
charging IPKA criminal violations and seeking extraditions on
IPKA or State parental kidnaping charges whenever it is
appropriate.
Continuous improvement is the order of the day with regard
to this and many other Federal criminal law enforcement
efforts, and Senator DeWine's interest and the chairman's
interest in this activity, these oversight hearings certainly
keep us constantly reminded of the importance of the
enforcement of the statute and our other efforts.
I thank you for the opportunity to appear before the
committee on this very important topic and would be happy at
the appropriate time to try to respond to the committee's
questions and suggestions.
Senator Thurmond. Thank you.
[The prepared statement of Mr. Robinson follows:]
Prepared Statement of James K. Robinson
i. introduction
Mr. Chairman and Members of the Subcommittee: I am very pleased to
appear before the subcommittee today to address the topic of
international parental child abduction. This is a subject of particular
importance and interest to the Attorney General. It is also a difficult
subject. Difficult both because of its heartbreaking impact upon
cherished personal relationships, and because of the legal and policy
challenges created by the need to work with separate sovereign
countries and their laws. I commend the committee for bringing
additional public attention to this issue, and thank you for providing
me with an opportunity to discuss the role the department of justice
plays in addressing it.
ii. interagency and policy initiatives
One year ago, the Attorney General demonstrated the department's
commitment to addressing the international parental abduction problem
by appearing personally at the Senate Foreign Relations Committee's
hearing on this subject. One of the lessons drawn from that hearing was
the need for increased coordination between the various agencies which
play a role in this area, and the development of policies to fill
``gaps'' in existing procedures. I am pleased to report that
significant strides have been made during the past year to accomplish
these goals.
Specifically, the Attorney General and the Secretary of State
appointed a senior policy group--on which I asked my chief of staff,
Mr. Richard Rossman, to serve--to work with the subcommittee on
international child abduction of the federal agency task force on
missing and exploited children. As the result of the efforts of the
subcommittee and policy group, earlier this year a detailed report on
international parental kidnaping was presented to the attorney general.
A copy of that report was also provided to the Senate Foreign Relations
Committee, and is available to this committee. That report identifies a
series of problems or ``gaps'' which often exist in international
parental kidnaping cases, and contains a series of recommendations on
how federal responses to those gaps can be improved.
We are now working on an interagency basis to implement as many of
the report's recommendations as possible. The policy group has
developed an ``action plan'' setting out the tasks to be addressed, and
the federal offices to address them, and has created an interagency
working group chaired by the Department of State, Office of Children's
Issues, to coordinate implementation of this plan. By way of example,
efforts are underway to create a comprehensive case tracking system for
international parental child abduction cases; develop an enhanced role
for the National Center for Missing and Exploited Children; improve the
overseas implementation of the Hague Convention on the civil aspects of
international child abduction; further strengthen interagency
coordination here in the U.S.; increase education and training on legal
options available in abduction cases and how to pursue them; foster
more widespread and effective use of the National Crime Information
Center (NCIC) and Interpol to stop abductions in progress and to locate
abducted children and abductors; and expand the services available to
left behind parents. While this remains a ``work in progress'', we are
pleased that this critical issue is now receiving the high level
interagency attention and planning it deserves.
iii. doj's programmatic efforts
Within the Department of Justice, the Office of Juvenile Justice
and Delinquency Prevention (OJJDP) serves an important programmatic
role in addressing international parental kidnaping--and as a member of
the interagency working group is actively involved in implementation of
the interagency action plan. OJJDP has long provided training programs
for state and local law enforcement on child protection issues, and
remains the primary departmental office involved in missing and
exploited children's initiatives.
Under the auspices of that office's Missing and Exploited
Children's Program (MECP), new training on the roles of law
enforcement, state and local prosecutors, private attorneys, and the
judiciary will be developed in coordination with the working group, as
will a program to promote the use of a coordinated, multi-disciplinary
and community based approach for preventing, investigating, and
prosecuting these cases. Input for these training courses will be
obtained from the interagency working group; state, local, and federal
law enforcement and judicial agencies; the National Center for Missing
and Exploited Children (NCMEC or ``The National Center''); and parents.
OJJDP's missing and exploited children's program is also supporting
efforts within the working group to increase the services available for
victim families in international abduction cases (e.g., counseling,
identifying legal services resources, mentoring, family mediation,
translation services), and to help them identify and access more
quickly and effectively the services that are already available. That
office, in collaboration with others, is working to address the
frustration caused by the lack of knowledge which still persists among
left-behind parents, their advocates, law enforcement, and state and
local authorities about remedies and resources in international
abduction cases. To do so, MECP is developing resource guides which
will assist parents and law enforcement agencies in the investigation
process, and hopefully in the recovery of, and reunification with,
abducted children.
OJJDP also provides funding for the National Center for Missing and
Exploited Children. For the past few years, through a cooperative
agreement with the Department of State, the National Center has played
an important role in handling incoming Hague Convention applications
from parents outside the United States seeking children who have been
taken to this country. We are very pleased that the National Center's
role is being expanded to include activities related to cases in which
children have been taken from the United States to other countries.
Among the technical assistance and services which may be available to
parents and law enforcement in such cases are poster creation and
dissemination, age progression and reconstruction technology,
translation of legal documents, law enforcement liaison, international
contacts, and parental support. In addition, through an interagency
agreement, OJJDP may upon request transfer monies available from the
department's federal crime victim assistance fund to the National
Center to provide needed services through its Victim Reunification
Travel program (VRT) to victims of parental kidnaping. Thus, in some
instances the national center may be in a position to provide emergency
transportation for American parents, crisis intervention services,
assistance in participating in criminal justice proceedings, and
payment for forensic medical examinations of the victim.
iv. doj's enforcement efforts
International parental child abduction cases may be addressed
through the Hague Convention or other civil means to recover the child,
and when appropriate through criminal statutes combined with
extradition procedures to prosecute and punish the abducting parent.
The Department of Justice does not play a direct role in the civil
mechanisms for the recovery of children internationally, but we do and
will continue to support and work with the Department of State in its
efforts to see that wrongfully abducted or retained children are
returned to their left-behind parents.
The Department of Justice's role is more significant in the
investigation and prosecution of parents who violate applicable
criminal laws. The laws of the fifty states and the District of
Colombia all provide criminal penalties for parents who wrongfully
abduct their children. The FBI for many years has, when appropriate,
obtained federal warrants for Unlawful Flight (UFAP's) for those
abducting parents charged with state or local offenses who cross state
or international borders. Such UFAP warrants, while themselves not
providing an independent basis for extradition, may assist in the
devotion of federal resources to locating abducting parents who have
fled overseas. Moreover, for the past six years, international parental
kidnaping has been a federal crime (International Parental Kidnapping
Crime Act, 18 USC 1204). Specially trained FBI agents around the
country designated as ``crimes against children coordinators'' serve as
points of contact on exploitation, abduction, and other crimes against
children. They or other agents in their field offices work with
assistant U.S. attorneys to investigate and prosecute violators of the
IPKCA statute.
The department's Child Exploitation and Obscenity Section (CEOS) in
the criminal division maintains oversight responsibility for IPKCA, and
provides advice and assistance to agents and prosecutors throughout the
country who call with questions concerning investigations or
prosecutions under that statute. Along with the division's office of
international affairs, CEOS works closely with U.S. attorneys offices
and the state department's office of children's issues to ensure that
prosecutorial decisions are closely coordinated with child recovery
efforts.
Records obtained from the department's Executive Office for United
States Attorneys (EOUSA) indicate that since the passage of the IPKCA
statute through the end of the second quarter of fiscal year 1999,
United States attorneys opened files on 229 international parental
kidnaping matters. As of April 30, 1999, 77 investigations were
pending. Of the 62 defendants actually indicted, 23 cases have been
concluded resulting in 13 convictions.
While the numbers of IPKCA prosecutions and convictions are
relatively small, it is important to keep in mind that a large but
undetermined number of international parental kidnaping cases are
charged by state and local authorities under their own laws. We have
also been informed that the number of IPKCA prosecutions which have
resulted in the return of the abducted child is very small. Here it is
important to remember that while we of course hope that such
prosecutions have the residual effect of facilitating the return of the
victim child, the IPKCA statute was not designed, nor can it be
expected to fulfill, that goal.
Both the National Crime Information Center (NCIC), and Interpol,
provide considerable assistance in locating and identifying criminally
charged abducting parents and their victim children.
In response to the previously mentioned report to the attorney
general, the FBI is examining the possibility of seeking a change in
one of the ways the NCIC maintains records. Specifically, the change
would permit the name of an abducted child located abroad to remain in
NCIC until issues related to where the child will ultimately reside are
resolved.
Interpol's National Central Bureau (USNCB) here in Washington,
D.C., which is staffed by senior agents from U.S. law enforcement
agencies, facilitates the issuance of international lookouts (e.g.,
``red notices'' seeking fugitives including abducting parents, and
``yellow notices'' seeking missing or lost persons including victims of
parental abductions). Interpol was recently instrumental in a case in
which an abducting parent, who had a history of violent criminal
offenses and drug abuse, brought his four year old child to the United
States. At the request of Interpol Canada, the USNCB coordinated
investigative actions in eight states and the District of Columbia.
Thanks to those efforts, the father was arrested by the D.C.
Metropolitan Police and the United States Marshals Service, and the
child was taken into protective custody.
Once an abducting parent is charged by state or federal authorities
and located abroad, extradition my be considered. However, it is
crucial to understand that even when successful, an extradition by no
means ensures the return of an abducted child. There have been sad
cases in which a fugitive parent is returned for prosecution, but the
victim child is hidden in the foreign country with friends or
relatives, or the foreign courts fail to grant custody to the left-
behind U.S. parent. It is even possible that an extradition request may
complicate the return of the child under the Hague Convention (e.g.,
should the foreign authorities be reluctant to return a child to the
U.S. when one parent faces the prospect of prosecution and
incarceration). In short, the decision to seek criminal charges against
and pursue the extradition of an abducting parent must be made on its
own merits for law enforcement reasons, and not viewed as a quick, or
even an effective, means of securing the return of the child.
Extradition may be available to a state or federal prosecutor for
international parental abduction if (1) an extradition treaty is in
force between the United States and the country where the fugitive is
located; (2) the treaty recognizes parental kidnaping as an
extraditable offense; and (3) no other treaty provision would bar the
fugitive's return to the United States for prosecution for the offense.
When a prosecutor is interested in requesting extradition, he or she
contacts the criminal division's Office of International Affairs (OIA)
for advice and assistance. OIA works through the Department of State to
make such requests.
There are presently over 100 bilateral U.S. extradition treaties in
force. Under the most modern of those, extradition is usually based
upon ``dual criminality''. That means if an offense is punishable in
both countries by and agreed upon term of imprisonment (often at least
one year), the offense is extraditable under the treaty.
Under our older treaties, extradition is provided only for crimes
listed in the treaties themselves. And while most of these treaties
list ``kidnaping'' or ``child stealing'' as extraditable offenses, for
many years the State Department was concerned that those terms were not
intended by the treaty negotiators or the Senate when it authorized
ratification to cover parental kidnaping or abduction. Thanks to action
by Congress in passing the Extradition Treaties Interpretation Act of
1998, we may now interpret ``kidnaping'' to include parental kidnaping.
The State Department informs us that twelve of our treaty partners have
already agreed with the United States that parental kidnaping is
covered by our existing ``list'' extradition treaties. This has opened
the door to possible extradition requests on such charges to those
countries, (e.g., Cyprus, Luxembourg, New Zealand), and possibly soon
to other countries which have not yet responded to the State Department
survey.
Unfortunately, even when a treaty exists and the parental abduction
crime is extraditable pursuant to it, there may exist other obstacles
to obtaining extradition. For example, many countries refuse, often
because of a constitutional or other important public policy
prohibition, to extradite their own nationals. Our treaties with such
countries often do not require the surrender of nationals. Because
abducting parents are often nationals of the countries to which they
flee with an abducted child, they are able to avoid extradition to the
United States. And although most of the countries which refuse to
extradite their citizens can in theory assert criminal jurisdiction
over them for crimes committed anywhere in the world, as a practical
matter this is rarely done.
This is not to suggest that we would not or should not ever request
extradition knowing that the request well be denied on the basis of
nationality--such decisions are carefully made taking into
consideration all of the particular circumstances--but only that the
existence of a treaty which seems to cover the crime is not always
sufficient to ensure that the offender is brought to justice. I can
assure this committee that expanding the number of U.S. extradition
treaties which mandate the extradition of nationals is among the
department's highest international law enforcement priorities.
v. conclusion
In a shrinking world with increasing numbers of bi-national
marriages, the problem of international parental child abduction will
not disappear anytime soon. However, we at the Department of Justice
will continue to do whatever we can to address this problem, through
enhanced interagency coordination, continued programmatic initiatives,
and vigorous enforcement efforts.
Again, thank you for the opportunity to appear before this
subcommittee on this most important topic.
Senator Thurmond. Ms. Borek.
STATEMENT OF JAMISON S. BOREK
Ms. Borek. Thank you, Mr. Chairman. As you have suggested,
I will make briefer remarks and ask that my statement be
accepted in full for the record.
Senator Thurmond. Your entire statement, of course, will be
put in the record.
Ms. Borek. Mr. Chairman and Senator DeWine, thank you for
holding this hearing today to discuss the important subject of
international parental child abduction. I will first give
briefly an overview of the different ways the Department of
State is involved with this problem.
First, of course, it grows out of our concern for the
welfare of American citizens, both who are overseas or who
become involved in transnational problems. There is no greater
responsibility than the welfare of our children. The protection
of Americans abroad, including those children victimized by
international parental child abduction, is of the highest
priority to the Department of State.
As the corollary to our interest in this area, we are also
responsible for coordinating U.S. efforts in international
organizations to develop mechanisms and laws to protect private
citizens in these areas, such as the Hague Conference on
private international law. It was in 1980 that the Hague
Conference developed the convention on the civil aspects of
international child abduction and the United States became a
party in 1988.
This convention aims at providing a civil legal remedy for
prompt return of a child who is either abducted or who may be
retained in violation of custody rights. The latter case could
be in a case where there is a court order, or it could be where
there is no court order but there is simple joint custody prior
to divorce. So the Hague Convention covers a broad range of
cases, including not only the classic abduction, but also a
situation where a mother in a bad marriage simply takes a small
child and returns home, if the home happens to be a foreign
country.
The underlying premise of the convention is that it is bad
for children. It is not in the best interest of the child to be
abducted. It seeks to deter abduction and to remedy it as a
means of forum-shopping. It is understood that every country
has a mechanism for determining the custody of this child and
it is based, at least in principle in most countries, on the
best interest of the child. But under the Hague Convention, the
decision is made that the custody determination should be in
the place of habitual residence of a child, and where a child
is abducted to get a different forum, the child should be sent
home.
To implement this convention, the Bureau of Consular
Affairs started with a small staff an effort and has constantly
increased it over time. In 1994, they created an Office of
Children's Issues as a formal office to be concerned not only
with implementation of the Hague Convention, but other
situations where children are taken by parents abroad, and
protection of children in all countries, not only Hague
countries.
In addition to the efforts under the Hague Convention, the
Department of State is also concerned with the question of
passports and travel, and recently, they have moved the
function concerned with passport issuance for children into the
Office of Children's Issues so that it can be better
coordinated in the case of preventing and deterring
international child abduction.
Finally, we also play a role with respect to the criminal
aspects of international child abduction by virtue of our role
in connection with extradition. Of course, we coordinate very
closely with the Department of Justice, who is responsible for
most operational aspects.
I might say that the Hague Convention, overall, has been a
clear success story as compared to the prior situation. In the
first 10 years that we have been a party, proceedings have
resulted in the return of over 20,000 children to the United
States. We believe, although we have no way to know, that the
existence of the treaty's return mechanism has deterred a
number of abductions.
The statistics, unfortunately, within the State Department
have not been kept especially well or consistently over the
years. We are trying to improve these efforts. In recent years,
we believe that the percentage of returns under the Hague
Convention is closer to 60 percent, so that there is--and, of
course, it depends on the country--there is a considerable body
of success under this convention.
However, it is clearly not a perfect remedy. There are a
number of grounds even within the convention for non-return of
the child, for example, if there is a danger of serious harm to
the child or if the child is old enough to have views and
objects to the return. In addition, a number of countries have
created what we believe to be loopholes, taking advantage of
grounds in the convention but applying it in ways that we
dispute.
In addition, there are some additional problems that have
grown out of either the nature of the legal systems in some
countries or in some countries their commitment to implementing
the convention.
Another problem is that there is ultimately the idea of a
custody determination under the Hague Convention in the country
which the child was abducted, and in some cases, the courts
have gone to lengths to make sure that if the child is
returned, both parents will be able to participate in that
custody determination.
In this context, it can be a serious problem--it has been
in some cases--if one of the parents is subject to arrest and
prosecution on return to the United States. Some courts have
said that is a reason to be concerned about returning the child
because they would not be able to participate adequately in the
custody determination in the country from which the child was
taken.
There are other problems. I see that I am on the yellow
light, so I will not go into all of them. I do want to note
that we have been concerned about improving our efforts for a
considerable period, and starting in late 1997, both the
Departments of State and Justice embarked on a serious working-
level review of all of the problems and gaps. This was the
major input to the report.
In late 1988, the Attorney General and Secretary of State
determined to jointly create a senior policy group that would
work together with the working-level group and take an overall
comprehensive look at the problems and recommendations which
resulted in the report, which we have mentioned and which you
have mentioned, Senator DeWine. It makes a number of
recommendations for improvement, and as many as possible of
them that can be implemented within existing resources, we are
pursuing. But this is in very large part a question of
resources and some of them are very expensive items, such as an
entire new computer system, and, of course, there is the
question of staff.
I might note that the Office of Children's Issues has had a
staffing ratio of one person for 120 cases. Recently, we have
added enough people to bring it down to 80 cases per person,
but this is still a tremendous burden and, of course, sharply
curtails the intensity and the level of attention that we can
give to any one case.
We seek to systematize and become more aggressive in our
approach to the problem of implementation. As I said, all of
these things will go on, but they will go on, to a certain
extent, in direct relationship to the resources that we are
able to note to them. In that connection, I have to note that
the funding for the State Department as a whole has become an
issue and that full funding--it is not a question simply of
funding this particular small part of the State Department
because the overall situation is one of constraint.
I am told that I may have said that we have returned since
1988 20,000 children, or had them returned to us. I meant to
say that there were 2,000 children returned to us.
I think that is it for my initial remarks, and, therefore,
I would be happy to close and say that I will take any
questions, and thank you again for this opportunity to testify.
Senator Thurmond. Thank you very much.
[The prepared statement of Ms. Borek follows:]
Prepared Statement of Jamison S. Borek
Mr. Chairman and Members of the Subcommittee: I am pleased to
appear before the Subcommittee today to address the important topic of
international parental child abduction.
role of the department of state
As you know, Mr. Chairman, this is a topic that has a number of
both criminal and civil aspects. Although the focus of the hearing
today is on the Department of Justice's response, the Department of
State is also seriously involved in this problem, in a number of ways.
By way of background, therefore, I would like to give you an overview
of the Department of State's involvement in this problem.
First, and most significantly, our concern about international
child abduction is an extension of our responsibility and concern for
the welfare of American citizens who are overseas or involved in
transnational problems.
There is no greater responsibility than the welfare of our
children. The protection of Americans abroad, including those children
victimized by international parental child abduction, is of the highest
priority to the Department of State. Matters involving the welfare and
custody of children are some of the most difficult and emotional cases
with which we must deal. When a parent abducts, or wrongfully retains,
a child from his or her home, and prevents the child from having a
relationship with the other parent, the trauma to the child is
immediate and compounded each day the child is not returned home.
As a corollary to our concern for the welfare of Americans in
foreign or transnational situations, the Department of State is also
responsible for leading and coordinating United States participation in
relevant international organizations, such as the Hague Conference on
Private International Law. This is the organization that developed the
1980 Hague Convention on the Civil Aspects of International Child
Abduction, to which the U.S. became party in 1988. The Convention
provides a civil ``legal mechanism in the country where the child is
located for parents to seek the return of, and access to, their child.
It applies only to cases where children resident in a Hague Convention
country have been abducted to, or wrongfully retained in, another
country party to the Convention.
To implement this Convention, and to focus on other relevant
efforts of the Department of State on behalf of children, the Bureau of
Consular Affairs created an Office of Children's Issues in 1994. This
Office not only acts as the Central Authority for the Convention in the
United States, but also tries to assist left behind parents of children
abducted to other countries, that do not belong to the Hague
Convention. This Office would also be the Central Authority for the
Hague Convention on Protection of Children and Cooperation In Respect
of Intercountry Adoption, if the Senate gives its advice and consent to
ratification.
The responsibilities of the Department of State that are relevant
to international child abduction also include those involving passports
and travel from the United States. Parents may ask that they be
notified if the other parent applies for a United States passport for
their child, or, if they have a supporting court order, th6y may
prevent issuance of a passport to a child without their consent.
Finally, the Department of State also plays a role with respect to
the criminal aspects of international child abduction by virtue of its
role with respect to international extradition matters. In this area,
we coordinate very closely with the Department of Justice, of course,
since the Department of Justice has the lead role in most operational
respects.
overview of international child abduction
The problem of international child abduction can be both tragic and
complex. Even within the United States, custody battles over children
can be devastating for all concerned. Translated to the international
plane, every problem can multiply, and the parent victim can be faced
with significant additional complication, difficulty, and expense.
The best means of protecting children from the harmful effects of
international parental child abduction is prevention: through the
deterrent effect of legal mechanisms, and through education and
understanding of the steps that can be taken to make abduction more
difficult in the first instance, so that fewer successful abductions
occur. Second, we must give attention to any efforts that can be made
to prevent abductors from actually leaving the United States.
International child abductions are often complicated by the fact
that many abducted children are from multi-cultural relationships. They
are often citizens of both the United States and the country to which
they were abducted. Ultimately the fate of these children is decided by
the courts of the countries to which they have been abducted or in
which they have been wrongfully retained. Often custody orders entered
into by U.S. State courts are not enforceable outside our country. Even
when everyone involved is a U.S. citizen, these cases are often
difficult to resolve once the child has been removed from the United
States.
Thus, once the abductor and child are outside the United States,
the only avenue for return of a child, apart from a voluntary
resolution, is likely to be legal proceedings under the Hague
Convention. If the abductor is in a non-Hague Convention country, there
may be only limited legal recourse, if any.
A Hague Convention proceeding does not decide custody; instead, it
decides in which country custody determination should be made.
Basically, the Convention is aimed at using abduction as a means of
forum-shopping, by providing that the courts in the country to which
the child is abducted should, with very few and limited exceptions,
return the child to the country of habitual residence without
considering the merits of the custody dispute.
Overall, the Convention is a success story. In the first ten years
that the United States has been party to the Convention, proceedings
have resulted in the return of over 2,000 children to the United
States. Further, we believe the existence of the treaty's return
mechanism has deterred an untold number of abductions. Approximately 60
percent of the cases in which we provide assistance are now covered by
the Convention. When the U.S. joined the Convention in 1988, only nine
other countries were party. Today the Convention is in effect between
the U.S. and 53 other countries. We have an active program to encourage
countries to join the Convention as the best possible means of
protecting children from the harmful effects of abduction. For example,
in an August trip to Japan, which is not currently party to the
Convention, Mary Ryan, the Assistant Secretary for the Bureau of
Consular Affairs, discussed with a Justice Ministry official the
benefits of the Convention for both our countries. As we look to
improve the Convention's effectiveness, we must remember the many
parents who wish that they had even this less than ideal mechanism to
seek return of their children.
While the Hague Convention has facilitated the return of many
children to the United States, and while it is a vast improvement over
the lack of any international mechanism whatsoever, it is not a perfect
remedy. There are some bona fide grounds for non-return under the
Convention, and in some cases parents or courts have created loopholes
even where there should be a return. The world has changed since the
Convention was conceived 19 years ago when the majority of taking
parents were fathers. Now, 70 percent of taking parents are mothers,
and courts in some countries are reluctant to compel children's return
to the United States when the mothers face significant obstacles to
return, including possible criminal sanctions. There may also be
particular problems associated with ``wrongful retention'' of a child,
when there is no actual physical abduction, particularly in certain
joint custody situations.
We have identified a number of the biggest obstacles to the
effective implementation of the Hague Convention. These include:
Locating children: Many countries, including Mexico and
other Latin American countries, Sweden, Norway and Denmark,
have difficulties locating children believed to have been taken
to their country. The problem in Mexico appears to be primarily
a lack of resources and infrastructure, while the problem in
the Scandinavian countries may be more of a lack of interagency
cooperation and coordination within the country. Often social
welfare agencies do not share information with the Hague
Central Authority. Other countries have laws that prohibit
information sharing among government agencies.
Duration of cases: Although Article 11 of the Hague
Convention calls for expeditious processing of return cases,
and specifies that courts may be asked the reason for delay if
they have not decided a Hague case within six weeks, the courts
in some countries do not proceed in a timely fashion.
Non-enforcement of orders: Many civil law countries do not
have effective mechanisms for enforcement of their own civil
orders for the return of abducted children. The country may not
have any penalty for noncompliance with a court order, may levy
only a small fine, or have no authority responsible for
enforcing a civil order. In some instances, a left-behind
parent may have to hire a designated authority (such as a
bailiff) to enforce a civil order.
Consent of the child: The Convention allows judges to refuse
to order the return of a child if the child objects to being
returned ``* * * and has attained an age and degree of maturity
at which it is appropriate to take account of its views.''
While in the United States we would expect that judges would
consider a child of perhaps ten or twelve years old to be
mature enough to think independently of the taking parent's
influence, we have seen the views of significantly younger
children taken into account in some countries. In Germany, for
instance, we have seen judges take into consideration the
wishes of children as young as five.
Undertakings: The courts in a number of Commonwealth
countries, including the United Kingdom and Australia, often
require the left-behind parent to agree to extensive
``undertakings'' (conditions for return) before an order for
the return of an abducted child will be issued. These
undertakings expand rather than limit the exceptions for return
of abducted children under the Convention. Examples have
included requiring the left-behind parent to pay the abducting
parent's transportation costs back to the United States,
providing housing costs once the taking parent returns to the
U.S., and/or furnishing the abductor with an automobile for the
duration of custody hearings. In at least one instance, the
left-behind parent was required to demonstrate that he had pre-
paid a substantial sum to the taking parent's attorney. These
undertakings are not provided for in the Convention, have the
effect of rewarding abduction and impose additional hardships
on the left-behind parent.
Nevertheless, overall the Hague Convention is a significant
improvement. Before we became party to the Convention, return to the
U.S. of abducted children was approximately 20 percent. Under the
Convention about 72 percent of cases result in return or access. The
rate of returns from the U.S. to other countries is even higher,
approximately 90 percent, including voluntary returns.
This reality offers little comfort to the left-behind parents who
have suffered the frustration and anguish of losing contact with a
beloved child. Nor does it comfort the traumatized child who has been
abruptly wrenched from the arms of one parent and asked in effect to
choose sides. That is why we continue to work to improve the
functioning of the Convention.
u.s. federal response to international parental child abduction
Since the U.S. became party to the Hague Convention in 1988, the
Department of State has worked to improve its implementation. The first
year we created a new child custody division to coordinate our work in
this area. In 1994, we formed the Office of Children's Issues,
redoubling our efforts on this important subject and increasing the
level of attention it received in the State Department. The benefits of
this new office were quickly realized. In 1994, the Office was
recognized by the Administration when it won a Vice Presidential
``Hammer Award'' for reinventing government due to its work to return
children home. Our efforts have increased steadily since that time.
The new Office of Children's Issues saw the need for a
comprehensive interagency coordinated response to address the scourge
of international parental child abduction--from prevention, to
recovery, to reunification. In 1994, it co-hosted, with the American
Bar Association, the North American Symposium on International Child
Abduction, funded by the Department of Justice, and aimed at improving
the operation of the Hague Abduction Convention.
In an effort to coordinate assistance to abducted children and
their families, the Office of Children's Issues entered into a
cooperative agreement with the Department of Justice and the National
Center for Missing and Exploited Children on September 1, 1995, to work
together on these cases. While the National Center had always helped us
locate missing children, the agreement formalized this arrangement and
expanded the National Center's work to include Hague cases in which
children were abducted to, or retained in, the United States.
There were other issues needing attention. One was the matter of
legal costs. Although the Hague Convention provides that countries will
pay the legal fees of parents in Hague return cases, the Convention
allows party countries to take a reservation in this regard and the
U.S. took that reservation. As a result, some Americans pursuing return
of their children under the Convention were receiving free or reduced
fee legal assistance in other countries, while foreign parents pursuing
return of their children abducted to, or wrongfully retained in, the
U.S. did not receive equal benefits.
At the 1994 intergovernmental meeting of Convention Central
Authorities, the U.S. was roundly criticized by other party countries
because the high cost of U.S. litigation was effectively denying
parents from pursuing Hague remedies in the U.S. As a result of that
criticism, the Department of Justice, in coordination with the Office
of Children's Issues, agreed in 1995 to fund the American Bar
Association's creation of the International Child Abduction Attorney
Network (ICAAN) to expand the pool of attorneys who provide pro bono or
reduced fee legal assistance in Hague cases involving children in the
United States.
In 1998, the Office of Children's Issues received another award
from the Administration as a member of the team, which included the
Department of Justice and the National Center for Missing and Exploited
Children, that created the family reunification program to help needy
parents pay for the costs of returning their children home. We have a
robust interagency cooperative effort and are dedicated to using every
tool at our disposal.
Despite all the efforts of the Departments of State and Justice to
coordinate and cooperate, both the agencies involved and, more
importantly, the left-behind parents believed that the U.S. federal
response to their cases was not sufficient and that more needed to be
done. There were failures in coordination on cases, in part because of
the inherent tension between the civil aspects of a case in which the
goal is to effect the abducted child's return and the criminal efforts
to prosecute abducting parents.
The Senate Foreign Relations Committee invited the Attorney General
to testify on international parental child abduction in October 1998.
Prior to her testimony, the Attorney General spoke with the Secretary
of State and together they committed their two agencies to taking a
hard look at how the federal response to international parental child
abduction could improve.
The Attorney General and the Secretary of State subsequently formed
a Senior Interagency Policy Group to undertake a comprehensive review
of the federal government response to international parental child
abduction. The Policy Group in turn created a working group. Since they
were created, the Policy Group and its Working Group have met at least
once a month. The Policy Group, with the input of the Missing and
Exploited Children Task Force's Subcommittee on International Parental
Child Abduction, prepared ``A Report to the Attorney General on
International Parental Kidnapping'' which the Attorney General
submitted to Congress in June. The report outlined the gaps in the
federal response and recommendations to improve the situation. The
Policy Group developed an action plan to implement the report's
recommendations, wherever possible, and to the extent resources
permitted.
The action plan addresses:
The creation of a comprehensive tracking system for
international parental child abduction cases;
An enhanced role for the National Center for Missing and
Exploited Children;
The strengthening of inter-agency coordination;
Enhanced diplomatic initiatives;
Increased education and training;
Strengthened mechanisms to prevent departure of abducted
children and abducting parents;
Expansion of services for parents and children;
Coordinated budget and resource estimates.
Implementing the international parental child abduction
recommendations will be expensive, having a price tag in the millions,
and taking several years. As a core function of the Department of
State, the Office of Children's Issues should be funded with
appropriated resources. We are concerned about inadequate overall
funding for the Department, which may negatively affect our ability to
implement the recommendations. * * * Additionally, we are pleased that
the Senate receded on an earlier effort to zero out funding for the
Hague Conference, and want to emphasize the important work that it does
and the great amount of value we obtain in fully funding this important
organization.
The Bureau of Consular Affairs is on its way to completing the
requirement study for the interagency case tracking system. The
contractor has had over a dozen meetings with Children's Issues staff
and the interagency community that will be using this system. With
needed funding, implementation of the first phase of this system is
scheduled for this spring. The Bureau has increased the staff of the
Office of Children's Issues so that country officers have fewer cases.
They will soon be advertising for a management analyst to oversee
further development of the comprehensive tracking system, to create
accurate statistics on all abduction cases, both to and from the U.S.
The Bureau of Consular Affairs has also expanded the cooperative
agreement with the National Center for Missing and Exploited Children
to include additional assistance for parents and children in all
international child abduction cases. The Bureau recently established a
National Center coordinator position within the Office of Children's
Issues. The passport custody lookout function currently in Passport
Services will be transferred to the Office of Children's Issues in
early 2000.
As we seek to improve services to parents, we recognize the need
for continuing feedback from our customers. Recently, Children's Issues
has had a number of meetings with left-behind parents to receive their
input on how we might do things better. One of the new positions in
Children's Issues will be specifically devoted to enhancing our service
to American citizen customers. We have also established Children's
Issues coordinators at our embassies and consulates around the world.
Recently, we have seen an example of how our increased interagency
communication has aided the return process. Five children abducted from
the U.S. to Syria were returned home following extensive interagency
cooperation involving the FBI, Department of Justice, local law
enforcement and the National Center for Missing and Exploited Children,
efforts coordinated by Children's Issues. Children's Issues initiated
numerous conference calls among the relevant organizations, ensuring
that the return of these children remained the focus of all U.S.
Government efforts. Following excellent work by our Embassy in
Damascus, one of the abducting parents was arrested in Syria and all
five children were returned using Justice Department ``family
reunification funds'' and State Department repatriation loans.
In closing, Mr. Chairman, in considering the complexity of both
Hague and non-Hague abductions, we must remember that these cases are
all centered on children and their need to feel secure in their homes
and not live in fear of abduction. Thank you, Mr. Chairman, for the
opportunity to address the Subcommittee on this important topic for our
children and their parents.
Senator Thurmond. We will now go to questions. Mr.
Robinson, international parental child abduction is a growing
problem. There have been very few prosecutions under IPKA since
Congress passed the statute in 1993. The recent task force
report to the Attorney General that was released earlier this
year did not even mention enforcement of the statute as a gap
in current efforts to address international parental kidnaping.
Do you think the Department should make better enforcement of
IPKA a priority?
Mr. Robinson. Let me say, preliminarily, that I would ask
Mr. Rossman, who was involved in that project directly and
reporting to me, that obviously it needs to be a continuous
improvement priority. We need to get the word out. It is still
a relatively new statute, but I think that within the
constraints outlined in the statement that I indicated, we need
to make sure that the investigators and prosecutors are trained
and understand this and we have the network of information out
there so people know of the availability of this resource.
But perhaps Mr. Rossman can comment directly on the
question with regard to the statement in the report. Rich.
Mr. Rossman. If I may, Mr. Chairman, I think the first
thing to keep in mind is that each one of our 50 States and the
District of Columbia have passed parental kidnaping statutes.
The States, the local governments, are really the primary force
in this area. The Federal statute was never meant to supplant
State governments in this regard, but only to supplement it and
to be available in those situations. For instance, if you have
a case where there is a question about the custody situation at
the time of the abduction, the Federal statute can be more
helpful than some of the State statutes, which would not create
a crime in those circumstances. So I think that is the first
thing to keep in mind, is that the Federal statute is not the
primary force in this area but really is supplemental to the
ongoing efforts of each of our 50 States.
Second, I think it is worth noticing that the numbers have
increased over the period of time and the involvement of the
FBI, but the numbers are still low. There is no question about
that. As Mr. Robinson said, we are reaching out, and I think in
this regard, the policy group that I was involved in and the
report that Senator DeWine mentioned does specifically
reference the idea of reaching out to training our prosecutors,
our State prosecutors, our Federal prosecutors, and our agents,
and that training process is ongoing. OJJDP at the Justice
Department is very involved in that process.
Just next week, down in South Carolina at the center that
the Department of Justice uses for training, we are having all
of our international reps from each of our U.S. attorney
offices come in and there is going to be a segment on
international parental kidnaping at that program to try to
further educate our U.S. attorney offices around the country on
the importance and the priority with which we face the statute.
Senator Thurmond. Ms. Borek, the Department of Justice
generally asks for a prosecution to be undertaken pursuant to
UFAP rather than IPKA. Given that IPKA itself is a direct
Federal offense, are there times when proceeding under the IPKA
warrant rather than a UFAP warrant could be more persuasive
with another country in encouraging them to extradite the
abductors to the United States?
Ms. Borek. Mr. Chairman, I am not aware of any
circumstances in which we would think that a Federal charge was
more important than a State charge in the eyes of a foreign
government official. I think the problem here is, as has been
mentioned by the Department of Justice that, and as you also
noted in your speech, that this can really impede the return of
the child in some cases.
When the return of the child and the enjoinment of some
form of joint rights, whether it is joint custody or it is
visitation, depends on both parents agreeing to share the time
of the child and one parent is prosecuted, this can obviously
cause problems with the ability of the parents to reach
agreement on things. Unless the child is actually returned,
which the extradition does not result in the return of the
child, it can actually make a situation worse in some cases
rather than better.
So I think the view of the foreign government is fairly
straightforward as far as the Federal versus State angle. But
the other considerations in a particular case may be
complicated.
Senator Thurmond. Mr. Robinson, I appreciate that the best
way to try to get a child returned is to use the Hague
Convention. However, some signatory countries consistently fail
to comply with their obligations under the Hague. For these
countries, do you think the Justice Department today may be too
reluctant to initiate criminal proceedings quickly?
Mr. Robinson. I do not think that is the case, Senator.
Obviously, it is a consideration and ought to be a
consideration in making a charging decision in a situation in
which the alternatives for--the first choice, obviously, is to
return the child, and I think that is--and to the extent that
that is not a possibility, the notion of bringing the criminal
charges and getting the deterrent effect for future cases is an
appropriate consideration.
Mr. Rossman. If I could just add, for instance, in the case
that Senator DeWine is so familiar with, the Sylvester case,
even though Mrs. Sylvester is in Austria, which does not
extradite its nationals, and there are other problems in trying
to use the criminal process in Austria, nevertheless, there is
an outstanding criminal warrant out of the Eastern District of
Michigan, and if Mrs. Sylvester steps into any other
jurisdiction that would extradite her, then she would be
subject to the criminal process and we have not hesitated to
use the criminal process in that regard, although,
unfortunately, it has not resulted in the return of either Mrs.
Sylvester or the children.
Senator Thurmond. Mr. Robinson, I understand that the
primary purpose of IPKA is to punish the abductor. However, it
appears to me that enforcing the law sometimes may pressure the
abductor into returning the child. Also, a judge may condition
the abductor's release on the return of the child. Do you agree
that criminal prosecution under the IPKA sometimes may result
in helping get the child back?
Mr. Robinson. I think it could under certain circumstances,
but as I indicated in my opening statement, there are times in
which it has not made any difference at all and has complicated
the situation. So I think what needs to be done is a careful
judgment on a case-by-case basis, evaluating the impact of the
criminal prosecution only after, of course, in the first
instance, the prosecution decision has to be made on the merits
of the facts, and only after that determination has been made
under the principles of Federal prosecution, then I think this
needs to be taken into consideration and evaluated in the
context of where the parent is and what the circumstances are.
But I think that there are certainly circumstances in which
this is an appropriate consideration, so I would agree and it
would depend on the particular circumstances of the case,
Senator.
Senator Thurmond. Mr. Robinson, I understand that sometimes
local authorities do not seek a UFAP warrant because they
cannot afford to pay the extradition costs associated with
enforcing the warrant. However, for an IPKA warrant, the
Federal Government pays the extradition costs. Do you agree
that the Federal authorities should consider IPKA warrants when
local authorities cannot afford the costs associated with UFAP
warrants?
Mr. Robinson. I think it ought to be a consideration. I
note that there was a provision that would have provided--in
the provision of last year's crime bill, would have been
helpful in allowing the Department on a case-by-case basis to
assist States and localities in defraying some of the
extraordinary expenses that may arise in pursuing international
extraditions. These can be quite expensive and time consuming,
and perhaps at an appropriate time, there could be some
consideration for that.
Senator Thurmond. Mr. Robinson, one way to locate and
detain abductors is to revoke their passports. I understand
that the State Department denies all revoked passports when the
abductor is the subject of a Federal warrant. It appears to me
that the possibility of revoking the abductor's passport is a
good reason to invoke the criminal process in many cases. Do
you agree?
Mr. Robinson. I think it can, in appropriate cases. Perhaps
Ms. Borek could add to that in terms of the available options
from the State Department's point of view.
Ms. Borek. Thank you. One difficulty here is that, very
often, the abducting parent is a foreign national and,
therefore, is traveling on a foreign passport. We do have a
system for trying to control the issuance of a U.S. passport to
children who might be abducted and we are trying to strengthen
that. But the child often is a dual national, also, and so the
passport revocation is perhaps less effective for the parent,
more effective for the child, not necessarily always effective
for the child. But certainly there would be some cases where
this would be useful, where it is an American citizen abductor.
Mr. Robinson. It is my understanding, also, Senator, that
the passport revocation is possible under either an unlawful
flight or an IPKA charge.
Senator Thurmond. Ms. Borek, the task force's report to the
Attorney General recommended that revoking a child's passport
is one way to help stop an abduction in process. What specific
efforts is the State Department undertaking to make it easier
to revoke abducted children's passports?
Ms. Borek. We do have a system now where, at the request of
the parent or an attorney or an appropriate court, we will put
the child's name in a passport name check system so that when
an application is received, the parent will be notified. It
will also be denied based on an appropriate court order. We
have amended the regulations to provide for denial based on
joint as well as sole custody.
We recognized in looking at the efforts under the senior
policy group review that we could do more to improve revocation
on an internal basis through, I believe, regulatory change, and
this was approved as part of the policy review and is being
implemented.
Senator Thurmond. Ms. Borek, I understand that some
obstacle to efforts to extradite an abduction is that the
country may not recognize parental kidnaping as an extraditable
offense. What specific diplomatic efforts are being taken by
the State Department to encourage countries that are parties
with us to list extradition treaties to interpret them to
include parental kidnaping as an extraditable offense?
Ms. Borek. We have gone out to all of the countries that
have this treaty to suggest to them and encourage them to agree
with us to this interpretation. We have found a number of
countries do not make this a crime under their national law,
and one of the concerns that was raised in Congress, and we
shared it, was that there be reciprocity, that we not be
extraditing Americans to foreign countries for parental
kidnaping when they would not be in a similar position to
extradite people back to us.
We have not made specific efforts to get people to change
their laws in these areas. I think we need to know more about
why they have not changed them. There are some trends,
especially in Europe, I think, away from the views that were
reflected in the 1980 Hague Convention. Therefore, the
situation is not necessarily one that is improving in all
respects.
What we have been focusing on first of all, I think, in the
civil area is the question of enforcing the court orders, which
we have not gotten into, but this is something which has caused
serious problems in a lot of cases, where people have even
gotten orders in their favor for custody or visitation and they
have not been enforced. So in terms of diplomatic efforts, I
would say at this point that is a priority, and also
encouraging people to agree with us on the interpretation of
the treaty. But we have not been trying to get people to change
their criminal law as of yet.
Senator Thurmond. Ms. Borek, the General Accounting Office
recently noted that the Office of Children's Issues and the FBI
sometimes make duplicate inquiries on the same case. Do you
expect a new case tracking system to allow State and Justice
agencies to know what each other is doing regarding ongoing
cases?
Ms. Borek. We certainly hope so, Mr. Chairman, at least at
the basic level of knowing there is a case and certain
information should be available to all to avoid making
duplicative inquiries. I think we have determined that very
detailed information about criminal process, for example, or
all of the contacts to the particular parent might not be
entered in this for a number of reasons. But certainly, the
kinds of basic inquiries and information that would lead one
agency to talk to each other should be in there.
Senator Thurmond. Senator DeWine.
Senator DeWine. Thank you, Mr. Chairman.
I think what this hearing is about today, quite candidly,
is priorities and discretion and judgment, and I am going to
make a statement at the beginning and then I am going to ask
some questions about it. The panelists may consider this a very
harsh and maybe unfair statement.
I do not think parents taking children illegally out of
this country and keeping these children out of the country,
away from another parent, is a high enough priority with the
State Department, nor do I think it is a high enough priority
with the Justice Department. Mr. Robinson, you spent almost
your entire testimony, quite candidly, and you and I have
discussed this before, you spent almost your entire testimony
telling us why you cannot do things and all the problems that
are there. I am a former prosecutor and I think I appreciate
what you had to say. I am not sure I disagreed with what you
had to say, but it troubles me about the emphasis, I guess.
We know there is nothing perfect in the world. We know that
if a child is taken by one parent out of a State, we know there
are problems with that. We know filing charges does not
necessarily solve the problem, but we still file them. You
still file charges when someone commits murder or someone
commits rape or someone commits some other Federal offense that
the Federal prosecutor decides to prosecute under, even though
this person may have fled, so I am not sure that is an answer.
Let me, if I could, just talk a little bit and ask some
questions about these priorities. You state, Mr. Robinson, that
since the passage of the parental kidnaping law, through the
middle of this year, U.S. attorneys have opened 229 files on
international parental kidnaping, that 62 defendants have been
indicted and 13 convicted. Now, one of the intentions of
Congress in passing this statute is set forth in the House
committee report, ``to deter at least some abductions by
ensuring that the kidnaping offender will be pursued by the
U.S. Government. At present, most abducting parents have little
to fear with regard to effective pursuit.''
I just want to ask you whether you think 62 indictments
over 5 years has been given abducting parents anything to fear
as far as effective pursuit by the U.S. Government. Sixty-two--
I mean, you talk about it being a new statute and we have got
to get the word out to U.S. attorneys and assistant U.S.
attorneys, but 5 years is a long time.
Mr. Robinson. I think we indicated that we expect there
will be more prosecutions, and I think that as the testimony
indicates, I think your emphasis is the correct one. I think
the priority issue is an important one. I think there needs to
be additional work, and the issue of working with the States on
their prosecutions and utilizing the resources of the Federal
Government and the State Department on extraditions to bring
people back to face State kidnaping charges in this area.
I am not going to disagree with you at all on the notion
that there needs to be an additional effort, and I think that
what we have been trying to do with the senior policy group is
to try to get our arms around the scope of these issues and
continue to press on them. But I am not going to suggest to you
that more cannot be done or should not be done. I think we all
agree that it should and we ought to do more.
Senator DeWine. I appreciate that, and we understand that
the Justice Department, U.S. attorneys, and assistant U.S.
attorneys have to make judgment calls. You cannot prosecute
every case. You cannot deal with every case. But we set our
priorities. Any administration sets its priorities, or any
prosecutor sets his or her priorities, by what cases you put
emphasis on. County prosecutors put special emphasis and set up
teams on rape cases or on drug cases or welfare fraud cases.
It just seems to me that this government needs to say this
is important and there is a reason that we have this law, and
yes, it does supplement State laws, but there are some
advantages, and we do not have time today to go into all the
advantages, but I think there are very distinct advantages to
file under a Federal law as opposed to filing under a State
law, which brings me to Ms. Borek's question.
Let me just make sure I understand your testimony. Your
testimony was that you did not think it made any difference
from a diplomatic point of view whether or not our ambassador
had or could reference a State of Alabama or a State of Ohio
charge or a U.S. Government charge. Now, is that my
understanding of your testimony?
Ms. Borek. Senator DeWine, when we make an extradition
request, it is always a U.S. Government request.
Senator DeWine. No, I understand that.
Ms. Borek. So I think what I was saying is that in either
case, we are presenting the foreign government with a U.S.
Government request and we expect them all to be honored. I have
not seen any indication that a foreign country said, oh, well,
that is just a State of Alabama request. We will pay less
attention to it. I think we expect them all to be honored and
on an equal basis.
Senator DeWine. The report that we have been referencing
here, the internal working report, stated that one of the
practical problems that was identified in this report in the
diplomatic initiative section is that, ``left-behind parents
expect the U.S. Government to intercede directly with foreign
governments on their behalf to recover their children. When
diplomatic action is not taken, some may feel the government
has let them down. Federal law and policy must be articulated
and explained to parents.''
Can you explain what Federal law and policy there is that
prevents the U.S. Government from interceding directly with
foreign governments? I again must say, I find that statement to
be a horribly condescending statement. I know you did not write
it, but it is just horribly condescending. We have to explain
to these poor parents why the U.S. Government cannot do
anything.
Senator Thurmond. Senator, could I have the floor for just
a minute before you make your statement?
Senator DeWine. Sure.
Senator Thurmond. I wish to note that I am pleased to have
Lady Catherine Meyer as a witness on the second panel. She is
an expert in the area of parental kidnaping. I plan to return
later and ask questions to the second panel, but right now, I
have another engagement I have to go to.
Senator DeWine. Thank you, Mr. Chairman.
Senator Thurmond. I ask if you will take over here.
Senator DeWine. Thank you.
Ms. Borek. I think that----
Senator DeWine [presiding]. Does that statement bother you
at all?
Ms. Borek. Yes. I think it is not a very clearly written
statement. It is not meant to say that the government cannot do
anything at all. I think what it is intended to say is that we
do not press directly for return. In the Hague case, there are
some reasons under the convention why a court might decide not
to return a child, and we do not say, well, this parent is
clearly right and this parent is clearly wrong as a matter of
course. We press the foreign government and we do intervene and
press to comply absolutely with the spirit and the letter of
the convention as we see it.
I do not think that is a very well-written statement
because it does suggest that we do not do that. All it means
really is we do not sort of walk in there and say, you must
give us the child now. Really, that is what the parents want,
and very often, very rightly. But this is not a mechanism,
unfortunately, that is quite that automatic. There are some
factual disputes, and these are kinds of cases where there can
be some really ugly factual disputes that ultimately do have to
be resolved by the courts. A lot of the problems we have been
having--not all of them, by any means, but a lot of them--are
actually problems with courts and not with the governments of
the countries in question.
Senator DeWine. Let me follow up with that. Also in the
report to the Attorney General, there is a section, the same
section on diplomatic initiatives, that sets forth the direct
actions the State Department might take in an international
parental kidnaping case. These include having the U.S.
ambassador meet with the leader of another country, formal
communications such as diplomatic notes, and less formal
communication such as an exchange of letters.
Let me ask you, are these direct actions taken only to
promote and improve implementation of the Hague Convention in
general, or are they taken in a specific case concerning a
child in that country? Second, if taken in individual cases,
how many times has an ambassador, to your knowledge, met with
the leader of another country on an individual case of
international parental kidnaping?
Ms. Borek. In answer to the first question, we certainly do
it in the context of individual cases and for individual cases.
There have been, in addition, some efforts aimed purely at the
systemic level, but those are less likely to involve the
ambassador.
I cannot tell you how many times exactly the ambassador has
met. Of course, this is the question in cases that seem to have
problems, where this seems to be a useful thing to do.
Obviously, there are a lot of cases that go smoothly and there
is no reason for the ambassador to talk to anyone. I could try
to get you more information about----
Senator DeWine. I would appreciate that. Again, it goes
back to priorities and it goes back to what we emphasize and
what we spend time on. All of us in government every day make
choices, priority choices. How do we spend our day? How do we
spend our time? It is finite. Time is finite. I guess I just
would like some assurance from you or from the Department that
this is, in fact, important.
I mean, your point is well taken that these are messy cases
sometimes, that sometimes the facts are in dispute. A lot of
times, the facts are not in dispute, frankly. A lot of times,
someone just takes off and they are just gone, because they are
going back to their home country and they want their baby and
they are gone and that is it. It does not take a rocket
scientist to figure that one out. But some, yes, there are some
factual disputes.
It seems to me the question is, how involved is the State
Department in trying to resolve these and to use the diplomatic
skills that our diplomats are trained in and to resolve these
particular cases, whether or not there is a formal charge filed
or not, whether or not we are interested in actually bringing
the person back, or can we just get this thing worked out. I am
not suggesting that our ambassadors become domestic relations
experts here, but these things are important and these are
important when these children are taken. If it does not reach
the ambassador's level or if the ambassador in a given embassy
does not think it is important, then obviously the foreign
government will not think it is important.
Ms. Borek. I agree with you, Senator DeWine. I need to add,
I think, in addition to the question of priority, which we
decided we did need to make more systematic efforts to make
sure we were doing everything possible in this area, I need to
add two things. One is the Office of Children's Issues has no
higher priority in the world, and I think the Bureau of
Consular Affairs, than to be concerned about these children
and, of course, Americans generally, but within the category of
Americans, children call for a particularly high concern.
Second, I have to say, in addition to priority, there is
also the side of it that is resources. The whole State
Department has a lot of priorities, most of which are extremely
important, and we will not say which are and which are not, and
is operating under a situation of continuing very limited
resources. I read in the paper the other day that the real
value of the foreign affairs budget is like 50 percent of what
it was some administrations ago. This is the factor in the
overall picture. It is not to negate your point. I think your
point is a very correct one. It is just that I think that also
has to be said.
Senator DeWine. Mr. Robinson, in your testimony, you stated
that a large but undetermined number of international parental
kidnaping cases are charged under State and local law, and I
think Mr. Rossman has made that point very well, too, and I
certainly agree with that. You have also stated that warrants
for unlawful flight can be obtained where the abducting parent
crosses State or international borders. You acknowledge these
UFAP warrants do not provide an independent basis for
extradition, but they may assist in obtaining Federal resources
to locate the abducting parent.
Is it not true that a lot of State, though, and local
prosecutors do not follow through with State charges because of
the prohibitive costs of extradition? I just anecdotally will
tell you that when I was a county prosecutor, we convicted
someone of murder. Unfortunately, he decided to leave the
jurisdiction and ended up in a foreign country. I cannot tell
you how much it cost Greene County, OH, to bring this murderer
back. It would cost a fortune for our moderate-sized county. So
it is something that, as Ms. Borek talks about resources,
clearly, a local prosecutor is going to think long and hard
about that. If that is true, is that not one reason for
charging the crime at the Federal level?
Mr. Robinson. It is, I think, a consideration, but the
resources issue is there, too. In the extradition area, as I am
sure the Senator knows, because of the high visibility of some
of these major cases, the Einhorn case in France, the
Scheinbein case in Israel, in the Criminal Division of the
Office of International Affairs, as we allocate resources and
determine where we are going to go after and deploy resources,
obviously, when you start with murderers and other major
individuals, these need to be taken into consideration.
But I think the resources question is a real one and I
think that was the reason why the notion in last year's crime
bill of providing some additional resources to allow on a case-
by-case basis the ability to assist the States, because as the
Senator knows, the county prosecutors throughout this country
are close to their constituents. That is where people go
initially. There are 5,000 assistant U.S. attorneys throughout
the country worrying about organized crime, public corruption,
narcotics trafficking, lots of other things, and we need to
have a cooperative relationship of constructive federalism with
our partners.
I think, working with State prosecutors and trying to come
up with ways we can work together to deal with this very
important problem and, I think, some resources to assist,
because it is difficult to deal--and it is very, very
difficult, and my hearts go out to the parents who have to deal
on an international basis with the equivalent of a custody
dispute. It is hard enough to deal with that right in your own
backyard, but to have to deal with it with another country with
different laws is a staggering problem.
So I think that it would be wise for the policy makers in
the Congress and the executive branch to address some of these
resources questions that might provide some assistance to State
and local prosecutors, as well as Federal prosecutors as we try
to deal with all the various extradition requests we have.
One of the things that I have certainly seen since
returning to the Justice Department, there has been a sea
change here from when I was U.S. attorney 20 years ago on the
globalization of crime. More than half the work of the Criminal
Division deals with international criminal activities. This
whole issue of globalization is going to find its way, as it
does already, into this problem, as well, and we need to use
all of our best resources and thinking to try to address these
kinds of problems, and the resources would help the States and
it would help, I think, the Justice Department and the State
Department in dealing with these issues, as well.
Senator DeWine. I thank you for that answer.
Let me just read from the House report in regard to the
International Parental Kidnaping Crime Act of 1993. Again, I
have read parts of it, but let me read one additional part. It
sets forth many reasons for creating the offense, and this is
sort of legislative history. But one is that the offense will
provide the basis for Federal warrants which will, in turn,
enhance the force of U.S. diplomatic representatives seeking
the assistance of foreign governments in returning abducted
children. Apparently, the House and Congress thought this was
one more tool that we would give the State Department, and in
some cases, it would work. Obviously, in some cases, it might
not work.
But I think we should not forget that that is a legitimate
tool. It is a tool that Congress intended by the filing of
charges to give for you, the Justice Department, to be giving
to the State Department. I just would point that out, again
with the understanding that in any given case, it may work or
it may not work. That is the way the world is. But it certainly
was intended as a tool, and I think in some cases it can be a
tool.
Mr. Robinson, let me ask you another question. Is not
another way the criminal charges could help bring about the
return of a child would be through imposing sentencing
conditions? These were used in the Amir case, which required
the father to return to the United States.
Now, in the report to the Attorney General, it points out
that, ``the imposition of such conditions have proven
ineffective to date. Therefore, the imposition of such
conditions must be considered on a case-by-case basis.'' I do
not disagree with that. But while sentencing conditions did not
work in this particular case, is it not really too soon to
totally discard this as a tactic?
Mr. Robinson. I think it is, yes. I think that needs to be
taken into consideration, and I would expect that in the event
the child is still abroad and we have the parent here
convicted, I would anticipate that that should be sought as an
appropriate condition. Unfortunately, as that particular case
indicated, it does not always work, but that does not mean we
should not stop trying or that we have enough data to conclude
that we should not do it. I think it is an appropriate
consideration that can make a difference. It does in other
areas. Conditions often can make a difference.
Senator DeWine. Mr. Robinson, Senator Thurmond had one
additional question which I would like to ask on his behalf.
American judges generally have little experience with
international abduction law. Some are getting more experience
than they want. But it appears to me that one way the Justice
Department can help educate judges, local judges, is to file
amicus briefs in potentially precedent-setting cases of
international child abduction. Does the Department monitor
litigation of this type to consider filing amicus briefs?
Mr. Robinson. Are you talking about State litigation? I am
not aware offhand----
Senator DeWine. Obviously, you could expand that question
to State and the appropriate Federal, as well.
Mr. Robinson. I am confident that if we were aware of such
a situation and could weigh in, that it is the kind of thing we
ought to give serious consideration to do, because anything we
can do to get the word out that this is a serious matter, that
any parent that is even thinking about this ought to recognize
there are not only State sanctions, Federal criminal sanctions,
and that we have the resources and intend, although we have the
obstacles, but I did not mean by stressing the obstacles to
suggest we ought to throw in the towel. The obstacles are
there, but we need to get the word out, because deterrence is a
major consideration.
I know the Senator has that in mind and I think you are
right in that regard. There ought to be a cost associated with
doing this. There ought to be more than nothing to fear, as you
suggest, and that can make a major difference.
Senator DeWine. Mr. Robinson, on that, I think we will
conclude the panel. That was a good summation. I appreciate the
three of you being here very much. We look forward to working
with you in the future. This is an important area and I am sure
we will be all discussing it again. Thank you very much.
Mr. Robinson. That is right. Thank you, Senator.
Senator DeWine. I would like to invite our second panel to
now start coming up. I will be introducing you as you come up.
Our first witness on the panel is Lady Catherine Meyer,
wife of the British ambassador to the United States. Lady Meyer
holds a bachelor's degree from the London School of Slavonic
and East European Studies and has been a successful commodities
broker. She is well known for her efforts to raise awareness of
parental kidnaping, which is based on her own experience
regarding the abduction of her two sons by their father. She is
Co-Chair of the International Centre for Missing and Exploited
Children, which she helped establish earlier this year.
Our second witness is Laura Kingsley Hong, a partner in the
law firm of Squire, Sanders and Dempsey. Ms. Hong has worked
tirelessly for 3 years regarding her personal story of
international parental kidnaping.
Our third witness is John Lebeau, Jr., who is a businessman
in West Palm Beach, FL. His twin children were taken from their
home by their mother in June 1996 and he eventually succeeded
in getting them returned to the United States in December 1998.
Our fourth witness is Craig Stein, a graduate of Swarthmore
College and Emory University School of Law. Through his work in
private practice, he has considerable experience in
international child abduction and holds the National Center for
Missing and Exploited Children's Award of Merit.
Our final witness is Ernie Allen, President and Chief
Executive Officer of the National Center for Missing and
Exploited Children, which has helped recover over 48,000
children. The nonprofit center is taking an increasingly
important role with the Federal Government in international
parental abductions. Mr. Allen, a member of the Kentucky bar,
served as Director of Public Health and Safety for the City of
Louisville and director of the Louisville-Jefferson County
Crime Commission before co-founding the National Center.
I would ask that the witnesses limit your opening
statements to no more than 5 minutes. All of your written
testimony will be placed in the record, certainly, without
objection. We will start with Lady Meyer and we will just go
right down the line.
PANEL CONSISTING OF CATHERINE I. MEYER, CO-CHAIR, INTERNATIONAL
CENTRE FOR MISSING AND EXPLOITED CHILDREN, WASHINGTON, DC;
LAURA KINGSLEY HONG, SQUIRE, SANDERS AND DEMPSEY, CLEVELAND
HEIGHTS, OH; JOHN J. LEBEAU, JR., PALM BEACH GARDENS, FL; CRAIG
E. STEIN, ATTORNEY AT LAW, MIAMI BEACH, FL; AND ERNIE ALLEN,
PRESIDENT AND CHIEF EXECUTIVE OFFICER, NATIONAL CENTER FOR
MISSING AND EXPLOITED CHILDREN, ALEXANDRIA, VA
STATEMENT OF CATHERINE I. MEYER
Lady Meyer. Thank you very much for having this hearing and
thank you very much for inviting us. I spent, as you all know,
5\1/2\ years trying to secure the return of my abducted
children and then simply to obtain what is the most elementary
human right, that of seeing my children. I have been lobbying
in France, in England, now in the States, to no avail.
As I stand today, I have no access whatsoever, and in 5\1/
2\ years, I have only managed to see my sons for a few hours--
not weeks, not days, just a few hours. In 5\1/2\ years, I have
never been able to see them as a normal parent. I have never
woken up with my children and I have never put them to bed. I
have never received letters from them, and I have received in
5\1/2\ years one school report.
Has anybody proved that I am a bad mother? No. Has any
proved that I do not love my children? No. But I am still
denied the rights that even women in prison are allowed. My
parents, too, have been denied this right. My father is 87 and
he may never live to see Alexander and Constantine again.
But the point is that who are the ultimate victims? It is
my children. They will be scarred for life. They have become
confused and angry with me because they have been told from the
beginning that I have abandoned them. On two occasions, in 1994
and in 1998, when I saw my sons and I told them how happy I was
to see them, Alexander replied, ``You lied. Daddy told us you
could come and see us whenever you wanted, but you never did.''
My children were abducted in 1994. There was an order by
the British courts to send them back. The initial court in
Germany was also reinstating the first court order for the
immediate return of the children, but it was never enforced. In
Germany, court orders, like in Austria, are not enforceable. So
my ex-husband asked for half-an-hour to bring the children to
the court, and taking advantage of this, he vanished and he
managed to lodge an ex parte appeal in the higher court. The
higher court, article 13b, was used not to return the children
to the U.K. The children objected to the return, apparently. At
that time, they were 7 and 9. I had not seen them for 4 months.
The children apparently felt they were living in a foreign
environment, because in England, one does not speak German.
The problem is that once the children have not been
returned, all the further decisions were in the German courts,
and the result of that is that custody was transferred to my
ex-husband and that I have not been able to obtain access
rights. The fear of re-abduction was used, and then the fact
that the children no longer want to see me. So you find
yourself in a catch-22 situation. The few orders that I have
got from the courts, that usually lasted for 3 hours a month,
were not enforced when my ex-husband did not bring the children
to the meeting place.
But I want to also talk about not my case, about all the
other cases, because since I have been lobbying, I have been
approached by hundreds of parents in the U.K., in England, and
now in the United States. Obviously, I have been approached by
many parents who have problems with Germany. The result of what
I have found is that three--I explain it much more in my
written statement, but there are really three main problems
that article 13b has been used all the time as a reason not to
return abducted children, and some children were three and five
and apparently they objected to a return.
The second problem that you find in some countries, and
particularly in Germany, is the slowness of the proceedings. As
I always say, in children's issues, 99 percent of the law is
possession. The longer the proceeding takes, the more
indoctrinated the child will be for the purposes of article 13.
The third problem is that in some countries, notably in
Germany and in Austria, court orders are not enforceable.
I have only managed to come up with 34 cases. Thirty-four
cases still involves 46 American children who are now held in
Germany. They all have been abducted or illegally retained, and
those 46 children have no contact to the American parent.
One of the parents is here today, and I would like to
introduce him. He is on the top of my list of the parents that
I have supplied. His name is Joseph Cooke. He served as a U.S.
Army officer in Germany. He met a German woman. They returned
to the States. They married. They had two children. When the
children were three and five, his German wife went to Germany
and then phoned him saying, ``I am not coming back and you will
never see the children again.'' The wife then fell ill and the
children were given away to the social services. The father was
never informed. The father tried to seek the help of the FBI
and everybody in America. The social services then poured the
children to a foster family. The father was still not informed.
This was 4 years ago. The father has no access to his children.
I have other cases, and they are all rather similar. My
point is that I was very shocked today to receive a copy of the
letter that the German Ministry of Justice has sent to your
ambassador in Berlin, Ambassador Kornblum, and the letter says
that Germany, the Ministry of Justice, is not aware of any
problems between America and Germany and they are not aware
that any children have no access with American parents. So I
would like to point that out, because I have here some cases,
and I believe there are many, many other cases because I have
to point that most parents are very scared to come forward and
talk.
Senator DeWine. We will make that part of the record, if
you wish to submit the letter.
Lady Meyer. Yes.
Senator DeWine. That will be made part of the record.
[The letter from the German Ministry of Justice follows:]
German Ministry of Justice,
Berlin, Germany, September 9, 1999.
S.E.
Dem Botschafter der Vereinigten Staaten von Amerika,
Herrn John C. Kornblum,
Neustadtische Kirchstrasse 4-5,
10117 Berlin.
Dear Ambassador: First I would like to thank you for your letter
regarding the situation of Lady Catherine Meyer and the general
situation of children living in Germany and their contact with foreign
parents.
I very much regret the fact, that for some time now the legal
settlement for visits between Lady Meyer and her children has not been
realized. As we all know problems in the constant contacts between
parents and children will have a strong negative impact in any normal
family life and this will cause emotional imbalances. This is true for
bi-national as well as mono-national families. One of the goals that
the children's law dd. 07/01/98 intended to achieve, was to approve the
legal basis for children to remain in contact with both parents after a
separation or a divorce. To achieve this it is not only aimed that both
parents are responsible for the education and upbringing, but also to
define the right to regular visits as a right and a duty as well as to
implement legal structures to guarantee the settlements actually will
be realized.
In both Germany and the United States regulations concerning
visiting-schedules are supervised by independent specialized courts. In
the case of Lady Meyer the ``Amtsgericht'' Verden refused to grant an
urgent appeal of coercive fine against the father in order to force him
to agree to the visiting times. The children themselves refused
stubbornly to see their mother without any hint of coercion by their
father. Lady Meyer therefore withdrew all her applications saying she
no longer trusted the court system. I do not have any authority to
comment on the decision of the ``Amtsgericht'' Verden either favorably
or unfavorably.
Other German-American cases or problems with familial alienation
due to conflict over visiting schedule are unknown to me. Although it
is said by the German Central Authority that law cases in connection
with the Den Haag convention of children-abduction in German-American
relationships are fairly high, the actual trials have resolved disputes
successfully. We believe this is partly the case because of the good
cooperation between German and American authorities, which is
symbolized in this year's March-meeting. I would be happy to personally
discuss the matter with you to provide further clarification. I would
however appreciate if you could supply more detailed information about
the relevant cases you would like to discuss about.
I would personally like to add another issue to our conversation,
as how we both could help in avoiding and reducing the spread of right-
wing extremist/fascist material via post and or email/internet coming
from the United States of America.
I assume that this circumstance worries you as much as me, State
Secretary Reno received various letters and proposals concerning this
matter. It would be helpful and necessary especially with the
Bundestags--questions on the record to move on on that issue.
Kind regards,
Prof. Dr. Herta Daubler-Gmelin, MdB,
Bundesministerin Der Justiz.
Lady Meyer. Can I talk one more minute?
Senator DeWine. Absolutely.
Lady Meyer. I am just saying that, first of all, there were
a lot of U.S. Army people in Germany and that there are many,
many other cases, I know, around. But the problem is, the
parents do not come out and they do not come out because while
judicial proceedings are ongoing in Germany, they are afraid
because they know that that is going to play a bad part legally
against them and that is what was with my case. As soon as I
spoke to the press, as soon as I started making noises in
France and in England, the German courts used it against me and
they used it as a reason for me not to see my children, saying
I am a bad mother.
But the problem, the issue is not really our ex-spouses,
though I think the ex-spouses are still a very interesting
phenomenon. A man who really loves his children, like my ex-
husband, would not deny the children the love of their mother,
and I think a lot of parents--I mean, we have seen in the
press, also, how some--I do not know the case, so I do not
comment on it, but recently, somebody murdered his children
rather than allow the ex-wife to see them. It was around here.
But the point is that the problem is really not our ex-
spouses, it is more the courts. The fact that in some
countries, the courts make orders that are not enforceable and
we find ourselves outside of Germany not being able to do
anything about it, which comes back to the Hague Convention.
I think the Hague Convention is an international convention
that was signed and countries should abide by it
internationally. They should not hide behind their judicial
independence, because in my case, as in all the other cases,
for the moment, the German authorities have consistently
answered that the German courts are independent and the German
judicial system cannot intervene in their courts. So we are in
a catch-22 situation.
I think this is the main point that I want to make, is that
there is a problem of some countries not abiding by the
international convention, some countries giving reasonings
which I think are absolutely not acceptable, and that this
basically is an issue which is a human rights issue, that a
parent like Joe Cooke, like myself, and like the 34 other
parents, have no access, no information, nothing on our
children. This is a human rights issue and I would like some
way for it to become a human rights issue officially.
Senator DeWine. Thank you very much.
[The prepared statement of Lady Meyer follows:]
Prepared Statement of Catherine I. Meyer
The 1980 Hague Convention on the Civil Aspects of International Child
Abduction
i. the purpose of the hague convention
The 1980 Hague Convention on the Civil Aspects of International
Child Abduction (the Hague Convention) is a world-wide convention
designed to secure the prompt return of abducted children who have been
removed from, or retained outside, their country of habitual residence,
so that any subsequent welfare issues relating to the children can be
decided in the home jurisdiction.
The Hague Convention is designed to discourage child abduction and
to ensure ``the protection of children against the harmful effects of
their wrongful removal or retention.'' It is not intended to pass moral
judgement. Most importantly it is not concerned with the merits of a
custody case. Criticisms or complaints about the custodial parent or
the terms of a custody award, are matters to be dealt with by the
jurisdiction of the child's habitual residence. The paramount objective
of the Hague Convention is to return the child 11promptly'' and to
confirm the jurisdiction of the country of origin in custody matters.
Save in exceptional circumstances (see Article 13b), the Convention
is based on the assumption that it is in the child's best interest to
be returned quickly to its country of habitual residence. This ensures
that the courts of that country--which are better placed to do so--can
determine the issues relating to the child's future. The abducting
parent cannot then profit from the abduction by choosing one
jurisdiction over another in the hope of reversing previous custody
decisions.
ii. the problem: inconsistent application\1\
---------------------------------------------------------------------------
\1\ My personal experience and that of the cases I am presenting
today are with Germany. This explains the focus of this paper. But of
course the problem is not confined to Germany.
---------------------------------------------------------------------------
For the Hague Convention to work effectively in its dual purpose of
discouraging abductions and returning abducted children promptly to
their country of habitual residence, it must be consistently
interpreted and enforced.
But, in the past few years there has been growing concern that the
effectiveness of the Convention is being undermined by the failure of
some signatory states to fulfill their obligations.
One of the reasons is that judicial systems lie at the heart of
national sovereignty. This often inhibits cross-border co-operation,
which requires the competence of national courts to be limited by
international obligations. The issue of child abduction is a prime
example of the limitations of international co-operation in the
judicial area.
The Forum on International Child Abduction held in Washington on
15th and 16th September 1998, under the auspices of the National Center
for Missing & Exploited Children (NCMEC) and opened by Chairman Ben
Gilman identified the major weaknesses in the Hague Convention;
weaknesses, which some signatories exploit to avoid returning abducted
children to their country of habitual residence. The NCMEC's report on
the Conference pointed in particular to three problems: the systematic
use of the exception in Article 13b (``the loophole clause''), the
slowness of proceedings and the non enforcement of court orders by some
countries.
1. Article 13b defence--the loophole clause
The exception to the requirement for the immediate return of the
child to the country of habitual residence is to be found in Article 13
of the Convention.
``The judicial or administrative authority of the requested State is
not bound to order the return of the child if''
Article 13a: * * *.
Article 13b: ``there is a grave risk that the childs return would
expose him/her to physical or psychological harm or otherwise place the
child in an intolerable situation.''
Alinea 2: ``The judicial or administrative authority may also refuse to
order the return of the child if it finds that the child objects to
being returned and has obtained an age and degree of maturity at which
it is appropriate to take account of its views''.
Grave risk: The Hague Convention provides limited defences
based on welfare considerations--a court has the discretion not
to return an abducted child if returning it would place the
child at ``grave risk of psychological or physical harm'' or
put it in an ``intolerable situation''. These are strong terms
and they are meant to apply in extreme circumstances only. The
precedent case of Friedrich v. Friedrich (U.S. Appeal's Court--
6th District, 1996) established that ``grave risk of
psychological or physical harm'' could only apply to a
situation where a child would be returned to a zone of famine
or war or to a situation of serious abuse or neglect.
Childs objection: The Hague Convention also provides a
limited opportunity for the child to be heard provided it has
obtained an ``age and degree of maturity'' at which it is
appropriate to take its views into account. But a main
intention of this article was to draw a clear distinction
between a child's objections, as defined in the article, and a
child's wishes as commonly expressed in a custody case. This is
logical, given that the Convention is not intended as an
instrument to resolve custody disputes per se. It follows,
therefore, that the notion of ``objections'' under Article 13b
is far stronger and more restrictive than that of ``wishes'' in
a custody case.
In the United States a restrictive judicial definition to Article
13b has been given in the Friedrich v. Friedrich precedent case. In
England, the Consultation paper on Child Abduction published in the
February 1997 issue of the British Family Law Journal reported that the
High Court has taken a policy decision to approach Article 13b with
great caution (in particular against the risk of indoctrination by the
abducting parent) and, even if a child were found to object to a
return, to refuse a return only in an exceptional case. (See also the
precedent Court of Appeal case C (a Minor) 23 April 1999 FAFMF 1999/
0306/2).
But whereas the intent of the Convention is not to allow this
objection except in the most narrowly defined circumstances, in some
countries--notably in Germany--it has become virtually the rule. The
Lowe Report of 1996 found that every time the child's ``objections''
was raised as a defence, a return order was refused by the German
courts (even when children as young as 3 and 5 apparently stated an
``objection'' to their return).
In 1996, the Lord Chancellor's Department (English Central
Authority) issued a report naming Germany as the worst offender with
regard to the Hague Convention. The report said that in the previous
year, 17 cases (from the jurisdiction of England & Wales only) led to
formal requests to Germany, yet none resulted in a judicial return. The
Lord Chancellor's Department accused the German courts of hiding behind
legal technicalities to override their obligation to repatriate
abducted children.
In France, where the problem is substantially larger than in
England (France and Germany, having a common border), President Chirac
has on several occasions raised his concern over Germany's failure to
return children abducted from France. In December 1998, the President
talked about ``the law of the jungle'' following the violent abduction
of two children from French territory by men hired by a German father.
(There could be no more compelling example of the dangerous
consequences of allowing possession to become 9/10th of the law in
cases of international child abduction). The French Minister of
Justice, Madame Elisabeth Guigou, declared in March 1999 that there
were ``cultural problems'' with Germany that needed to be overcome.
Similarly, in the 34 cases of American parents (involving 42
children) that I am presenting today, the notions of ``psychological
harm and/or the child's objection'' have been consistently used to stop
the return of abducted children and then to deny access to them. In all
our cases there is a striking uniformity in the arguments used by
German courts and authorities. For example:
The child is better off with the German parent (by
implication, the better parent) and the victim parent is in no
position to take care of the child. Therefore returning the
child to the U.S. would cause it ``psychological harm''.
The child does not want to leave Germany and it ``objects''
to returning to the USA (in the cases of Joseph Cooke, Jeffrey
Cook, Joseph Howard and Edwin Troxel, the children were less
than six years old).
It is interesting to note that the arguments used by German courts
to justify not returning a child are often contradictory: for example
``the mother works and can therefore support the child'' when a German
mother is the abductor (case of James Rinaman) but ``the mother works
and therefore has no time for the child'' when the mother is the
foreign victim parent requesting a return (cases of Ildiko Gerbhash and
Catherine Meyer). Similarly, when a German mother is the abductor the
German courts argue that it would cause the child ``severe
psychological damage'' to be separated from its mother, but when the
mother is the foreign victim parent this argument no longer applies.
Instead, it is argued that it would cause the child ``severe
psychological damage'' to be separated from its new environment.\2\
---------------------------------------------------------------------------
\2\ It should be noted that the precedent setting case, Friedrich
v. Friedrich, Federal Dist. of Ohio (Remand Division), 1994 ruled that
this objection could not apply since the mother could return with her
child to its country of habitual residence and thus settle the problem
of separation from her child.
---------------------------------------------------------------------------
Used in this manner, Article 13b delivers children into precisely
the danger from which the Hague Convention is supposed to protect them.
Indeed, a common thread in all too many cases is the sustained,
vengeful effort of the abductor to deprive the other parent of contact
with the child to the maximum degree possible. The aim in fleeing one
judicial system to another is to reverse permanently previous custody
decisions and destroy the other parent's relationship with the child.
When parents abduct children, they are obviously not going to speak
well of the other parent, saying that he/she still loves them and wants
to see them. On the contrary, as in my case, the children are told that
their other parent is a bad mother or father, who has abandoned them
and could see them at any time if only he or she wanted to.
Children who are abducted will often have already suffered from
their parents' separation. But in addition they will experience the
trauma of being suddenly snatched from the security of a familiar
environment, friends, school, grand parents--usually at an age when the
breakdown of a family relationship is hard to understand. They do not
know what is happening or why. Situations are worse if the abducting
parent is hiding from the police or taking precautions against re-
abduction--when the child realises there is a state of war between its
parents. The child becomes confused and angry. It is traumatised by the
loss of one parent. Its greatest fear becomes not to lose the remaining
parent.
This is similar to the ``Stockholm Syndrome'' when hostages
identify with their captors. But in child abduction cases, the syndrome
is even more severe because of the age of the child-hostage, its
relationship with the captor, and the latter's ruthless psychological
exploitation of the relationship.
Many studies have been done in the USA about what is known as
``Parental Alienation Syndrome''--when one parent systematically
denigrates the other--and its devastating effect on children. The child
soon replaces the positive memories of the absent parent with hurt and
anger at what it sees, and is encouraged to see, as abandonment and
betrayal. In its craving to keep the love of the only remaining parent,
the child ends up asserting vehemently that it does not want contact
with the victim parent.
This is not just psychologists' theorising. It is my actual
experience and that of the many parents who have contacted me.
What greater psychological harm, what more intolerable situation
could there be for a child, than to be exposed to systematic
indoctrination by one parent against the other; and, worse, to carry
the main burden of responsibility in adult court proceedings for
deciding between mother and father?
Apart from perverting the original intent of the Hague Convention,
asking a child in effect to choose between parents is a form of child
abuse.
In addition, the systematic use of Article 13b to legitimise
abductions and refuse a return further extends the meaning of the Hague
Convention to encompass in practice an unwarranted jurisdiction in
custody matters--exactly the opposite of the Convention's aim. Certain
consequences flow from this, all of them prejudicial to the victim
parent.
When a child is not returned, the abducting parent has the
additional advantage of having subsequent proceedings dealt with in the
country of retention rather than the country of the child's habitual
residence. Case studies show that such court decisions, dealing with
custody and access rights, can favour the abducting parent. This,
combined with the fact that in some countries (for example Austria and
Germany) judges are reluctant to enforce access orders, results in a
situation where a parent is often deprived of all contact with the
child. On this interpretation of Article 13, the Hague Convention
becomes in effect the instrument of alienation between child and
victim-parent--the very opposite of what was intended.
Professor Elisa Perez-Vera provided the primary source of
interpretation of the Convention in her Report of 1980: ``The
Convention as a whole rests upon the unanimous rejection of the
phenomenon of illegal child removals and upon the conviction that the
best way to combat them at an international level is to refuse to grant
them legal recognition * * * the systematic invocation of the said
exceptions, substituting the forum chosen by the abductor for that of
the child's residence, would lead to a collapse of the whole structure
of the Convention by depriving it of the spirit of mutual confidence
which is its inspiration''.
2. The delay factor--possession is 9/10th of the law
The merit of the Convention is supposed to lie in the speed of its
proceedings. The unusually rigorous limits on defences cannot otherwise
be justified as being in the best interest of the abducted child.
Lengthy proceedings would also give abductors a further advantage by
allowing them to indoctrinate the child against the left-behind parent
(for the purpose of Article 13b) and by generating a new argument,
namely that the child is now settled in its new environment and should
not be moved again.
Since Article 13b is an exception to the requirement for the
``immediate return'' of the child, it stands to reason that an abductor
will usually use it as a defence.
The abducting parent will usually try to slow down the process, and
introduce issues and evidence which would expand and lengthen what
should be summary proceedings. It is quite contrary to the purpose of
the Hague Convention for states to permit such an expansion to impede
the speedy resolution of the request for return. (See Article 11: ``The
judicial or administrative authorities Of Contracting States shall act
expeditiously in proceedings for the return of children''. It
stipulates that if an application is not determined within 6 weeks, an
explanation may be required of the court of the requesting state).
But, some countries are markedly slower in dealing with Hague
applications than others. For example, judicial returns take on average
5\1/2\ weeks in England versus 26 weeks in Germany, while judicial
refusals take 11 weeks versus 36 weeks (during which contact with the
children is difficult, if not impossible).\3\
---------------------------------------------------------------------------
\3\ The Lowe Report, 1996.
---------------------------------------------------------------------------
The length of proceedings is clearly a major problem, where
complaints are commonly made about Germany. There seem to be two basic
reasons for the delay: the first is that Hague applications are not
accorded top priority and the second is that Hague Convention hearings
are heard by inexperienced judges and start at the Amtsgericht (lower
court) level.
In countries where Convention cases are heard centrally--at the
high court level, as in England & Wales--by a small number of
specialist judges, the system works well. Cases are dealt with
expeditiously, based on paper evidence and without the child's view
being usually heard (i.e. approaching article 13b--``the child's
objections''--with great caution). Judges usually make a decision to
return the child, relying on the court of habitual residence to make a
fair decision at any subsequent custody hearing.\4\
---------------------------------------------------------------------------
\4\ In England and Wales, Convention cases are exclusively heard
centrally by a small number of specialist judges--17 at present.
Conversely and until very recently, all lower courts (over 800 of them)
had jurisdiction to hear Convention cases in Germany. Cases were
therefore heard in the locality chosen by the abductors (usually their
hometown).
---------------------------------------------------------------------------
In countries were Convention cases are first heard at tile lower
level, they tend to be slow and dealt by judges who are inexperienced
and/or unwilling to uphold the difference between proceedings under the
Hague Convention and normal custody cases. As a result, children are
usually not returned.
Since an abducting parent will usually, within the framework of
Article 13b, level allegations against the other parent and request
that oral evidence be heard, it is important that courts do not treat
these Article 13b objections as ``a merit of custody'' argument. Such
considerations are meant to be reserved to the court of the child's
habitual residence. But in Germany, courts have shown themselves
ignorant or careless of their obligations under the Convention.
Underlying this is a distrust of foreign courts.
Amtsgericht (lower court) decisions can then be appealed in the
Oberlandesgericht (high regional court) which causes further delay in
the proceedings. Appeals can take several months to decide and judges
are usually not more experienced. Hague applications are again treated
no differently to normal custody proceedings. But even an appeal ruling
that the child should be returned does not end the proceedings, as the
appellate courts have no power of enforcement.
Under German Family law, children's views are required to be taken
into account and it is normal for children, even quite young, to appear
in court. The child's attendance at the court lies at the judge's
discretion but it is not unknown for children as young as 3 years old
to participate in court proceedings. Court procedures nearly always
involve the Jugendamt Youth Authority) who are asked to interview the
children and report to the court. This causes further delay in the
proceedings and gives an additional advantage to the abductor, by
providing him with a new argument, namely that the child has ``adjusted
to its new environment'' and that it would be ``unsettling'' to return
it to its country of habitual residence. In the case of Joseph Cooke,
these arguments have been taken to such extremes that a German court
has committed his two children (who were 3 and 5 at the time) to the
care of German foster parents rather than return them to their natural
father in the USA.
In most cases, the Jugendamt does not make inquiries pertaining to
the child's habitual residence and it is the abductor, not the victim
parent, who is interviewed. But, more importantly, the involvement of
the Jugendamt fundamentally violates the spirit of the Hague
Convention. The Convention is clear: ``In considering the circumstances
referred to in article 13b, the judicial and administrative authorities
shall take into account the information relating to the background of
the child provided by the Central Authority or other competent
authority of the child's habitual residence''--not as is the practice
in Germany, of the child's country of retention.
Although listening to children is by no means the same as
considering their objection under Article 13b of the Convention, the
child's presence is likely not only to lengthen the proceedings, allow
judges to treat the objection under Article 13b as a ``merit of
custody'' but also put the child at risk of being indoctrinated by the
abducting parent.
Indeed, when children are interviewed, it becomes of paramount
importance to abductor-parents that their children say ``the right
thing'' to the judges and the Youth Authority. This puts an even higher
premium on placing psychological pressure on abducted children.\5\ But,
the German courts refuse to take into account the abductor's
opportunity to programme the children's emotions and are unwilling to
admit independent expert opinion to examine children and the degree to
which they have been indoctrinated (Parental Alienation Syndrome).
---------------------------------------------------------------------------
\5\ Stanley Clawar, PhD., C.C.S. and Brynne Rivlin, M.S.S. book
``Children held Hostage: Dealing with Programmed and Brainwashed
Children'' Published by the American Bar Association is probably the
best research made to date on how easy it is to programme children.
---------------------------------------------------------------------------
3. Non-enforcement
Without effective enforcement, the object of the Hague Convention
cannot be realised. The most critical aspect of enforcement is that
when the summary process has taken place and a return has been ordered,
the power exists to carry out and enforce that order.
In Germany (and I believe in Austria) Under S. 33 of the German law
of Non-Contentious Matters enforcement powers are vested exclusively in
the court of first instance. This means that the high court decision to
return the child can only be enforced by the Amtsgericht judge who
originally heard the case. This enforcement process can take several
months and does not always end in a return being made. There have been
several notable examples when an Oberlandesgericht ordered a return and
the lower court in effect refused to enforce it.\6\
---------------------------------------------------------------------------
\6\ The Famous Nusair cast (with England) and Tom Silvester's case
(with the USA).
---------------------------------------------------------------------------
But even at the lower level, the system does not work well as it is
customary for judges to make decisions without ensuring that their
orders are actually enforced. This in turn allows the abductor to
abscond with the child (e.g. cases of Sanjas Das, Catherine Meyer,
James Rinnaman, Kenneth Roche where the Amtsgericht return orders were
never enforced).
The next problem is that in several Convention countries, abduction
is not considered a criminal act--again in Austria and Germany.
In England there is a criminal statute which covers child
abduction. It is the Child Abduction Act of 1984. The penalty on
conviction can be a substantial term of imprisonment. The act probably
has a deterrent effect in itself but it also allows the full resources
of the police to be employed to look for a missing child and the
abducting parent. The police do not need to wait for court orders and
can seek the help of Interpol. It also allows the UK to seek
extradition of abductors where there is an appropriate extradition
treaty. When abductors flee to a weak Hague country, with slow or
irresolute courts and a poor enforcement system, it is often speedier
and more effective for a UK citizen to use the criminal offence and
seek an extradition warrant for the parent to be arrested and then
lawfully to recover the child.
In England, there is almost always a desire at every level to
search with utter and unrelenting vigour for a missing child, but there
can be a reluctance to prosecute a parent for abducting, once the child
has been recovered. The reason is that the imprisonment of the parent
is probably a further punishment of the innocent abducted child, who
probably loves both parents. That is why prosecutions need special
authority, and are comparatively rare. The real use of the criminal
statute is that it allows the full range of powers for the pursuit of a
wanted criminal to be used to find the abductor, and more importantly,
the child. Once that has been achieved, and once the family court has
decided what should happen in the child's best interest, it may be
unnecessary or inappropriate to prosecute.
The Lord Chancellor (as the Central Authority) tends to delegate in
individual abduction cases to the lawyers appointed by him. They will
certainly seek to liaise with police.
Specialist police groups, such as those concerned with extradition
have highly developed expertise, which can be quickly employed. Special
Branch in particular can track the international movement of abductors,
and monitor and control movements at UK airports, with a high degree of
effectiveness.
Finally, the Tipstaff, the enforcement arm of the High Court, will
routinely act through the police, over which it has authority, and when
an order is made by a High Court judge to search for a missing child (a
`SEEK AND LOCATE' order), that order can instantly be faxed to every
police station in the country.
But this system does not apply in Germany since first of all it has
no extradition treaties and secondly, abduction is not a criminal act--
unless a child is taken out of Germany.
4. Additional problems with the Germany legal system
The German authorities tend to be inefficient in locating abducted
children. As a result, some victim parents cannot initiate Hague
proceedings (cases of John Dukesherer, Joseph Howard). Furthermore,
under German law it is possible to change a child's surname without the
approval of the father or for a child to be adopted without the consent
of both parents.
Many victim parents complain that the Berlin Central Authority
offer them little, or no help. Victim parents are also required to pay
DM 2,000 by the Berlin Central Authority to allow them to initiate
court proceedings. Some parents cannot afford this to begin with
(Robert James, Taylor Tali). German courts also tend to charge for the
hearings themselves. This, combined with the costs of lawyers, the
translating and travel expenses, makes it impossible for most parents
to continue with lengthy proceedings which may last years.
Under German law it is possible to make ``ex-parte'' emergency
custody orders, that is to say, without the knowledge or presence of
the opposing party (cases of Rebecca Collins, Joseph Cook, James
Filmer, Joseph Howard, George Uhl, Donald Youmans).
The notion of German domicile can also be established in matter of
months (cases of Mark Wayson, George Uhl). As a result, German courts
are able to claim jurisdiction over that of the country of habitual
residence and some Hague 7 applications have been rejected (case of
Joseph Howard).\7\
---------------------------------------------------------------------------
\7\ It should be noted that the precedent setting case of
Friederich v. Friederich established that habitual residence is not the
same as legal residence; that is to say the court must examine past
experience and not future expectation.
---------------------------------------------------------------------------
Since German courts consider a child German if one of its parents
is German, decisions tend to favour the German nationality over others.
Germany still operates the ``blood law'', based on the 1913 Imperial
Naturalisation Act which grants citizenship from parent to child on the
basis of bloodline rather than birthplace or residence. This also
allows German authorities to argue that the Vienna Convention governing
consular access to U.S. citizens does not apply.
Access is made as difficult as possible and often denied
altogether, drawing on arguments based either on the ``fear of re-
abduction'' or/and ``the child's will''. Victim parents are then told
that it would be ``emotionally unbearable'' and ``against the child's
interest'' to have contact with them. In my own case, the German court
has refused to implement access agreements made in the court itself
which my ex-husband has with impunity refused to honour. Similarly,
grandparents are denied all access. My 87-year-old father may never
live to see Alexander and Constantin again.
The main complaints however remain, that, under German law, access
rights are not enforceable; and the custodial parent has all the
rights--the other parent has none.
v. international child abduction--what needs to be done:
In an ideal world, a consistent, uniform and rigorous approach to
enforcing the Hague Convention would solve the problem of international
child abduction. But we have to be realistic. That will not happen any
time soon. So, we need another remedy in the meantime.
It is not for me as a non-American to say what should be done in
this country. But from my experience of the last five and a half years,
I am clear that certain things are necessary if these terrible
miscarriages of justice are to be rectified.
It has to be understood by the authorities of the country of the
victim parent that child abduction is not a private legal matter in
which they have no role to play. To deny a parent access to his/her
children is to deny a human right. To refuse to return a child promptly
to its place of habitual residence is in the overwhelming number of
cases to violate the Hague Convention. To steal a child across
frontiers must be seen as a felony.
All this gives ample grounds for the government of the victim-
parent to intervene forcefully with the government of the abductor,
where the courts in that country are unwilling or unable to deliver
justice.
As Senator DeWine said in an interview with Reader's Digest in
September 1999: ``We go after countries that steal our products or
violate patent and copyright laws, but not when they are supporting the
theft of American children.'' And as Hillary Rodham Clinton said at the
launch of ICMEC in April 1999: ``Ultimately these matters are not just
about individual children and the pain of victim parents, but they
really are a question of human rights.''
In today's world it is no longer acceptable for a Government to
hide behind the independence of courts when human rights abuses or
gross miscarriages of justices.
What should we be saying to governments, such as the German?
First, that the miscarriages of justice the past must be reviewed
and set right. In almost all cases that means, at the very least,
enforceable rights of access in conditions which are not dictated by
the abducting parent.
Second, that procedures and mechanisms are put in place that ensure
these miscarriages of justice do not recur.
We have to remember that in virtually all these cases the problem
is not so much the behaviour of ex-spouses and ex-partners, but the
failure of the courts to deliver justice. The courts are the problem.
It is they who are responsible for the miscarriages of justice.
Governments can no longer wash their hands over them.
In the cases I am presenting today, German courts and authorities
have consistently shown themselves heavily biased towards the German
parent; either ignorant or careless of their obligations under the
Hague Convention; repeatedly reliant on arguments based on ``fear of
re-abduction'' or the ``children's will'' severely to constrain access
to children; slow to call hearings and to give judgements; ready to
make ``ex-parte'' decisions, without informing, or hearing the
witnesses from, the non-German side; unwilling to admit independent
expert opinion to examine children and the degree to which they have
been indoctrinated (Parental Alienation Syndrome); and unwilling to
enforce access agreements made in court.
As a result, Rebecca Collins has not seen her children since 1994;
Glen Gebhard since 1994; Joe Howard since 1994; James Rinaman since
1996; Kenneth Roche since 1991; Edwin Troxel since 1997; Mark Wayson
since 1998; Anne Winslow since 1996; Donald Youmans since 1994; Joseph
Cooke's two children have been placed in foster care and he has not
seen them since 1994 and John Dukheshere and George Uhl do not even
know the whereabouts of their children * * * to name but a few. None of
us have received any information on our childrens welfare. And to top
it all, the German courts often demand child maintenance payments from
the victim parents!
vi. my case
In 1984, I married a German medical doctor, Hans-Peter Volkmann, in
London and our first son, Alexander, was born a year later. We then
moved to Germany for the sake of my then-husband's career and I gave up
my own in the City of London. Our second son, Constantin, was born in
1987. Our marriage subsequently broke up and in 1992 we agreed to a
legal separation. I was awarded custody of the children (who were to
live with me in London) and Volkmann was granted generous access
rights.
At first, all worked well. The children continued their schooling
at the French Lycee in London (Constantin coming first in his class)
and they spent vacations with their father in Germany. I rebuilt my
career in the City of London so that I could support my children. By
1994 I had managed to obtain a senior position in a bank and to buy a
comfortable apartment for the three of us.
In July 1994, the children left as usual for their summer vacations
with their father in Germany. Without warning, four days before they
were due to return to London, their father informed me that he was not
sending them back. He then disappeared with the boys. For the next four
weeks, I had no idea of their whereabouts, despite police searches.
In August 1994, the High Court of England & Wales ordered the
children's ``immediate return'' to Britain under the terms of the Hague
Convention. The children were made ``Wards of Court''. In September
1994 the appellate court of Verden (Lower Saxony) upheld the English
decision and also ordered the ``immediate return'' of the children. But
in defiance of the court order, Volkmann bundled the boys into a car
and vanished. The local police and the Court bailiffs were unwilling to
help.
The following day, Volkmann lodged an appeal in the higher court of
Celle, a nearby town. To my dismay and astonishment the judges made a
provisional ruling that the children should remain in Germany until the
appeal was heard because ``otherwise the mother could hide them in,
England''. Still worse, the ruling was made ``ex-parte''; that is,
without informing me or my lawyers so that I was left unrepresented at
the hearing.
In October 1994, the Celle court reversed the earlier English and
German decisions on the grounds that it was the ``children's wishes''
to remain in Germany, so exploiting the so-called loophole clause of
the Hague Convention (Article 13b). The judges expressed the view that
the children were German and that they had been suffering in a
``foreign environment * * * especially since German is not spoken at
home or at school; that they were taunted as Nazis.'' The judges also
ruled that the children had attained an age at which it was appropriate
to take their views into account ``since a 7 year old child faced with
the decision to play judo or football, generally knows which decision
to make''.
The Jugendamt (Youth Authority) testified at both hearings that a
return to the UK would cause the children ``severe psychological
harm'', again taking advantage of the Convention loophole clause. The
children had, they said, adapted to their new environment, Alexander
felt himself German and the mother had no time for them because she
worked. The Jugendamt took evidence only from the German side. Neither
I nor anyone from the children's habitual environment in London was
interviewed.
At the time of the hearing, I had not seen or spoken to my children
in over four months, during which they had been under the sole
influence and control of their father and his family.
The Celle court decision meant that in German law all further legal
proceedings on custody and access had to take place on the abductor's
home territory. The consequence of this has been that since 1994, I
have never been able to gain normal access to my children.
Between November and mid-December 1994, five applications to see my
children were rejected on the grounds that I could ``re-abduct'' the
boys and that in any case they no longer ``wished'' to see me. This
went as far as to deny me access to the boys over the Christmas
holidays. In January 1995, following my desperate attempt to see my
boys in Verden, my ex-husband asked the court to transfer their place
of residence to Germany on the false allegation that I had sought to
re-abduct them. Despite a police report confirming that this was
untrue, in my absence and without allowing me to file my defence, the
court accepted my ex-husband's request. This was followed in March 1995
by a decision of the Verden court, giving temporary custody of the
children to my ex-husband, despite their being ``Wards of Court'' in
England. The decision gave me only three hours access to my children,
once a month, to be followed after 6 months by one day a month. The
access visits had to take place either in my ex-husbands house or in
the office of the Jugendamt.
My ex-husband reneged on even these highly limited access
arrangements. The court, far from enforcing them, cut back my
visitation hours in yet another ``ex-parte'' decision in October 1995.
Thus, a pattern was set which exists to this day: of the Court
promulgating access arrangements, my ex-husband refusing to abide by
them, and the Court refusing to enforce them.
Despite every guarantee on my part, including the support of the
British Consul General in Hamburg, the fear of abduction was
consistently used, over the next few years, to deny me and my parents
normal access rights. Between the summer of 1994 and December 1998 I
managed to see my sons for only 12 hours under the most harrowing
conditions: either, locked in my ex-husband's secluded house, under the
supervision of a third party; or in the offices of the Jugendamt. All
visits were broken off after less than two hours.
In September 1997, Volkmann divorced me. My German lawyer strongly
advised me not to fight for custody, saying that to facilitate access,
it was in my best interest to move quickly to grant Volkmann a divorce
and acquiesce in his getting custody. So, in exchange for giving him
custody, it was agreed in court that I should have access to my
children on ``neutral territory'', that is in Hamburg.
But when, six long months later, the moment finally came for me to
see my sons, Volkmann backed out at the last moment, stating that it
was the ``wishes'' of the children not to see me and that they feared I
would ``abduct'' them. The Verden judge refused to enforce the access
agreement. It was only then that I discovered that while the custody
arrangement was legally enforceable, the access agreement was not. It
is extraordinary that a court can rule on divorce and custody while
neglecting to protect a parents rights of access to his/her children.
Further applications for access were rejected and the Verden judge
ruled that she would not decide on future access rights without first
holding yet another hearing. This would entail, she said, her seeing
the children and once more requesting a report from the Jugendamt.
The Jugendamt took two months to file the report. I was not
interviewed. Their recommendation was that I should see my children
once every two months for five hours in a priest's house in Bremen.
This was as inhumane as it was impractical, since by now I was living
in the USA. By strange coincidence the recommendation was almost
identical to a proposal Volkmann had made me the previous year.
It took until December 1998 to secure the promised hearing; i.e. 15
months after the divorce hearing which should have given me enforceable
access rights. The Verden court ruled that the children should get
accustomed to me ``little by little'' and that it would be too
``stressful'' for them to see their mother who after a four year
separation was practically a stranger to them. The judge once again
rejected my argument that the children had been deliberately programmed
against me and that for us to re-establish a relationship, what was
needed from the start was continuous contact over several days.
The judge established a programme of visits, each of which would be
longer than the last and winch would culminate in the children visiting
me in Washington in August of this year. My husband and I, travelling
from the U.S., saw the boys in December (3 hours), January (one day)
and February (2 days). Each visit was marked by increased tension on
the part of the boys. My husband, Christopher, who had never before met
his step-sons, was shocked to see how in only two months they changed
from being children increasingly excited to see their mother to
becoming sullen zombies monotonously repeating the same ``talking
points'' against me.
Predictably, a week before the April visit (the first which would
involve the children being in continuous contact with me, including
overnight), Volkmann sent a fax to say that he would not bring
Alexander and Constantin to Hamburg because this was against the boys'
``wishes'' and that it could not be in their ``best interest'' to be
forced.
The judge, once again, refused to enforce her decision, stating
that a new hearing would have to be held. And before then, she needed
to see the children and get another report from the Jugendamt!
We were then informed that the judge had left on indefinite
maternity leave and that months would pass before a new judge would be
competent to hear my case. Meanwhile, a temporary judge rejected a
further application requesting the enforcement of the May and
subsequent visits. He claimed to be satisfied that Volkmann was acting
in good faith.
As of today, I have no access rights whatsoever since the schedule
of visits established in the December 1998 decision is at an end. The
German Minister of Justice recently wrote to our Ambassador in Bonn
saying that the courts were independent and that she could not
intervene. Since it is the courts, not my ex-husband, which are the
final arbiter over whether I can see my children, I find myself in an
impossible catch-22 situation.
The German courts and the German authorities have rejected all my
requests to have my children examined by an independent psychologist
specialising in Parental Alienation. In, five years, I have received
one letter and one school report. I have no information on my
children's life, well being, schooling, or any other aspects of their
existence. Under German law, I have no rights as a non custodial parent
so confirming a letter I received from the Bundeskanzerlei's office
(German Chancellor's office) in 1995 stating that: ``Under German law,
it is impossible to go against the wish of the parent who has
custody''. I have no rights as a mother. In 5\1/2\ years I have seen my
sons 24 hours.
So the months pass, the years pass, and my children are growing up
without a mother. Before my ex-husband abducted our children, they were
allowed to see and love both their parents. Now, they are not.
Has anyone proved that I am an unfit mother? No. Has anyone proved
that I do not love my children? No. But, I am nonetheless denied the
rights that even women in prison are allowed. My parents have been
denied all access as well. My 87-year old father may never live to see
to see Alexander and Constantin again.
My children will be scarred for life and they may never recover
from this experience. They have become confused and angry with me,
because they have been told from the start that I have abandoned them.
On two occasions, in 1994 and 1998, when I saw my sons and told them
how happy I was to see them, Alexander replied: ``you lie. Daddy told
us that you could come and see us whenever you wanted--but you never
did''.
______
Attachments to Statement of Catherine I. Meyer
cooke joseph--new york/stuttgart
Number of Children: 2 children
Age(s) at Abduction: 1 and 2\1/2\
Current Age(s): 8 and 9\1/2\
Hague Convention case: Yes
History
Parties married in the USA in 1989. Father was stationed in
Stuttgart (from 1985 to 1989) while serving in the U.S. Army. In July
1992 mother took the two children to Germany to visit her family.
Informed father that she was not coming back and that he would never
see his children again. Father tried in vain to find the whereabouts of
his children.
Two months after her arrival in Germany mother was admitted to a
clinic and asked the Jugendamt (Youth Authority) to place the two
children in foster care. Neither the mother, nor the Jugendamt informed
the children's father. In January 1993 mother returned to the U.S.
leaving the children behind. Father was told different stories
(including that the children were with the mother in California) and
only found out in September 1993 that his children had been given by
the Jugendamt to a foster family (who have other children in care and
receive money from the state). Father immediately notified the foster
parents that he wanted to take his children back to the USA. Foster
parents obtained an ``ex-parte'' order prohibiting him to do so. Father
had no alternative but to go to court.
Divorce pronounced by the Supreme Court of Queens County, New York
in January 1994. Father awarded full custody (with mother's consent).
In April 1994, Supreme Court of the State of New York ordered immediate
return of the children to the U.S., under the terms of the Hague
Convention. Return denied in March 1995 (a year later!) by the lower
court of Singen. Judge ruled that it would cause the children ``severe
psychological damage'' to be separated from the foster parents and be
returned to the U.S. Court also told father that he first needed to get
reacquainted with his children. The father stayed in Germany but only
able to visit his children at the foster parents' house who obstructed
the visits.
Appeal rejected in June 1995 by the county court of Konstanz. (The
mother had now also requested that the children be returned to their
father in the U.S.). Court ruled ``ex-parte'' that the children
``objected to a return'' (they were 4 and 5 at the time) and that it
would cause them ``severe psychological damage to be returned to the
U.S.''. Children were deemed to be adapted to their new environment and
``to subject the children to a language shock'' (since they don't speak
English anymore) * * * ``contradicts the children's welfare most
strikingly''. No specific access rights given to father.
Appeal rejected by the Karlsruhe Court (last appeal possible) in
October 1995. Judges ruled that the foster parents have equal rights to
the natural father and that it would cause ``severe psychological
harm'' for the children to be separated from them, especially ``since
they have now been in their care for the last two and half years''.
Father fought further through the German courts but to no avail.
Current status
Father has not seen his children since 1994.
______
gebhard glenn--california/hoechst (near frankfurt)
Number of Children: 2 children
Age(s) at Abduction: 2 years old (twins)
Current Age(s): 7 years old
Hague Convention case: No
History
Father is American and the mother is a Mexican national. Parties
married in the U.S. in 1992. The children were born in Germany, moved
to the U.S., and then back to Germany. In 1994 parties separated.
Divorce pronounced in Germany in July 1995. The German court took
jurisdiction over the case, and then gave custody to the mother. Access
rights were granted to the father. The father was never able to
exercise his access rights because the mother refused to present the
children. Amtsgericht (local court) Hoechst refused to enforce access
rights of father.
In view of his ex-wife's continual refusal to allow him court
ordered visitations, and the court's unwillingness to enforce their own
visitation orders, Gebhard decided to lodge an appeal at the
Oberlandesgericht (High court) Frankfurt seeking a custody transfer in
June 1997. His demand was rejected in September 1998 (over a year
later). The judge's opinion was that father's presence would upset the
children, and that he should regain contact with them ``little by
little'' not ``overwhelm them''.
Current status
The father has not seen his children since August 1994 and has
completely lost contact with them. He has travelled to Germany over 20
times in the hope of seeing his twins but to no avail. Father has
applied for and received a Fulbright Senior Scholarship to teach at a
university in the Berlin area during the 1999-2000 academic year (he is
an Assistant Professor in Loyola Marymount University in Los Angeles,
California) in order to be closer to his children. He refuses to give
up hope.
______
gerbatch ildiko--california/oyten, lower saxony
Number of Children: 2 children
Age(s) at Abduction: 10 and 7
Current Age(s): 12 and 9
Hague Convention case: Yes
History
Parties married in the USA, then moved to Germany. Husband had an
affair and told wife to leave. She returned to the U.S. with the
children. Divorce hearing in the USA in June 1994 (father present).
Mother obtained custody; father granted access rights (7 weeks per
annum). In the summer of 1997 children went to Germany to visit their
father. Father illegally retained them. August 1997, the Superior Court
of Vista, San Diego issued a warrant and ordered ``immediate return''
of the children under the terms of the Hague Convention.
Return denied by Amtsgericht (lower court) Achim on basis of
Article 13b in September 1997. Court ruled that the children
``objected'' to their return to the USA; that Naomi (10) was old enough
to decide; and that younger sister should not be separated from her.
Jugendamt (Youth Authority) Verden stated that the children
``objected'' to a return to the U.S. (mother not interviewed); that
they felt more free in Germany; that the mother had no time for them
since she worked and that the children had adapted to their new
environment (after 7 weeks holiday and notwithstanding that they had
lived 3 years in USA).
Appeal rejected by Oberlandesgericht Celle on the basis of Article
13b in December 1997. The judges considered that the children were old
enough to decide because, ``after all a 7 year old can already decide
whether it wants to spend its holiday at the sea-side or the country
side''. Jugendamt Verden reported the same and that it would cause them
``severe psychological harm'' to be returned to their mother in the
USA.
Mother granted some visitation rights but managed to see her
children only 8 hours in 1997 and 7 days in 1998. Following an access
visit in Germany in August 1998, mother returned to the USA with the
younger daughter.
Current status
Eldest daughter still in Germany. Father applied for sole custody
in German courts (awaiting decision) and made an application under the
Hague Convention for the return of Isabella. Hague application has just
been rejected by the U.S. courts (on the basis that father illegally
retained both children initially). Mother has not seen Naomi since
August 1998.
______
howard joseph--arizona/worms (near koblenz)
Number of Children: 1 child
Ages(s) at Abduction: 5 years old
Current Age(s): 10 years old
Hague Convention case: NO--Hague Convention application not possible
because whereabouts of child was unknown.
History
Parties married in Germany in 1989 and moved to the USA a year
later. On March 5, 1994 wife absconded from the family home with the
child and all the furniture while father at work. Police, FBI and
Missing Person's Bureau informed. Whereabouts of mother and child could
not be traced.
Mother applied for custody as soon as she reached Germany. April
1994, Amtsgericht (lower court) Worms made an emergency order
transferring temporary custody to the mother on an `ex-parte' basis
``in the interest of the child''. The court ruled that ``in order to
avoid the father's bringing the child to the USA and creating a fait
accompli situation before legal proceedings had come to end, it is
essential to legalise the stay of the child through the transfer of
Parental Custody to the mother''. Father only advised of this decision
one month later. Jugendamt (Youth Authority) wrote to father refusing
to disclose the whereabouts of his child.
November 1994 Amtsgericht Worms confirmed temporary custody to
mother on an `ex-parte' basis ``because the father is so far away, his
presence must be omitted for this hearing''. ``This decision is in the
best interest of the child. The father lives in the USA and is
therefore no longer in a position to exercise his custody rights''. No
access provisions made but a demand for child maintenance served on
father a month later.
Jugendamt (Youth Authority) reported that the child ``objected'' (5
year old) to a return to the USA and that it would cause it ``severe
psychological harm'' to be returned. (Father not interviewed).
December 1994 divorce pronounced in the USA on an ``ex-parte''
basis. Custody given to father and access rights granted to mother
(every two week-ends and holidays).
Amtsgericht Worms recognised U.S. divorce but ruled that it must
decide on the final custody provisions: ``Since the marriage has been
dissolved in the U.S., no decision regarding custody was passed''. July
1997 Amtsgericht Worms ruled that ``in the childs best interest'' sole
custody should be given to the mother ``since it is feared that the
Plaintiff will take the child against its will to the USA''. No access
rights granted to father but a demand for child maintenance was served
on him a month later.
5 Appeal rejected in December 1997 by Oberlandesgericht (High
Court) Koblenz. Full and final custody confirmed to mother while access
rights were to be discussed at a further hearing!
April 1998 father finally granted access rights--but only in Worms,
at the office of the Jugendamt, if he surrenders his passport
``otherwise the father could take the child back to the U.S.''.
Current status
Father has not seen his child since 5 March 1994. Father does not
know the whereabouts of his child in Germany.
meyer catherine--england/verden, lower saxony
Number of Children: 2 children
Age(s) at Abduction: 7 and 9
Current Age(s): 12 and 14
Hague Convention case: Yes
History
Parties married in England in 1984 and moved to Germany a year and
a half later. Parties separated in 1992. Mother obtained custody father
granted access rights (minimum 8 weeks per annum). July 1994, children
went to Germany to visit their father. Father illegally retained them.
August 1994 the High Court of England & Wales ordered the ``immediate
return'' of the children under the terms of the Hague Convention and
made the children ``Wards of Court''.
Amtsgericht (lower court) Verden ordered ``immediate return of the
children'' in September 1994. But in defiance of the court order,
father absconded with the children. No help from local police. Bailiffs
unreachable. The following day, father lodged an ``ex-parte'' appeal at
the High Court of Celle. Return order stayed (i.e. children ordered to
remain in Germany) until the appeal is heard ``otherwise the mother
could hide the children in England''.
Return order reversed by the Oberlandesgericht (High Court) Celle
on the basis of Article 13b in October 1994. Court ruled that the
children ``objected'' to their return; the children were old enough
because, ``after all a 7 year old can already decide whether it wants
to play judo or football'', Alexander was suffering in England
``because German was not spoken at home or at school'' and his younger
brother should not be separated from him.
Jugendamt Verden stated (for both hearings) that a return to the UK
would cause ``severe psychological harm'' (mother not interviewed).
Alexander felt German; the mother had no time for them since she worked
and the children had adapted to their new environment (after 7 weeks
holiday and notwithstanding that they had lived 2 years in the UK).
Five demands for access rejected by Amtsgericht Verden because
``the children objected'' and the ``mother could use the opportunity of
a visit to re-abduct the children''. January 1995 `ex-parte' decision
changed the children's residence to Germany. March 1995 temporary
custody transferred to father although the children were still ``Wards
of the English court''. Minimal access granted to mother (3 hours per
month under supervision in father's house). Because of the children's
long separation from their mother, it would be too ``overwhelming'' for
them to see her for ``too lengthy a period or in surroundings to which
they are not accustomed''. Visits blocked by father.
Appeal (Hague proceedings) rejected by the Karlsruhe Constitutional
Court (last appeal possible) in April 1995.
September 1997 final sole custody given to father, minimal access
rights granted to mother. Access blocked by father. Judge refused to
enforce access rights and called for a new hearing. December 1998 court
grants mother minimal access rights starting ``little by little'' not
to ``overwhelm the childen''. Father reneged on the third visit (the
very first which would have included an overnight contact). Again,
court refused to enforce access, stating that a new hearing should be
held. In May 1999 judge left on indefinite maternity leave.
Current status
Mother only managed to see her children 11 hours between 1994 and
1998 (under supervision) and twice in 1999. Currently, mother has no
access rights whatsoever. The German Minister of Justice said that she
cannot help because local courts are independent. There is thus no
remedy left within the German system.
______
rinaman james--washington dc/duesseldorf
Number of Children: 1 child
Ages(s) at Abduction: 15 months old
Current Age(s): 4 years old
Hague Convention case: Yes
History
Parties married in Germany in September 1993 and moved to the USA
in August 1995. (father was an officer in the U.S. army until 1996. He
is now an attorney-at-law based in Florida). In June 1996 mother took
the baby to Germany to visit her family for two weeks. To the father's
total surprise mother informed him (by fax) that she was not coming
back to the USA and that she wanted a divorce. Father applied for the
``immediate return'' of the child under the terms of The Hague
Convention.
Amtsgericht (lower court) Duesseldorf-ordered the ``immediate
return of the child'' in August 1996. Mother and child were not present
at the hearing and the court decision was not enforced. Mother
immediately lodged an ``ex-parte'' appeal at the Oberlandesgericht
(High Court). Return order stayed (i.e. the children ordered to remain
in Germany until appeal is heard).
Return order reversed by the Oberlandesgericht (High Court)
Duesseldorf in October 1996. An isolated statement (based on hearsay)
was used to block the return of the child to the USA. The abductor's
mother claimed that she had overheard a conversation between her
daughter and her son-in-law in which he had supposedly agreed that the
child could remain in Germany. (In Germany, it is possible to present
new evidence on appeal). Ignoring the mother's original fax of intent
(see first paragraph), the judges ruled that the child was not taken to
Germany illegally after all.
Jugendamt (Youth Authority) Duesseldorf recommended that sole
custody be given to the mother, adding that ``the mother works and can
therefore support the child'' and that ``the child is adapted to its
new environment and is learning German''. Limited or no access rights
should be granted to the father ``because it would be against the
child's interest to spend time with him''. Indeed, it would be
``emotionally unbearable'' in view of the child's ``age, the long
distances and because its father is now a stranger to her due to their
long separation.''
October 1997, Amstgericht Duesseldorf granted father limited access
rights and only if he surrendered his passport to the Jugendamt. Mother
did not comply and appealed against the decision. In the meantime,
court did not enforce access order.
August 1998, the Oberlandesgericht Duesseldorf affirmed the
Amstegricht's order of limited access to the father. Again, the mother
did not comply. She then switched to another jurisdiction and the
father was told that he needed to start new proceedings in Bonn to
secure his access rights. In January 1999 he filed a new application at
the Amstgericht Bonn. As of July 1999, father had not received a reply.
Current status
Father has not seen his daughter since 1996. As in other cases, the
German courts and the German authorities have repeatedly refused to
allow an independent health and welfare check on the child. The first
request was made by the U.S. State Department in June 1996. Instead,
father was asked to pay child maintenance.
______
troxel edwin--arkansas/mannheim
Number of Children: 2 children
Age(s) at Abduction: 4 and 2 years old
Current Age(s): 6 and 4 years old
Hague Convention case: Yes
History
Parties married in Germany in 1991 and moved to USA a year later.
They separated in 1994. Divorced pronounced in the USA in November
1995. Mother obtained custody and father was granted generous access
rights. At first father able to exercise his access rights. On 6 March
1997, father went to pick up his children for his regular access visit
but found that everything had been removed from the house and that the
mother had absconded with the children. Father informed the police and
filed a petition in the Chancery Court of Benton County, Arkansas for
Contempt of Court which is still pending. Whereabouts of the mother and
the children could not be traced for one month.
August 1997, the court of Benton County transferred primary legal
and physical custody to the father and ordered the ``immediate return''
to the children to the USA.
Return denied on the basis of article 13b by Amtsgericht (Lower
Court) Mannheim in October 1997. Court ruled that the children
``objected'' to their return to the USA (they were 3 and 6) and that a
return would cause them ``severe psychological harm'' and bring them
simultaneously into an uncertain condition. ``The father works and
therefore has no time for them; the mother does not wish to return to
the USA; the children should not be separated from their mother; torn
from their environment, and be transferred to persons who are strangers
to them * * * The personal situation of the children is favourable in
Germany and they have adapted to their new environment * * * The
illegally produced situation must therefore be accepted''.
The Jugendamt stated that the conditions were better in Germany:
the mother has found her own apartment and a work permit; the children
have been placed in a German school; they are adjusted to their ``new
environment''; it would cause them severe psychological harm to be
returned to the USA. (Father not interviewed).
Appeal rejected by the Oberlandesgericht Karlsruhe on the basis of
article 13b in May 1999. Judges considered that a return would cause
``severe psychological harm''. The children should not be separated
from mother. The mother did not wish to return to America. The father
had not seen the children for a long time. He worked and therefore
could not take care of the children. The children had adapted to their
new environment.
Current status
The father has not seen his children since March 1997. The last
time he was able to speak to them on the telephone was in August 1997.
______
wayson, mark--alaska/rio de janeiro/gummersbach
Number of Children: 1 child
Age(s) at Abduction: 2 years old
Current Age(s): 4 years old
Hague Convention case: No--Brazil/Germany
History
Parties were never married but a child was born from the union in
Brazil (child is U.S., Brazilian and German citizen). Father is a U.S.
citizen (formerly a policeman) who was living in Brazil at the time,
mother a German citizen. In December 1996, the parties separated and in
April 1997, the Brazil court granted the parents joint custody. Care
and control given to mother and extensive visitation rights granted to
father. But mother repeatedly blocked access and in December 1997 she
absconded with the child.
Father contacted the German Consulate in Rio who advised him
against filing a Hague petition. Father now suspects that the Consulate
``interfered'' to help the mother. He later tried to complain but was
told that only a German citizen can lodge a complaint against a German
official.
February 1998, mother contacted the father and between March 1998
and August 1998 they sought mediation. During that period, the father
saw his daughter regularly and paid an allowance to his ex-partner.
Beginning August 1998 mother blocked access. The father flew to
Germany 6 times to try and see his child but to no avail.
October 1998 court of Rio de Janiero confirmed its jurisdiction on
the matter of access. ``The fact that the mother moved to Germany after
the court decision does not withdraw the jurisdiction of the Brazilian
court''. Brazilian court reconfirmed father's access rights.
February 1999 the father filed an application to enforce the
Brazilian access order. Amtsgericht (lower court) Gummersbach rejected
the father's demand and refused to establish new access rights. Father
then lodged an appeal in the Oberlandesgericht Koeln (Cologne) in April
1999.
Appeal rejected July 13, 1999 on the grounds ``that although the
Brazilian court had jurisdiction at the time of the separation, the
fact that the mother and the child are now domiciled in Germany, gives
the court of Gummersbach international jurisdiction''.
Current status
Father has not seen his child since August 13, 1998.
______
dudakian john
Number of Children: 1 child
Age(s) at Abduction: 2 years old
Current Age(s): 3 years old
Hague Convention: Yes--new case
History
In 1998, the mother absconded with the child to Germany. The father
had custody at the time. The U.S. court ordered the ``immediate
return'' of the child to the USA.
Return denied by the German court on the basis of article 13b. The
court ruled that a return to the USA would cause ``severe psychological
harm'' for the child to be separated from its mother. Father was not
informed of the hearing.
Current status
Father re-abducted the child back to the USA. Mother has now
applied for the return of the child to Germany under The Hague
Convention.
______
carlsen kenneth--florida/barmberg
Number of Children: 1 child
Age(s) at Abduction: 8 years old
Current Age(s): 15 years old
Hague Convention case: Yes
History
Parties married in Barmberg, Germany then returned to the USA where
their child was born. The parties separated. Custody awarded to father
visitation rights granted to mother. On September 10, 1993 the mother
and her boy-friend picked up the child at her Florida school and
absconded to Germany.
In December 1993 the Florida court ordered the ``immediate return''
of the child to the USA. Father was asked by the Berlin Central
Authorities to pay DM 2,000 to initiate court proceedings in Germany.
But it took fourteen months before the case was finally heard.
Return denied by Amtsgericht (lower court) Barmberg on the basis of
article 13b. The court ruled that the child ``objected'' to a return to
the USA and that she was old enough to decide.
The Jugendamt testified that the child was settled in its new
environment and that she objected to a return to the USA. Father was
not interviewed.
Current status
Since 1993 the father was only able to see his daughter twice at
the Jugendamt offices and under their supervision. However, recently
his daughter, who is now fifteen, has started communicating with her
father through the internet.
carr jon--colorado/where in germany
Number of Children: 1 child
Age(s) at Abduction: 2 years old
Current Age(s): 13 years old
Hague Convention case: NO. Convention not signed between U.S. and
Germany at the time.
History
In 1988, mother abducted child from the United States to Germany
the day before custody hearings were to take place in Colorado.
Father received little help from agencies and police.
Current status
NCMEC is attempting to get into contact with the father for an
update on the matter. However, the father's former attorney believes
that Jon has had no contact with his child since the time, of
abduction.
______
collins rebecca--north carolina/claw (near krisruhe)
Number of Children: 1 child
Age(s) at Abduction: 7 months old
Current Age(s): 8 years old
Hague Convention case: Yes
History
Parties married in the USA in October 1989. Mother awarded
temporary custody until the final divorce decree was decided. In July
1991 the father absconded with the child to Germany during a scheduled
visitation. Police filed charges.
In August 1991 the White Country Court awarded mother custody and
ordered ``the immediate return'' of the child to the USA.
As soon as father reached Germany, he filed for custody.
Amtsgericht (lower court) Claw transferred temporary custody to the
father despite the U.S. previous decision. Mother obtained access
rights but father refused to abide by them. Amtsgericht Claw did not
enforce her access rights.
Hague application filed too late (mother unaware of Convention) and
the German court rejected her application stating that a year had gone
by.
Mother was enable to pursue litigation in Germany as she was no
longer entitled to legal aid.
Current status
The mother has not seen her son since 1991. Last time she was able
to speak to him on the telephone was in 1997. Child was led to believe
that the father's new partner is his natural mother.
______
cook jeffrey--florida
Number of Children: 1 child
Age(s) at Abduction: 4 years old
Current Age(s): 6 years old
Hague Convention case: Yes
History
In April 1997, mother abducted child to Germany in the middle of
U.S. custody proceedings. Father was granted custody after the
abduction and the U.S. court ordered the ``immediate return'' of the
child to the USA.
Return denied on the basis of article 13b by the Amtsgericht (lower
court). Court ruled that the child ``objected'' to a return and that it
would cause ``severe psychological harm'' for her to be separated from
her half-brother and half-sister
Currenty status
NCMEC is attempting to get into contact with the father for an
update on the matter.
______
cox fred--oklahoma/pobledorf
Number of Children: 1 child
Age(s) at Abduction: 11 months old
Current Age(s): 8 years old
Hague Convention: No
History
In October 1993, mother was served with divorce papers and
immediately abducted the child to Germany. Father was granted custody
after the abduction.
Father attempted to apply under the Hague Convention, but he
withdrew his application citing that it was too stressful a process.
Current status
NCMEC spoke with Fred Cox who informed them that while he has
spoken to his son, he is still being denied access. No papers were ever
filed in the German courts, as all the lawyers who were referred to the
father in Germany informed him that nothing could be done.
______
das sanjay--florida/munich
Number of Children: 1 child
Age(s) at Abduction: 1 year old
Current Age(s): 3 years old
Hague Convention case: Yes
History
In 1997, the mother absconded with the child to Germany. Father
applied for the ``immediate return'' of the child under the terms of
the Hague Convention.
Return ordered by the Amstgericht (lower court) but it was not
enforced. Mother immediately appealed at the Oberlandesgericht (high
court). Returned order overturned on the basis of article 13b of the
Hague Convention.
Current status
NCMEC is attempting to contact the left-behind father for an
update.
______
dukesherer john--hawaii/schwaebisch gmuend (near stuttgart)
Number of Children: 1 child
Age(s) at Abduction: 2 years old
Current Age(s): 3\1/2\ years old
Hague Convention case: Yes--new case
History
Parties never married but a child was born from their union.
Custody order made in the USA in March 1997. Custody given to father
and access rights granted to mother ``so long as she continued in
therapy'' Mother not allowed to take child out of the country without
prior approval of the Court, or notification of no less than 48 hours
to the opposing party. August 1998, mother picked up the child for her
regular visit and absconded to Germany. Arrest Warrant issued.
Whereabouts of mother and child not traced.
July 1999 U.S. court confirmed sole legal and physical custody of
father and ordered for the ``immediate return'' of the child to the
USA.
Current status
Hague Convention hearing has not yet taken place in Germany as
mother and child have not been located.
Father has not seen his child since August 1993 and he does not
know its whereabouts.
______
filmer james--california/tostedt
Number of Children: 1 child
Age(s) at Abduction: 9 months old
Current Age(s): 1 year old
Hague Convention case: Yes--new case
History
Parties married in the USA. Parties separated and mother obtained
temporary custody and father was awarded visitation rights. In October
1998, mother absconded to Germany with the baby whilst the divorce
proceedings were ongoing.
U.S. court granted father custody and ordered the ``immediate
return'' of the child. Return denied by the Amtsgericht (lower court)
Tostedt on the grounds that the U.S. temporary custody order was
unclear and the mother rightfully believed that she was allowed to
leave the U.S. with the child.
Current status
Father has had no contact with the baby since the abduction.
______
fleaschmann bertha--texas
Number of Children: 1 child
Age(s) at Abduction: 6 years old
Current Age(s): 7 years old
Hague Convention: Yes--new case
History
In January 1999, father abducted child from school and took him to
his parents in Germany. The father then returned to work in Texas,
leaving the child behind with his relatives.
A warrant for the father has been issued in Texas for sexual
battery again the mother, but the father has since returned to Germany.
Mother has applied under the Hague Convention for the return of the
child.
Current status
NCMEC is attempting to get into contact with the mother for an
update on the matter.
______
gerlitz sidney
Number of Children: 1 child
Age(s) at Abduction: 5 years old
Current Age(s): 8 years old
Hague Convention: Yes
History
In 1996 mother absconded with the child to Germany. U.S. court
ordered the ``immediate return of the child'', but the Berlin Central
Authorities rejected the Hague application on the basis that the father
was not able to get an Article 15 declaration; i.e. a document proving
that he had custody before the time of the abduction.
Current status
NCMEC is attempting to get into contact with the father for an
update on the matter.
______
outgoing german case
Left Behind Parent: Mark Gilgen
Children: Angela Gilgen, DOB 01/14/1990
Age(s) at Abduction: 5 years old
Current Age(s): 9 years old
History
On August 1, 1995, Claudia Bettina Svetlana White (a German
citizen) abducted her child from Minnesota to Georgia. While in
Georgia, the mother applied for divorce claiming she did not know where
the father was living. Georgia court gave her custody, the father was
informed, and he appealed the matter in the Georgia courts.
Before the appeal came to trial, the mother re-married a U.S. Army
employee and moved to Germany. The father re-established jurisdiction
in Minnesota and was granted sole custody from Minnesota courts.
Father applied under the Hague convention and was told by the
German Central Authority that there was no hope for return because
Angela was a German citizen and needed to be with her mother. The
Central Authority did help arrange stringent, brief supervised access
in 1999.
Current status
Father has telephone access at the mother's will, but is not
allowed to visit the child in Germany without supervision, despite the
Minnesota court order being the only order in existence.
______
hill astrid--texas/bremen
Number of Children: 1 child
Age(s) at Abduction: 3 years old
Current Age(s): 5 years old
Hague Convention case: No--access/visitation
History
Astrid Hill is the maternal grandmother. She has contacted me
several months ago to report: Parties married in the USA (Mother German
citizen, father British citizen). Their child was born in the USA in
1994. Parties divorced a year later. The U.S. court awarded custody to
the mother and granted the father generous access rights (three months
per annum). But he was unable to exercise his right and in 1997 the
mother absconded with the child and her new husband to Germany without
informing the child's father or her own mother.
No Hague Convention applications were made as the U.S. decision
allowed the mother to go to Germany. Father was unable to obtain any
access rights.
Current status
Neither the father nor the grandmother has seen the child since
1997. The grandmother (who is a German citizen) has never heard from
her daughter since. She is very eloquent about the failure of the
German system to protect children and enforce foreign court decisions.
She feels that she has let her grandchild down.
______
james robert--maryland
Number of Children: 2 children
Age(s) at Abduction: 10 months old and 2\1/2\ years old
Current Age(s): 6 and 8 years old
Hague Convention case: Yes
History
In April 1994, while the father was at work, the mother absconded
with the two children to Germany.
U.S. court granted father sole custody and ordered the ``immediate
return'' of the children.
Father was asked to pay DM 2,000 by the Berlin Central Authorities
to initiate proceedings in Germany. Father was unable to come up with
the money, so the case was closed.
Mother obtained a divorce in Germany. She was awarded sole custody
on an ``ex-parte'' basis and no access rights were granted to the
father. The father was never served notice of the hearing but found out
several months later when he was ordered by the German courts to pay
child support.
Current status
Father has only seen his children once when the mother allowed him
a brief supervised visit several years ago because one of the children
was seriously ill.
______
marquette n. robert--texas/schaebisch gmuend (near stuttgardt)
Number of Children: 2 children
Age(s) at Abduction: 4 and 13 years old
Current Age(s): 6 and 15 years old
Hague Convention: Yes
History
Parties married in Dallas, Texas in 1998 and separated in 1993.
Parents were awarded temporary custody. The children had primary
residency with the mother and the father was granted generous access
rights. In 1995, father filed for divorce. Mother applied to reduce
father's access rights on the grounds that the eldest child
``objected'' to seeing him. She also threatened to leave the country. A
further decision ordered for the mother ``not to change the domicile of
the children from Dallas County, Texas'' without prior approval of the
court. U.S. court appointed psychologist testified in court to the
presence of Parental Alienation Syndrome. Divorce proceedings lasted
over two years but in June 1997 mother absconded to Germany with the
children before the final decree.
In July 1997 Dallas County Court transferred custody to the father,
giving restricted access rights to the mother and ordered the
``immediate return of the children''.
Return denied by Amtsgericht (lower court) Schaebisch Gmuend on the
basis of article 13b in March 1998. The court ruled that the eldest
child ``objected'' to its return and that it would cause the second
child ``severe psychological harm'' to be separated from its elder
brother.
Father's appeal rejected by the Oberlandesgericht (high court)
Stuttgardt on the basis of article 13b in May 1998.
Father immediately retained an attorney in Germany (who was
appointed to him by the German Central Authority) to file an appeal
with the Constitutional Court. But the attorney failed to file the
appeal within the prescribed one year time limit.
Current status
Father has not seen or been able to speak to his children since
1997. He presumes that the German courts transferred custody to the
mother, but he was never notified of any hearings.
______
maskalick linda--michigan/langgons
Number of Children: 1 child
Age(s) at Abduction: 2 years old
Current Age(s): 7 years old
Hague Convention: Yes
History
On July 19, 1993, the grandmother who had been granted custody of
the child in September 1992, was having major surgery when the natural
mother abducted the child to Germany.
Police filed charges and grandmother, with help from the natural
father, filed under the Hague Convention. However, the child was not
returned to the United States.
Current status
NCMEC is attempting to get into contact with the grandmother for an
update on the matter.
______
pendarvis, larry--florida/dortmund
Number of Children: 1 child
Age(s) at Abduction: 4 months
Current Age(s): 11 years old
Hague Convention case: No--before Germany signed the Convention in 1990
History
Parties married in Tampa, Florida in August 1986. While still
married, mother absconds with the baby in August 1988 to Dortmund,
Germany.
On 2 February 1989, father awarded sole custody of the child by the
U.S. courts.
He assumes the mother has obtained a custody order in Germany. He
has not been granted any visitation rights in Germany as far as he is
aware. He has never received any correspondence from the German courts,
although he wrote to them on several occasions.
Current status
Father has not seen or received any communication from his child
since 1988.
______
peterson james--tennessee/bad kreuznach
Number of Chi1dren: 1 child
Age(s) at Abduction: 6 years old
Current Age(s): 6 years old
Hague Convention case: Not yet filed (new case)
History
Parties divorced in the USA in 1996. Primary custody granted to
mother with extensive access rights to father. But mother continuously
obstructed access. In 1999, custody reversed to father. Decision based
on the mother's refusal to allow him to exercise his visitation rights
and on other welfare issues. The decision, however, allowed the mother
to keep the child in her care until the end of the school year. In May
1999, mother absconded to Germany with the child. Father did not know
its whereabouts.
In July 1999, father received a copy of a custody transfer petition
which the mother filed as soon as she returned to Germany. The wording
of the petition includes statements such as ``the child speaks German
fluently'' whereas the child has been living in Germany for only two
months and spoke no German beforehand; that ``the child has already
settled in her environment'', ``made friends'' and ``is enrolled in a
German school''.
These are all very familiar arguments preparing for an Article 13b
defence.
Father has not been able to file a Hague petition as until last
month as he did not know where his daughter has been abducted to until
he received the custody transfer petition.
Current status
Father has not seen his child since May 1999. Father also feels
very depressed and is hesitant about filing a Hague Convention
application because of the bad performance of Germany in returning
children. He is not a wealthy man.
roche kenneth--massachusetts/darmstadt
Number of Children: 1 child
Age(s) at Abduction: 4 years old
Current Age(s): 10 years old
Hague Convention case: Yes
History
Parties married in Denmark in 1986 and moved to the USA. Parties
separated in 1990. Divorce pronounced in the USA in July 1991 granting
both parties joint legal custody. Physical custody given to mother and
generous access rights granted to father. In addition, a specific
clause stated that the removal of the child from Massachusetts was not
authorised unless both parties agreed or a court order was obtained. In
1992 mother remarried in the USA. During that time, father regularly
saw his child. Mother divorced second husband and in March 1993, she
absconded with the child to Germany. Arrest Warrant issued.
April 1993 U.S. court transferred temporary custody to the father
and ordered the ``immediate return'' of the child.
Amtsgericht (lower court) Darmstadt ordered the ``immediate
return'' of the child to the USA but mother absconded with the child
and immediately lodged an appeal at the Oberlandesgericht (high court)
Frankfurt.
Oberlandesgericht Frankfurt confirmed the return order but it was
not enforced. Police did not help. Father never managed to locate his
child. FBI got involved in 1994 and issued a second Warrant. But, in
April 1994 the Central authorities in Berlin confirmed that the
investigation had been without any positive results. No further efforts
were made to find mother and child.
Current status
Child living with mother in Germany. No further action has been
taken by the German courts against the mother. Father has not seen his
child since 1991 and does not know his whereabouts.
______
tali taylor--california/berlin
Number of Children: 1 child
Age(s) at Abduction: 2 years old
Current Age(s): 3 years old
Hague Convention case: Yes--new case
History
In September 1998, mother absconded with the child while divorce
proceedings were pending in the California court.
U.S. court granted father temporary sole custody and ordered for
the child's ``immediate return''. Father was asked to pay DM 2,000 by
the Berlin Central Authorities to initiate proceedings in Germany.
Current status
Father is currently in Germany for the court hearings. Until then
he has had no contact with his child since the abduction. NCMEC will
find out upon his return if he was able to see his child and secure his
return to the USA.
______
uhl george--maryland/munich
Number of Children: 1 child
Age(s) at Abduction: 1 year old
Current Age(s): 2\1/2\ years old
Hague Convention case: Yes
History
Parties married in the USA. Divorced pronounced in the USA in July
1997. Baltimore County Court, Maryland awarded both parties joint
custody: the child would reside 60 percent of the time with the mother
and 40 percent of the time with the father. In April 1998, the mother
went with the child to Germany but she never returned to Baltimore for
the father's scheduled visit in June 1998.
In June 1998, the Baltimore County Circuit Court transferred sole
custody to the father and ordered the child's ``immediate return'' to
USA. (Final sole custody given to father in March 1999).
Return denied by the Amtsgericht (lower court) Munich in October
1998. The court ruled that the custody arrangements made in the USA had
allowed the mother to go back to Germany with the child and that she
therefore had the right to change jurisdiction. The court further ruled
that the child's habitual residence had now been established in Germany
since the mother lived there and did not intend not to return to the
U.S.
The father lodged an appeal at the Oberlandesgericht (higher court)
Munich. Appeal denied (without a hearing) and the Amtsgericbt's
decision was upheld. No access rights were granted to the father.
Current status
The father has not seen his child since April 1998. The father has
no contact with his child and does not know its whereabouts. The father
believes that the German courts have transferred custody to the mother,
but he was never informed.
______
urban kurt--texas/butzpat
Number of Children: 1 child
Age(s) at Abduction: 6 years old
Current Age(s): 12 years old
Hague Convention case: No
History
In April 1993, the mother (a U.S. citizen) absconded with the child
to Germany. The parties were never married, but the father had been
awarded custody of the child.
Father was told that since they were not married, he could not file
under the Hague Convention for a return. Police attempted to locate the
child without success.
Current status
Father has had no contact with the child since 1993.
______
winslow anne--maryland/firth (near nuerenburg)
Number of Children: 4 children (Mary Elizabeth, Angelina, Charles,
Sarah)
Age(s) at Abduction: 4, 9, 11, 12 years old
Current Age(s): 7, 12, 14, 15 years old
Hague Convention case: Hague application rejected under the terms of
Article 15
History
Parties married in the U.S. On June 19, 1996 the father (an
American citizen) abducted the four children to Germany. A divorce was
pending so no custody determination had been made and the children were
temporarily living with their father at the time.
In March 1997, the court of Maryland awarded temporary sole custody
to the mother.
Mother was then told that under Article 15 of the Hague Convention,
the U.S. Department of State needed a decision or other determination
that the removal was wrongful within the meaning of Article 3 (i.e. a
proof that the removal was in breach of her custody rights). The
Maryland court refused to grant her this order on the basis that there
had been no custody agreement prior to the abduction. (N.B. it seems
that the mother must have been badly represented or advised of the
terms of the Convention since the abduction was in breach of custodial
rights--custody is shared when the parties are married).
The Hague application was withdrawn. The police dropped charges
against the father as well, claiming that extradition costs would be
too high.
Current status
Mother has not seen her children at all since 1996. In November
1998, father called mother to reiterate his intention of keeping the
children in Germany. Mother does not know their whereabouts.
______
welch sasha
February 11, 1998, NCMEC intaked case via the hotline. Mother
apparently took child to Germany around January 15, 1999. Father was
working with the DOS on a Hague Application for return of the child.
August 15, 1998, according to NCMEC report, father received notice
by DOS 7 days after German Hague hearing occurred. Father's appointed
German attorney attended, but had never spoken with the applicant
father. Second hearing occurred August 4, 1998, father lost the case
partially because psychiatrist stated child would suffer harm if
separated from the mother and mother does not wish to return to
Germany.
November 5, 1998, received fax from Bill Fleming at DOS. Contained
the application from German mother because child was taken from Germany
to U.S. on October 29, 1998. Bill informed NCMEC that this was a
reabduction and that the father had lost a Hague application made to
Germany during the summer. Meredith Morrison, case manager at NCMEC,
was informed that the child was back with the father in Colorado. The
Hague application that NCMEC received included a ruling from Germany
stating that the removal from Germany was wrongful. They provided no
details or documents regarding the father's Hague petition.
December 4, 1998, I requested a copy of the original German Hague
decision from DOS, which was faxed to NCMEC. This fax contained a Hague
decision from a German court dated August 7, 1998 denying the applicant
father's petition for return. Abducting mother apparently had temporary
custody of the child in Colorado, but was not allowed to leave the
United States until the custody hearings were completed. Mother left
with the child. Subsequently, father was given custody by the Colorado
court. Germany Court seems to have denied the father's application
based on the fact that the mother had temporary custody at the time of
the abduction and was allowed to live in Germany.
Senator DeWine. Ms. Hong.
STATEMENT OF LAURA KINGSLEY HONG
Ms. Hong. Thank you, Senator DeWine. Mei Mei will be 6
years old on November 4. There will be no gifts. There will be
no cake. She will mark the occasion in Guangzhou, China, with
her abductor, a woman whose mental illness will likely preclude
her from even being aware of the child's birthday.
Mei Mei was born in Cleveland in 1993 and is an American
citizen of Chinese descent. Mei Mei was abducted by her birth
mother, Sue Chen, a convicted felon and chronic unmedicated
schizophrenic. My rights to custody of Mei Mei have continued
uninterrupted from long before the abduction to the present
day. Initially, I was Mei Mei's foster parent. Now, I am her
legal guardian and her legal custodian. The Ohio Eighth
District Court of Appeals and the Ohio Supreme Court has upheld
my custodial status and the termination of Chen's parental
right.
Despite repeated requests from not only me but from you and
your colleagues, the Cleveland U.S. attorney has refused to
indict Mei Mei's abductor, who, unlike many parental abductors,
is in the eyes of the law a stranger to the child. There is no
acceptable explanation for the lack of indictment in Mei Mei's
case.
The refusal of the Justice Department to enforce the Act is
by now well documented. We just heard it today. In response to
concerns raised in this regard, we also heard that the Justice
Department claims to need resources, training, social workers,
support groups, computer programs, et cetera, et cetera. None
of that is required. What is required is enforcement of the
International Parental Kidnaping Act as enacted by Congress,
and that requires not money, but simple resolve on the part of
the Justice Department to uphold the law.
Since the abduction, we have been caught in a vicious
bureaucratic cycle in trying to bring Mei Mei home. The
President will not help us and little Mei Mei because the
National Security Council will not help us. The National
Security Council will not help us because the State Department
will not help us. The State Department will not help us because
the Justice Department will not help us. And the Justice
Department will not help us because the Cleveland U.S.
attorney's office has declined to prosecute, and so it goes.
The conventional wisdom as conveyed to us by, among others,
the State Department was that a Federal indictment is necessary
to secure Mei Mei's return, and so immediately upon Mei Mei's
abduction, we inquired of the local U.S. attorney's office. In
response to our repeated inquiries as to when an indictment
would be issued, we were told that the case was being carefully
considered and they would let us know. We waited and waited.
In the interim, Congresswoman Mink received a telegram from
the U.S. embassy in Beijing advising her that, on October 24,
1996, just days after Mei Mei's abduction, the Cleveland U.S.
attorney had told the embassy not to pursue the case because it
was not going to prosecute Chen. The embassy told Congresswoman
Mink that without the requisite request from Cleveland to work
on the case, the U.S. Government has no authority to pursue Mei
Mei's case in China.
The Cleveland U.S. attorney finally responded to our
inquiries on October 23, 1997, more than 1 year after Mei Mei's
abduction. In a lengthy letter, she told us that she was
declining to prosecute Chen because her office, ``was not
satisfied that an unbiased trier of fact will find Sue Chen
guilty.'' She did not explain the basis for this assertion, nor
did she explain why she employed a ``will find the defendant
guilty'' standard when, pursuant to the U.S. Attorneys' Manual,
the appropriate standard is one of probable cause.
What she did say, though, in so many words, was that she
was not about to enforce a law that she did not personally buy
into. In particular, she stated that an indictment of Chen for
the purpose of aiding in Mei Mei's return would be an abuse of
the Federal grand jury process, and that there is no reason to
believe that an indictment of Chen would affect either her
return or the return of the child.
In short, the U.S. attorney declined to indict under the
Act because she personally did not credit the Congressional
assumptions underlying its enactment, i.e., the indictments
would enhance the force of U.S. diplomatic representation
seeking the assistance of foreign governments in returning
abducted children. Apparently, a law is a law only to the
extent the local U.S. attorney wishes it to be.
In closing, we ask you and the subcommittee to do what it
can to bring home Mei Mei and others similarly situated by
demanding enforcement of the Act. As things now stand, the
existence of the Act, coupled with the Justice Department's
habitual refusal to enforce it, is having the precise opposite
effect to what Congress intended by the enactment. This is so
because the State Department uses the lack of an indictment
under the Act as a free pass to refuse to lend assistance to
international abduction cases, and quite logically, foreign
governments and courts view suspiciously a private citizen's
request for assistance in an abduction case when the private
citizen's own government has not efficiently deemed the
abductor's conduct criminal. We beg you to do what you can to
break this vicious cycle. Thank you.
Senator DeWine. Thank you very much.
[The prepared statement of Ms. Hong follows:]
Prepared Statement of Laura Kingsley Hong
Mr. Chairman, Members of the Committee: My name is Laura Hong. I am
a partner at the law firm of Squire, Sanders & Dempsey, resident in
Cleveland, Ohio, and am the legal guardian and legal custodian of
Rhonda ``Mei Mei'' Lan Zhang (``Mei Mei'').
At the invitation of Senator Thurmond, I provide this statement
because Mei Mei was abducted by her non-custodial birth mother, Sue
Ping Chen, on October 15, 1996, and taken to the People's Republic of
China. And yet, despite the clear terms of the International Parental
Kidnaping Act, the Department of Justice refused and continues to
refuse to issue an indictment.
First, on behalf of myself, Tom Kovach and five year old Mei Mei,
we thank you for giving us this opportunity to submit this statement on
a matter of grave import. We also express our gratitude to Subcommittee
Members DeWine, Ashcroft, Abraham, Sessions, Torricelli and Leahy who,
along with twenty-eight other Senators and six Representatives, have
made requests to President Clinton, The National Security Council, the
Departments of State and Justice, and the Chinese government to
facilitate Mei Mei's return home.
As the Subcommittee is aware, in 1993, President Clinton signed
into law the International Parental Kidnaping Act, 18 USC Sec. 1204
(``IPKA''). The statute makes it a crime for a non-custodial parent to
remove a child from the United States with the intent to obstruct the
lawful exercise of parental rights. The statute defines parental rights
as the ``right to physical custody of the child.''
Mei Mei was born in Cleveland, Ohio on November 4, 1993. As a
result of Ms. Chen's repeated neglect of Mei Mei, by court order dated
March 8, 1995, more than a year and a half before Mei Mei's abduction,
I was granted physical custody of Mei Mei. That right has continued
uninterrupted through the date of the abduction and to the present day.
In addition to the court order granting me physical custody of Mei Mei,
after Mei Mei's abduction on October 15, 1996, the Juvenile Court for
Cuyahoga County issued several orders commanding the return of Mei Mei,
terminated Ms. Chen's parental rights and awarded me legal custody.
Initially, I was Mei Mei's foster parent; I am now Mei Mei's legal
guardian and custodian.\1\ Since Mei Mei's abduction, the Ohio Eighth
District Court of Appeals has upheld my custodial status and the
termination of Ms. Chen's parental rights and issued a writ of habeas
corpus commanding Ms. Chen to bring Mei Mei before it. The Ohio Supreme
Court upheld the issuance of the writ and the order granting me legal
custody of Mei Mei.
---------------------------------------------------------------------------
\1\ The Congress, in enacting the Hague Convention (which the IPKA
is intended, in part, to supplement), explicitly stated that the return
of abducted children to their home state is of paramount importance,
and that ``Persons should not be permitted to obtain custody of
children by virtue of their wrongful removal or retention.'' 42 U.S.C
Sec. 1161. The rights protected by the Hague Convention include the
situation when a child is in the care of foster parents. ``If custody
rights exercised by the foster parents are breached, for instance, by
abduction of the child by its biological parent, the foster parents
could invoke the Convention to secure the child's return.'' (51 Fed.
Reg. No. 58, p. 1505.)
---------------------------------------------------------------------------
Yet despite these court orders, and overwhelming congressional and
citizen support, the Department of Justice refuses to issue an
indictment under the IPKA; and the State Department, citing the
inaction of the Department of Justice, similarly refuses to help.
The Act clearly applies here by its terms, and the fact that the
Cleveland U.S. Attorney has not enforced it sends a message that a law
is a law only to the extent the local U.S. attorney wishes it to be.
A few days ago, on October 14, 1999, Jess T. Ford, Associate
Director, International Relations and Trade Issues, National Security
and International Affairs Division, United States General Accounting
Office, testified concerning the Division's preliminary observations on
the federal government's response to international child abduction.
Director Ford reported that the State Department estimates that every
year 1,000 children are abducted by their parents. Yet, since the
enactment of the IPKA, the Justice Department has issued only 62
indictments under the IPKA.
In November 1998, the Attorney General created The Policy Group on
International Parental Kidnaping which produced an April 1999
publication entitled A Report to the Attorney General on International
Parental Kidnaping. In reference to that report, Director Ford
highlighted four key problems cited by the State and Justice
Departments relating to the federal government's response to
international child abduction. Not surprisingly, one of the problems
cited is the Justice Department's limited use of the IPKA.
In response to problems relating to international child abductions,
the Departments of Justice and State repeatedly appear before
Congressional committees requesting funding for social workers, support
groups, computer programs for case tracking, study groups, and policy
groups designed to ``deal with'' international parental kidnaping. All
of this smacks of being a smokescreen. It is our opinion--based on
firsthand experience--that the paramount issue in dealing with
international parental kidnaping is enforcement of the law as it is
written and as it was intended to be enforced by Congress.
The official responses to our efforts to bring Mei Mei home
underscore this. The State Department consistently called this a
``private custody dispute,'' as there were no criminal charges against
the abductor. But there is no ``dispute'' here; under Ohio law, Mei
Mei's abductor has and had no rights whatsoever with respect to Mei
Mei. Moreover, this case is susceptible to being called a ``private
custody dispute'' only because the Cleveland U.S. Attorney declined to
indict under the IPKA. If an indictment issued, then, afortiori, this
would be a federal criminal matter, and not a ``private custody
dispute.''
It is all part of a vicious circle. We are told the President has
looked into the matter, but will not help little Mei Mei and us because
the National Security Council will not help us. The National Security
Council is ``unable'' to help us because the Department of State will
not help us. The Department of State will not help us because the
Department of Justice will not help us. The Department of Justice will
not help us because the Cleveland U.S. Attorneys' Office has declined
to prosecute. The Cleveland U.S. Attorneys' Office will not issue an
indictment (purportedly) because the Department of State will not
guarantee that an indictment will lead to the conviction of the
abductor.\2\
---------------------------------------------------------------------------
\2\ Cuyahoga County Prosecutor's Office will not issue an
indictment. The head of the Cuyahoga County Prosecutor's Office's
Criminal Division will not issue an indictment because, in his words,
Mei Mei ``looks Chinese'' and ``belongs in China.''
---------------------------------------------------------------------------
Though our efforts to seek enforcement of the laws of this country,
and in particular the IPKA, are detailed more fully in the attachments
which I submit with my written statement into the record, I summarize
for the Subcommittee our protracted and thus far unsuccessful efforts
directed to the Cleveland U.S. Attorney's Office and the Department of
Justice to obtain an indictment under the IPKA.
The day after Mei Mei's abduction, on October 16, 1996, I provided
a statement to Cleveland FBI agents. On that same day, Cleveland Police
confirmed that Ms. Chen and Mei Mei had flown from Cleveland to
Chicago, Chicago to San Francisco, and San Francisco to Hong Kong. Ms.
Chen was travelling on her Chinese passport, and Mei Mei was traveling
on her U.S. Passport. With the assistance of the Department of
Commerce, we immediately electronically transmitted photographs of Mei
Mei and Ms. Chen to Hong Kong FBI agent James Wong. Unfortunately, we
were too late. Ms. Chen and Mei Mei had already entered the People's
Republic of China.
We were immediately advised that the Chinese authorities would
assist in Mei Mei's return if we obtained a federal indictment. We were
also advised that a federal indictment would facilitate an Interpol
warrant, and that that, too, would facilitate Mei Mei's return. Having
been so advised, we began a process that resulted in hundreds, if not
thousands, of requests for an indictment.
On October 21, 1996, six days after Mei Mei's abduction, Tom
Kovach, also an attorney at Squire, Sanders & Dempsey, and the only
father Mei Mei has ever known, met with Cleveland First Assistant U.S.
Attorney, Gary D. Arbeznik. Mr. Arbeznik requested that we prepare a
memorandum of law and analysis of the IPKA in response to Mr.
Arbeznik's erroneous statement to me over the telephone that the IPKA
requires an underlying state indictment. Despite the incredible
pressure and strain under which we were functioning, and despite the
fact that we are civil, and not criminal, litigators, we provided Mr.
Arbeznik with the memorandum; we did not, at the time, question why it
was our obligation to explain the law to an Assistant U.S. Attorney.
Nor did we question why First Assistant Arbeznik had personally taken
the case when Cleveland Assistant U.S. Attorney Krista Bruntz
previously had handled and issued an indictment on an international
parental kidnaping case pursuant to the IKPA for that office.
During the next few days, we received incredible support and
assistance from other law enforcement, particularly Hong Kong FBI, the
U.S. Embassy in Beijing and the Consulate office in Guangzhou, where we
had located Ms. Chen and Mei Mei. Unfortunately, with lightning speed--
just nine days after Mei Mei's abduction--Mr. Arbeznik, on October 24,
1996, without any discussions with me, notified the U.S. Embassy in
Beijing that the Cleveland U.S. Attorney's office had declined to
prosecute the case.
Though I continually called Mr. Arbeznik for a status, this
information did not become known to us until more than one month later
when Congresswoman Patsy Mink forwarded to me a Department of State
telegram from the U.S. Embassy in Beijing advising her of Mr.
Arbeznik's October 24, 1996 notification and also advising that
``without the requisite request from FBI Cleveland to work the case,
the U.S. Government has no legal authority to pursue [Mei Mei's] case
in China.'' We contacted Agent John Jacobs of Cleveland FBI, who
advised us that, because Mr. Arbeznik had affirmatively stated that he
was not going to prosecute, Cleveland FBI could do nothing further.
Thereafter, over the next fifteen months, we were left highly
insulting messages by a now-former Department of Justice Attorney
allegedly responsible for ``children's affairs.'' We were threatened
with local indictments for posting a website about Mei Mei's situation,
and were flatly ignored by Cleveland U.S. Attorney Emily Sweeney, with
whom we left unreturned messages on at least a weekly basis.
In early 1997, in response to the hundreds of letters from us,
citizens, members of the Congress, the immediate past presidents of the
American Bar Association, Federal Bar Association and the National
Asian Pacific Legal Consortium, we received our first response from the
Department of Justice. That response was a form letter that did nothing
but offer ``assurances'' that the Cleveland U.S. Attorney's Office
(``USAO'') was ``thoroughly looking into the matter.'' Of course, this
was false, because on October 24, 1996, First Assistant U.S. Attorney
Gary Arbeznik had closed the matter.
The Cleveland U.S. Attorney herself did not respond to any
inquiries until October 23, 1997, more than one year after Mei Mei's
abduction, when she wrote me a lengthy letter advising me that the
Cleveland USAO was declining to prosecute Ms. Chen. A copy of that
letter is appended to my written statement. I bring to the attention of
the Subcommittee, however, some highlights of the letter in which, for
the first time, the USAO purported to articulate for us the basis for
her refusal to pursue an indictment of Sue Ping Chen for the kidnaping
of Mei Mei.
Though it would appear on its face that the letter was intended to
explain her decision, we were amazed to see that, in all its 4-page
length, there was not one mention of the IPKA, 18 U.S.C. Sec. 1204 (the
``IPKA''), or any other criminal statute. She stated that her ``office
[was] not satisfied that an unbiased trier of fact will find Sue Ping
Chen guilty,'' but her statement was made in a vacuum, with no
reference to the particular criminal statute against which the
Cleveland USAO claimed to have assessed the probability of Chen being
found guilty. This was quite telling.
Moreover, the Cleveland U.S. Attorney did not provide any legal
authority for employing the standard she claimed to have employed--
i.e., the standard that an ``unbiased trier of fact will find the
accused guilty.'' At the same time, though, she cited Section 9-27.220
of the U.S. Attorney's Manual, which indicates that the ``threshold
determination'' should be whether probable cause exists to believe that
a federal offense has been committed, and ``that admissible evidence
probably will be sufficient to obtain and sustain a conviction.''
Apparently, the Cleveland U.S. Attorney chose to apply a more exacting
standard than that set forth in the ``Manual'' when it came to
enforcing Mei Mei's rights.
Crimes, as we all know, have elements, and the decision as to
whether to prosecute for the commission of a particular crime ought to
hinge on whether the elements of that crime are met. Each element of
the IPKA is clearly met in Mei Mei's case, and none of the affirmative
defenses set forth in that statute are available--even arguably--to Ms.
Chen. Yet, while the Cleveland U.S. Attorney spent three pages
discussing collateral issues of little relevance to the issue of
whether Chen violated the IPKA, she offered not one shred of
information as to why she was not ``satisfied that an unbiased trier of
fact will find Sue Ping Chen guilty.'' In particular, she did not share
with us which elements of the crime she found lacking. Her
unwillingness to discuss the critical issue--i.e., why the Office felt
Chen would not be found guilty under the IPKA for kidnaping Mei Mei--
spoke volumes.
The Cleveland U.S. Attorney went on to state that the ``seeking
[of] an indictment against an individual in order to facilitate
enforcement of a civil court order is not a proper use of the grand
jury,'' that ``an indictment of Sue Ping Chen for [the] purpose [of
aiding in Mei Mei's return] would be an abuse of the Federal Grand Jury
process,'' and that ``[t]here is no reason to believe that an
indictment of Sue Ping Chen would effect either her return or the
return of the child.'' All of these bases, of course, put the U.S.
Attorney squarely in opposition to Congress on the issue of the
international abduction of American children. As the Congress made
clear in passing the IPKA, one of the express purposes of the Act was
``to provide the basis for Federal warrants, which will in turn enhance
the force of U.S. diplomatic representations seeking the assistance of
foreign governments in returning abducted children.'' H.R. No. 103-390,
Cong. Rec. P. 2421 (emphasis added). Thus, Congress believed it
eminently appropriate and advisable to use an indictment under the IPKA
for the purpose of facilitating the return home of internationally
abducted American children, and legislated accordingly. It was always
our understanding that the American people elect the Congress to make
such legislative determinations, and that U.S. Attorneys are appointed
merely to enforce them. The Cleveland U.S. Attorney, however, clearly
believes--with the apparent acquiescence of the Justice Department--
that it is her prerogative to override the Congress.
The Cleveland U.S. Attorney then went on to note that ``the state
[of Ohio] has plainly indicated that it will not enforce'' the order
terminating Chen's parental rights and granting permanent custody of
Mei Mei to me, Laura Hong, and that this, in turn, ``raises a serious
question regarding federal enforcement.'' But it was unclear which
``state'' she was referencing. Apparently, it was the position of the
Cleveland USAO that the Cuyahoga County Court of Common Pleas, which
terminated Chen's parental rights and awarded custody to me, is not
``the state''; nor is the Ohio State Legislature, which enacted the
laws by which Chen's parental rights were terminated and legal custody
of Mei Mei was awarded to me; nor is the Ohio Court of Appeals, which
upheld the order of the trial court and also issued a writ of habeas
corpus directing Chen to bring Mei Mei home; nor is the Supreme Court
of Ohio, which declined to vacate the writ of habeas corpus directing
Chen to bring Mei Mei home; nor is the Cuyahoga County Board of
Commissioners, the government entity charged with oversight of Children
Services, which has publicly expressed support for the efforts to bring
Mei Mei home; nor are Senator DeWine and then-Senator Glenn, who, along
with more than one-third of the U.S. Senate, have, in a number of ways,
manifested their support for bringing Mei Mei home.
Instead, ``the state,'' as far as the Cleveland USAO appears to be
concerned, consists of one misguided individual in the Cuyahoga County
Prosecutor's Office who the Cleveland Plain Dealer labeled a ``Chen
proponent,'' and who publicly stated that he would not enforce Ohio's
laws in this case, publicly condoned the abduction of children from the
child welfare system, and caused the quashing of a City of Cleveland
felony kidnaping warrant for Chen's arrest that had been issued upon a
showing of probable cause by the Cleveland Police Department. It is
troubling that, notwithstanding all of the ``state'' entities that
spoke out in favor of bringing Mei Mei home in accordance with the laws
of the ``state,'' the Cleveland U.S. Attorney took its cue from the one
public official who had, in this matter, consistently maintained a
position contrary to law. It is even more troubling when one considers
that another motivating factor in enacting the IPKA was to save parents
of abducted children from having to rely on state law enforcement
authorities who, for budgetary reasons, had traditionally been
disinclined to prosecute an offender who would have to be extradited at
considerable cost to the local authorities.
The remainder of the U.S. Attorney's letter was clearly geared
towards convincing someone other than us--perhaps her Justice
Department superiors--that the equities in this case supported her
decision not to prosecute.\3\ In the interests of fairness, though, the
U.S. Attorney could also have shared with her extended audience the
fact that the ``evidence'' she recited in her letter--i.e., a staged
welfare visit conducted by the Guangzhou Consulate, and the
representations of Chen's father as reported to to her by Children
Services as to his purported willingness and ability to care for the
child--was heard by Judge Patrick F. Corrigan of the Cuyahoga County
Court of Common Pleas, and rejected outright. In the interests of
fairness, the Cleveland USAO could have cited the evidence--which was,
in the Judge's words, ``clear and convincing''--that led the Judge to
find that Mei Mei is not in a suitable environment, that Chen is
incapable of parenting, and that neither Chen nor Chen's father (who
kicked Chen and Mei Mei out of his apartment in Guangzhou on two
occasions, documented in the court files, because he ``could not
handle'' Chen's psychotic behavior) is capable of providing a suitable,
stable home for Mei Mei.
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\3\ We note that the Cleveland USAO has ignored Section 9-27.230 of
the ``United States Attorney's Manual,'' which instructs the office to
consider as a matter of primary importance the actual or potential
impact of the offense on Mei Mei and me.
---------------------------------------------------------------------------
In that letter, the Cleveland U.S. Attorney also stated that
Children Services had the ``parental rights'' to Mei Mei at the time of
the abduction, apparently to suggest that Children Services, and
Children Services alone, had the right to prosecute on Mei Mei's
behalf. The IPKA, however, focuses by its terms on ``physical custody''
of the child, and Mei Mei was, by order of the juvenile court,
physically placed in my home at that time. Incredibly, the Cleveland
U.S. Attorney adopted the very same position regarding Mei Mei's
physical custody that was taken by Ms. Chen in our writ of habeas
action--a position the Ohio Eighth District Court of Appeals flatly
rejected. As I mentioned, the Ohio Court of Appeals found in the habeas
action that physical custody of Mei Mei was vested in me, and that,
under Ohio law, I was an appropriate entity to seek her return. The
Ohio Supreme Court refused to vacate the Court of Appeals' decision to
that effect. In any event, the IPKA makes it a crime to ``remov[e] a
child'' and to ``retain[] a child'' outside the U.S. See 18 U.S.C.
Sec. 1204(a). Assuming arguendo that I was not wronged by the removal
of Mei Mei by Chen, I clearly was wronged under the Act, and continue
to be wronged, by Ms. Chen's continued unlawful retention of Mei Mei.
As stated by the Court of Appeals for the Eighth District, the experts
agreed that Mei Mei ``was primarily bonded to [me], and the longer she
remained captive in China, the more likely it would be that the child
would suffer emotional harm from the separation.''
Finally, the Cleveland USAO ignored the fact that Mei Mei, too, is
a victim here, with her own right to have the laws enforced on her
behalf, and that I, as legal custodian of Mei Mei, have the legal right
to seek enforcement of the laws on Mei Mei's behalf. As the Eighth
District Court of Appeals stated, ``The best that can be said in this
case is that the child welfare system failed miserably to protect the
best interests of the child. [Laura Hong's] understandable bond with
the child placed her in the position of being an advocate for the child
when those who had the responsibility failed to execute that
responsibility.''
Along these same lines, the Cleveland USAO made repeated references
in the letter to Mei Mei as Chen's ``own child'' and ``her child'' that
are deeply disturbing. Under Ohio law--and the Cleveland USAO
acknowledges that ``[m]atters of family law are historically the
province of state and local governments''--Chen has (and at the time of
the abduction had) no parental rights whatsoever to Mei Mei, and Mei
Mei is not ``her child.'' Under Ohio law, the accident of birth should
no more subject Mei Mei to abduction by a birth parent than it would
any of the tens of thousands of adopted children in Ohio. The Cleveland
USAO's refusal to accept this was, in essence, a refusal to recognize
the authority of Ohio's legislature to legislate, and its courts to
adjudicate, that those who repeatedly manifest a lack of fitness to
parent will forfeit their parental rights.
Finally, contrary to the Cleveland U.S. Attorney's suggestion, Mei
Mei is not a ``dual citizen of the PRC and the United States.'' Under
Chinese law, because Mei Mei was born in the U.S. to a U.S. Permanent
Resident, Mei Mei, notwithstanding Chen's Chinese nationality, is
barred from obtaining Chinese citizenship.
The Cleveland U.S. Attorney was correct, though, in one respect.
There are no guarantees that an indictment of Chen under the IPKA will
bring Mei Mei home. But Congress made a determination--with which
President Clinton agreed \4\--that an indictment under the IPKA is an
appropriate and useful tool in the efforts to bring internationally
abducted American children home. And while the Cleveland USAO played
word games with what the State Department told her office, she did not
deny in her letter that she was informed of the State Department's
opinion that an indictment of Chen would be helpful in the effort to
bring Mei Mei home.
---------------------------------------------------------------------------
\4\ In his December 2, 1993 Statement upon signing the IPKA,
President Clinton made clear that, while the civil remedies of the
Hague Convention should be utilized where available, where they are not
available (as here), a criminal indictment under the IPKA is
appropriate.
---------------------------------------------------------------------------
Whether the Cleveland U.S. Attorney and the Department of Justice
acknowledge it or not, they knowingly erected a barrier to the return
home of Mei Mei, a young American citizen, by their refusal to enforce
the laws of Ohio and the United States on Mei Mei's behalf, and
therefore inflicted on Mei Mei a grave injustice that continues to this
day. As stated by the Eighth District Court of Appeals, ``With that
thought, the court could reasonably look to [Laura Hong] as the only
remaining defender of the child's bests interests.''
We ask the Subcommittee to do what it can to help Mei Mei, to
champion her interests as well, and to ensure that no other children
suffer Mei Mei's fate because of a U.S. Attorney's unwillingness to
enforce the laws as written.
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Senator DeWine. Mr. Lebeau.
STATEMENT OF JOHN J. LEBEAU, JR.
Mr. Lebeau. I would like to thank Senator Thurmond and
Senator DeWine and distinguished members of the committee for
allowing me to testify here today. I commend your commitment to
exploring the devastating problems we are here to address, and
I humbly request that you not let go of that commitment until
we all achieve not just the necessary level of activity, but
more importantly, fully acceptable level of accomplishment. So
far, we have a long way to go.
Forgive me, gentlemen, if my testimony sounds somewhat
emotional. However, I am sure you agree this is a very
emotional issue for thousands of American families.
The record of the Justice Department's response to
international parental kidnaping speaks for itself. Estimates
show there were 10,000 cases of international parental child
abduction at the time the International Parental Kidnaping
Crime Act was passed on December 2, 1993. The record shows
arrest warrants have been issued in less than 1 percent of
those cases and all cases since then.
According to the National Center for Missing and Exploited
Children, my case is perhaps the only one with both an arrest
and U.S. extradition upheld. To achieve this virtually unheard
of outcome, Senator, it took my own Herculean efforts, the
noble and unceasing fight of a sympathetic Congressional aide,
a miraculous stroke of luck or two, lots of prayers, and lots
of family support, every dollar I had and could borrow, and the
threat of legal action against the U.S. Government. This
testimony is about why more than 9,999 other left-behind
parents have not been able to do the same. It is on their
behalf that I appear before you today.
Mr. Chairman and members of the committee, I worked
obsessively for 2\1/2\ years, traveled 5,000 miles to Northern
Europe 6 times, and spent over $160,000 in order to protect the
endangered well-being of my very young children. I entered for
2\1/2\ years a virtual netherworld of multinational foreign
bureaucracies where the law changes at every border and often
years of legal proceedings produce nothing but frustration.
However, in all that experience, never did I encounter more
hostility, ignorance, incompetence, deceit, and blatant
unwillingness to protect our youngest American citizens as I
did with my experience with the Department of Justice.
Characteristic of their unwillingness to respond to the crime
of international parental kidnaping at the demand of the U.S.
Attorney's Office, I placed false trust in a foreign civil
process called the Hague Convention on the civil aspects of
international child abduction that by design alone does not and
will not work efficiently to protect American citizens. Though
they demanded I follow it, never was I informed by the U.S.
Attorney's Office that this foreign civil process since its
creation had been successful in returning less than 30 percent
of internationally abducted children. Even to this day, DOJ has
failed to reveal the facts, as evidenced by the blue ribbon
April 1999 report to the Attorney General. With typical
bureaucratic flair and wasted resources, this report is a pre-
package with no real substance, and that is to the direct
detriment of countless lost American children.
For me, the convention-mandated 6-week Hague process took
14 grueling months, precious time that could have been more
productively spent by pursuing additional remedies for the
return of my children. After 14 months, not only were my
children not returned, worse yet, I lost all traces of them
completely due to the unenforceability, thus worthlessness, of
a Danish high court order of return. Following that order, it
took the U.S. Attorney's Office 6 months to take action, and
then only as a result of my threats of legal action against
them for blatant violations of the National Child Search
Assistance Act of 1990.
The U.S. Attorney's Office's demand that I initially pursue
only civil remedies was not only very poor advice, but more
importantly, it directly endangered the well-being of my
children. The U.S. Attorney's Office's reason for not taking my
case subsequent to my award of custody was based on the false
statement, ``By law, we are not able to pursue criminal
remedies against your wife until you have completely exhausted
your civil remedies, both in the United States and abroad.''
What they were undoubtedly referring to, I would later learn,
is the sense of Congress resolution included in the President's
signed statement of the International Parental Kidnaping Crime
Act, and in no way can this resolution be considered law.
Even overlooking their inability to give----
Senator DeWine. So they were incorrect?
Mr. Lebeau. I am sorry, sir.
Senator DeWine. They were incorrect?
Mr. Lebeau. Yes, sir. Even overlooking their inability to
give proper advice in this critical situation, I find it
absolutely inexcusable that in doing so, the U.S. Attorney's
Office conveniently designed their own law to accommodate their
disinterest. To me, that comment above and the theory behind it
is akin to advising someone not to walk and chew gum at the
same time. Certainly, it might be nice to sit down and chew,
but not while you are waiting years for your children to come
home.
Now, in the interest of time, ladies and gentlemen, I not
only invite you but I beseech you to read this testimony that I
have prepared. As I do, may I leave you with this. Even apart
from my own horrific experience, the facts speak miserably for
themselves and the harsh reality is that the U.S. Government is
successful in securing the return of less than 30 percent of
internationally kidnaped children. It is only on that basis
alone that I need make my appeal.
We must, for the sake of our most precious resource, take
the sheer facts and statistics as a clear signal that we, as
Americans, are not doing enough to protect our youngest
citizens. Clearly, we must become more proactive.
Personally, though, it has taken me many years to learn so
well a very important lesson. There is a big difference between
activity and accomplishment. So, yes, this is a call for
action, but more importantly, there is a call for results.
Thank you, Senator DeWine, for allowing me to appear before the
subcommittee.
Senator DeWine. Thank you very much.
[The prepared statement of Mr. Lebeau follows:]
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Senator DeWine. Mr. Stein.
STATEMENT OF CRAIG E. STEIN
Mr. Stein. Thank you, Senator DeWine. It is a privilege and
an honor to be asked to speak to you and your committee today
concerning some of my experiences with the implementation of
the Hague Convention on international child abductions. I
understand that your committee is especially interested in the
interface between the Justice Department and the individuals
most affected by these unfortunate cases, the left-behind
parent. I believe this is a very important matter that needs
immediate attention and I am pleased that the Oversight
Subcommittee is reviewing this issue.
So that you will understand my perspective, unlike Mr.
Lebeau and Ms. Hong and Lady Meyer, I have my children at home.
Of course, Mr. Lebeau has his back now, too, but I am an
attorney in private practice. I have a background in
international law and have taken on a number of these child
abduction cases, both incoming and outgoing, usually on a pro
bono basis, over the past few years. No two cases are alike.
The main difference is depending largely upon the country to
which the child has abducted from or to and the attitude of the
absconding parent.
Although the laws implementing this aspect of the Hague
Convention have now been on the books for several years, you
should understand that this treaty is still a work in progress,
on the civil side, at least. Judges in the United States and
the private bar are continually getting experience with this
treaty. However, its acceptance as a tool to affect the speedy
return of a kidnaped child can no longer be denied. It may be
imperfect, but it is helping.
Nevertheless, those of us who take on these cases can state
with certainty that while the civil aspects of this law are
being refined and utilized on an increasing basis, the criminal
side of the enabling legislation has not been used to its
fullest potential. Indeed, I can state with absolute certainty
that it is the feeling among attorneys familiar with these
cases that it is not even worth the effort to bring these cases
to the attention of the Federal law enforcement agencies as no
useful action will be undertaken. I am sorry to see that the
first panel has already left the hearing room. Obviously, the
testimony preceding me in this sort of contradicts some of the
perceptions, or the gap in perceptions that we have here in
dealing with these issues.
Frankly, this is unfortunate. As you have heard through Mr.
Lebeau's testimony, one of the most helpful tools he had in his
effort--or in his written statement--to have his children
returned was the pending indictment he successfully obtained
against the absconding mother, but not without great
difficulty. Indeed, from my experience, it is my opinion that
having an indictment pending in the United States tends at a
minimum to catch the attention of those authorities overseas
who are charged with enforcing the Hague Convention in their
respective countries.
I do not want to belabor problems individuals have faced in
getting the appropriate Federal authorities to institute
criminal proceedings in these matters. Rather, I would like to
spend the few minutes I have in a constructive manner. In
short, here are what I perceive to be the problems.
Number one, there does not seem to be a designated person,
either in Washington or in those U.S. attorneys' offices which
appear to experience a greater proportion of these cases, who
is specifically charged with enforcing IPKA and other Hague
Convention issues. If there is a person in charge, those of us
who need to know who that person is are in the dark.
Senator DeWine. You have not found him yet, then, or her?
Mr. Stein. We are still looking.
Senator DeWine. You are still looking?
Mr. Stein. We are still looking, Senator. I am glad to hear
the Justice Department is beginning some training programs. As
far as we know, there has been little or no training either
within Justice or the respective U.S. attorneys' offices about
the procedures that should be implemented in these matters.
Three, as far as we can ascertain, or my colleagues can
ascertain, we are unaware of any written guidelines in the
Justice Department or various U.S. attorneys' offices to handle
these types of matters.
Number four, the review and handling of these cases appears
to be accomplished on an ad hoc manner. I think Ms. Hong's
testimony really points that out. There is no discernable
procedure or philosophy in carrying out the relevant statutes.
Now, why do these problems persist? In my opinion, there
are a variety of factors that come into play, Senator. First,
there is a natural reluctance of a prosecutor to take cases
from the public rather than a law enforcement agency. Unlike
other crimes, however, the most valuable resource in parental
kidnaping cases is the victim, the left-behind parent.
Therefore, this natural hesitancy must be addressed and
overcome.
Second, because there is no one individual either at
Justice or at specific U.S. attorneys' offices responsible for
these matters, or accountable, for that matter, there is no
coordinating effort, no one person to look for for assistance,
and no centralized training program.
Third, and I think this is underscored by the testimony
this morning in panel number one and on page 35 of the report
that has been referred to quite often today, there is a
perception that the criminal enforcement mechanisms do not
assist in bringing back children. However, there is really no
empirical evidence to substantiate this theory because, thus
far, the criminal laws have just not been enforced.
I would argue that indictments should be brought in most
instances. It should be the rule, not the exception, and here I
agree with you, Senator DeWine. Bring the indictments and let
us see what happens. Depending on the circumstances, after the
indictment is brought, then we will see how we will handle the
criminal charges.
Finally, what should be done to address these problems? I
believe the answers are quite simple. First, the Department of
Justice should designate an individual to oversee these cases
and name that individual. Because the number of cases is on the
rise, I believe it should be a full-time position.
Second, persons should establish a training program for
assistant U.S. attorneys in those districts that are
experiencing more than a random case of international parental
kidnaping.
Third, in each such district, U.S. attorneys should be
required to designate on AUSA in his or her office to handle
these applications. It should be clearly understood, however,
and I must emphasize, that the policy of the Justice Department
should be that the efficacy of bringing criminal proceedings in
these matters is not a matter for debate that would sideline
these cases. Rather, we should explore the efficacy issue after
several years of experience that we gain in bringing these
indictments.
Thank you for your time and attention, Senator. I would
welcome any questions you might have concerning these matters.
Senator DeWine. Thank you very much.
[The prepared statement of Mr. Stein follows:]
Prepared Statement of Craig Stein
Mr. Chairman, it is a privilege and an honor to be asked to speak
to you and your committee today concerning some of my experiences with
the implementation of the Hague Convention on International Child
Abductions. I understand that your Committee is especially interested
in the interface between the Justice Department and the individuals
most effected by these unfortunate cases, the left behind parent. I
believe this is a very important matter that needs immediate attention
and I am pleased that your Oversight Committee is reviewing this issue.
So that you will understand my perspective on these matters, I am
an attorney in private practice. I have a background in international
law and have taken on a number of these child abduction cases, both
incoming and outgoing, usually on a pro bono basis, over the past few
years. No two cases are alike. The main differences depend largely upon
the country to which the child has been abducted from or to, and the
attitude of the absconding parent. Although the laws implementing this
aspect of the Hague Convention have now been on the books for several
years, you should understand that this Treaty is still a work in
progress. Judges in the United States and the private bar are
continually gaining experience with this Treaty. However, its
acceptance, as a tool to effect a speedy return of a kidnaped child can
no longer be denied.
Nevertheless, those of us who take on these cases can state with
certainty that while the civil aspects of this law are being refined
and utilized on an increasing basis, the criminal side of the enabling
legislation has not been used to its fullest potential. Indeed, I can
state with certainty that it is the feeling among attorneys familiar
with these cases that it is not worth the effort to even bring these
cases to the attention of the federal law enforcement agencies as no
useful action will be undertaken.
Frankly, this is unfortunate. As you have heard through Mr.
LeBeau's testimony, one of the most helpful tools he had in his effort
to have his children returned was the pending indictment against the
absconding mother. Indeed, from my experience, it is my opinion that
having an indictment pending in the United States tends, at a minimum,
to catch the attention of those authorities overseas who are charged
with enforcing the Hague Convention in their respective countries.
I do not want to belabor the problems individuals have faced in
getting the appropriate federal authorities to institute criminal
proceedings in these matters. Rather, I would like to spend the few
minutes I have in a constructive manner. In short, here are what I
perceive to be the problems. (1) There is no one designated either in
Washington or in those U.S. Attorney's offices which appear to
experience a greater proportion of these cases who is specifically
charged with enforcing Hague Child Abduction proceedings. If there is a
person in charge, those of us who need to know who that person might be
are in the dark. (2) There has been little or no training within
Justice or the respective U.S. Attorneys' offices about the procedures
that should be implemented in these matters. (3) There are no written
guidelines in the Justice Department or the various U.S. Attorney's
offices to handle these matters. (4) The review and handling of these
cases appears to be accomplished in an ad hoc manner. There is no
discernable procedure or philosophy in carrying out the relevant
statue.
Why do these problems persist? In my opinion, there are a variety
of factors that come into play. First, there is a natural reluctance of
a prosecutor to take cases from ``the public'' rather than a law
enforcement agency. Unlike other crimes, however, the most valuable
resource in parental kidnaping cases is the left behind parent.
Therefore, this hesitancy must be addressed and overcome. Second,
because no one individual at Justice is responsible for these matters
(or accountable for that matter) there is no coordinating effort, no
one person to look to for assistance and no centralized training
program. Third, there is a perception that the criminal enforcement
mechanisms do not assist in bringing back children. However, there is
no empirical evidence to substantiate this theory because, thus far,
the criminal laws have not been enforced. I would argue that
indictments should be brought in most instances. Then, depending on the
circumstances, how that indictment is eventually handled or resolved
will depend upon the cooperation of the absconding parent in returning
and the sanctuary country in cooperating with our efforts to have
children returned.
Finally, what should be done to address these problems? I believe
the answers are quite simple. Indeed, I came here today not to
criticize any individual or agency, but rather to help fix what can be
an important tool in the efforts to return missing children. First, The
Department of Justice should designate an individual to oversee these
cases. Because the number of cases is on the rise, I believe this
should be a full time position. Second, this person should also
establish a training program for Assistant United States Attorneys in
those Districts that are experiencing more than a random case of
international parental kidnaping. Third, in each such District, the
United States Attorney should be required to designate an AUSA in his
or her office to handle these applications. It should clearly be
understood, however, and therefore the policy of the Justice Department
that the efficacy of bringing criminal proceedings in these matters is
not a matter for debate that would sideline these cases. Rather, we
should explore the efficacy issue after a year or two of experience is
gained in bringing indictments and prosecutions.
I have not even addressed the follow-through, or lack thereof, in
prosecuting these matters. Perhaps that is a subject for another day.
For now, it is enough if, through your committee and these hearings, we
can work together with the Department of Justice to insure that the
criminal aspects of the law implementing the Hague Convention on
International Child Abduction are vigorously enforced.
Thank you for your time and attention. I would welcome any
questions you might have concerning these matters.
Senator DeWine. Mr. Allen.
STATEMENT OF ERNIE ALLEN
Mr. Allen. Thank you, Senator. I remember vividly almost a
decade ago having the opportunity to testify before the
counterpart committee in the House in support of your efforts
to make international parental kidnaping a crime. In fact, I
stood with you at a press conference shortly thereafter in
which you advocated that that step be taken. I think it was the
right step then and I think it is the right law now. Yet many
of the same obstacles that we talked about a decade ago are
still with us today.
Perhaps first and foremost, we still face the attitude
among policy makers and many others that this is a private
legal matter. This belittles the fact that it is a crime in
every State, as well as a Federal crime. We believe that
central to this problem is the convergence of civil and
criminal law, and it is our view that we should use all
existing legal remedies in the most creative and effective way
possible to serve that dual purpose.
Warrants should be issued when the facts support issuance.
Then every effort should be made to use those warrants in
conjunction with other efforts--diplomatic, family
negotiations, and the use of intermediaries. We think it is
appropriate to issue far more Federal warrants in these cases.
A Federal warrant speaks for the Nation in a way that a State
warrant never can, and it says that the country cares that this
law has been broken and that we want to exercise our lawful
right to protect child victims.
In addition, we believe that it strengthens the hand of
diplomatic personnel when negotiating for the return of these
children. We now have Federal prosecution for flight to avoid
payment of child support, an implicit recognition of the
Federal Government's appropriate role in issues of child
protection.
At that hearing 9 years ago, the Justice Department
testified that without meaningful prosecutive activity, the
deterrent value of such legislation would be minimal. We agree.
And while we applaud the intensified attention to this problem
among the key Federal agencies and we work with the State
Department and the Justice Department in partnership on this
effort, in our judgment, we have not yet reached the point of
meaningful prosecutive activity. Thirteen convictions in 5
years is not meaningful prosecutive activity.
We believe that the International Parental Kidnaping Crime
Act is a necessary tool, and we believe that we cannot rely
solely on UFAP warrants for three basic reasons.
First of all, as has been noted earlier, some States simply
do not issue warrants because they cannot afford extradition.
Second, the International Parental Kidnaping Crime Act is
written far more expansively than many State statutes, allowing
many more cases to fall within its framework.
And third, it provides a strong statement from the U.S.
Government that can be used as a negotiating tool.
In my written testimony, I have cited a number of cases. I
would just like to briefly mention two that I think illustrate
the fact that the threat of criminal sanctions and criminal
warrants work in these cases, if utilized.
Just Monday of this week, a 6-year-old child was recovered
from the Philippines. Abducted by a court order, she had
traveled to the Philippines for visitation with her father, who
decided then to resist, that he would not honor the court order
and refused to return the little girl and her 12-year-old
brother. About a month ago, the FBI obtained a felony warrant
for the father. We at the center worked with the FBI and the
State Department, which resulted in the return of the child to
the United States, the arrest of the father, and criminal
actions against him are still being pursued.
In addition, another case involving Taiwan, a non-custodial
father who had abducted his 1-year-old daughter after an
altercation with the mother. The father took the child first to
another State and eventually left the country and took the
child to Taiwan. The father was named in a Federal warrant. His
passport was revoked. He was arrested by Taiwanese law
enforcement and returned to the United States by the U.S.
Marshal. The use of law enforcement resources and criminal
sanctions in these cases works, but it has to be used.
Let me say just a word about the civil side. Lady Meyer and
others have talked about the Hague Convention. Let me say that
we support the Hague Convention as an effort to create a more
uniform, consistent international process. In 1995, the State
Department and the Justice Department asked the center to take
a lead role in handling incoming cases, children abducted to
the United States under the Hague. That was done because of the
concern of foreign governments that we do more in ensuring
comity and cooperation.
We are pleased that since 1995, our resolution rate in
incoming cases has now climbed to 89 percent, and as a result
of the report that has been mentioned, we have been asked to
expand our role on outgoing cases.
However, there are some troubling problems with the Hague.
It is slow. It is cumbersome. In many cases, it is hindered by
parochial application and national prejudices. There is a lack
of uniformity from country to country. There are too many
courts hearing cases, too few judges that really understand the
Hague. And Lady Meyer mentioned the exceptions under article
13. The reality is, in some countries, the exceptions have
become the rule. Access for left-behind parents has become a
nightmare for enforcement.
It is expensive. If you do not have the ability to generate
the kinds of resources that John Lebeau talked about, the
reality is you are probably not going to see your child again.
There is inadequate research and limited involvement of
international law enforcement.
We believe it is imperative that we work to create greater
consistency in the application of the Hague and that, not just
for Hague countries but particularly for those many countries
that are not signatories to the Hague, that we use the law
enforcement resources and the ability to use the International
Parental Kidnaping Crime Act as leverage and as a tool to bring
children home. There needs to be a strong policy statement by
all affected agencies and departments that this is a priority,
that we are going to use the resources available to help these
searching families. Thank you, Mr. Chairman.
[The prepared statement of Mr. Allen follows:]
Prepared Statement of Ernie Allen
Mr. Chairman and Members of the Committee, as President of the
National Center for Missing and Exploited Children, I appreciate the
opportunity to appear before you today on an issue of great importance
to children and parents across the nation. Nearly a decade ago I had
the pleasure to testify before the Subcommittee on Criminal Justice of
the House Judiciary Committee in support of making international child
abduction a federal crime. I still remember vividly standing with then-
Congressman Mike DeWine at a press conference shortly thereafter in
support of that step.
That bill, the International Parental Kidnapping Crime Act became
law and has produced positive change. Yet, there is much more to do.
And, unfortunately, many of the obstacles to the return of
internationally abducted children identified at that hearing a decade
ago are still with us today.
By way of background, I would like to explain the role of the
National Center for Missing and Exploited Children (NCMEC) in this
issue. As you know, NCMEC is a private, non-profit organization,
working in partnership with the U.S. Department of Justice to find and
recover missing children and prevent child victimization. NCMEC is a
public-private partnership, receiving half of its operating budget from
Congress and half from the private sector. We are granted access to
unique tools and resources, including online access to the FBI's
National Crime Information Center (NCIC) and the National Law
Enforcement Telecommunications System (NLETS). Our public funding
through the Office of Juvenile Justice and Delinquency Prevention
supports the operation of a national toll-free hotline and our core
functions and services as the national resource center and
clearinghouse on missing and exploited children.
Since we opened our doors in 1984, NCMEC has worked cases of
international child abduction. Nothing in our Congressional mandate
said that we were to cease efforts to locate missing U.S. children when
they crossed a national border. Thus, while lacking the kind of direct
mandate and support we have had on domestic cases, we have tried
nonetheless to assist searching U.S. parents wherever their child might
have been taken.
In 1995 that role expanded. At the request of the State Department
and the Justice Department, we entered into a formal partnership to
handle cases under the Hague Convention on the Civil Aspects of
International Child Abduction (Hague Convention) when children are
abducted into the United States, The underlying premise for that
request was that in order to ensure full comity and cooperation from
foreign governments in our search for U.S. children, we needed to do
more to locate and return their children brought to the United States.
We were willing to undertake this new task, and are proud to report
that since 1995 our resolution rate in those cases has climbed to 89
percent. NCMEC has received thanks and commendations from governments
around the world. Nonetheless, this unique role of acting as the agent
of the State Department on ``incoming'' Hague cases has presented a
challenge and dilemma for NCMEC. While the underlying premise was to
build stronger international cooperation on all missing child cases, it
could appear that, acting on behalf of the U.S. government, NCMEC is
doing more for foreign families than for U.S. families.
Thus, recently, as a result of the Attorney General's Task Force on
this issue, NCMEC, as part of its current agreement with the State
Department, has been asked to expand its role in ``outgoing'' cases as
well. Specifically, the expanded role we have been asked to play
centers around support services to both parents and the State
Department. NCMEC will continue to provide technical assistance and
support from our individual case managers, but have also hired a
clinical social worker to identify existing counseling resources in the
field and help develop protocols for providing assistance to parents.
In addition to emotional support, NCMEC has agreed to assist in
identifying legal resources for U.S. parents faced with fighting legal
battles both here and abroad. We will also assist parents to collect
the information and prepare the paperwork necessary to submit their
Hague applications to the State Department.
Thus, NCMEC is doing more and there is greater attention on this
problem than ever before. However, a primary challenge in responding
effectively is the focus by so many policy makers and officials on the
civil element of the problem, frequently characterizing international
child abduction as a ``private legal matter.'' This perception
belittles the fact that international family abduction is a crime in
every state as well as a federal crime.
It also fails to fully acknowledge the harmful effects of abduction
on children. Family abductions are a result of high-conflict
situations. A look at the newspaper in any major city reveals cases
that have resulted in suicide and/or homicide. Even at its most benign,
Professor Geoff Grief's research has shown that ``some children who
were recovered were described by the recovering parents as having been
physically abused (23 percent), sexually abused (7 percent), and both
physically and sexually abused (5 percent) * * * Overall functioning
was believed to have declined in more than half of the children between
the time they were taken and the time they were returned to the
searching parent * * * With time, a majority (approximately 66 percent)
of the children had been seen for psychological counseling'' (Grief,
Impact on Children of International Abduction, p. 3-4).
Assisting with abductions into and out of the U.S. has put NCMEC in
a unique and often frustrating position of seeing firsthand how useful
U.S. laws and procedures have been to foreign nationals while being
frustrated in our attempts to help U.S. parents in their struggle to
find resources to return their children from abroad.
At the time of the 1989 hearing, I expressed NCMEC's support for
the creation of a new tool to resolve cases of international child
abduction, the International Parental Kidnapping Crime Act. Today, I am
here to express not only NCMEC's continued support of that tool, but to
urge that existing federal laws and resources be utilized to the
greatest extent possible to bring more abducted children home.
NCMEC is currently working on 697 active cases of children abducted
internationally. Yet, recent testimony before the House Committee of
Foreign Relations from the General Accounting Office indicated that
just 13 persons have been convicted of international parental kidnaping
since 1993. From this, it is clear that we are utilizing the force and
sanctions of the International Parental Kidnapping Crime Act on only a
small percentage of the total number of international abduction cases.
Many changes that have occurred since the 1989 hearing and the 1993
enactment of the International Parental Kidnapping Crime act reinforce
this necessity. The first, and perhaps most important change is the
increase in the number of cases. NCMEC began keeping track of
international abductions separate from domestic abductions in 1995. The
number of international cases worked by NCMEC since 1996 (the first
year for which we have complete data) has increased 120 percent. We
have more complete data on family abduction generally. Indeed, the
number of family abductions reported to NCMEC has increased each year
since 1994 and show a 30.4 percent increase over an eight-year period
from 1990-1998. Given that, according to a study of family abduction
cases by Grief and Hegar, as many as one-fifth of family abduction
cases go international, these caseloads increase in tandem.
With increases in the number of international marriages, divorces,
we have every reason to believe that these cases will continue to
increase. Better research is needed, not only to quantify the problem,
but to determine the practical outcomes of cases. Law enforcement and
the public need better guidance on the best ways to solve these cases.
NCMEC is currently undertaking, with the assistance of the State
Department, a study of the outcomes of abduction cases to select Hague
Convention countries. Our goal is to look not only at the court
decisions in these Hague hearings, but also to identify the practical
outcomes of these cases--was the child ever returned?, does the left-
behind parent currently have any visitation with the child? Similar
information needs to be collected and analyzed for all cases--including
those with a primarily criminal focus.
When the State Department requested that NCMEC process cases in
which children are abducted into the United States under the Hague
Convention, the theory was that if the United States improved its track
record of returning children under the Convention, other countries
would follow suit and return children abducted from the U.S., Indeed,
the transcript of the 1989 House hearing is filled with references to
the success of the Hague Convention, then in its infancy. In the years
since, we have realized that the Hague Convention has not turned out to
be the panacea we all hoped. Interestingly, the House hearing was held
prior to the ratification of the Convention by Germany and Mexico--two
countries regarding which there has been most concern about inadequate
implementation of the treaty.
We support the purpose and intent of the Hague Convention, and it
is a positive, compelling resource in theory. Yet, there are troubling
problems in practice:
While speed is essential in these cases, in most countries,
the processes are slow, cumbersome, complex, and bureaucratic.
In many cases successful implementation is hindered by
parochial applications of the treaty and national prejudices.
There is significant lack of uniformity from country to
country.
There are too many courts hearing cases, and in most
instances, few cases per court. Thus, many judges lack
knowledge and experience on Hague cases.
There is a lack of adequate training for judges.
Key exceptions provided with the Hague Convention have
become the rule, and are frequently used as justifications for
the non-return of the child. Perhaps the best example is
Article 13, ``Risk of harm to the Child'' and the ability of
judges to take into account the wished of very young children.
It is virtually impossible to enforce access rights for
parents under Article 21 of the Convention.
Parents need significant personal financial resources in
order to obtain legal representation and proceed under the
Convention. Yet, there is little help for parents who lack
financial resources.
There is limited involvement of international law
enforcement due to the civil nature of the process.
There is inadequate research on the psychological impacts of
international child abduction on children, and inadequate data
on the Hague process.
When the treaty is not working, and certainly in the many cases
involving children abducted to non-Hague signatory countries, IPKCA
must fill in the blanks by providing law enforcement involvement and
international warrants to recover children through the criminal
process. Our support of the federal recognition of child abduction as a
criminal offense comes out of our 15 years of experience working on
domestic family abduction cases.
In this country's own history of family abduction, the trend has
been toward the recognition of parental kidnaping as a crime. Every
state in the U.S. considers family abduction a crime. We continue to
encourage individual states to amend their laws to ensure that pre-
decree abductions fall within their statutes as well as interference
with visitation. The Missing Children Act of 1982 required, for the
first time, that law enforcement enter missing children into the
National Crime Information Center (NCIC) even if the abductor has not
been charged with a crime--recognizing law enforcement's obligation to
assist in the location of a missing child prior to the issuance of
warrants. Best practices indicate that criminal warrants should be
used--criminal warrants are extremely useful and may be necessary when
there is a need to locate the abductor and, therefore, the child.
NCMEC administers a grant from the Office of Victims of Crime that
provides financial assistance to reunite internationally-abducted
children with their searching parent. In many of these cases, the
successful resolution has depended upon a Federal warrant and the
active intervention of Federal law enforcement.
The following cases are examples of the positive effects of
criminal warrants:
Phillipines: A six-year-old child, `Jennifer' was recovered
this Monday (10/25/99) from the Philippines and returned to her
custodial mother in the United States. In this case `Jennifer'
and her twelve-year-old brother, `Michael' were allowed per
court order to travel to the Philippines for visitation with
their father. The court ordered that `Jennifer' be returned to
her mother in July, whereas `Michael' was to remain with his
father until mid-August. As the time for `Jennifer's' return
approached, the father decided he would not honor the court
order. `Jennifer' was reported missing and entered into NCIC.
No warrants were issued at the time because the various law
enforcement agencies believed the father would return her along
with her brother in August. When `Michael' was told he would
not be, allowed to return to the U.S., he objected. His
defiance ultimately lead to his voluntary return to the U.S. in
mid-August. One month later, in mid-September, the FBI obtained
a felony warrant for the father. NCMEC coordinated with the FBI
and the State Department to pick up the child at the same time
as the planned arrest of the abducting father on federal
charges. The child was picked up from school and returned to
the United States. Criminal action against the abducting father
is still being pursued.
Lebanon: `Joseph' was abducted by his non-custodial father
on November 13, 1992 from Massachusetts at the age of six. The
child was later located in Lebanon. In 1993, the abducting
father returned to the United States without the child. The
father was named in a felony warrant and ordered by the probate
court of Massachusetts to return the child to the United
States. After refusing, the father was held in contempt and
incarcerated. In May of 1997, the father and his family agreed
to return the child to the mother on the condition of the
father's release. The child was reunited with the mother in
February 1998. The father was released from jail and deported
to Lebanon.
Scotland: The father was awarded full custody of the child
by the State of Pennsylvania. The mother abducted the children
taking them to Scotland. She was named in a State Parental
Kidnapping and UFAP warrant. Upon being located, the mother was
apprehended and transported to London for criminal proceedings
and to await extradition. The father was reunited with the
children on September 3, 1998.
Taiwan: The non-custodial father abducted one-year-old
`Nina' after a physical altercation with the mother. Due to the
husband's abusive and intimidating behavior the mother was
unable to stop the father from taking the child first to
another state in the U.S. and eventually Taiwan. The father was
named in a federal Warrant. The father's passport was revoked
and he was arrested by Taiwanese Law Enforcement and turned
over to U.S. Marshals who proceeded to extradite him to the
United States. He is currently awaiting trial on both federal
and state charges.
We are unable to provide a fuller picture of the uses of IPKCA
because of the small number of indictments. Indeed, it is hard to draw
conclusions from the two prosecutions under the law--one did not result
in the return of the children, but has provided excellent case law for
future prosecutions and the second is still on-going. We believe that
IPKCA is a necessary tool--we cannot rely solely on Federal involvement
through an Unlawful Flight to Avoid Prosecution warrant or UFAP for
three reasons:
(1) Some states do not issue warrants because they cannot
afford extradition.
(2) IPKCA is written more expansively than many state
statutes--allowing more cases to fall within its framework.
(3) It provides a strong statement from the U.S. government
that can be used as a negotiating tool.
It is abundantly clear that these cases involve a convergence of
civil and criminal law We should use our existing legal remedies in the
most creative and effective way possible to serve that dual purpose.
Warrants should be issued when the facts support issuance. Then every
effort should be made to use these warrants in conjunction with other
efforts--diplomatic efforts, family negotiations, and the use of
intermediaries are among some of the most useful. A federal warrant
speaks for the nation in a way that a state warrant never can. It says
the U.S. cares that this law has been broken and we want to exercise
our lawful right to protect the child victim.
While much has changed in the past 10 years, one fact,
unfortunately, has not--international parental abductions remain among
the most difficult, frustrating, and damaging cases and deserve the
full attention of this committee and others who have taken up this
issue over the past several months. The issue before us is ensuring
that we are using all of the resources of this great nation to protect
our children against the wrongdoing of adults--including their parents.
At the time of IPKCA's enactment, the concern existed that other
countries discounted the U.S. government's commitment to this issue
when we did not consider it serious enough to warrant inclusion in our
Federal Code. I believe that this perception validly remains if we do
not aggressively pursue these warrants as contemplated by Congress, and
strengthen the hand of our diplomatic personnel when negotiating the
return of these children. We now have federal prosecution for flight to
avoid payment of child support--implicit recognition of the federal
government's appropriate role in issues of child protection.
At the hearing nine years ago, the Justice Department testified
that without meaningful prosecutive activity, the deterrent value of
such legislation would be minimal. We agree. While I applaud the
intensified attention to this problem among key federal agencies, in
our judgment we have not reached the point of ``meaningful prosecutive
activity.'' I wholeheartedly encourage the committee to help make our
existing statute as strong as it can be.
In conclusion, I submit the following recommendations to the
Committee for your consideration:
(1) That research be undertaken on the methods used in
successful resolution of international abduction cases.
(2) That there be a strong policy statement to all affected
agencies and departments that the U.S. government should
utilize all available remedies, civil and criminal, to resolve
cases of international child abduction.
(3) That the Justice Department encourage the expeditious
issuance of IPKCA warrants and extradition requests.
(4) That the State Department encourage prompt and active
diplomatic efforts on individual cases, in addition to
addressing broad policy issues.
(5) That reports be prepared on the legal systems of other
countries including a realistic, practical assessment of how
they have responded to Hague applications and criminal warrants
seeking the return of U.S. children.
(6) That we pursue greater uniformity in our state child
abduction statutes to ensure that legal recourse is available
before a custody decree has been issued and when visitation
rights are violated.
(7) That we increase efforts to develop a model for federal
reaction in International Child Abduction cases. The Uniform
Law Commissioners have developed a model (UCCJEA) for civil/
criminal interaction in domestic family abduction cases. The
same needs to be done for international cases.
We are making progress as a nation on this complex, difficult
problem. However, much more needs to be done. A key step is to make
sure that we are making full use of the tools presently available.
Senator DeWine. Let me thank all the panel members very
much. I think you have brought a human face to the tragedy that
we have heard about, and I think you have had some very good
specific suggestions and comments.
Let me maybe start with Mr. Lebeau. What suggestions would
you make for parents who find themselves in the position you
found yourself?
Mr. Lebeau. An excellent question, Senator. I thank you for
asking it, and I do have some explicit suggestions in my
written testimony. To answer your question here today, the
number one thing that absolutely helped me more than any other
was networking with other left-behind parents. Unfortunately,
that is very hard to do because you do not know who they are.
If we had some formal system of putting left-behind parents in
touch with each other so that they may share their ongoing
experiences, I think that would be invaluable. That would save
a lot of time that these parents waste and, consequently, a lot
of money, in helping return their children.
Second, I think, as Mr. Stein, my attorney who was
instrumental in the return of my children from England
approximately a year ago today, I think that there is an
absolute desperate need to have at least one individual, if not
a team of individuals, within Justice that is specifically
trained and on a daily basis works to actively reduce the
numbers of children that are being not only abducted by
illegally retained.
I think, almost above all of those, is the need for
education among U.S. attorneys and Justice Department officials
on all levels. I was absolutely astonished to find that in
handling my case, red notices were not applied for when they
should have been. Requests for provisional arrest applications
were not made in a timely manner, if at all. I do not feel that
this was any one person's animosity against me or even lack of
interest in the issue itself, I just think that due to the
sheer fact that they are not educated and aware of the absolute
atrocities and the level that this problem has risen to.
So I think those three things, as an outset, would be an
excellent start, and where we go from there, hopefully, would
be somewhere quite far away from where we are today, Senator.
Senator DeWine. Your testimony and the testimony of several
of the other witnesses I think clearly points out that the use
of criminal sanctions can be an effective tool. It is absurd, I
think, and again, I share your comments, Mr. Stein, I wish the
Justice Department officials were still here, but I just find
it absolutely absurd, the thought that this really does not
help. They did not say it in so many words, but the attitude
was we are really not sure how effective it is, and I guess we
are not going to know for sure until we start doing it. If you
do it at such a low rate that we are doing it today, you
certainly cannot tell whether it is going to have any effect at
all.
Mr. Lebeau, how did you find Mr. Stein?
Mr. Lebeau. That is an excellent question.
Senator DeWine. That is a serious question. One of the
problems is, how do you know where to go to for help?
Mr. Lebeau. I spent 2\1/2\ years searching for the right
attorney, and after that 2\1/2\ years----
Senator DeWine. I guess you found him.
Mr. Lebeau. Well, I absolutely had the wrong attorney
before I found Mr. Stein. In my desperate attempt to find the
right person, I was in London at the time, last October,
appearing before the Royal High Court of Justice and I realized
that I needed an attorney that could help me far beyond what I
was already receiving from my local attorney in Florida, a
general practice attorney with absolutely no experience in
these types of cases.
Mr. Stein, thank God, was referred to me by the National
Center for Missing and Exploited Children as being the best and
the absolutely most experienced attorney that they knew
handling these issues, and coincidentally, he was in Florida,
as well, so it has been a boon for me. It has been very, very
helpful.
May I add also, Senator, that we do in this courtroom today
have proof that the prosection, or at least the threat of
prosecution of the International Parental Kidnaping Act does
work, and they are sitting there with my father and his wife
and their names are Ruth and Luke Lebeau.
Senator DeWine. Ms. Hong, in your testimony, you state that
you were advised that the Chinese authorities would assist in
Mei Mei's return if you obtained a Federal indictment. Were you
ever told that by the State Department?
Ms. Hong. We were told by the U.S. embassy in Beijing--oh,
sorry, in Guangzhou--that the Chinese authorities would assist,
and we were also told that from several other sources, as well.
Senator DeWine. What assistance has the State Department
provided you as you seek the return of Mei Mei?
Ms. Hong. Absolutely none. The State Department has
consistently maintained that this is a private custody dispute.
I have seen that language in other statements by other
individuals. What I did not understand earlier today, Senator,
was if--obviously, it is a private custody dispute because
there is no criminal indictment. If there was a Federal
criminal indictment, then it would be a public dispute, if you
will.
And yet the woman from the State Department did not seem to
have the opinion that a Federal indictment would work. So,
therefore, she was really washing her hands from my perspective
by saying we do not need a Federal indictment. Therefore, it
will not be a State Department problem. It will be a private
custody matter. So, therefore, I do not have to go to work.
Senator DeWine. And in your case, as well, the issue has
been litigated even on the civil side, though. I mean, this is
not a pending matter. You have testified that you today
technically have, or you do have by the courts in Ohio, custody
of this little girl, right?
Ms. Hong. Absolutely, Senator. That has gone through the
trial court, through the court of appeals, and the Supreme
Court, as well, both on a habeas corpus action and on a regular
custody action.
Senator DeWine. Mr. Stein, I think your suggestion that
there has to be someone in the Justice Department who is
focused on this, I think is absolutely correct. You have to
have someone who wakes up every day and says, this is what I
do. You have to have someone in every U.S. attorney's office--
it may not be something that comes in every day, but you have
to have someone who is designated as the person who is going to
deal with that, just as U.S. attorneys do it for other areas,
as well. It makes the whole area of training, it seems to me, a
lot simpler. You have one person for every U.S. attorney's
office. They get the training. We do not have to have everybody
understand it, but somebody has to understand it. So these are
things, it seems to me--I mean, if I look at your written
testimony, these are very practical things that could be done
and it would not be done with very great expense.
Mr. Stein. Senator DeWine, like you said, it does not take
a rocket scientist. I do not even think that the legal issues
under the Hague, as we have been working them in the United
States, or the criminal issues, are that complex. It is pretty
straightforward stuff. I mean, they took the kid or they did
not take the kid. Did they do it illegally? Getting an
indictment is not that difficult to do in those situations. You
have the facts in front of you and what prosecutorial
discretion is being weighed. We need the tool. Go get the
indictment, and as we proceed forward with this case, if we
determine it is going to be a detriment, the indictment, we
will deal with that. We can do that. That happened in the
Lebeau case.
Senator DeWine. We run into cultural problems in law
enforcement, and I saw it when I was a prosecutor, and we
change over the years. There are certain cases that,
culturally, we think, well, gee, it is a technical violation,
but is that really----
Mr. Stein. Like DUI and a child----
Senator DeWine. Absolutely. We went through a whole change
in DUI in my career. I am old enough to have seen a huge change
in the DUI culture in the law enforcement community. It seems
to me that it is a cultural problem that we have or an
attitudinal problem. And just as we changed our attitude about
DUI, just as we changed our attitude about domestic abuse,
domestic crimes, that police 30 years ago when I first started,
or 20 years ago, they just really did not want to deal with
them. Someone could be beaten up. Someone could be in clear
violation, a clear assault. Well, if it occurred within the
home, we do not know if we want to get involved. This is a
cultural problem.
What we need to be saying is, U.S. attorneys, Justice
Department, from the top down, this is important. These are
kids. These are kids who are yanked out illegally from their
parent and taken away and some never to be seen again. I think
we have to talk about it. One of the reasons I wanted to have
this hearing is because I want to try to keep hammering away at
this.
Quite frankly, I am going to bring the Justice Department
in here every 6 months, every 12 months, and they are going to
have to tell me what their statistics are and they are going to
have to explain to me why in the world they are not doing more
in this area.
Mr. Stein. I think your comment about the cultural issue
may be very true, and I am glad to hear that you are going to
be staying on top of this because that is exactly what we need.
Each of us can do a little bit here, and hopefully, Congress
will continue to oversee this and encourage the Justice
Department to make this a priority.
Senator DeWine. I do have some questions that Senator
Thurmond would like to have asked, and I will go through these.
Mr. Stein, do you believe that many cases of international
parental kidnaping are never reported to the Federal
authorities, and if so, why?
Mr. Stein. Absolutely. Why? Because either attorneys who do
not know the procedures do not understand that they can bring
criminal actions or initiate the proceedings to start criminal
actions, and those of us who do are reluctant to do it because
we do not think we are going to get the cooperation in any
event.
Senator DeWine. It is circular, then.
Mr. Stein. Yes. It is a non-starter.
Senator DeWine. Mr. Allen, as you know, a task force report
to the Attorney General on international parental kidnaping was
issued in April. Do you have any concerns about whether the
report is sufficiently detailed and specific in its
recommendations on exactly how the government can better
address this problem?
Mr. Allen. I think, in all candor, Senator, we would have
liked to have seen greater detail. I do think it is an
important first step. It represents a convergence of a lot of
agencies and a lot of interest. As a result of that, there is
going to be some action taken. As I mentioned, we at the center
have been asked to play a more substantial role in outgoing
cases.
I think it was Mr. Lebeau who said it best. I think the
test of the task force is going to be the action that flows
from the report. I would hope that this committee would call us
back and say, what have you done as a result of those actions,
and we are certainly willing to be evaluated on that basis.
Senator DeWine. This is back to my questions now. Mr.
Lebeau, just let me conclude, you and Mr. Stein. What finally
broke this through? How were you finally able to get the return
of your children?
Mr. Lebeau. Through the threat of prosecution of the Act,
Senator. It was as simple as that. In fact, up until the time
the U.S. attorney's office asserted to the British Royal High
Court of Justice in London that they would, in fact, seek
extradition if the problem was not resolved civilly or through
the voluntary return of the children, it was up until that
moment that I did not know whether I was going to even lose
them for a third time.
Senator DeWine. I want to thank all of you very much. You
have been patient and I appreciate your testimony very much
today. It has been very helpful. This is something that we are
going to continue, the subcommittee, this committee is going to
continue to look at, we are going to continue to examine. It is
a problem that, frankly, is only going to grow in this country
as we have more international marriages, as we live in a more
open world and people traveling more. This problem is not going
to go away. These are horrible, horrible human tragedies and I
think that we have to say as a government, this is a priority.
Yes, there are a lot of things that are important, but this is
important and we need to be focused more on it.
The record will be kept open for 1 week for any questions
members may wish to submit for the record.
Again, you have shed a lot of light on this. I appreciate
it and look forward to working with all of you in the future.
Thank you very much.
Lady Meyer. Thank you.
Ms. Hong. Thank you.
Mr. Lebeau. Thank you, Senator.
Mr. Stein. Thank you.
Mr. Allen. Thank you.
Senator DeWine. The subcommittee is adjourned. [Whereupon,
at 3:40 p.m., the subcommittee was adjourned.]
A P P E N D I X
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Questions and Answers
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Responses of James K. Robinson to Questions From Senator Thurmond
Question 1. The Federal Agency Task Force on Missing and Exploited
Children's April 1999 Report to the Attorney General on International
Parental Kidnaping (``Task Force Report'') does not recognize the use
of the criminal process, such as the International Parental Kidnaping
Crime Act (``IPKCA''), as a gap in how the government currently
addresses this issue. Why was the IPKCA's lack of enforcement not cited
as such a gap?
Answer. United States policy, as expressed in the IPKCA, is that
where the procedures of the Hague Convention are available, they should
be the option of first choice for a parent who seeks the return of a
child removed from that parent. The Task Force Report focused first on
the return of the child, then the use of the criminal process, such as
the IPKCA, in an international parental kidnaping was examined. Because
the IPKCA was a relatively new statute at the time the report was
drafted, and state and local criminal proceedings were used in many of
these cases when applicable, the consensus was that use of the criminal
process was not a gap. Rather, it was determined that these situations
needed to be handled on a case-by-case basis consistent with the facts
of the matter. When a state or local authority has issued its own
warrant, there may be no need to overtake a valid state warrant with
federal charges. Unlawful Flight to Avoid Prosecution (UFAP) procedures
bring the FBI into state and local cases to assist in the apprehension
of fugitives overseas. Successful cases intercepting abductions in
progress, based upon a joint state and federal law enforcement
partnership, speak to the efficacy of such an arrangement.
Question 2. The Justice Department has traditionally been reluctant
to use the criminal process to prosecute parental kidnaping, and it has
been especially reluctant to prosecute abductors under IPKCA. How will
we know that the criminal process, especially IPKCA prosecutions, will
not help deter future international child abductions as well as
facilitate the return of abducted children unless we adopt a policy of
aggressive enforcement?
Answer. The Department of Justice looks at each case individually
in determining whether to prosecute in accordance with the guidelines
set forth in the Principles of Federal Prosecution. Deterrence is but
one consideration. Other considerations include whether the state has
filed charges, whether the country is a Hague signatory, or whether
filing a UFAP would produce the desired results.
Filing charges routinely may not deter abducting parents, but may
defeat any possibility of return of the child. By looking at each
abduction on a case-by-case basis, the determination can be made how
best to proceed to get the child back. Ultimately, it may be decided
that filing Federal criminal charges may be appropriate.
Question 3. How does the Department's Office of International
Affairs (``OIA'') currently provide information to Federal prosecutors?
If such information is transmitted over the phone, couldn't OIA more
efficiently communicate it by maintaining a secure Internet web site?
Answer. The Office of International Affairs is able to communicate
with the United States Attorney Offices (USAO) in a variety of ways.
Via e-mail they can send messages through the Justice communications
system. They may use telephone and facsimile. In addition, a National/
International Security coordinator has been designated in each USAO
with whom OIA regularly communicates on extradition, mutual legal
assistance treaty and other international issues.
Question 4. You stress in your testimony that one obstacle in using
criminal charges is the difficulty of obtaining extradition. Even if
extradition is not available, issuing criminal warrants will mean that
any attempt by the abductor parent to return to the United States will
result in his or her arrest. Doesn't this restriction on re-entry into
the United States constitute a punishment of sorts, and do you agree
that vigorous prosecution of IPKCA will deter future violations?
Answer. The United States makes extradition requests based on both
state and federal criminal charges. Thus, while the federal parental
kidnaping statute may be the basis for a request, state charges are no
less effective for that purpose. Although procedures associated with
extradition are complex and the issues that arise in parental kidnaping
cases are particularly troublesome, extradition remains a viable
alternative in appropriate cases where the prosecutor, whether state or
federal, makes a decision to make such a request.
The passage of federal legislation to interpret older list treaties
so as to include parental abductions within the definition of the
extraditable offense of ``kidnaping'' has helped to alleviate one of
the obstacles to extradition. The State Department is making every
effort to obtain the agreement of treaty partners to afford the same
recognition of parental kidnaping in their interpretations of the
treaties.
An outstanding arrest warrant, when coupled with an Interpol Red
Notice, is likely to inhibit travel to any country where that notice
might trigger an arrest. Prosecution under IPKCA may have some
deterrent effect. However, many of the abductors do not intend to
return to the United States, may not be extraditable, and therefore are
unlikely to ever be prosecuted.
Question 5. How is the Department encouraging States to allow
victims of parental kidnaping--both left-behind parents and children--
access to crime victim assistance funds?
Answer. The Vanished Children's Alliance (VCA) in San Jose,
California received VOCA victim assistance grant funds from 1993-1998
to provide counseling to families whose children have been abducted, as
well as counseling to abducted children once found. In addition, they
assist families with filing for victim compensation, and information
and referral regarding local resources. VCA has shared information with
other agencies on use of OVC funds to recover and assist kidnaped
children.
Other nonprofit organizations, such as the National Center for
Missing and Exploited Children, also assist families in providing
information and referral services.
Question 6. The Task Force Report noted that there are some cases
where abducted children are entered into the National Crime Information
Center (``NCIC'') database and then promptly removed the moment they
are located, even though they have not yet been returned to the place
from which they were abducted. This can cause law enforcement
authorities to lose track of future movements of children who have been
technically located but, in reality, still remain abducted. How are you
addressing this problem?
Answer. The issue will be discussed by the NCIC Working Group that
meets in March, 2000. It will then be on the agenda for the Advisory
Policy Board (APB) subcommittee meeting in May. The recommendations
from the subcommittee will then be put on the agenda for the APB to
change the process so that the child is not removed until there is a
resolution of the matter. Final action is anticipated at the summer
2000 meeting of the APB.
INTERPOL has frequent contact with state and local police regarding
U.S. missing/abducted children. It encourages those agencies to leave
the NCIC entry in the system until the custody issues is settled.
Question 7. I understand that U.S. Attorneys generally will not
indict a parent until civil remedies are exhausted under the Hague
Convention. However, there appears to be a need to determine a
realistic point of exhaustion in practice. For example, if, as
routinely happens, Hague proceedings last many months (far in excess of
the six-week time frame explicitly stated in the treaty itself) before
they are technically exhausted, abducting parents are then effectively
able to argue that the child has become settled in the new environment
and that returning the child will be harmful. In view of this reality,
how long should the Hague process be allowed to drag on before the
criminal process is invoked? And in cases of countries that routinely
fail to comply with our treaty or whose legal systems have no
mechanisms for enforcing civil court orders or any kind of visitation
rights, why should invocation of criminal proceedings depend on the
Hague process at all?
Answer. We cannot set an arbitrary time frame in Hague cases when
criminal proceedings should begin. As previously stated, these matters
need to be considered on a case-by-case basis based on the particular
facts of the case. Setting a time limit will not necessarily achieve
the desired result.
Question 8. The NCIC system is an important tool in finding
abducted children. As the system is being upgraded pursuant to the NCIC
2000 program, some have argued that the abductor parents as well as
abducted children should be designated in the system as missing, even
if an arrest warrant is not outstanding, because such action would help
authorities locate the abductor if he or she attempts to reenter the
United States. Do you believe we should consider entering abductors
into the NCIC system?
Answer. Currently, no category exists to permit the entry of adults
as missing unless there is reason to believe that they are in danger.
In most of these cases, the whereabouts of the abductor is quickly
identified so they are technically not ``missing.'' The name of the
abductor should be included in the text information of the child's NCIC
entry. As to whether the abductor should be entered into the NCIC even
when there is no warrant, the subject needs to be explored further. Any
proposed change would be subject to the review process of the NCIC
Advisory Board as discussed in the response to Question 6.
Question 9. During an October 1, 1998, hearing on United States
Responses to International Parental Abduction before the Senate Foreign
Relations Committee, Attorney General Reno testified that ``United
States law enforcement officials located overseas, particularly our FBI
legal attaches, can help to emphasize to their foreign colleagues the
seriousness with which the United States takes these cases and the need
for effective responses to locating the children and the abducting
parents.'' How is this suggestion being implemented?
Answer. United States law enforcement resident in foreign countries
do not directly exercise law enforcement powers abroad. The influence
of these law enforcement personnel, however, can be great. They may be
able to assist Department of State personnel in inquiries regarding the
welfare and whereabouts of the abducted child, through their
relationship. with law enforcement contacts in the host country. In
several countries, the FBI legal attaches have provided substantial
assistance in these cases. The FBI Legal Attaches met in Washington in
June, 1999. International parental kidnaping was one of the topics on
the agenda at that training meeting. We hope this topic will continue
to be discussed at future meetings.
Question 10. As you know, some foreign states provide unlimited
payment of legal fees for their nationals who have abducted American
children, thus enabling them to pursue appeals to the highest courts of
their country and of the United States. How are the Crime Victims
Assistance Fund or other Federal victim assistance resources being used
to pay for costs associated with returning stolen children?
Answer. As you are aware, Crime Victims Assistance and other victim
assistance resources are not used to pay legal fees in any kind of
case. Title 18, United States Code, Section 10602(b)(1) specifies
expenses to be covered, including medical expenses, mental health
counseling, loss wages, and funeral expenses. Most of the victim
assistance funds are passed on to the states in grants. Currently, no
state programs cover legal fees. However, the Office of Victims of
Crime has designated a fund to assist parents cover the costs of travel
to return children to the United States. The selection of families that
may qualify for this assistance is made through consultation between
the National Center for Missing and Exploited Children and the Office
of Children's Issues. Since the program began in 1996 through fiscal
year 2000, OVC has provided $225,000 to the National Center for Missing
and Exploited Children to fund travel requests.
Question 11. What specific efforts is the Department making to
educate and train Federal prosecutors regarding international parental
kidnaping?
Answer. Information on the topic was included in the last revision
of the United States Attorney's Manual (USAM) which is available in
every United States Attorney's Office. The topic was included the
National/International Security Coordinators conference held at the
National Advocacy Center in December, 1999. It is anticipated that a
presentation on the topic is to be included in the joint Office of
Legal Education (OLE) training with National District Attorneys
Association (NDAA) on international issues scheduled for April 18-20,
2000, at the National Advocacy Center. The Child Exploitation and
Obscenity Section (CEOS) includes the topic in training it provides on
the issues under the supervision of the Section, and provides
assistance to prosecutors who call the Section regarding international
parental kidnaping cases. Additionally, material on the topic of
parental kidnaping will be included in the forthcoming manual for
federal prosecutors on child support enforcement matters. And finally,
the topic is regularly included in training for the FBI Crimes Against
Children coordinators.
Question 12. In United States v. Amer, 110 F.3d 873 (2d Cir.), cert
denied 522 U.S. 904 (1997), the Court of Appeals upheld the trial
court's imposition of a special condition of supervised release as part
of its sentencing the defendant to two years imprisonment and one year
of supervised release for violating the IPKCA. The special condition
was that ``[t]he defendant [must] effect the return of the children to
the United States to Mona Amer [the left-behind, victim parent].'' Id.
at 882. As the court explained, ``The `return' condition is obviously
closely related to `the nature and circumstances of the offense' of
child abduction and `the history and characteristics' of [defendant
Amer]. Indeed, it is difficult to imagine a condition more closely
tailored to the crime and the criminal in question than this one.
Moreover, the requirement that [Amer] return the children serves the
goal of general deterrence. * * * The condition also serves the
function of specific deterrence. It deters [Amer] both from committing
the offense of the unlawful retention of the children in Egypt after
his release from prison, and from attempting to kidnap his children
again after they have been returned to the United States.'' Id. at 883.
Although Amer ended up violating the special condition of his
supervised release, which was promptly revoked after a hearing, see
United States v. Amer, No. 97-1442, 1998 WL 639262 (2d Cir. Mar. 26,
1998) (unpublished disposition), do you agree that the technique of
imposing such a condition as part of a pattern of aggressive
enforcement of the IPKCA would have a deterrent effect and prove
helpful in effecting the actual return of abducted children in at least
some cases?
Answer. Using special conditions, such as those used in the Amer
case, probably have little deterrent effect. However, such conditions
might be helpful in effecting return in at least some cases.
For example, in a case currently pending in the Eastern District of
Washington, the magistrate judge set return of the children from
Germany as a condition of bond. Unfortunately, the district court judge
reversed this special condition and permitted the abductor's release on
bond. The abductor, however, remains incarcerated because the state
court judge subsequent to the bond hearing found the father in contempt
for refusing to return the children in violation of the parenting plan
(custody order).
Question 13. What is the status of the Office of Juvenile Justice
and Delinquency Prevention's grant to the American Bar Association's
Center on Children and the Law for the preparation of a report, now if
a draft form entitled ``Issues in Resolving Cases of International
Child Abduction?''
Answer. As a standard practice prior to releasing any report or
publication, the Office of Juvenile Justice and Delinquency Prevention
(OJJDP) conducted a product review by experts in the field of the
report Issues in Resolving Cases of International Child Abduction,
which was prepared by the American Bar Association's Center on Children
and the Law. Revisions were made to the text based upon this peer
review process, the document was approved for publication, and the
final copy is now being prepared for publication and distribution.
______
Responses of James K. Robinson to Questions From Senator DeWine
Question 1. What is the reason for not filing International
Parental Kidnapping Act charges routinely in an abduction to a non-
Hague country?
Answer. Decisions to file federal charges in international parental
kidnaping matters must be made on a case-by-case basis in accordance
with guidelines set forth in the Principles of Federal Prosecution. The
facts of each case differ and must be considered before charging.
Additionally, when a state or local authority has issued its own
warrant, there may be no need to overtake a valid state warrant with
federal charges. The Federal government can support state and local
governments by charging the abductor with Unlawful Flight to Avoid
Prosecution (UFAP) to bring in the FBI to assist in the apprehension of
fugitives overseas. Successful cases intercepting abductions in
progress, based upon a joint state and federal law enforcement
partnership, speak to the efficacy of such an arrangement. Further,
depending on the facts of the case, a state statute may be more
suitable or offer more rigorous penalties.
There may be an insufficient factual basis to merit the issuance of
a criminal warrant at either the state or Federal level. For example,
there may have been a finding under state law that the left-behind
parent lacked ``custody rights.'' Because the Federal law rests upon
this determination under state law, there may be no basis to file
charges.
A prosecutor may also have a well founded basis to believe that the
prosecution is sought merely to achieve a civil result, that is, the
return of the child. Automatically filing criminal charges may
compromise any efforts to secure the return of the child. If the
ultimate goal is the return of the child, measures other than
prosecution may be more effective.
Question 2. It's my understanding that in the case of Mexico, a
country that has been identified by the State Department as not in
compliance with its obligations under the Hague Convention, that law
enforcement has been able to obtain the return of children, while
parents have been largely unsuccessful in obtaining return of their
children under the Hague Convention. In cases where the Hague signatory
country is found to be routinely noncompliant with its obligations
under the convention, does it make sense to wait for resolution under
the Hague Convention before pursuing criminal charges? Should that be a
consideration for parents and prosecutors, or do you think that the
Sense of Congress that Hague procedures should be followed in every
case, including where the State Department has found the country to be
noncompliant?
Answer. Since this obligation to report noncompliance under the
Hague Convention on the Civil Aspects of International Child Abduction
first began in fiscal year 1999, only one report has been filed.
Prosecutors are urged to work together with the Office of Children's
Issues (OCI) on international parental kidnaping cases, which can keep
the prosecutor informed about OCI's experience with a particular
country. Again, the decision process must be made on a case-by-case
basis consistent with the individual facts of the case.
Question 3. In many Hague countries, the Ministry of Justice is the
central authority for the Hague Convention on the Civil Aspects of
International Child Abduction. Should the full responsibilities of the
U.S. Central Authority be transferred to the Department of Justice?
Answer. No. The responsibilities of the Central Authority can be
overwhelming. Rather than looking at alternatives to the current
Central Authority, an examination of the resources allocated to the
Office of Children's Issues (OCI) should be made to determine if they
are adequate to carry out the duties of the office. OCI is in the
process of expanding its staff to handle these cases more effectively.
Further, State Department is already charged with handling issues
concerning the welfare of American citizens overseas and thus have a
network available through the embassies and consulates worldwide to
work on international parental kidnaping cases.
The Department of Justice stands ready to assist the Department of
State in whatever way it can to carry out its duties as Central
Authority. For example, an agreement between the Office of Juvenile
Justice and Delinquency Prevention (OJJDP) and OCI was extended last
year to have the National Center for Missing and Exploited Children
(NCMEC), an OJJDP grantee, handle incoming Hague petitions on behalf of
OCI and to expand identifying services available for left behind
families in the United States.
__________
Responses of Jamison Borek to Questions From Senator Thurmond
Question 1. Does the United States keep records on (a) how many
formal extradition requests are made to foreign states pursuant to the
International Parental Kidnapping Crime Act (``IPKCA!'') and (b) how
many extradition requests are received by the United States pursuant to
foreign criminal laws prohibiting international child abduction? If so,
will you provide this information to the Subcommittee?
Answer. State Department records reflect that the United States has
made twelve formal international extradition requests since the
beginning of 1998 citing violations of the International Parental
Kidnapping Crime Act (18 U.S.C. Sec. 1204), and many more such
international extradition requests citing violations of state and local
criminal law on parental kidnaping. In the same two-year time period,
our records reflect that the United States has received eleven
international extradition requests for parental kidnaping from other
countries.
Question 2. The Federal Agency Task Force on Missing and Exploited
Children's April 1999 Report to the Attorney General on International
Parental Kidnapping (``Task Force Report'') states that the United
States should expand and intensify diplomatic efforts to better resolve
parental kidnaping. What specific diplomatic actions has the State
Department taken since the Report was issued regarding countries that
do not comply with their obligations under the Hague Convention?
Answer. The Office of Children's Issues, as the United States
Central Authority for the Hague Convention on the Civil Aspects of
International Child Abduction (the Convention), has called in Embassy
officials from each of the five countries that we found non-compliant
(Sweden, Austria, Mexico, Honduras and Mauritius). We provided each
country with copies of the report and discussed in detail the reasons
for finding them non-compliant.
The Director of the United States Central Authority, Mary Marshall,
and a representative of the Department's Office of the Legal Adviser
traveled in March 1999 to meet with their counterparts in the Swedish,
German, Swiss, and Austrian Central Authorities. They discussed the
need for fuller compliance with the Convention and improving
implementation of the treaty. They also met with a representative of
the Permanent Bureau of the Hague Conference an Private International
Law in The Hague to discuss enhancing treaty implementation for all
party countries.
Assistant Secretary for Consular Affairs Mary Ryan raised child
abduction in discussions at the June 1999 Mexican Binational Commission
Meeting, citing six specific cases as examples in which significant
delays had occurred. She raised the issue and the six cases again at
the September 1999 follow-up meetings to the Binational Commission.
State Department officials have also met with the Director of the
Mexican Central Authority and supervisors of that office twice since
July 1999. Officials from the Mexican and U.S. Central Authorities have
given joint presentations at conferences in California and Texas to
U.S. and Mexican judicial and governmental authorities involved in
child abduction issues.
Our Ambassador in Stockholm, Lyndon Olson, met with Swedish
Prosecutor General Klas Bergenstrand regarding two child abduction
cases on June 18, 1999. (Prosecutor General is just under ``Cabinet-
level'' rank). In October 1999, Ambassador Olson was interviewed on the
Swedish TV program ``Efterlyst'', the equivalent of ``America's Most
Wanted.'' The interview dealt mainly with the abduction to Sweden of
Gabriel Marinkovich, which was also one of the featured cases.
Question 3. The Task Force Report (page 14) states: ``Preventing
the issuance of a passport to a child may deter some abductions. A
parent with a valid custody order may put a hold on the issuance of a
passport to his or her child(ren) by contacting the Department of
State.'' I have been informed that in certain cases, the State
Department refused to put such a hold on the issuance of an abducted
child's passport in the absence of a court order requiring it to do so.
How in fact does the State Department handle requests by parents to put
a hold on the issuance of passports to their child(ren), and if the
abduction has already taken place before such action can be taken, will
the Department, at the left-behind parent's request, revoke the child's
passport? Which official would make such a decision?
Answer. The Department has an effective program to provide
requesting parents with information about their children's United
States passports and to deny issuance in appropriate situations. At the
request of a parent, an attorney or an appropriate court, the
Department will place a child's name in the passport name check system
so that when an application is received, the parent will be notified
before approval of the application. Moreover, the passport will be
denied based on an appropriate court order. The governing regulation
was amended in 1996 to provide for denial based on joint as well as
sole custody and to permit worldwide action based an orders of
competent courts of any nation.
At this time, there is no provision in our regulations for revoking
a child's passport once an abduction occurs. However, we plan to pursue
regulatory changes in the near future to allow passport revocation for
minors who are the subject of a parental abduction where this would
assist in the return of the child.
Question 4. The Task Force Report (page 14) states: ``At present
there is no requirement for the Passport Office to notify a foreign
government when it denies a passport for a dual national child. Nor is
there a formal mechanism to inform foreign governments about lookouts
placed in the system for passport applications for these children.''
Will the State Department impose such a requirement and create such a
formal mechanism?
Answer. The Department plans to institute procedures whereby a
foreign government's embassy will be notified when the Department
enters a child's name into the passport lookout system based on a
request by the custodial parent. We will notify the foreign
government's embassy only with permission of the custodial parent.
Question 5. Many observers, including the General Accounting
Office, have recognized that the State Department needs a
comprehensive, computerized database and case-tracking system that can
accurately list the number of abduction cases and how the Government
responds to each one. What is the status of developing such a system,
and is it a top priority?
Answer. The case management tracking system was designated top
priority by the Bureau of Consular Affairs.
The Bureau of Consular Affairs is working with a contractor on the
development of a computerized case management tracking system that will
collect data more accurately and provide improved case management
capabilities. We have seen an initial prototype of the system and will
begin testing a pilot version in May-June. We expect the system to be
ready for operations in July-August. The system will also include a
Web-interface that will allow interagency data sharing; this component
will follow the final installation of the internal Department of State
system by several months.
Question 6. I understand that the State Department opposes a
provision in the Senate-passed fiscal year 2000 State Department
Authorization Bill (S. 886, Sec. 203) urging that each signatory's
record of compliance with the Hague Convention be included in the State
Department's annual country reports on human rights. Why does the State
Department oppose bringing attention to a country's record of
compliance with the Hague Convention as a human rights issue?
Answer:
The State Department shares Congressional concern about the
treatment of children who are removed from the U.S. by a
parent. We will work with Congress to help victimized parents
and children.
The Department of State does not oppose bringing attention
to a country's record of compliance with the Hague Convention.
In fact, the Office of Children's Issues in the Bureau of
Consular Affairs already provides, Congress with reports on
Hague Convention compliance. The Hague Convention is not,
however, a human rights treaty.
The Country Reports is a snapshot in time of human rights
conditions in all countries around the globe. It is not a
report on treaty compliance. It is not in the best interest of
the United States Government's human rights mission to shift
the focus of the report from truth telling on human rights
country conditions to treaty compliance. This new potential
mandate for reporting on treaty compliance would create new
complications for the Bureau of Democracy, Human Rights and
Labor (DRL) and the human rights report. An example of the type
of complications that would result is the fact that since many
countries are not party to the Hague Convention, for the first
time DRL would be reporting on some countries but not others.
The countries reported on might well be relatively ``good''
countries with regard to international child abduction and
respect for the rights of children, in relation to those
countries that are not parties to the Convention. DRL has
always maintained the same standards for all countries, and has
parallel coverage for all countries. Further, we believe that
this new mandate could deflect attention from objective
reporting on country conditions and lead to arguments over
technical compliance with the treaty. Deflecting attention from
a country's poor human rights record would not be helpful to
our democratization and human rights mission.
In sum, we fear that the annual Country Reports would badly
suffer from this mandate. Reporting on an area for which DRL
has no expertise will have serious repercussions not only for
the quality of the report, but also for DRL and the larger
human rights mission. For clarity's sake, and to best address
the needs of abducted children while raising the visibility of
the issue, we strongly recommend that this issue be handled
through reporting procedures already established by Congress,
and by the report that is submitted by the Bureau of Consular
Affairs on behalf of the Department.
Question 7. In deciding whether to negotiate child support
arrangements with a country, does the State Department consider that
country's record of compliance with the Hague Convention, particularly
those cases in which the government of the country to which the
American children have been abducted or in which they have been
wrongfully retained demands child support from the left-behind parent?
Answer. Reciprocal child support arrangements are being negotiated
under the authority of 42 U.S.C. Sec. 659a. That section authorizes the
Secretary of State, with the concurrence of the Secretary of Health and
Human Services, to declare any foreign country to be a foreign
reciprocating country (in the enforcement of child support orders or
obligations) if that country meets certain specified standards for
foreign support enforcement procedures. These reciprocal arrangements
do not impose any obligation on courts or authorities in the United
States to enforce support orders or obligations where a child was
abducted to or is being wrongfully retained in a foreign country in
violation of custody decrees issued by a U.S. court.
A variety of factors are considered in determining whether
reciprocal arrangements should be sought with a particular country
under 42 U.S.C. Sec. 659a. These factors include whether there have
been issues regarding child support enforcement in connection with
child abduction cases.
Question 8. You noted in your testimony that some countries may be
more reluctant to return a child to the United States if our government
seeks extradition of the parent on criminal parental abduction charges.
However, a draft report by the American Bar Association's Center on
Children and the Law entitled ``Issues in Resolving Cases of
International Child Abduction'' listed only four countries that are
less likely to cooperate in returning abducted children when criminal
charges against the abductor are pending. The draft report also stated
that one-third of countries responding to its survey slated that
criminal charges are sometimes helpful in effecting a favorable
resolution of Hague Convention proceedings. Do you disagree with these
findings Please explain.
Answer. As you mention, this report is a draft that has never been
finalized or published. Therefore, we prefer to hold comment on any of
this draft report's findings until the report is finalized. However, a
number of Hague party countries have indicated that in certain
circumstances criminal charges against an abducting parent may provide
an obstacle to return of the child. Courts in Australia, Germany,
Mexico, the United Kingdom, Israel and the United States have indicated
that criminal proceedings against the abductor would complicate a
child's return pursuant to the Hague Convention. Our primary concern is
for the welfare and return of the abducted child. We also note that the
International Parental Kidnapping Crime Act of 1993 (18 U.S.C.
Sec. 1204) includes the sense of the Congress that the Hague Convention
should be the option of first choice for a parent who seeks return of a
child who has been removed from, or retained outside of, the United
States.
Question 9. I understand that one obstacle to efforts to extradite
an abductor is that some countries to which abductors flee do not
recognize parental kidnaping as an extraditable offense. What specific
diplomatic efforts is the State Department taking to encourage
countries that are parties with the United States to list-type
extradition treaties to interpret such agreements as including parental
kidnaping as an extraditable offense?
Answer. Following the enactment of the Extradition Treaties
Interpretation Act of 1998 (Title II of Public Law 105-323), the United
states approached the approximately 70 countries with which we have
extradition list treaties that include the word ``kidnaping'' to inform
those countries of the U.S. Government's updated interpretation of the
word ``kidnaping'' and to ask if they shared our interpretation. We
have posed the question twice through our Embassies abroad, once to all
concerned countries in January 1999, and then again in January 2000 to
those countries that not yet responded.
As of February 25, 2000, the United States has received positive
replies, from twenty of these countries indicating that they shared the
U.S. Government's interpretation. (A few of these were still confirming
the interpretation with others within their governments.) Some of the
countries we consulted replied that they have not criminalized parental
child abduction and do not share our interpretation. Some countries
have indicated that they are still studying the issue and have not yet
provided a substantive reply.
Question 10. The General Accounting Office recently noted that the
Office of Children's Issues and the FBI sometimes make unnecessarily
duplicative inquiries on the same case. Do you anticipate that the new
case-tracking system will allow the State and Justice Departments to
know about each other's parallel efforts regarding ongoing child
abduction case?
Answer. The new interagency database for international parental
abduction cases being developed by the Office of Children's Issues in
the Bureau of Consular Affairs at the Department of State will greatly
increase coordination among the various agencies, including the Justice
Department, involved in these cases. This increased coordination will
not only reduce duplication of effort and improve our efficiency on
individual cases, it will also provide us with the comprehensive
statistical reporting necessary to target specific problems with
implementation of the Hague Abduction Convention.
Question 11. The Department of Justice generally appears to prefer
that prosecutions be undertaken pursuant to an Unlawful Flight to Avoid
Prosecution (``UFAP'') Warrant, pursuant to the Fugitive Felon Act (18
U.S.C. Sec. 1073), rather than the IPKCA. However, I understand that
many foreign states do not recognize mere flight to avoid prosecution
by a State of the United States for a State crime to be extraditable
offense. Are there countries that find U.S. Federal crimes more
persuasive regarding extradition than State crimes?
Answer. We have consulted with the Department of Justice regarding
this question. The Justice Department disagrees with an assertion that
it ``prefers'' Unlawful Flight to Avoid Prosecution charges to IPKCA
charges in child abduction cases. It notes that if the United States or
a state or local jurisdiction intends to try a fugitive located abroad
on parental kidnaping charges, the United States will seek extradition
for such charges. Absent the consent of the country that has extradited
the fugitive, we will not try the fugitive on other charges such as
unlawful flight to avoid prosecution, in light of the rule of specialty
obligations in our extradition treaties.
In this connection, the Federal Bureau of Investigation often
encourages the filing of the federal charge of Unlawful Flight to Avoid
Prosecution (UFAP) in order to assist in the investigation of charges
under state and local laws. It is our experience that a person
extradited to the United States on either state or federal parental
kidnaping charges would be unlikely to be prosecuted on UFAP charges.
With regard to the final issue raised in the question, it has not been
the Executive Branch's experience that countries find U.S. federal
crimes more persuasive regarding extradition than state crimes.
Question 12. Some have raised concerns that the State Department
withholds too much information from American parents relating to what
their government is doing or failing to do to gain the return of their
abducted children. Are you fully cooperative with parents in this
regard?
Answer. The Department is fully cooperative with parents who seek
information relating to our efforts to gain return of or access to
their abducted children. That said, as a federal agency, we must ensure
that our efforts to inform are consistent with the requirements of the
Privacy Act when the information concerned relates to an individual
other than the requesting parent. Additionally, in order to ensure that
a country with whom we have exchanged diplomatic correspondence
regarding an abduction case will be free with information and
assistance in the future (both with regard to that case and any other),
the Department will obtain that country's concurrence before releasing
diplomatic correspondence generated by that country.
Question 3. What is the official policy of the United States
Government regarding whether to extradite a left-behind American parent
who rescues his or her child from a country that (a) will not return
the child under the Hague Convention; (b) otherwise refuses to
extradite or prosecute the abductor; or (c) will not or cannot
guarantee enforceable visitation rights in the U.S. or anywhere else?
Answer: The State and Justice Departments consult on the facts and
circumstances surrounding each extradition request. We regret we are
not in a position to speculate on the outcome of hypothetical
extradition requests.
Question 14. What is the official policy of the United States
Government regarding whether to enter into new law enforcement treaties
with countries that are already violating their treaty obligations to
the U.S. under the Hague Convention and that directly or indirectly
facilitate or support criminal conduct against American children and
their left-behind parents, in some cases through their police or
prosecutors?
Answer. As a preliminary matter, we note that the Hague Convention
creates a mechanism for the return of children and has resulted in the
return of thousands of children to their parents--many more are
returned each year than before the Convention entered into force. In
some cases, children are not returned because the Central Authority or
the courts of the country where the child is located determine that the
Convention does not govern the situation or one of the Convention's
exceptions apply (such as a grave risk of harm to the child). In this
connection, the fact that a Hague Convention party denies a return
application does riot necessarily mean that the requested country has
violated the Hague Convention.
More generally, however, we would assess the benefits of law
enforcement treaties on the merits on a case-by-case basis, in order to
determine what is in the best interests of the United States. Treaty
compliance in one area is not necessarily a predictor of compliance in
other areas, and bilateral law enforcement treaties frequently are of
greater benefit to the United States than to the other country. The
allegations of ``direct or indirect facilitation or support of criminal
conduct'' must also be carefully considered. Some of the allegations
that have been made in that regard are extremely tenuous and do not
concern intentional conduct such as would entail any culpability on the
part of the foreign government.
Question 15. I understand that the German Minister of Justice
recently wrote to the U.S. Ambassador to Germany, John C. Kornblum,
that ``German-American cases [other than Lady Catherine Meyer's case]
or problems with familial alienation due to conflict over visiting
schedule [sic] are unknown to me.'' I also understand that the State
Department has in its possession details of 34 U.S.-German cases of
child abduction or illegal retention, some of which involve unresolved
Hague Convention proceedings and others of which involve German courts
that sought to resolve the cases under the Hague Convention by not
returning the children and denying victim parents normal access rights
to them. Are you concerned about the sufficiency of the German
Minister's answer?
Answer. In July 1999, the U.S. Ambassador to Germany wrote to the
German Minister of Justice about problems that have arisen with regard
to German implementation of the Hague Convention on the Civil Aspects
of International Child Abduction, specifically referring to the case of
Lady Catherine Meyer. In her response, the German Minister noted that
the decisions in Lady Meyer's case were made by independent courts. The
Minister added that she was unaware of German-American cases under the
Hague Convention on access rights. The Department of State has
summaries of 33 U.S.-German cases, both Hague and non-Hague, that were
submitted by Lady Meyer at the time of her testimony before the Senate
Judiciary Subcommittee on Criminal Justice and Oversight on October 27,
1999.
The Department of State believes that the response of the Minister
of Justice is insufficient because it reflects an incomplete
understanding of the dimensions of the problems regarding access that
arise in cases of international parental child abduction. In a number
of cases there have been difficulties in enforcement of German court
orders of access in Germany. The Department will continue to raise
Hague Convention implementation in general, and with respect to access
in particular, with German officials in hopes of finding practical
solutions.
______
Responses of Jamison Borek to Questions From Senator DeWine
Question 1. The report to the Attorney General suggests that
denying visas to parents who keep a child outside the U.S. in violation
of a U.S. custody order may be another way to encourage the return of
children. How often has the U.S. made use of visa denials under these
circumstances?
Answer. Figures for the last two fiscal years show that there were
thirteen refusals in 1999 (of non-immigrant visas), and a total of
seven refusals in 1998 (two of immigrant visas and five of non-
immigrant visas) pursuant to section 212(a)(10)(c) INA.
Question 2. At the hearing on October 27, 1999, I asked you how
many times has an Ambassador met with the leader of another country on
individual cases of international parental kidnaping. Could you tell me
how many times that has happened in the past year?
Answer. International parental child abduction is an issue of very
great concern to the Department of State, and staff at our Embassies
and Consulates raise this issue often with their host country
counterparts in general and in specific cases as most appropriate. We
have included a number of examples of our efforts over the past year.
While this is not a comprehensive list, we hope that it demonstrates
the seriousness with which we take this issue.
Our Ambassador in Stockholm met with the Swedish Prosecutor
regarding two cases of international parental child abduction
on June 18, 1999. (Prosecutor General is just under ``Cabinet''
level rank.)
Our Ambassador in Tokyo is personally engaged in the issue
of international parental child abduction. Within the past few
months, he has met with the Minister of Justice and the Vice
Foreign Minister to urge that Japan accede to the Hague
Abduction Convention.
In San Jose, Costa Rica, our Deputy Chief of Mission called
on the Foreign Minister the week of February 14, 2000, to
discuss a case of international parental child abduction and
the effect its handling will have on whether or not the United
States might accept Costa Rica as a Hague Convention partner.
Furthermore, on February 17, 2000, the Ambassador discussed the
same case with the Costa Rican Minister of Justice.
In Switzerland our Chief of Mission spoke with the Direktor
des Bundesamtes fur Justiz in October 1999 concerning
international parental child abduction cases between our two
countries. The Direktor's rank is equivalent to an American
undersecretary, and he is a senior career official in the
cabinet department for justice and police matters.
Our Ambassador to the Bahamas has met with the Foreign
Minister and former the Attorney General on the Hague Abduction
Convention.
Our Ambassador to Mauritius has met with their Minister of
Justice on two cases where the courts in Mauritius have
incorrectly refused to apply the Hague Convention.
Most recently our Ambassador to Madrid met on February 18
with a senior official in the Ministry of the Interior to urge
continued efforts to locate and return an abducted child.
__________
Responses of Lady Meyer to Questions From Senator Thurmond
Question 1. Based on your experience, do you believe that the
international community is increasingly seeing parental abduction as an
illegal act and a human rights violation rather than as merely a
private family matter? Please explain.
Answer. I believe that until very recently, most people were
totally unaware of international parental child abduction and that as a
result, no one had focused on the issue or any of its consequences.
Betty Mahmoudy's case (U.S./Iran) was probably the first time that the
problems associated with international marriages came to public notice.
But Betty Mahmoudy's case was not, in itself, parental child abduction.
It also concerned a country where laws and customs are very different
from ours. The publication of her book ``Not Without My Daughter''
brought other stories to the fore. But, again they concerned Muslim
countries. It was not until a few years ago that people began to be
aware that child abduction within western society was becoming an
increasingly common problem.
Because international child abduction cases are complex and
difficult to resolve, the typical reaction of many governments has been
to absolve themselves of the responsibility for intervening. They have
done this either by deeming these cases a private legal matter (``tug
of love'') or by claiming that they cannot interfere with the
independence of the courts. But it is becoming increasingly difficult
for governments to assert that they have no role to play. This is the
result of recent publicity given to the most egregious cases and the
realisation that several signatory countries--where the rule of law is
supposed to prevail--are in breach of their Hague Convention
obligations. This has led in turn to the notion that the illegal
removal or retention of minors abroad is not only a criminal act but
also a human rights violation.
At the launch of ICMEC at the British Embassy in Washington on
April 1999 Hillary Rodham Clinton clearly reinforced this view when she
said: ``These matters are not just about individual children and the
pain of victim parents, but they are really a question of human
rights''. A landmark in this regard was the precedent set by the very
recent European Court of Human Rights' decision of January 25, 2000
(see attached press release). The ECHR ruled that a state's failure to
enforce a court order to return a child to its country of origin under
the Hague Convention is a violation of the ECHR. ``Specifically, the
Court found that respect for family life guaranteed by Article 8 of the
ECHR includes a right for parents to have effective measures taken to
return children to the country from which they have been abducted.''
Many governments are now more sensitive to the issue of
international child abduction--for example, the British Foreign Office
has just created an international child abduction desk. But they have
yet to acknowledge formally that basic human rights are at stake. This
is why we need your help. Things will not change until the human rights
dimension is recognised at the political level, so taking control of
the issue out of the hands of bureaucracies guided by ultra cautious
legal advice. This recognition is also indispensable to the correction
of miscarriages of justice that take shelter behind the argument that
there can be no interference with the independence of local courts.
This for example is the routine reaction of the German authorities to
complaints about the bias and incompetence of their decentralised
judicial system.
Question 2. As you know, many Hague Convention signatories have
designated their justice ministries as the Central Authority, while the
United States' Central Authority is the State Department. What, in your
opinion, are the relative advantages of placing responsibility for this
treaty's compliance in a government department that handles legal and
justice issues as opposed to a department that handles foreign policy
issues?
Answer. In reality it should not matter. What is more important is
that the Central Authority is efficient, speedy, resolute and dedicated
to the Hague process. One must also remember that victim parents can be
extremely emotional, in need of special help and support--which
government institutions are not equipped to provide. Most of the
American victim parents I have dealt with feel that the NCMEC is in
fact the best-equipped organisation to take over abduction cases. They
are specialists in children's issues and have the necessary support
network for left-behind parents.
If I were to examine the pros and cons of each Ministry, I would
come to some obvious conclusions. A justice department should have a
close relationship with domestic courts; it should be familiar with
litigation and geared up to the prosecution of criminal offences.
Therefore it ought to act faster and more efficiently. Unfortunately,
most European Central Authorities which are based in the justice
Ministries are legalistic and bureaucratic. They are often inflexible
and impenetrable in their dealings with other Central Authorities. My
personal experience, and that of most victim parents I have had
dealings with in Europe, is that justice Ministries are unsympathetic
and difficult to deal with. These problems are compounded when parents
in one state have to deal with the Central Authority of another.
Foreign Ministries are usually more receptive and accessible to
victim parents. They are also better geared up to speedy international
communication, including with left behind parents and other Central
Authorities. They are better able to make the right approaches to
resolve problems on immigration, passports, international travel and
other matters that may need urgent attention. They have ready-made
links with diplomatic and consular services abroad--but they are far
less equipped and knowledgeable in matters of litigation than a Justice
Department. I should also add that, according to Henry Setright (one of
England's most prominent specialist in Hague Convention cases) English
lawyers have had fewer problems with the U.S. Central Authority than
with most.
In principle, it should not matter where the central authority is
located so long as these two Ministries work closely together. My
experience is that victim parents need the expertise of both
departments. My strong recommendation is that in every Hague Convention
signatory state, there should be a joint unit or bureau staffed by
officials from both the justice and Foreign Ministries. Their role
among other things should be to work closely with the relevant NGO's.
Question 3. In your experience with analyzing international child
abduction cases under the Hague Convention, to what extent do you
believe the criminal justice system should intervene to prosecute the
abductor? Could such timely intervention sometimes help expedite the
return of the abducted child?
Answer. Unless child abduction is considered a criminal act and
unless the criminal justice system intervenes to prosecute the
abductor, more and more people will be willing to take the law into
their own hands. There is no doubt that there can be no better
deterrent to child abduction than a criminal statute. But the real
advantage of the criminal statute is that it allows the full range of
powers to be employed to locate the abductor and more importantly the
missing child through the mobilisation of the police and the assistance
of INTERPOL. It also allows the extradition of abductors.
If the use of the criminal statute is a useful deterrent and
extremely helpful in bringing the child back, the question then arises
that if this leads to the successful prosecution of the abductor, how
severe should the penalty be? If one has the childs best interest to
the fore there is a strong prima facie argument against a custodial
sentence which will only add to the trauma of the situation. Indeed,
the imprisonment of the parent is probably a further punishment for the
innocent abducted child, who needs both its parents and probably feels
guilty at what has happened (as children always do in cases of
conflict). So, judges will have to decide case by case on what is
appropriate: prison, a fine, community service etc * * * This is a
further argument for ensuring that these cases are tried by specialist
judges.
But, there is one serious drawback to the criminalisation of
international child abduction. This arises when the country to which
the child is taken, or in which it is retained, does not consider child
abduction a criminal act and/or has no extradition treaty with the
country of origin. For example Germany has no extradition treaty with
France or the UK. There have been cases where the German courts have
refused a return on the grounds that the abducting parent, who is not
regarded by them as a criminal, could be imprisoned when accompanying
the child back to its country of habitual residence, or visiting it
there.
Hopefully the recent decision by the ECHR might encourage ``all''
signatory countries to put in place effective measures to return the
child. But, again we need your help to ensure that some countries'
practice of retaining abducted children and refusing to grant
enforceable access rights is rightfully challenged.
______
News Release The Aire Centre--Advice on Individual Rights in Europe
[January 25, 2000]
European Court of Human Rights Strengthens Enforcement of International
Child Abduction Treaty
STRASBOURG, 25 JANUARY 2000--Today, for the first time, the European
Court of Human Rights ruled that a state's failure to enforce a court
order under the Hague Convention on the Civil Aspect of International
Child Abduction is a violation of the European Convention on Human
Rights.
In the United Kingdom, it is estimated that an average of four
children a week are wrongfully taken or kept in other Hague Convention
countries, In the last three years alone, the UK has seen a 58 percent
increase in the number of international child abductions.
The Hague Convention was created in 1980. It is a multilateral
treaty which seeks to protect children from the harmful effects of
abduction across international boundaries by providing a uniform
procedure to bring about a prompt return of these children to their
country of origin but not necessarily to the left behind parent.
Custody of the child is for the courts to decide. Fifty-seven nations
are now signatories to the Hague Convention. But the responses to these
abduction cases have been uneven.
The European Court ruled today in Ignaccolo-Zenide v. Romania that
a state's failure to enforce a court order to return a child to its
country of origin under the Hague Convention is a violation of the
European Convention of Human Rights. Specifically, the Court found that
respect for family life guaranteed by Article 8 of the European
Convention includes a right for parents to have effective measures
taken to return children to the country from which they have been
abducted. Since children can easily form new attachments, the Court
emphasized the necessity for states to act quickly so that the
abducting parent cannot claim that returning the child would be
harmful.
This decision has significant global implications as from now on,
European states will be responsible ordering the return of children to
the country from which they have been abducted and enforcing those
judgments.
judgment in the case of ignaccolo-xenide v. romania
In a judgment delivered at Strasbourg on 25 January 2000 in the
case of Ignaccolo-Zenide v. Romania, the European Court of Human Rights
held by six votes to one that there had been a violation of Article 8
(right to respect for family life) of the European Convention on Human
Rights. Under Article 41 (just satisfaction) of the Convention, the
Court awarded the applicant 186,000 French francs (FRF) for non-
pecuniary damage and for legal costs and expenses.
1. Principal facts
The applicant, Rita Ignaccolo-Zenide, a French national, was born
in 1953 and lives at Metz (France).
Following her divorce a French court ruled, in a judgment that had
become final, that the two children of the marriage were to live with
her. In 1990, during the summer holidays, the children went to stay
with her former husband; he held dual French and Romanian nationality
and lived in the United States. However, at the end of the holidays, he
refused to return them to the applicant. After changing addresses
several times in order to elude the American authorities, to whom the
case had been referred under the Hague Convention of 25 October 1980 on
International Child Abduction, he managed to flee to Romania in March
1994, where he has lived ever since. On 14 December 1994 the Bucharest
Court of First Instance issued an injunction requiring the children to
be returned to the applicant. However, her efforts to have the
injunction enforced proved unsuccessful. Since 1990 the applicant has
seen her children only once, at a meeting organised by the Romanian
authorities on 29 January 1997.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human
Rights on 22 January 1996. Having declared the application admissible,
the Commission adopted a report on 9 September 1998 in which it
expressed the unanimous opinion that there had been a violation of
Article 8 of the Convention. The case was brought before the Court by
the Romanian Government on 27 January 1999.
In accordance with the transitional provisions of Protocol No. 11
to the Convention, a panel of the Grand Chamber of the Court decided on
31 March 1999 that the case should be examined by a Chamber constituted
within the first Section of the Court. On 14 September 1999 the Chamber
held a hearing in public.
Judgment was given by that Chamber, composed as follows:
Elisabeth Palm (Swedish), President, Gaukur Jorundsson
(Icelandic), Riza Turmen (Turkish), Josep Casadevall
(Andorran), Wilhelmina Thomassen (Dutch), Rait Maruste
(Estonian), Judges, Ana Diculescu-{time} ova, ad hoc Judge, and
also Michael O'Boyle, Section Registrar.
3. Summary of the judgment\1\
---------------------------------------------------------------------------
\1\This summary the registry does not bind the Court.
---------------------------------------------------------------------------
Complaint
The applicant complained that the failure of the Romanian
authorities to enforce the injunction issued by the Bucharest Court of
First Instance on 14 December 1994 constituted a breach of her right to
respect for her family life, as guaranteed under Article 8 of the
Convention.
Decision of the Court
Article 8 of the Convention
The Court reiterated that although the essential object of Article
8 was to protect the individual against arbitrary action by the public
authorities, it also imposed positive obligations inherent in an
effective ``respect'' for family life. Article 8 included a right for
parents to have measures taken with a view to their being reunited with
their children and an obligation for the national authorities to take
such measures. That obligation was not absolute, since some preparation
might be needed prior to the reunion of a parent with a child who has
been living for any length of time with the other parent. The nature
and extent of the preparation depended on the circumstances of each
case and any obligation the authorities had to apply coercion in this
area was limited, since the interests and rights and freedoms of all
concerned, and in particular the paramount interests of the child and
his rights under Article 8 of the Convention, had to be taken into
account. Where contact with the parent might threaten those interests
or interfere with those rights, it was for the national authorities to
strike a fair balance between them.
The Court considered that the positive obligations which Article 8
of the Convention imposed on the Contracting States to help reunite
parents with their children had to be construed in the light of the
Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction. That approach was particularly relevant
to the case before the Court, since the respondent State was a party to
that instrument.
The decisive factor for the Court was therefore to determine
whether the national authorities had taken all reasonable steps to
facilitate the enforcement of the order of 14 December 1994.
Although first attempts at enforcement of the injunction were made
promptly, in December 1994, the Court noted that as from January 1995
the bailiffs made only two further attempts: in May and December 1995.
It noted, too, that the authorities took no action between December
1995 and January 1997 and that no satisfactory explanation for that
inactivity had been forthcoming from the Government.
Moreover, the authorities had not done the groundwork necessary for
the enforcement of the order, as they had failed to take coercive
measures against D.Z. or to prepare for the children's return by, for
example, arranging meetings of child psychiatrists and psychologists.
No social workers or psychologists took part in the preparation of the
meeting on 29 January 1997. The Court noted, lastly, that the
authorities had not implemented the measures set out in Article 7 of
the Hague Convention to secure the children's return to the applicant.
The Court found that the Romanian authorities had failed to take
adequate and sufficient steps to comply with the applicant's right to
the return of her children and had thus infringed her right to respect
for her family life, as guaranteed by Article 8. The Court therefore
concluded that there had been a violation of Article 8.
Article 41 of the Convention
The Court held that the applicant must have sustained non-pecuniary
damage as she alleged. Ruling on an equitable basis, it awarded her FRF
100,000 under that head.
It awarded the applicant FRF 86,000 for costs and expenses.
Judges Maruste and Diculescu-{time} ova. expressed dissenting
opinions and these are annexed to the judgment.
The Court's judgments are accessible on its Internet site http://
www.echr.coe.int).
The European Court of Human Rights was set up in Strasbourg in 1959
to deal with alleged violations of the 1950 European Convention on
Human Rights. On 1 November 1998 a full-time Court was established,
replacing the original two-tier system of a part-time Commission and
Court.
______
Responses of Lady Meyer to Questions From Senator DeWine
Question 1. In your written testimony, you discussed the British
criminal statute, the Child Abduction Act of 1984. You stated that
where abductors flee to a weak Hague country that it is often speedier
and more effective for a UK citizen to use the criminal offence than
follow the Hague process. Is there a reluctance on the part of the
British law enforcement to go forward under the criminal statute when
the child has been abducted to a Hague country?
Answer. In England there is a reluctance to resort to criminal
prosecution.
The Child Abduction Act of 1984 criminalises child abduction,
including some classes of parental child abduction. Cases can be tried
summarily before magistrates or on indictment before a jury, depending
on their seriousness. But because of the sensitivity of cases of this
kind, a high level of authority has to be given for any prosecution,
and prosecutions are relatively rare.
The Crown Prosecution Service (Director of Public Prosecutions)
scrutinise prosecution's under the 1984 Act with great care before
action is authorised, and the fact that there is prima facie evidence
that an offence has been committed is not the only factor they consider
when deciding whether or not to pursue a charge of parental child
abduction.
The three main factors for this reluctance are:
(a) There is a culture among lawyers--criminal and civil--
that to introduce criminal proceedings into a family (and
especially a child-related) situation is counter-productive,
except where a very serious crime (murder, serious physical or
sexual abuse) has been committed. Imprisoning a parent
(especially if that parent is a primary carer) is not usually
seen to be in the child's best interest. As a result, English
lawyers will usually advise left-behind parents that the
bringing of criminal proceedings, especially where there is an
effective Hague remedy, is likely to be counter-productive.
(Protection, for example by civil injunctions, is another
matter entirely and is often applied).
(b) This culture reflects the approach of most ordinary
people. Most left-behind parents are far more interested in the
return of the child than in the punishment of the abducting
parent. In turn, they usually follow the advice of their
lawyers.
(c) English judges hate returning children abducted by
primary carers, if they think that there is a risk of criminal
prosecution (and possible imprisonment) which may deprive the
child of that parent as a potential carer.
Therefore, because starting the criminal process requires a
vertical referral to the Crown Prosecution Service, and because there
is consultation with the left-behind parent, who almost certainly has a
lawyer acting for him or her, there has been a consensus in most Hague
cases that a prosecution is best avoided. This, you will appreciate, is
anecdotal. What is not is that prosecutions so far have been rare--
though this may be changing.
However, from the inquiries I have made, I do not think there has
been any case where the CPS has refused to prosecute where a left-
behind parent has a good case in law, and is anxious to prosecute.
Question 2. In your written testimony you also stated that the
``real use of the criminal statute is that it allows the full range of
powers for the pursuit of a wanted criminal to be used to find the
abductor, and more importantly, the child''. Are you familiar with the
case with which criminal proceedings are instituted in the UK and if
there are delays in proceeding with the criminal cases? Do you know how
many children have been returned as a result of the enforcement of the
Child Abduction Act?
Answer. Criminal proceedings are relatively easy to institute in
the UK and the process should be a speedy one. But it is not always the
case. Furthermore, the police are not always properly trained in these
matters and are often reluctant to get involved.
To start a criminal prosecution, the left-behind parent must first
convince the police that an offence has been committed. Then following
whatever police investigation is appropriate, the matter goes to the
Crown Prosecution Service (Director of Public Prosecutions) for a
decision as to whether to prosecute or not. The question of the
viability of extradition will be a further consideration. The decision
is taken (criminal child abduction being one of a particular class of
offences where this is required) at a high level. In some cases, the
decision can take a very long time, but most decisions are taken with
appropriate speed to allow the criminal process to be of real use
(assistance by the UK police, special branch, INTERPOL etc) in locating
a missing child.
For the left-behind parent, the process is not particularly
complicated because it does not require much action by him or her once
the original complaint has been lodged.
In the past few years, the Home Office has worked to provide
assistance to the police at various levels. It has provided information
on both the problem of international child abduction and which tools
are available to them to deal with it. Special police groups, such as
those concerned with extradition, and Special Branch, have specialist
and highly developed expertise, which can be quickly employed. Special
Branch in particular can track the international movement of abductors
and monitor and control movements at UK airports with a high degree of
effectiveness. But, bear in mind that the UK, like most EU states, has
dismantled exit controls and passport checks for ordinary travellers.
Unfortunately, I do not think that there are any reliable
statistics on the number of children who have been returned as a result
of prosecutions being instituted under the 1984 Act.
Question 3. What is the role of the International Centre for
Missing and Exploited Children in international child abduction cases?
Answer. The National Center for Missing and Exploited Children, as
the first organisation of its kind, has increasingly been called upon
to assist other countries struggling with issues of child abduction and
dislocation. It is clear that national boundaries are no barrier to the
transportation and victimisation of children. The International Centre
for Missing and Exploited Children (ICMEC) addresses the need for a
more comprehensive, international approach to issues of child abduction
and exploitation and provides a model that other countries can adapt to
their own needs.
ICMEC is initially focusing on three primary areas:
1. Expanding our existing international website project to
all countries of the world. This project enables appropriate
entities in other countries to share images of missing children
with the public for the purpose of generating leads and in
order to recover missing children;
2. Implementing our agenda to improve outcomes for families
whose cases are brought under the Hague Convention on the Civil
Aspects of International Child Abduction. ICMEC has created an
international steering committee to implement an eight-point
action agenda designed to increase knowledge and uniformity in
the implementation of the treaty. Our strategy includes working
with government entities and the Hague Permanent Bureau to help
reach our objectives;
3. Providing training to law enforcement, the judiciary,
lawyers, prosecutors and others involved with issues of child
abduction. A key area of training is the promotion of best
practices for cases arising under the Hague Convention. ICMEC
also anticipates offering training on responding to cases of
missing children, the use of international treaties and laws to
promote the return of children, as well as training in the
evolving area of exploitation of children through the Internet.
__________
Responses of Ernie Allen to Questions From Senator Thurmond
Question 1. The Federal Agency Task Force on Missing and Exploited
Children's April 1999 Report to the Attorney General on International
Parental Kidnapping (``Task Force Report'') does not recognize the use
of the criminal process, such as the International Parental Kidnaping
Crime Act (``IEPKCA''), as a gap in how the government currently
addresses this issue. Do you think the Justice Department should make a
greater effort to use the criminal process, such as more aggressive
enforcement of the IPKCA, as a tool to help address international
parental kidnaping?
Answer. Yes. In both domestic abduction cases and international
abductions, criminal charges can be of great assistance in locating the
child. In addition, these charges are often used successfully as a
bargaining chip in negotiations for return of the child. We have seen
cases in which the threat of charges convinced an abductor to return to
the United States with the child. The reality is that these cases are
not just ``private legal matters.'' Research suggests that in as many
as 80 percent of these cases, the motive for taking the child is not
love, it is anger or revenge. These children are at risk, and suffer
harm in many ways. We believe that the criminal process is a vital and
important tool that should be used far more extensively.
Question 2. You note in your testimony that the Amer case in the
Second Circuit provided excellent case law for future prosecutions. Do
you think that conditioning an abductor's release on return of the
child could help solve some cases?
Answer. Yes. The Amer case is a good example of the recognition of
the dual civil and criminal aspects of international parental kidnaping
and willingness to fully utilize the legal tools available. Although
the children were not successfully returned in Amer, conditioning
release on the return of the child may be effective in another case.
Question 3. The Department of Justice generally appears to prefer
that prosecutions be undertaken pursuant to an Unlawful Flight to Avoid
Prosecution (``UFAP'') Warrant, pursuant to the Fugitive Felon Act (18
U.S.C. 1073), rather than the IPKCA. However, the Subcommittee has
found that many foreign states do not recognize mere flight to avoid
prosecution by a State of the United States to be an extraditable
offense. Also, many States decline to pursue UFAP's because they cannot
afford the costs of extradition. Do you agree that proceeding under an
IPKCA warrant would be more effective in persuading foreign states to
extradite parental abductors to the United States because such a
warrant reflects how seriously the United States, as a nation, views
this conduct?
Answer. While some countries may extradite based on a federal IPKCA
warrant or a state warrant attached to a federal UFAP, the free-
standing federal IPKCA charge sends a message from the Federal
government in a way a UFAP does not. The primary purpose of an IPKCA
warrant is to arrest, extradite and prosecute the abductor. Congress
understood when passing IPKCA that the domestic laws of other countries
and the limitations of extradition treaties may be obstacles to
extradition. As the legislative history of IPKCA shows, however,
Congress felt an important purpose of an IPKCA warrant was to send a
message to the governments of other countries that addressing
international child abduction is a priority of the U.S. government.
Congress fully intended these warrants, carrying the full weight and
authority of U.S. federal law, to be used by U.S. Ambassadors and
diplomatic personnel in negotiating the return of individual children.
Question 4. Do you think that aggressive enforcement of the
criminal process, including more charges under the IPKCA, could deter
some international child abductors?
Answer. Yes. For a criminal law to act as a deterrent, it must be
used. Without aggressive pursuit and prosecution, the act loses its
deterrent effect.
Question 5. What has been the rate of increase in international
parental abductions in recent years, and do you expect this trend to
continue in the foreseeable future?
Answer. NCMEC's family abduction caseload (both domestic and
international) has increased over the past several years. We believe
that the increase in the number of cases reported to NCMEC reflects an
increase in cases nationwide. The actual number of international family
abductions occurring in the U.S. has not been studied, therefore the
rate of increase cannot be stated with accuracy. There is no indication
that family abductions are leveling off--the divorce rate remains
approximately 50 percent. International family abduction, as a subset
of family abduction will certainly follow suit especially with our
increasingly mobile and multicultural society.
Question 6. Deputy Legal Advisor Borek testified that the return
rate to the United States is approximately 60 percent under the Hague
Convention. Do you think the actual return rate may be lower than this
figure? Does the inconsistency regarding estimates of the true return
rate illustrate the need for a comprehensive case-tracking system?
Answer. There has been some disagreement regarding return rates and
the appropriate way to define and measure success in Hague Convention
cases. A comprehensive case tracking system will certainly help keep
track of the number of children affected by international abduction. To
better measure the problem, however, we must carefully define what the
United States considers a successful resolution of a case and make sure
we are tracking success, not just numbers. For example, we have seen
cases in which a foreign court orders the child's return, but somehow
the child never gets returned. If the court order is the measure of
compliance, it obviously falls well short of what the intended purpose
is. To address this gap, the National Center for Missing and Exploited
Children is undertaking a study of the outcomes of cases between the
United States and several key Hague signatory countries. This study is
the first of its kind and will tell us how cases are actually resolved
and whether the treaty is applied in a reciprocal fashion.
______
Responses of Ernie Allen to Questions From Senator DeWine
Question 1. Assistant Attorney General James Robinson, in his
written testimony, stated that efforts are underway to develop an
enhanced role for the National Center for Missing and Exploited
Children in international parental kidnaping cases. As part of this
enhanced role, do you think it would be helpful for the National Center
for Missing and Exploited Children to be officially sanctioned by the
Federal government to contact foreign entities.''
Answer. NCMEC is not legally restricted from contacting foreign
entities, the greater the official sanction held by NCMEC, the greater
our ability would be to reach the right people, advocate effectively on
behalf of searching U.S. parents, and return children. Our current
contacts are not made with an ``official sanction'' by the U.S.
government. We work to establish relationships with foreign entities
and organizations when it may help foster cooperation on cases of
international child abduction. We probe. We seek allies and resources
to aid or assist a searching U.S. parent. We seek to be a credible,
aggressive but responsible advocate, and to utilize every possible
resource to bring a child home.
NCMEC has also launched an International Centre for Missing and
Exploited Children to address the issues NCMEC addresses on a world-
wide scale. It is our view that in many ways, the world faces the same
sort of global challenge regarding the problem of child abduction that
we faced in this country two decades ago. We believe there is a
significant need to building networks, sharing information, utilizing
every resource to build a comprehensive, coordinated, meaningful
response to this serious problem.
We welcome U.S. government collaboration on these efforts, and seek
to work in tandem with all appropriate agencies.
Question 2. At this time, what services does the National Center
for Missing and Exploited Children provide for left-behind parents and
what services would you like to be able to provide?
NCMEC's basic services are not limited by national boundaries. Our
mandate from Congress is to assist in the search for U.S. missing
children, and we do that whether a child is taken across town or around
the world. Our case managers work with law enforcement and searching
families to attempt to locate missing children. Our photo distribution
network includes worldwide distribution of posters, and our hotline
receives leads and sightings on children globally. We are building a
global network via the worldwide web, so that missing children's images
can be searched and seen in many countries. Today, NCMEC's website
receives 3 million ``hits'' per day, and we have built companion sites
in Canada, the United Kingdom, Belgium, the Netherlands, Italy,
Argentina, Brazil and Chile, with many other countries preparing to
join the network.
We provide technical assistance to parents, their attorneys and law
enforcement personnel working the case. We also provide referral
services to identify counseling and legal advice for parents and
referrals to parent-mentors who have cases in the same country. We also
network with law enforcement officers who are inexperienced working
cases of international abduction together with law enforcement who have
handled cases in a particular country. We publicize cases in
partnership with Voice of America and through international poster
distribution. In addition, we administer the Victim Reunification
Travel Program, funded through the DoJ's Office of Victims of Crime and
pay the travel costs for U.S. children returning after being abducted
overseas. The program funds also enable U.S. parents to travel abroad
to attend custody-related court proceedings or proceedings under the
Hague Convention.
We need and want to do more. NCMEC seeks to continue and enhance
existing services and to expand direct services to parents in the areas
of legal assistance both in the U.S. and abroad and counseling services
in order to help families defray the costs associated with
international family abduction.
In 1995 we were asked by the State and Justice Departments to
assume a lead role on the cases of foreign children abducted to the
United States under the Hague Convention. While we had some trepidation
about appearing to do more for foreign parents than U.S. parents, we
agreed to take on the challenge based on the concept of comity. Other
governments were suggesting that if U.S. agencies and officials didn't
do more to locate and return children abducted to the United States,
foreign governments would be far less willing to assist in cases of
U.S. children abducted to their countries.
We undertook the task because we thought it was the right thing to
do, and because we felt it was essential if we were to ensure that
every possible resource would be used to help U.S. families. We are
pleased with the progress, but are committed to working with the State
and Justice Departments to continually enhance NCMEC's role on behalf
of left-behind U.S. parents. It is not our aim to either duplicate or
supplant the important services delivered by government agencies, but
it is our commitment to continually seek ways to provide better, more
timely and effective assistance to every searching U.S. parent.
We appreciate your interest in this issue and stand ready to assist
the federal government and others to improve the outcomes for U.S.
families facing international abduction.
Additional Submissions for the Record
----------
Prepared Statement of Thomas A. Johnson, Parent of
Wrongfully Retained Child
Thank you for giving me the opportunity to submit this written
statement as the parent of an American child wrongfully retained in
Sweden. I understand that it will be published in the record of the
Subcommittee's hearing of October 27, 1999 concerning international
parental kidnaping. Although I am an attorney with the Department of
State, this statement is submitted solely in my personal capacity as an
American citizen and as the father of Amanda Kristina Johnson, an
American child literally held hostage in Sweden for nearly five years.
I greatly appreciate the hard work of your staff on this subject
and your willingness to schedule a hearing to learn how and why the
Executive Branch has failed so many abducted American children and
their left-behind parents. Specific Congressional actions of the kind
suggested below are the only hope for these American citizens because
the Justice and State Departments are determined to maintain the status
quo to keep foreign governments happy, and have consequently opposed,
obstructed, or ignored all Congressional initiatives to date, including
the International Parental Kidnaping Crime Act of 1993 (IPKCA), 18 USC
1204. Unsuccessful with their disinformation campaign that these are
``private custody disputes,'' the latest party line from Justice and
State is that a lack of resources is the problem. Nothing could be
further from the truth. The problem at both Justice and State is a lack
of interest in assisting and protecting American citizens, even our
youngest ones,
As indicated by the attached example, of my correspondence with the
U.S. Attorney's Office for the Eastern District of Virginia in
Alexandria. Virginia (I never received a written response to my various
written communications) and by the discussion of the IPKCA below, the
Justice Department showed extraordinary creativity in its excuses for
refusing to enforce the Act. Not impressed either by evidence of direct
foreign government support for the commission of Federal felonies
against American citizens or by the attempts of foreign governments to
use the mere existence of the IPKCA against American citizens in
litigation (adding insult to injury in view of the Justice Department's
refusal to enforce the Act in most cases), the Justice Department
intentionally misinterprets the Act, as noted below, and refuses to
expend the minimal resources required to secure an indictment and make
provisional arrest and extradition requests. (See Pages 10-11)
Thanks to the refusal of the Justice and State Departments to take
meaningful (and generally cost-free) preventive and remedial actions,
the norm for American parents in the vast majority of these cases is no
return of the child under the Hague Convention on the Civil Aspects of
International Child Abduction or otherwise, no possibility of gaining
extradition and prosecution of the abductor because the Executive
Branch has negotiated one-way extradition treaties and the Justice
Department ignores the will of Congress by failing to enforce the
IPKCA, no possibility of enforceable access to or visitation with the
child because most foreign legal systems have nothing comparable to
contempt of court, and no effective assistance from the U.S.
Government, which in fact stands ready to assist the abductor and his/
her supporting government through enforcement of foreign child support
orders and extradition of American parents who rescue their children.
A summary of my daughter's individual case and far more extensive
remarks on this subject are contained in my testimony and written
statement (71 pages including attachments) submitted to the House
International Relations Committee and published in the record of its
hearing on October 14, 1999. This statement concentrates on systemic
problems and remedial actions concerning all Americans, although
attachments address my negative experience with the Justice Department
and some details of Amanda's case. Nevertheless, it is important at the
outset to note the human impact of these cases and the truly barbaric
conduct of governments such as Austria, Germany, and Sweden that
facilitate, directly support, and ensure the success of their citizens
who abduct and wrongfully retain American children with impunity.
Amanda has not seen her American family, friends, school, church, and
home environment for more than five years. She has several grandparents
here, but none in Sweden. She has two baby sisters here whom she has
never met, with another due next month, but no brothers or sisters in
Sweden. Amanda's abductor could not have succeeded without the Swedish
Government's comprehensive financial support and other forms of
assistance. And governments such as Sweden that virtually encourage
child abduction and retention by their citizens could not succeed
without Justice and State Department dereliction of duty, refusal to
make them pay any price for their treaty violations and human rights
abuses, and failure to protect American citizens.
This Subcommittee and Congress as a whole can do a great service to
American citizens by directing the Justice Department to transform its
contract with the National Center for Missing and Exploited Children
(NCMEC) so that it concerns only assistance to American citizens in
``outgoing'' cases and mandating that NCMEC shift from helping foreign
parents in ``incoming'' cases to helping Americans in ``outgoing''
cases (as NCMEC prefers), hold the case files instead of the Department
of State, and play an assertive advocacy role on behalf of American
children and their parents. Today, left-behind American parents must
deal with hostile bureaucrats at Justice and State while foreign
parents benefit from NCMEC's superb capabilities at U.S. taxpayer
expense.
This Subcommittee can also do much to reject the ``private custody
dispute'' disinformation campaign, eliminate the two-front war
presented to left-behind American parents by the Executive Branch (the
threats of extradition and child support enforcement), and halt the
effective abandonment or ``writing off'' of American children through
State Department closure of their cases. In addition, the Subcommittee
can insist on Executive Branch preparation of items such as the
attached Summary of the Swedish Government System of Abduction and
Wrongful Retention of Children (as an example of what the U.S.
Government should be drafting and disseminating to all U.S. courts, law
enforcement authorities, family law specialists, and the public on each
Hague and non-Hague country that facilitates or supports international
child abduction and wrongful retention).
The past year has been a very good one for the abductors of
American children. With all too few exceptions, they have enjoyed great
success, thanks to the foreign governments that support them in a
variety of ways and the U.S. Government that fails to provide effective
assistance to its citizens who are the victims of these crimes and
human rights abuses. At the same time, the U.S. Government and courts
keep foreign governments happy by generally returning children to
foreign parents, thus helping to maintain the status quo. Abductors of
American children will continue to succeed, unless Congress takes
specific actions detailed later in this statement to:
establish accountability (e.g., annual abduction and human
rights reporting to Congress as proposed in the State
Department Authorization Bill)
require effective preventive measures (e.g., dissemination
of reports and advisories on foreign legal systems via the
Internet and all other possible means to U.S. courts, family
law specialists, law enforcement authorities, and the public)
promote full compliance by foreign governments with the
Hague Convention and other relevant international instruments,
and
ensure remedial measures in response to treaty violations.
Today, there is no accountability within the Executive Branch, few
preventive measures to educate American courts and law enforcement
authorities (let alone the public), no strategy to achieve full
compliance with the Hague Convention and other applicable treaties, and
no political will in the Executive Branch to take effective remedial
measures. The reality is that foreign governments provide far more
financial, law enforcement, and other assistance to their citizens and
others who abduct or retain American children abroad than does the U.S.
Government to the left-behind American parents. Worse still, the U.S.
Government provides far more assistance to foreign citizens whose
children are in the United States, often with good reason as discussed
below, than it does to Americans whose children have been abducted or
wrongfully retained abroad. U.S. tax dollars permit NCMEC to assist
foreign parents in a variety of ways, while the American parents in
those cases generally face extreme gender and/or national bias in the
foreign courts concerned, and will not be able to obtain enforceable
access or visitation with their children except perhaps in a few common
law countries. It appears that the Executive Branch cares only about
U.S. compliance with its treaty obligations and is unwilling to take
any effective measures to ensure that there are negative consequences
for foreign governments that consistently fail to comply with their
treaty obligations to the United States and that support, in a variety
of ways discussed in this statement, the commission by their citizens
of Federal and state felonies against American children and their
parents.
The situation for foreign left-behind parents is very different.
According to statistics supplied to the General Accounting Office (GAO)
by the National Center for Missing and Exploited Children (NCMEC), the
combined efforts of the State Department, the Justice Department, U.S.
courts, and U.S. law enforcement have ensured that more than 90 percent
of children abducted to or retained in the United States in recent
years have been sent back to foreign countries. In some cases, U.S. law
enforcement agencies have wrongfully assisted foreign parents and
simply taken children from American citizens without a hearing or any
other form of due process of law. Ironically, the U.S. returns
virtually 100 percent to some of the worst offending. countries, such
as Sweden and Austria. Moreover, as explained below, many of these
children were brought to or retained in the United States for valid
reasons, such as the impossibility of their American parents receiving
fair treatment or even enforceable visitation of any kind from the
foreign courts concerned. These children should not be sent away from
the United States. But they are, because the Executive Branch has
failed to educate American courts and family law practitioners about
the grave risks (within the meaning of Article 13b of the Hague
Convention) of sending them to countries where they will be denied any
contact with their American parents unless the foreign parent decides
otherwise.
As described below, foreign government support for abduction and
wrongful retention of American and other children continues unabated.
Because American lawyers and U.S. Government officials continue to have
great difficulty in comprehending or even believing the point, it
cannot be repeated too often that parents in our position cannot gain
legally enforceable access to or visitation with our children in the
countries where they are held hostage, let alone the United States,
unless the abductor permits it.
In other words, the reality that would be helpful for this
Subcommittee and Congress in general to address is that the problem
goes well beyond the fact that foreign governments are violating their
treaty obligations to the United States with impunity, refusing to
return American children under the Hague Convention, stealing custody
jurisdiction from American courts, and awarding sole custody to their
citizens who have committed Federal and state felonies. Even at that
point, one might reasonably assume, as I did, that the worst case
scenario is being a noncustodial parent with only 4 to 6 weeks of
visitation in the United States each year. Regrettably, the fact is
that most American children are completely and permanently lost to
their American parents, families, friends, and home environments.
Accordingly, American parents of abducted children are, in most
cases, faced with a clear choice: abandon their children or conduct a
rescue operation. For those who make the latter choice, it is hoped
that Congress will ensure that they are fully supported by the U.S.
Government and that the current practice of subjecting them to a two-
front war (e.g., by means of extradition) is, terminated.
Immediate Remedies
This intolerable and indefensible situation would begin to improve
literally overnight, if the Executive Branch took several actions that
cost nothing. The first such action is simply to begin publicly telling
the truth about these cases. If nothing else, however, the conduct of
the State and Justice Departments during the past year has conclusively
demonstrated that they will not take such actions voluntarily. Among
other things, the Hague Convention Compliance Report submitted to
Congress by the State Department violates both the letter and spirit of
the statutory reporting requirement in P.L. 105-277, the Task Force
Report to the Attorney General is an attempted fraud on Congress that
has nothing to do with reality, all pending legislation (Section 203 of
H.R. 2415 and Sections 201-203 of S. 886) has been subjected to
unprincipled opposition without any constructive alternatives
suggested, NCMEC has been successfully pressured by the State and
Justice Departments into continuing to assist primarily foreign parents
at U.S. taxpayer expense with only limited help and information
provided to American parents, and the senior State Department official
responsible for this area (Assistant Secretary Mary Ryan) has declared
in an appalling letter to Insight Magazine that these cases are
essentially mere private child custody disputes and that we should be
encouraged by a return rate for American children of well under 50
percent. In her April 1999 letter, which is an insult to the memory of
all abducted American children, Ryan claimed that there were returns,
some form of visitation, or consular access in 52 percent of the cases.
Since the latter two categories are unenforceable, that means the
actual return rate is way below 50 percent. More recently, in her
October 14 testimony to the House International Relations Committee on
this subject, Ryan suddenly claimed a return rate of 72 percent, which
is false. The only real hope for American children and their parents is
that Congress will enact legislative directives that:
require the Justice Department to report every 6 months on
its enforcement of the IPKCA (indictments, convictions,
extradition requests, countries involved, etc.)
require the State Department to address family rights and
parental child abduction in each country report of the annual
human rights reports, in accordance with Section 203 of S. 886
as supplemented by subjects covered in the original version of
Section 203 of H.R. 2415 (e.g., whether a country can and will
enforce a child's right to have access to both parents even if
they reside in different countries, whether a country provides
financial support to its abductors, whether a country
recognizes the principle of comity and respects the laws and
court orders of other countries on custody and visitation,
whether a country has criminal legislation that effectively
shields its abductors and targets foreign parents attempting to
exercise their custody rights, whether statistics show that a
country's legal system demonstrates gender or national bias in
child custody cases)
require the State Department to disseminate an
interpretation of Article 13b of the Hague Convention to all
U.S. courts (with notice to all Hague Convention Parties and
announcement at the next Hague Convention Review Conference)
that ``grave risk'' to the child as a basis for nor-return
includes situations where the child(ren) would be returned to a
country with a legal system that has no effective means of
enforcing visitation in the United States (or anywhere else)
for the American parent or enforcing any other aspect of its
civil court orders (i.e. a legal system that has nothing
comparable to contempt of court)
require the State Department to conclude bilateral
agreements with the worst offending countries concerning access
and visitation
prohibit the State and Justice Departments from assisting
foreign parents in domestic litigation until they uniformly
assist American parents in Federal or state court litigation
financed by foreign governments and brought to challenge or
subvert U.S. court orders
require the State and Justice Departments to inform all
extradition treaty partners that the United States will not
extradite its citizens for the offense of parental child
abduction to any country that does not extradite or effectively
prosecute its nationals for that offense and does not
consistently return requested children under the Hague
Convention
require the Executive Branch to transform its contract with
NCMEC to process ``incoming'' of cases into a contract for
NCMEC to assist only with ``outgoing'' cases, to transfer all
``outgoing'' case files from the State Department to NCMEC, and
to inform all Hague Parties that NCMEC will no longer assist
with ``incoming'' cases
mandate that NCMEC take an assertive advocacy role on behalf
of American children and parents with BOTH foreign governments
and the U.S. Government
terminate the State Department's authority under P.L. 104-
193 (Section 459A) to conclude reciprocal child support
enforcement agreements and require the State Department to
inform the states that foreign child support orders should not
be enforced in cases where the American parent has no
enforceable visitation in the United States or there has been a
violation of U.S. law or court orders, Federal or state
felonies, failure to return a child under the Hague Convention,
and so on.
Recent Executive Branch Performance--Report to the Attorney General
``We cannot push too hard in the Johnson case because that
might jeopardize the return of children in other cases.''
(Assistant Secretary Mary Ryan)
``I don't work for the American people, I work for the
Secretary of State.''
(Assistant Legal Adviser Catherine Brown)
``Why are you calling about the Johnson case? That case is
closed.''
(Response to NCMEC by Ellen Conway of the Office of
Children's Issues)
These are actual statements concerning my daughter's case or child
abduction generally made to me or others by State Department officials
who are supposed to be responsible for obtaining the return of abducted
American children. They will give you some idea of what American
parents experience when they deal with the State Department, and why
this function needs to be shifted elsewhere, with the Department placed
in receivership in this area by Congress in the interim. The first
statement is a classic expression of appeasement. The second may
confirm many suspicions about the State Department, but was also both
honest and sincere, which is precisely the problem. And the third
raises the issue of the State Department writing off American children
by closing their cases as soon as the foreign government makes a final
denial of the U.S. request for return. You know about this matter
because the State Department told you that there were only 56
``unresolved'' Hague cases in its Hague Convention Compliance Report to
you last spring. As a Marine who was trained from Day 1 never to leave
anyone behind and as a citizen who admires and supports the MIA effort,
I find the bureaucratic closing of our children's cases particularly
offensive. My understanding is that no one, from the President on down,
has the authority to write off American citizens, especially our
youngest ones.
Rather than alleging dereliction or incompetence at the State and
Justice Departments, it is really only necessary to look at Executive
Branch actions and inaction during the past year. particularly with
regard to three matters: the State Department's Report to Congress on
Hague Convention Compliance, the so-called Task Force Report to the
Attorney General, and State Department opposition to proposed
legislation. All three are addressed in my October 14 testimony to the
House International Relations Committee. This statement concentrates on
the Report to the Attorney General because the Justice and State
Departments are attempting to portray it as something other than just a
repackaging of the status quo.
The Attorney General promised this report to the Senate Foreign
Relations Committee last fall in order to gain the release of 38 law
enforcement treaties being held up because of the poor performance of
the Executive Branch in the child abduction area. The Report submitted
to Congress has virtually nothing to do with the realities facing
American parents and is a blatant attempt to perpetrate a fraud on
Congress by giving the impression that the Executive Branch intends to
do something other than maintain the status quo. The Report is an
example of the oldest game in Washington: production of a ``blue
ribbon'' report by bureaucrats under fire to get Congress, the media,
and the public off their backs WHILE CHANGING NOTHING. This Report is
noteworthy only for what it omits and conceals. NCMEC recognized this
early in the drafting process and withdrew from the project in a hard-
hitting written dissent available to the Committee, but the fails to
make clear that NCMEC is NOT one of the drafters. Any credible GAO
Report would have to evaluate this Report in detail and should discuss
the facts that the Report does not explain the discrepancies between
the Report's rhetoric and actual Executive Branch conduct (opposition
to legislation, thorough reporting, release of documents to parents)
and the innumerable gaps, ambiguities, and cover-ups in the Report,
including:
no game plan for diplomatic and other responses to foreign
government Hague violations or other forms of support for
abduction/retention of American children
no mention of the central importance of the absence of
anything comparable to contempt of court in most Hague
countries, thus ensuring total loss of children not returned
under the Convention
no indication that anything other than the status quo will
be maintained with business as usual even with the worst
violators of the Hague Convention and worst non-Hague countries
no revelation of the largely successful effort to freeze
NCMEC out of ``outgoing'' cases
no clear recognition that these are not ``private custody
disputes''
no disclosure of how bad the numbers are (see NCMEC
memorandum to GAO)
no recognition that a ``grave risk'' within the meaning of
Article 13 of the Hague Convention exists from countries that
cannot effectively enforce access or visitation
no recognition of the consequences of failing to educate
U.S. courts about the nature of foreign government support of
child abduction and retention
no hint of DOJ refusal to enforce the 1993 International
Parental Kidnapping Crime Act
no hint of general DOJ refusal to request extradition
no acknowledgment of the human rights standards that are
being violated and the differing approaches of the First Lady
(who is legally and morally right) and the State Department
no mention of foreign government threats and demands against
American parents concerning reimbursement of child support and
legal fees paid to abductors
no mention that the Executive Branch fails to monitor
domestic litigation against American parents financed by
foreign governments
no strategy for dealing with extortionate demands by even
the best Hague countries (e.g., the UK) for costly
``undertakings'' by the American parent, as in the Lebeau case
no acknowledgment that foreign governments claim ``private
custody disputes'' while hiding behind their sovereign immunity
in hiring and paying American lawyers to represent abductors in
abusive litigation in U.S. courts intended to exhaust American
parents financially
no hint of State's negotiation of child support enforcement
agreements with foreign governments without safeguards or
exclusions to protect left-behind American parents
no revelation of State's policy of closing cases and
compartmentalizing them at the lowest level to avoid any impact
on bilateral relations.
GAO REPORT: Senator DeWine of this Subcommittee is among those who
have requested a GAO report on the performance of the Executive Branch
in this area. As indicated above, a credible GAO report must thoroughly
evaluate the Task Force to the Attorney General along the lines
suggested and address those issues wholly apart from the context of the
Report to the Attorney General. GAO has been supplied with the names
and addresses of dozens of American parents, attorneys, and others
familiar with the performance of the Executive Branch concerning
international child abduction and retention. GAO needs to interview
these people and form its own conclusions. Among other things, a GAO
report should include:
Scope of the problem with complete statistics
Adequacy of existing legislation
Adequacy of cooperation with NCMEC and American parents
Refusal of State to include the subject in the Human Rights
reports
Adequacy of the Hague Convention Report to Congress
Adequacy of Executive Branch cooperation
Disparity between return rates from the U.S. versus to the
U.S.
Review of case files to ascertain adequacy of State services
to parents
State's criteria for closing cases
Executive Branch strategy for dealing with violator
countries
Treatment of American parents (access to documents,
protection from foreign child support demands, frequency of
contact)
Cooperation and support from embassies and the State
Department overall.
Foreign Government Support for International Parental Child Abduction
and Wrongful Retention of Children
The principal purpose of this statement, as indicated above, is not
only to discuss individual cases or countries, but rather to provide a
general description of foreign government support for the abduction and
retention of American children, the response of the United States
Government, and proposed Congressional actions to assist American
children and parents affected by the crime of international parental
child abduction and retention. Accordingly, information on my daughter
Amanda's case and my experience with the Swedish legal and social
welfare systems is only provided as an example of what often confronts
left-behind American parents.
six pillars of governmental child abduction or wrongful retention
While the present overall Swedish legal and social welfare system
may well be one of the worst adversaries that a left-behind American
parent can face, at least some elements of that system exist in many
other countries, especially in European civil law countries. The
Swedish system includes all of what could be called the Six Pillars of
governmental child abduction and retention:
(1) undeniable bias against foreign parents by the courts
(compared to the very high rate of returns of abducted children
from the U.S. ordered and enforced by U.S. courts);
(2) no enforceable visitation or other parental rights for
foreign parents (owing to the absence of anything comparable to
our contempt of court mechanism);
(3) no concept of comity (reciprocal enforcement of foreign
court orders, including custody orders agreed to by their
nationals);
(4) payment of unlimited legal fees for their nationals who
abduct or retain children in all litigation at home and in the
U.S. (in both Hague Convention and regular custody
proceedings);
(5) aggressive action by police and prosecutors against
foreign parents in enforcing criminal legislation specifically
drafted and intended to protect their child abductors/
retainers;
(6) ``address protection'' programs that enable abductors/
retainers and the children involved to disappear even from U.S.
consular officers, with the aid of the police and social
welfare agencies.
In short, these are NOT ``private child custody disputes,'' as
Germany and Sweden try to claim in these cases, and as Executive Branch
officials who may wish to write off the children concerned and do
business as usual with such countries would like to believe. The
following are not ``private'': treaty violations, Federal and state
felonies, human rights abuses, government payment of legal fees and
other financial support, foreign government failure to provide civil or
criminal remedies to left-behind American parents, foreign government
refusal to respect U.S. laws and court orders.
American parents in such cases are often essentially alone against
the power and wealth of the governments concerned. Of course,
individual parents capable of internationally abducting or wrongfully
retaining children are to be found in every country. The question,
therefore, is whether their governments will control their conduct and
protect the parental rights of foreign parents, especially in light of
the international legal obligations of all countries under either (or
both) the Hague Convention and human rights treaties that guarantee the
role of both parents and the right of children with parents of
different nationalities to spend time in both countries.
Because it has proven nearly impossible for Executive Branch
officials and other Americans (especially judges and lawyers) to
believe, it must be repeated that, as a practical matter, the exercise
of jurisdiction over an abducted or wrongfully retained American child
in a regular child custody proceeding by a German or Swedish or
Austrian or Danish court (with the inevitable grant of effective sole
custody to the non-American abducting parent whether or not it is
called ``joint'' custody) is equivalent to termination of the parental
relationship between the child and the American parent. Even if some
form of access or visitation is awarded on paper, American parents have
no legally enforceable rights of any kind in such countries.
international parental kidnaping crime act of 1993
This Act should either be revised (if that will result in greater
willingness of U.S. Attorney's offices to utilize it) or be enforced as
it stands when Hague Convention remedies are exhausted or inapplicable,
or the left-behind parent so requests. At present, despite the best
intentions of Congress, the 1993 Act is not only a failure in helping
Americans (there have been few indictments, and fewer still convictions
and provisional arrest requests under the Act), but it has become an
effective tool for foreign child abductors and retainers. Under some
extradition treaties, it actually creates dual criminality where none
existed before, so that American parents who rescue their abducted
children can be extradited to countries that refuse to extradite their
nationals for parental child abduction or any other offense and also
refuse to return children consistently (or at all) under the Hague
Convention.
Moreover, to add insult to injury for the victims of child
abduction or wrongful retention who know that the Department of Justice
will generally not implement the 1993 Act, its mere existence (and the
purely theoretical possibility of prosecution of foreign abductors or
retainers) is being used against American parents in Hague Convention
and regular custody litigation in the U.S. and abroad. Attorneys for
child abductors/retainers, including those hired and instructed by
foreign governments that are U.S. treaty ``partners,'' have argued that
the fear of prosecution under the 1993 Act justifies the denial of
applications for return of children under the Hague Convention, as well
as refusal of abductors/retainers to appear in U.S. custody
proceedings. This latter argument concludes with a demand that U.S.
courts defer to the jurisdiction of the foreign court.
That was precisely the argument made in Virginia to the trial court
and the Court of Appeals in my daughter's case by the attorney hired by
the Swedish Government. Fortunately, the Virginia judge cut through the
argument by asking whether the abductor would immediately return to
Virginia with the child if given immunity from prosecution. This bad
faith argument fared no better in the Court of Appeals. But the
argument that the children should not be sent back to the U.S. under
the Hague Convention if the local parent faces criminal charges will
almost certainly succeed in many foreign courts.
With regard to implementation of the 1993 Act, the approach being
taken by some U.S. Attorney's offices concerning the Act cannot
possibly be consistent with the intent of Congress. Although the Act
places both wrongful removal (or abduction) of a child from the United
States and wrongful retention abroad on the same level, as does the
Hague Convention, wrongful retention abroad is effectively being read
out of the Act by some prosecutors as not serious enough to merit
indictment.
Moreover, some prosecutors have unilaterally added as an
affirmative defense that a child abductor or retainer is attempting to
obtain a local custody order abroad and would already have succeeded so
but for Hague Convention proceedings freezing the local custody
process. In like manner, some prosecutors are incorrectly asserting
that a foreign court order denying return of the child(ren) under the
Hague Convention constitutes a defense under the Act. Disregarding the
entire object and purpose of the Hague Convention in Article 1 (respect
for the custody laws of other Parties to the Convention), such
prosecutors apparently have no difficulty with individuals who clearly
violate U.S. court orders and custody rights, as long as they are also
attempting to persuade a foreign court to ignore the orders and
unilaterally take jurisdiction over the case. In essence, this approach
gives immunity from prosecution, so long as abductors are using the
legal process in their home country, no matter how corrupt,
incompetent, or biased against foreign parents it may be.
Even when Hague Convention remedies are inapplicable or have been
exhausted, and thus utilization of law enforcement mechanisms will not
jeopardize return of the child(ren), left-behind parents hear a litany
of excuses for failure to implement the Act or to use it in any way to
pressure abductors into returning the child(ren). The latter approach
does not constitute misuse of the criminal process to achieve a civil
law objective, as some might argue. Rather, it would constitute use of
a criminal law to bring a halt to criminal conduct, which is presumably
what Congress intended. At the moment, the point is moot because the
1993 Act is being used far more by foreign governments against
Americans than by the U.S. Department of Justice.
In litigation financed by foreign governments, as noted above, its
mere existence is cited as a reason not to return children to the
United States in European courts and as a reason to defer to European
jurisdiction in U.S. courts. Adding to the irony of the general refusal
by U.S. law enforcement authorities to implement the 1993 Act is the
very aggressive enforcement by some European law enforcement
authorities of laws or policies that protect local child abductors and
target foreign parents who attempt to exercise their sole or joint
custody rights. An example of such a criminal law from the Swedish
penal code is attached to this statement. It has been used as a
justification for aggressive Swedish police action against several
American fathers, including me.
Especially in Scandinavia, mothers also increasingly have the
option of going ``underground'' or otherwise stalling long enough to
have the case reopened, with the best interests of the child(ren) then
being found to require remaining in place because they are fully
resettled. Of course, in social welfare States where the governments
continue to pay legal fees, child maintenance, and other allowances to
child abductors, the authorities can easily find those who go
``underground'' if they want to.
While a few countries that provide legal aid to both parties in
Hague cases without regard to need (e.g., the United Kingdom) may have
a valid complaint about the failure of the United State's to provide
legal aid to anyone, the situation is far worse where a government pays
unlimited legal fees at home and abroad for its child abductors, so
that left-behind American parents are confronted by the deep pocket of
a foreign government not only in foreign courts but also in U.S.
courts. The point is that foreign parents are not in any way up against
the U.S. Government in abduction cases here.
United States Government Response (or lack thereof) To Foreign
Government Support of International Parental Child Abduction and
Wrongful Retention of Children Abroad
Today, when an American parent faces the nightmare of international
child abduction or wrongful retention abroad, he or she does so alone
in most respects. Legal fees and other expenses can quickly mount to
tens of thousands of dollars. A decade after U.S. ratification of the
Hague Convention on the Civil Aspects of International Child Abduction,
there is still no central repository of reliable information and
expertise in the Executive Branch that can quickly and effectively
supply accurate basic data on the legal system, child custody
institutions, law enforcement system, social welfare system, legal aid
program, and Hague Convention performance of the abductor's country.
The left-behind American parent thus has little basis for evaluating
the options available.
Some of the information supplied by the Executive Branch last year
to the Senate Foreign Relations Committee in order to obtain the
release of 38 law enforcement treaties was inaccurate, incomplete, and
misleading, particularly the implication that ``everybody does it'' and
that the United States is no better than most other countries. That
implication is false, and the Executive Branch knows it. Moreover, the
frequent claim by the Executive Branch that elementary but essential
information on a variety of matters concerning foreign legal systems in
connection with child abduction or child custody is ``not available''
to the Executive Branch is untrue. This information is readily
available and could be obtained without difficulty or expense from
American embassies, experts in the field, local attorneys, and American
parents who have learned the hard way. The Executive Branch simply does
not want Congress to have this information because of the likely
Congressional reaction.
Although all concerned would presumably agree that prevention and
deterrence of child abduction or wrongful retention are the ultimate
goals, little is being done in this area. Dissemination of information
on the key institutions, laws, and child custody practices of other
countries is the key to eliminating much of the secrecy and ignorance
that leads to successful child abductions and retentions. Countries
whose legal systems and child custody institutions guarantee frequent
non-compliance with the Hague Convention or no visitation or other
rights for American parents need to be publicly identified and analyzed
in depth.
There is no monitoring by the Executive Branch of U.S. litigation
financed by foreign governments against left-behind American parents
(or responsiveness to reports of such litigation), so that U.S.
Government statements of interest or amicus curiae briefs can be filed
in landmark cases. Instead, the Executive Branch participates in Hague
Convention and perhaps other litigation on behalf of foreign parents
while failing to help Americans up against the deep pocket of foreign
governments trying to reverse or undermine U.S. court orders. Assisting
Americans would not require a significant increase in resources. In two
recent cases, statements of interest from the U.S. Government of only a
page or two would have been invaluable. In my own case, I prevailed in
upholding the U.S. custody order in the highest courts of Virginia, but
only at a personal cost of more than $20,000 while the Swedish
Government financed this bad faith litigation to exhaust my financial
resources while having no intention of respecting any result adverse to
the Swedish abductor. In the other case, Mark Larson of Utah lost in
the 10th Circuit for acting precisely in accordance with U.S.
Government policy and advice in Hague Convention cases. In view of the
strong dissenting opinion, literally a few sentences in a U.S.
Government statement of interest might have made a difference.
In contrast, foreign Central Authorities often work just as hard to
assist their nationals who abduct or wrongfully retain children as they
do for their nationals who are victims of these offenses. In the case
of the Swedish Central Authority, its support of child abduction and
wrongful retention include such means as coordination of litigation
strategy in both Sweden and the U.S. against American parents. This has
included creative attempts to:
(a) use the Uniform Child Custody Jurisdiction Act in U.S.
courts to obtain for Sweden the status of an American state for
purposes of jurisdiction and enforcement of Swedish custody
orders, and,
(b) use the mere existence of the 1993 International Parental
Kidnapping Crime Act in both Swedish and U.S. courts as a
justification for not returning children to the U.S. on the
pretext that the Swedish abductor might be prosecuted (which
adds insult to injury in view of the fact that the Justice
Department will only rarely enforce the Act).
Other activities of the Swedish Central Authority have included
automatic distribution of Swedish and U.S. Government documents and
information to Swedish abductors and their attorneys (while the State
Department tells Americans to file Freedom of Information Act
requests), informing the Swedish police and prosecutors that American
child custody orders have no validity in Sweden in contravention of the
whole object and purpose of the Hague Convention set out in Article 1,
translation only of court decisions and other documents favorable to
the Swedish abductor, and so on. Such conduct by a foreign government,
especially its Central Authority for an international convention
against child abduction and wrongful retention, should receive the
widest possible exposure and censure.
Litigation in the United States financed by foreign governments
against Americans who are already the victims of crimes committed by
nationals of those governments should at least raise some serious
questions about possible abuse of sovereign immunity. For example, the
Swedish Government attempts to put a legal gloss on the abductions and
wrongful retentions committed by its citizens by pursuing frivolous
appeals of U.S. custody orders all the way to the supreme court of the
states concerned even when the children have been held hostage in
Sweden for years. Roughly five years ago, Julia Larson was abducted to
Sweden from Utah for the third time and my daughter Amanda was
wrongfully retained in Sweden. Neither child has been in the United
States nor been allowed normal contact with their American families,
but the Swedish Government has considered it necessary to try to make
everything look ``legal'' by attacking the Utah and Virginia custody
orders in extremely expensive and time-consuming litigation. An effort
in Virginia to satisfy a money judgment against the abducting mother by
garnishing the retainer paid to her attorney was blocked by an
affidavit (attached) declaring that all funds held by the law firm are
directly from ``the Kingdom of Sweden's legal aid agency.''
Several additional preventive and remedial actions by Congress are
needed to ``level the playing field'' for American parents facing off
against foreign governments. Congress is confronted daily with many
competing demands that have serious resource implications. This request
does not. It seeks only the requisite political will to accomplish the
objectives of better protecting American children from international
parental kidnaping, especially when such conduct is directly supported
by foreign governments.
Proposed Congressional Actions Against International Child Abduction
In view of the overall poor performance of the State and Justice
Departments for many years, receivership is necessary. Accordingly, the
following proposals do not constitute micro-management.
(1) U.S. Central Authority
PROPOSALS: (A) Amend ICARA if necessary or otherwise direct that
the U.S. Central Authority for the Hague Convention be shifted
immediately from the State Department to the Civil Division of the
Justice Department (with the State Department directed to provide all
support and assistance requested), taking into account the need to
improve such areas as:
training and expertise of personnel
continuity and institutional memory of personnel
number of personnel available
caseload of personnel
quality, quantity, and nature of legal support available
the balance between child abduction/retention cases and
``good relations'' in bilateral relations
the role of regional bureaus and American embassies
general openness and a willingness to provide left-behind
American parents with all available information and
documentation.
(B) Direct that NCMEC cease handling incoming cases and play the
same role for ``outgoing'' cases (i.e., abductions from the U.S. and
retentions of American children abroad) that it has been playing for
``incoming'' cases, with a mandate for assertive advocacy on behalf of
American parents on all fronts.
(2) Human Rights and Prevention, Publicity, and Accountability (See
also pages 43-53)
PROPOSALS: (A) Human Rights: In the ``children's rights'' section
of the annual human rights report on each country, direct that the
child custody system be summarized, including gender bias or bias
against foreigners based on statistical evidence, enforceability of
visitation/access for noncustodial parents (i.e., is there anything
comparable to contempt of court?), payment of legal fees for host
country nationals in custody or abduction cases, criminal legislation
that protects abductors/withholders, compliance (or not) with the
relevant provisions in the Convention on the Rights of Child on the
role of both parents, the right of children in international cases to
spend time in both countries, etc. The U.S. is not a Party but has
signed and complies with the relevant provisions to a far greater
extent than most States Parties.
Each year, the annual human rights report is eagerly
awaited, widely disseminated, and, unlike most government
reports, widely read throughout the world. One important
function that the annual human rights reports should perform is
prevention, as ``human rights advisories'' comparable to travel
advisories; i.e., to alert potential victims of current and/or
ongoing, systemic human rights abuses. If just one child from
ANY country is saved from being lost because a judge, attorney,
parent, or family friend reads or hears about government-
supported child abduction/retention in a given country, then an
accurate and complete report will have accomplished something
both worthwhile and right. An accurate and complete report on
countries such as Sweden would constitute a great service to
American and other parents who might be warned in time to avoid
losing their children.
This subject belongs in the Human Rights Reports on its
merits based on the numerous provisions in international human
rights instruments that are violated by foreign governments in
these cases. The First Lady has been right morally and legally
in repeatedly declaring that international child abduction and
retention are a human rights matter. State Department
opposition is ludicrous, especially in view of what IS covered
in the reports already and the fact that this is a systematic
human rights abuse against Americans, whereas the current
reports are devoted almost exclusively to what foreign
governments do to their citizens.
(B) Enact a permanent annual reporting requirement on Hague
Convention Compliance to cover retention cases and any case where the
child is not returned to the United States not resolved within 6
months, and to include lists of countries that do not have anything
comparable to contempt of court and cannot enforce their own civil
court orders, that pay the legal fees of their abductors/retainers,
that have criminal legislation which effectively protects their
abductors/retainers, etc.
(3) Bilateral Relationships
PROPOSAL: Review what type of relationship the United States should
have with governments that engage in the following conduct and attach
consequences such as no new law enforcement treaties or child support
enforcement agreements if they:
are directly engaged in facilitating, financing, otherwise
supporting, and rewarding criminal conduct against American
citizens
have in place any elements of a governmental child abduction
system
have refused return of American children abducted/retained
in violation of U.S. law or court orders
have unresolved cases of abduction/retention of American
children with no meaningful or enforceable access for the
American parent
use their law enforcement authorities aggressively against
American parents whose children have been abducted/retained and
rarely if ever use them to assist American parents
have failed to compensate American parents of abducted/
retained children for their legal and other expenses
abuse their sovereign immunity by financing litigation in
U.S. courts against American parents while claiming that the
cases are private custody disputes and refusing to respect/
enforce results adverse to their citizens.
(4) Extradition
PROPOSAL: Direct that the United States inform all extradition
treaty partners that the U.S. will not extradite its nationals for the
offense of parental child abduction or related offenses to any country
that will not extradite or effectively prosecute its nationals and will
not fully comply with its obligations under the Hague Convention.
(5) Mutual Legal Assistance Treaties (MLAT's)
PROPOSALS: (A) Consider whether the United States should provide
assistance against a left-behind American parent in any case where
there has been a child abduction/retention in violation of U.S. law or
court orders AND whether the United States should provide assistance
under any foreign law that criminalizes the attempts of custodial
parents (sole or joint) to exercise their parental rights in response
to abduction/retention of their child(ren). (e.g., See attached Swedish
penal law that has been used against several American parents of
abducted/retained children).
(B) Refuse to sign or ratify an MLAT with any country that
consistently supports international child abduction such as Sweden, in
view of participation by Swedish police and prosecutors in the
commission of Federal and state felonies against American citizens,
Sweden's blatant and continuing violations of its obligations under
related treaties, the unacceptable elements of Sweden's legal and
social welfare system (summarized above), and the current and past
cases of criminal conduct and human rights violations against American
children and their parents directly facilitated, financed, rewarded,
and supported in every conceivable way by the Government of Sweden.
(C) Deliver a message comparable to the following one that should
be delivered to Sweden to any country that engages in similar conduct;
i.e., that no further consideration will be given to moving forward on
a mutual legal assistance treaty (MLAT) until the Government of Sweden:
terminates its comprehensive participation in ongoing
Federal and state crimes against American citizens, in
particular the International Parental Kidnapping Act of 1993
(18 USC 1204) and the comparable laws of each state
acknowledges that American children over whom Swedish courts
exercise custody jurisdiction are completely lost to their
American parents unless the Swedish parent decides otherwise,
and takes effective remedial actions
eliminates the Swedish Government Child Abduction System
(see above), starting with acknowledgment and elimination of
the 5 pillars of the System (no principle of international
comity in the Swedish legal system, undeniable bias by Swedish
courts against non-Swedish fathers in regular custody
proceedings and guaranteed sole custody awards for Swedish
child abductors, nothing comparable to contempt of court to
enforce access/visitation, unlimited government financing of
legal fees and other expenses of Swedish abductors, and
aggressive Swedish law enforcement use of a criminal statute
that targets non-Swedish fathers)
resolves satisfactorily all pending cases of child
abduction/retention by Swedish citizens through return of the
children to the United States and putting in place immediately
enforceable criminal remedies against the Swedish citizens
involved to prevent any recurrences
implements and demonstrates the effectiveness of reforms of
its legal and social welfare system to deter or quickly resolve
in an acceptable manner all future cases, including in
particular unsupervised and immediately enforceable access to
the children concerned guaranteed by something comparable to
criminal contempt, termination of legal aid for child abductors
in civil proceedings, and streamlining its legal system to
prevent endless appeals and delays
repeals its criminal law directed against non-Swedish
fathers attempting to exercise sole or joint custody rights
over children abducted or withheld by Swedish mothers
directs its police and prosecutors to cease harassing and
attempting to intimidate American and other parents of
abducted/retained children who attempt to exercise their
custody rights
compensates American parents of abducted/retained children
for all expenses of litigation financed by the Swedish
Government in both Sweden and the U.S., as well as all other
costs and damages resulting from Sweden's failure to comply
with its treaty obligations under the Hague Convention on the
Civil Aspects of International Child Abduction and the family/
parent provisions of the Convention on the Rights of the Child
halts its abuse of sovereign immunity in aggressively
litigating against American parents in U.S. courts with no
intention of respecting or enforcing results adverse to the
Swedish citizen
demonstrates that it will extradite or effectively prosecute
Swedish parents who engage in child abduction/retention.
(6) Child Support Enforcement
PROPOSAL: Terminate the State Department authority in P.L. 104-193
(Section 459A) or at least amend it to:
(a) prohibit any child support enforcement arrangement with a
country that does not have a legal system providing prompt,
adequate and effective enforceable, unsupervised access/
visitation IN THE UNITED STATES by means of something
comparable to contempt of court
(b) prohibit any child support enforcement arrangement unless
it contains ironclad guarantees that no American parent of an
abducted/retained child will be affected, harassed, or
penalized in any way AND it expressly excludes any case where
there is or has been at any time:
a violation of a U.S. custody order or U.S. custody law
a violation of a Federal or state criminal law
a denial of a request for return of the child(ren) under the
Hague Convention or a failure of the foreign Central Authority
to comply with other Convention obligations
termination or reduction of any support obligation by a U.S.
court
an unpaid judgment or fine imposed by a U.S. court on the
foreign parent
a failure by the foreign government or its courts to provide
rapidly enforceable, unsupervised, and generous visitation in
the United States with police assistance and with no legal aid
provided to the foreign parent violating a foreign or U.S.
custody order
an inability or refusal by the foreign government/courts to
control the conduct of the foreign parent through contempt of
court or other effective means
an inability or refusal by the foreign government/courts to
protect and promote the exercise of parental rights by the
American parent
(7) Implementation of the International Parental Kidnaping Act of 1993,
18 US 1204
PROPOSAL: Either mandate Justice Department enforcement of the Act
or repeal it, in view of the foreign government efforts to use the Act
against Americans noted above. At present, the law is primarily used
against Americans and rarely enforced by the Justice Department.
If not repealed, require an annual DOJ report on the number
of requests from parents or their counsel for indictments,
number of indictments, number of extradition requests, number
of actual prosecutions, etc.
(8) Privacy Act
PROPOSAL: Require that left-behind parents be provided with the
option (in writing) to waive all Privacy Act rights so that their names
can be given to parents involved with the same country and to
organizations (such as NCMEC) that can help.
Prohibit use of the Act to withhold any information or
documents from left-behind American parents
Prohibit use of the Act on behalf of abducted American
children or abductors (even if U.S. citizens) as a basis for
withholding information or documents from left-behind American
parents
(9) Freedom of Information Act (FOIA)
PROPOSAL: Prohibit use of FOIA as a basis for refusing release of
ANYTHING and EVERYTHING to American parents in child abduction/
retention cases (information, documents, diplomatic and other
government-to-government correspondence, etc.)
these are not matters of national security; a left-behind
American parent has an absolute right to know everything that
his government has done or failed to do to obtain the return of
the American children concerned
(10) Exception To Foreign Sovereign Immunities Act
PROPOSAL: Create an exception to the FSIA giving American citizens
a cause of action in U.S. district courts against foreign governments
(and all their assets in the United States) that directly engage in,
facilitate, or otherwise support criminal conduct against them and
their children.
(11) Bilateral Claims
PROPOSAL: Consider the use of bilateral U.S. Government claims on
behalf of American children and their parents against foreign
governments that have permitted their nationals to abduct/retain
American children (and perhaps provided assistance and support).
(12) Office of Foreign Missions
PROPOSAL: Require OFM to: (A) regulate and monitor the hiring and
payment by foreign governments of American attorneys in cases of
abduction/retention of American children where U.S. civil/criminal law
or U.S. court orders have been violated, and (B) monitor and discourage
any harassment of American citizens by foreign government agencies
demanding either ``child support'' for abducted/retained American
children or reimbursement to the foreign government of the legal fees
it has paid for someone who has abducted or retained American children.
(13) Interpretation of the Hague Convention
PROPOSAL: Direct that the Executive Branch inform all U.S. courts
and Hague Convention countries that the term ``grave risk'' in Article
13 of the Convention (as a grounds for not returning a child) should be
interpreted to include situations where the country concerned cannot
provide enforceable access or visitation owing to the absence of
anything comparable to contempt of court in its legal system.
ATTACHMENTS: As noted
______
Thomas A. Johnson,
Alexandria, Virginia, April 25, 1997.
Subject: International Parental Kidnaping of Amanda K. Johnson
Rob Chestnut, Esq.,
Chief, General Crime Section,
Office of the U.S. Attorney,
Eastern District of Virginia.
Dear Rob: Thanks again for returning my call. Sorry I missed you on
my way out of town. I will be back in the office on May 12.
As I indicated in my message on Friday, the intent and language of
Congress and the President in enacting and signing the International
Parental Kidnaping Crime Act of 1993 were clear, and the reasons that
you have given thus far for not proceeding are not consistent with the
letter and spirit of the Act. Rather than repeating and supplementing
previous arguments, I would simply ask at this point that you and the
U.S. Attorney look over the materials I am faxing. Combined with the
items you already have, the contrast could not be greater between the
direct support that Swedish nationals who commit felonies against
American citizens receive from the Swedish government and law
enforcement authorities on the one hand, with the situation of their
American victims on the other hand.
The first item consists of pertinent pages from the appellate brief
in Virginia financed and supervised by the Swedish government. Last
August, I informed you that the attorney hired by Sweden, Richard
Crouch, tried to make an ``inconvenient forum'' argument in the
Alexandria Court by asserting that the abducting mother would be
prosecuted under the 1993 Act. When the judge expressed skepticism,
Crouch tried to gain ground by lying to the Court, claiming that one of
his clients was ``being prosecuted under the Act.'' You told me that no
one has been charged or prosecuted in your district under the 1993 Act
and that you had not heard of any cases nationwide. (There has
apparently been at least one conviction under the Act since last
summer.) In any event, you will note from the marked portions of the
brief that Crouch (and the Swedish government) are adding insult to
injury by attempting to use the mere existence of the law that your
Office refuses to enforce in order to consolidate the successful
commission of a crime covered by the Act. There is something terribly
wrong if you and the U.S. Attorney do not have a problem with a foreign
government notorious in the child abduction field making such a mockery
of U.S. law (and the U.S. law enforcement system generally) in a case
involving a child from your district who is literally being held
hostage, as the other items demonstrate.
The second item (circled portion) is the Swedish penal code
provision under which I was arrested in September after picking up my
daughter at her school, going to McDonalds, and returning to our hotel.
A Swedish prosecutor authorized my arrest, and I was held for 48 hours
as pure intimidation. Since there was insufficient evidence of any
crime even under the Swedish system, I was released and returned home.
But the ``investigation'' was dragged out for two months, during which
I was not allowed even to speak with Mandy by telephone because she was
``a potential witness.'' I trust you agree that the ``law'' in question
would be unconstitutionally vague and against public policy here. Its
only purpose is to protect Swedish child abductors. Two senior Swedish
prosecutors have told me that it is intended for use against ``fathers
from the South'' (Arabs and Africans), but conceded that it is also
useful against other lesser breeds such as Americans. Suffice it to say
that Swedish prosecutors take care of their own.
The third item is a translation of the police orders for the
supervision of my visitation with Amanda just before Christmas. There
is no Swedish custody order. The only custody order in the world gives
me sole and exclusive custody. But the Swedish police were willing to
devote two officers for guard duty on three different days in
furtherance of criminal conduct. Your office is apparently unwilling to
devote relatively minimal time to paperwork in response to criminal
conduct. In view of the Swedish government's acknowledgment in the
appellate brief that the mother has violated the 1993 Act, this action
in December constituted direct participation by the Swedish police in
an ongoing felony. The fourth item is photographic evidence of that
criminal conduct.
The fifth item constitutes mail fraud and attempted extortion, and
is probably covered by RICO. The Swedes determined the monthly amount
by taking one provision from the Virginia order that they are otherwise
completely violating and extrapolating a weekly amount of child support
that was to be paid only about 55 percent of the time until Mandy's
18th birthday to cover 100 percent of the time. There has been no
Swedish custody hearing, but the Swedes are proud to be able to state
the results in advance and to recognize reality in assuming 100 percent
of the time with the mother, since there is no enforceable visitation
under the Swedish ``legal'' system.
I hope that the sum total of these items will cause you to
reconsider. Some cases do come down to a clear choice between right and
wrong. This is one of them.
______
Summary of the Swedish Government System of International Abduction and
Wrongful Retention of Children
In both domestic and international situations, cases of abduction
and wrongful retention of children by a Swedish parent are not merely
``private custody disputes,'' in view of the lack of effective remedies
provided by the Swedish legal and social welfare systems to the left-
behind parent and the extensive Swedish government financial, law
enforcement, social welfare, and other support supplied to Swedish
parents who engage in abduction/retention of children.
In international cases where only one parent is Swedish
(particularly where the mother is Swedish), children not returned under
the Hague Convention on the Civil Aspects of International Child
Abduction are, as a practical matter, completely lost to their non-
Swedish parents unless the Swedish mother decides otherwise. This is
the result of the Swedish legal system's inability to effectively
control the conduct of Swedish parents and protect the rights of non-
Swedish parents in the absence of any judicial power comparable to
contempt of court. In regular child custody proceedings, Swedish courts
invariably grant sole custody to Swedish mothers and, as noted, have no
power to enforce visitation for non-custodial parents. Although a new
Swedish law entered into force on October 1, 1998 permitting Swedish
judges for the first time to impose joint custody over the objections
of one parent, this law will not be applied with any practical effect
when a foreign father is involved. Moreover, the terms of any such
joint custody order will be just as unenforceable in Sweden as the
visitation provisions of a sole custody order. Similarly, although
Swedish legal principles permit sole custody to be shifted from a
parent who denies access to a child on the grounds that such a parent
is unfit per se, it is highly unlikely in such a case that custody
would ever be shifted from a Swedish mother to a non-Swedish father
when the consequence would be that the child leaves Sweden to reside
elsewhere.
Even in cases where a foreign parent has sole or joint custody
under a non-Swedish custody order and no Swedish custody order exists,
there is no concept of comity in the Swedish legal system, (despite
Sweden's obligation under Article 1 of the Hague Convention to ensure
respect for the rights of custody and access under the law of other
States Parties). Swedish law enforcement authorities, having been
informed by the Ministry of Foreign Affairs that foreign custody orders
``have no validity in Sweden,'' aggressively interfere with any effort
by a foreign parent to exercise his custody rights in Sweden and may
arrest and prosecute him under a unique Swedish penal law that
effectively protects and rewards Swedish child abductors/retainers.
In both Hague Convention and regular child custody litigation in
Sweden and abroad (including all possible appeals in Sweden, the other
country concerned, and the European system), the Swedish social welfare
system provides unlimited payment of legal fees for Swedish citizens,
thus significantly reducing the incentive for the Swedish child
abductor/retainer to compromise or otherwise settle the case. This
enables the Swedish citizen to pursue appeals to the highest courts of
Sweden and the other country concerned at no expense, while exhausting
the financial resources of most non-Swedish parents. In any event,
Swedish authorities will not enforce or otherwise respect foreign
appellate judgments against Swedish parents.
In non-Hague cases, as demonstrated by the now leading decision of
Sweden's supreme court in the Ascough case during 1997 (children of
Australian/British father and Swedish mother residing in Singapore),
the Swedish courts will take jurisdiction and award sole custody to a
Swedish mother even in cases where the children were born outside of
Sweden, clearly reside outside Sweden, have never resided in or even
visited Sweden, and were unquestionably abducted to Sweden.
In summary, Sweden's overall legal and social welfare system
concerning child custody and parental child abduction/retention does
not comply with numerous provisions of human rights treaties to which
Sweden is a Party, notably the Convention on the Rights of the Child,
the European Convention on Human Rights, and the International Covenant
on Civil and Political Rights as a result of six factors:
(1) the undeniable gender and national bias of Swedish
courts, especially in favor of Swedish mothers
(2) the absence of anything comparable to contempt of court
to enforce visitation or other parental rights for fathers
(i.e., non-custodial parents)
(3) the unlimited financial support received in Sweden and
abroad by Swedish child abductors
(4) enforcement by Swedish law enforcement authorities of a
criminal law intended to protect and reward Swedish child
abductors
(5) the lack of comity with respect to non-Swedish court
orders, and
(6) the refusal of Sweden to extradite or effectively
prosecute Swedish child abductors.
Most notably, Sweden's legal and social welfare systems are
inconsistent with both the letter and spirit of Sweden's obligations
under the Convention on the Rights of the Child to ensure contact with
both parents and, in international cases, with both countries. Thus,
Sweden cannot ensure compliance with the provisions of the Convention
most relevant to child custody and child abduction/retention: Articles
9, 10, 11, and 18. The United. States has signed but not ratified the
Convention, but complies with these articles in practice to a far
greater extent than Sweden.
amanda's case
Voluminous documentation concerning Amanda's wrongful retention in
Sweden by a Swedish diplomat and the Government of Sweden, as well as
information on other American children abducted to Sweden, has already
been supplied to Committee staff. An updated chronology of the case is
attached to this statement, along with:
the unanimous decision of the Virginia Court of Appeals
upholding the Virginia Custody Order
the Virginia Supreme Court Order dismissing further appeals
Swedish Government demands for reimbursement of legal fees
and child support paid to the abductor
a Swedish criminal law intended and used to protect Swedish
child abductors and punish non-Swedish parents who attempt to
exercise their custody rights
photographs showing Swedish police participation in the
continuing Federal and state felonies against Amanda and me,
and
an outline of the Swedish Government's System of supporting
and financing parental child abduction.
With full support in every conceivable way from the Government of
Sweden, Amanda has literally been held hostage in Sweden since early
1995, in violation of:
U.S. civil law and court orders to which the mother agreed
in open court
U.S. Federal and state criminal law
Sweden's international legal obligations under several
treaties (The Hague Convention on the Civil Aspects of
International Child Abduction, the Convention on the Rights of
the Child, the European Convention on Human Rights, and other
human rights instruments)
Sweden's own civil and criminal laws on joint custody and
child abduction (which are never enforced against Swedish
mothers), and
the eligibility requirements for payment of all legal fees
in Sweden and abroad by the Swedish Government (which are
apparently conveniently waived for Swedish abductors).
The facts of the case are clear. Amanda, a U.S. citizen and
resident from birth (November 11, 1987), is also a Swedish citizen. She
was a U.S. Government dependent during her first two years while I was
posted at the U.S. Mission in Geneva. Mandy then lived with me in
Virginia roughly fifty percent of the time until age 6, attending three
years of preschool and kindergarten at Browne Academy in Alexandria,
Virginia. She spent the rest of her time in New York with her mother,
Anne Franzen, who was the lawyer at the Swedish Consulate with lead
responsibility for child abduction and custody matters, and who was
actually offered the position of Head of the Swedish Central Authority
for the Hague Convention upon leaving New York. Despite being
wrongfully withheld outside the U.S. for nearly five years now, Amanda
has still lived longer in an American diplomatic community or the U.S.
itself than in Sweden. She should have been living again in the U.S.
since the spring of 1995 under the agreed terms of a December 1993
Virginia custody order and subsequent enforcement orders, which make
clear that Amanda's habitual residence continues to be Virginia, that
the Virginia courts have continuing exclusive jurisdiction over her
case, and that the parents are prohibited from seeking custody
modification in any court anywhere in the world without the consent of
the Virginia court.
The case against Anne Franzen (Deputy Assistant Under Secretary for
Human Rights in the Swedish Foreign Ministry at the time) was so strong
that four Swedish courts either ordered Amanda's return under the Hague
Convention or held that Sweden did not have jurisdiction over Amanda
because she was only in Sweden temporarily in accordance with the
Virginia Custody Order to which the mother had agreed. After endless
delays, stays of execution, appeals, and litigation financed for the
mother by the Swedish Government in 8 separate proceedings in 6 courts
(a Hague process that lasted 17 months instead of the 6 weeks set forth
in the Convention), the final court from which there was no appeal (the
Swedish Supreme Administrative Court or Regeringsratten) reversed all
the lower court rulings in a May 1996 decision that has been declared
by the U.S. Government in diplomatic notes to be a violation of the
Convention and that has been rejected by the highest courts of
Virginia.
On August 9, 1996, with the abducting mother represented by counsel
paid by the Swedish Government, the Virginia Court granted me sole and
exclusive custody, made contempt findings, and issued several other
forms of relief. There was never a Swedish custody order of any kind
concerning Amanda until an interim joint custody order was issued by a
Swedish court in February 1999. The Virginia Custody Order has
withstood costly challenges in the highest courts of Virginia financed
by the Swedish Government, and remains the only final order in the
world. But Amanda continues to be wrongfully withheld from me, the rest
of her American family, her home and familiar environment, and her
country by her mother and by the Government of Sweden through a legal
and social welfare system that fails to meet even minimal standards of
due process of law (e.g., no rules of evidence and no prohibitions on
ex parte communications with judges).
Between December 1995 and June 1999, Amanda was able to see me on
only five occasions, for a total of 15 hours. On the second occasion
(September 16, 1996), after picking Amanda up at her school as a
custodial parent unwilling to subject the two of us to the continued
degradation of supervised visitation that had unlawfully been imposed
for nearly two years at the time, I was wrongfully detained in her
presence four hours later at our hotel (where I had informed the mother
we would be) by four Swedish policemen at the abducting mother's
request. I was held in solitary confinement for nearly 48 hours,
despite (or actually because of) the fact that I have sole custody
under the only final Custody Order in the case and have joint custody
even under Swedish law. Although I was released, never charged with any
offense, and compensated by the Swedish Government for wrongful
detention, the incident has done incalculable harm to Amanda and to my
relationship with her.
On the third and fourth occasions, in December 1996, I was only
allowed to see Mandy under police guard at her school, with the police
challenging the presence of the Vice Consul from the American Embassy
an one occasion and making a further mockery of my joint custody
``rights'' in Sweden (see attached photographs of Swedish police car at
Amanda's school). Amanda and I did not see each other after that
demeaning experience in December 1996 until February 1999 when the
abducting mother supervised some brief visitation.
Every element of joint custody has been violated: no school or
medical records, no photographs, no information on activities or
general welfare have been provided to me. There has been no response to
any of the countless letters and packages sent to Amanda. For the
summers of 1997 and 1998, creative efforts by my Swedish and American
attorneys to arrange visitation in the United States with guaranteed
returns to Sweden (U.S. court orders ARE enforceable) or any type of
supervised or unsupervised access in Sweden were summarily rejected by
the mother and her attorney. No assistance was provided by the judge
now assigned to the case. The judge who previously dismissed the
mother's petition for sole custody and upheld the Virginia Order has,
not surprisingly, been removed from the case.
In February, an interim joint custody order was issued over the
mother's objection because joint custody is now the norm in Sweden,
although it has no practical enforceable meaning in Sweden. The terms
of the order gave the mother de facto sole custody, with only
supervised visitation in Sweden. Even this meaningless ``joint
custody'' was reversed by the same judge in June 1999 at the mother's
request. Several hours per day of supervised visitation took place for
a few days in June 1999. The good relationship between Amanda and me
has survived despite all efforts by the abductor and the Swedish
Government to destroy it, but serious damage has been done to the child
(a nervous tick in both eyes). Amanda lived alone with me in Virginia
and attended three years of school roughly half the time for nearly 4
years, but everything possible has been done to de-Americanize her and
eliminate her relationship, with me.
In September 1999, an appeals court reversed part of the June 1999
interim order, restoring joint custody-and saying that visitation
(still limited to Sweden) does not need to be supervised. Like
everything else in the Swedish system, this is not enforceable, and an
effort for contact between Amanda and me during the October 8-10
weekend therefore collapsed over the issue of supervision.
______
international child abduction and wrongful retention in sweden
Name of Child: Amanda Kristina Johnson
Date and Place of Birth: November 11, 1987, Geneva, Switzerland
Current Location: Radjursstigen 14, 17072 Solna, Sweden
Telephone in Sweden: (8) 851436
ID Number in Sweden: 871111-0547
Wrongfully Retained in Sweden since January 1995
Four Swedish courts either ordered Amanda's return under the Hague
Convention or denied Swedish jurisdiction
Final denial of return by Supreme Administrative Court
(Regeringsrattan) in May 1996
Father: Thomas A. Johnson, 907 Dalebrook Drive, Alexandria,
Virginia
primary custodian since June 1995
sole and exclusive custody of Amanda since August 1996
Mother: Anne Franzen or Anne Franzen Johnson (address and telephone
above)
no custody order but given de facto sole custody rights by
Swedish law enforcement and social welfare authorities
Mother's employer: Swedish Ministry of Foreign Affairs
she is former Deputy Assistant Under Secretary for Human
Rights
Proceedings: 14 separate proceedings in 10 different courts in New
York, Virginia, and Sweden with the Swedish Government paying the
mother's legal fees in ALL
Pillars of the Swedish Government Child Abduction System:
no comity for foreign law or court orders despite Sweden's
obligations under Articles 1 and 2 of the Hague Convention
extreme gender bias and nationalistic bias in Swedish courts
payment of all legal fees for Swedish abductors/ retainers
in all proceedings in Sweden and abroad by the Swedish
Government
nothing comparabLe to contempt of court in the Swedish legal
system, so that Swedish courts cannot control the conduct of
Swedish parents or protect the parental rights of non-Swedes
criminal law that targets non-Swedish parents with sole or
joint custody rights who attempt to exercise those rights.
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Prepared Statement of Paul Marinkovich, Parent of
Illegally Abducted Son
Dear Chairman Thurmond: I greatly appreciate your invitation for my
testimony before the Subcommittee on Criminal Justice Oversight on
October 27, 1999. Having just returned from my testimony before the
House Committee on International Relations on October 14, 1999, I
regret that I can't physically attend. I respectively ask my testimony
be entered into the record for your hearings as I feel that we have a
very serious problem with the United States Justice Department and the
way they have treated America's illegally abducted children.
To provide you with a brief history, I have been involved in a
three and a half year battle to try and retrieve my illegally abducted
son from an act of International Child Abduction that took place on
August 19, 1996. In that time I have worked with many different
agencies including; the courts of Sweden and Denmark, the Central
Authorities of Sweden and Denmark, the local and national police in
Sweden and Denmark, the Swedish and Danish social systems, the Swedish
Minister of Justice, the Swedish Tax Authority, the European
Parliament, the United States Embassies in Sweden and Denmark, the
courts of California and Texas, police departments in California and
Texas, the United States State Department, the Federal Bureau of
Investigation, the United States Attorney's Office and the Office of
International Affairs.
In addition, I have testified before the Senate Foreign Relations
Committee along side of Attorney General Janet Reno and just completed
testimony before the House Committee on International Relations. I have
flown to Sweden eight times, to Denmark two times, to Washington four
times and to Texas twelve times.
My case has been the subject of a Cbs Special Assignment, I have
had 18 newspaper articles in the United States (and am in process of
working on the 19th and 20th), 16 newspaper articles in foreign papers
(with 4 additional pending articles due out this week), 10 television
news shows in the United States (with 2 additional shows pending), 8
television news shows (with the 9th airing at the same time as your
Committee hearings today), and have been the subject of an ABC internet
article.
Over this time, along with John Lebeau from Florida (who is
testifying today), I have started a non-profit corporation to help in
the fight for our nations abducted children and have worked at every
angle, nationally and internationally, to help change the systems of
government that keep American citizens from their abducted children.
With all my experience both here and abroad, I have never
encountered an organization so arrogant, so unwilling to help, so
untruthful, so unsympathetic, and so unaccountable for their lack of
effort as the United States Justice Department.
I testified on October 1, 1998, before the Senate Foreign Relations
Committee, at the invitation of Senator Jesse Helms. I was awarded sole
legal custody of my son by a Texas State court on October 21, 1996, but
my son was abducted by his non-custodial mother to Sweden. An
indictment was subsequently issued by the Grand Jury for the abductor's
arrest on May 28, 1997 for violation of Title 18, United States Code,
Section 1204(a). The case is further identified as criminal no. C-97-
129.
On October 20, 1998, I had a telephone conference with my legal
council, Mr. Howard Fox, Assistant United States Attorney from Corpus
Christi, Texas, Mr. Tim Hammer, Special Agent Abel Pena of the Federal
Bureau of Investigation in Corpus Christi, Texas, and Ms. Terry
Schubert of the Office of International Affairs at the Department of
Justice.
It was my and my attorney's distinct impression that Mr. Hammer and
Ms. Schubert were attempting to verbally club me into silence by
threatening to open false sexual abuse allegations against me. They
then warned me never to contact Mr. Hammer or Ms. Schubert about my
son's case. I was then bluntly informed that I have no right to know
anything about the Red Notice that was already supposed to be in place.
It was further implied that the Department of Justice would not issue a
provisional arrest warrant against the abducting parent because of my
testimony before the Senate Foreign Relations Committee.
I have been exonerated of the false sexual abuse charges by courts
in both this country and Sweden, have passed lie detector tests and
court ordered psychological evaluations, as well as having undergone
extensive investigation by the Federal Bureau of Investigation, and yet
Mr. Hammer and Ms. Schubert attempted to use these false allegations as
leverage to silence me.
Then, to add insult to injury, Mr. Hammer explicitly informed me
that he would no longer approve any deal to facilitate the return of my
son in exchange for the abducting parent being charged with a lesser
offense. Just two months prior, Mr. Hammer offered to drop all charges
if the abducting parent would return my son. In essence, Mr. Hammer and
my Justice Department have informed me that the prosecution of the
abducting parent takes precedence over the return of my son and the
assurance of his health, safety and welfare. This decision was made
after I testified before the Senate Foreign Relations Committee and
participated in extensive media coverage.
The message so very clearly conveyed to me is that my punishment
for being persistent in my exhaustive attempt to protect my son takes
precedence over my Justice Department insuring the health, safety and
welfare of nine-year-old American citizen, Gabriel Marinkovich.
The Justice Department has placed little priority on my case. After
three years they have no clue where my son is. The abductor is not a
professional criminal, she is just an American citizen who decided to
take the law into her own hands. Recently, Mr. Dale Mitchell, the
supervisor of the Corpus Christi FBI office, decided it was alright to
completely take my agent off the search for my son for over two months
without assigning anyone else to handle it in his absence. Agent Pena
was assigned to Delaware for training and was unreachable by telephone
or pager. I was never informed of this management decision and I called
their office in desperation 37 different times before threatening to
file another complaint with the Inspector General and to fly to Texas
with a California news crew who was doing a story on my case.
Prior to this I asked the secretary answering the phone just who
was in charge. She indicated that no one was in charge and that the
agents rotated the supervision of the office. On my 38th phone call
after delivering my ultimatum, I was then transferred to Agent Dale
Mitchell who was the Supervisor in charge (he too was absent from the
office for the prior two weeks). Only then was I informed that no agent
was handling my son's kidnaping case, and only then was I able to
deliver the valuable and timely leads that I had been trying to deliver
for two months.
Even as I write this testimony, I find myself distracted because of
the five un-returned calls into my FBI agent. I urgently need to give
him information from the sister program of ``America's Most Wanted'' in
Sweden called ``Efterlyst'' which aired my case on Thursday of last
week (5 days ago). It took three hard years to convince the Swedish
government with demands from our U.S. Ambassador to Sweden and several
members of Congress to get this show aired. Now there are several good
time sensitive leads that need to be retrieved from the Swedish Police
that are being completely ignored by our Justice Department.
I have been assured by both members of the House of Representatives
and Senate that my case should be of the highest priority because it
involves the health, safety, and welfare of a kidnaped American child.
The Congress and Senate's words have once again been completely
trampled on, as evidenced by the inherit lack of action exhibited by
the Corpus Christi FBI. They have been entrusted by the American people
to put America's laws into action and they are failing miserably at the
expense of our children.
I have tried to understand the attitude behind the actions of the
Justice Department. After the last three and a half years I think I
have finally understood their misguided attitude towards international
parental kidnaping. I have been repeatedly told by members of the
Justice Department ranging from my FBI Agent Able Pena to high level
Justice Department officials that parental abduction is a private
matter and that the Justice Department does not want to get involved in
it.
Everyone in America is entitled to their opinions, but when these
opinions are placed into Justice Department policy, we are left with
the opinions of our highest law enforcement officials being converted
into actions and lack of results. The problem is that their actions and
lack of results are in direct conflict with American law. Since the
International Parental Kidnapping Law of 1993, the Justice Department
has operated as an anarchy at the expense of the over 10,000 abducted
American children and their parents.
Their actions and lack of results directly contradicts laws passed
by our Congress and instructions within their own training manuals. The
National Center for Missing and Exploited Children created a federally
funded publication to educate and advise law enforcement officials in
their investigation of parental abduction cases called Missing and
Abducted Children, Law Enforcement Guide to Case Investigation and
Management. It advises law enforcement officers as follows: ``the
emotional scarring caused by these events requires that officers
recognize family abduction not as a harmless offense where two parents
are arguing over who `loves the child more,' but instead as an
insidious form of child abuse.'' The money appropriated by Congress for
this manual and the research put into it might as well been tossed to
the wind because the Justice Department is unwilling, by their past
record, to lift a finger to stop this ``abuse'' of American children.
In 1993, the American people and the United States Congress spoke
their will and passed into law the International Parental Kidnapping
Crime Act of 1993. It states, and I quote, ``Whoever removes a child
from the United States or retains a child outside the United States
with intent to obstruct the lawful exercise of parental rights shall be
fined under this title or imprisoned not more than 3 years, or both.''
According to a August 31, 1998 newspaper article in the Ventura
County Star about my case, the National Center for Missing and
Exploited Children quoted the following, ``In 1993, case workers
estimated about 10,000 children were abducted in the United States and
taken abroad in parental abductions. While the exact numbers can not be
determined today, experts acknowledge that it is significantly
higher.'' Also since 1993, it appears that only 62 arrest warrants have
been filed for these parents, and less than five have been successfully
prosecuted.
I visited Washington D.C. four times, testified before the Senate
Foreign Relations Committee on October 1, 1998, testified before the
House Committee on International Relations on October 14, 1999, and
have intimately engaged in talks with several members of the Senate and
Congress. I was almost unanimously told that we are a nation of laws
and that our system of laws were created more as a deterrent to crime
rather than a punishment for crime. It was also explained to me that
the stricter a law is enforced, the higher percentage of compliance is
achieved. So if strict enforcement of laws are a deterrent to crime,
then what type of message is our Justice Department giving the American
people by prosecuting only a fraction of one percent of those who
violate the International Parental Kidnapping Crime Act of 1993? How
effective of a deterrent to the crime of International Parental
Kidnapping is the issuance of a warrant for less than one percent of
those who violate the International Parental Kidnapping Crime Act of
1993?
Is it any wonder that the National Center for Missing and Exploited
Children report that International Child Abduction out of the United
States has tripled since 1986? While some are quick to point that the
rise in international marriages in the United States have fueled this
dramatic increase, I am certain that most of this increase could have
been avoided if not for the inexcusable disregard for enforcement of
the International Parental Kidnaping Act of 1993 by our Justice
Department.
Every child that has been abducted since 1993 has had their inherit
birth rights as American citizens selectively stripped from them.
Ironically, the institution that has stripped their rights is the very
organization that has been entrusted by the American people to
faithfully uphold the laws of this nation without prejudice.
The brilliance of our founding principles, the constitutional
system, and the birth rights our Declaration of Independence guarantees
for every American to life, liberty and the pursuit of Happiness has
been trashed by a few Justice Department officials who feel they are
above the law. Instead, new principles have been created, the
constitutional system has been selectively interpreted, and a new set
of laws and priorities have been born in the hallways and cubicles of
the Justice Department. They have selectively chosen to remove the
birth rights to life, liberty, and the pursuit of happiness that every
American is guaranteed from those children unlucky enough to be the
victims of parental abduction.
One only has to look at any maternity ward across this great nation
to see that every child born today will be at greater risk of being
abducted out of this country then those born yesterday. This is because
of the clear message the Justice Department is sending the American
people by not prosecuting this crime aggressively.
In my case after a long emotional and financial drain, I was able
to join the ranks of the far less than one percent of the cases that
resulted in a warrant. This was only achieved after a six month full
background check into my affairs, having to fly my present family out
from California to Texas for an FBI interview, drumming up support from
my Congressman and local media and thousands of man hours and at least
one hundred letters. I believe it was my persistence that persevered
and not the willingness of my U.S. Attorney to cooperate.
I talked just today to the Swedish Police officer in charge of my
case. I asked him if he was willing to share the recent leads gathered
from the investigative Swedish television show with the FBI. He
indicated that in three years, the FBI has never inquired about the
case. He further stated, that if the United States Justice Department
isn't interested in this case, then why should he. He indicated that he
was glad to live in a country who stood up for their children, and for
the first time in my 38 years of life, I was ashamed of my government.
I vowed to help change a bad system.
The United States is the most powerful nation on earth and with
that power comes tremendous responsibility as well as opportunity.
American Democracy delivers awesome power in the hands of its citizens,
but sadly today it is not engaged fully and it is our children who
harness the repercussions. Our U.S. Justice Department has taught
Sweden, by their actions, that we do not care about our illegally
abducted American children.
If we show these other countries that we are serious by our actions
and requests, then they start getting serious about the return of our
children. The context very clearly starts here with our own Justice
Department. If we don't treat the abduction of our children as a
serious matter, than how can we expect those other countries involved
to fight for our children's return.
The miracle we can create today, is for the Justice Department to
start taking this crime seriously and support the wishes of the
American people and this Congress by strictly enforcing the
International Parental Kidnapping Crime Act of 1993.
If we are a country who neglects to protect our children, what good
is the material prosperity in which we have been blessed? It is high
time that we reclaim the sense of special destiny and purpose that our
founding fathers created in our great country. It is time that we stand
as world leaders by first enforcing the laws we have created to protect
our youngest citizens, our children. This precious ideal lives in the
hearts of many and our capacity to give it full expression can only be
realized through the work of your committee in forcing the Justice
Department to conform with a law that they do not wish to enforce. You
are America's last hope. The voices of America's abducted children and
those children destined to be abducted, are screaming out for your
help. Can we dare pretend we do not hear as the Justice Department has,
or can act boldly as the heroes these children desperately need? Thank
you for your consideration.
______
Front Page Article From The Ventura County Star In Southern California
activist says government is trying to silence him
Speaking Out: Critic Of International Abduction To File Formal
Complaint
[By Phillip W. Brown, Staff Writer]
(October 22, 1998)
A Simi Valley man who has criticized the U.S. Department of
Justice's efforts to recover American children taken overseas illegally
said Wednesday the agency has delayed attempts to regain his son in
retaliation.
Paul Marinkovich, founder of Simi Valley's International Child
Rescue League, and his attorney will file a complaint with the
department this week claiming federal officials are trying to
``intimidate and silence.'' In testimony before the Senate Foreign
Relations Committee this month, Marinkovich was highly critical of the
agency's assistance during his search for his abducted child.
Marinkovich and his attorney claim that during a Tuesday conference
call with officials from the Justice Department, U.S. Attorney's Office
and the FBI, officials threatened they would not cooperate with
Marinkovich's investigation because of his recent criticism of the
Department.
``They threatened to re-open false child abuse allegations against
me and said they wouldn't deal with the Swedish government about my
case,'' Marinkovich said. ``They said I was ruining people's lives by
my testimony before the committee.''
``I want to get my son back, but I want to change a bad system
also,'' he said.
In 1996, after a divorce and custody battle, Marinkovich's ex-wife,
Sindi Graber, took their son Gabriel to Sweden. She changed their
names, remarried and went underground.
Since then, Marinkovich has devoted his life to finding his son.
His search has been restrained by bureaucracies in the United States
and Sweden, even though he has court orders granting him full custody.
Graber has been charged with felony parental abduction and child
endangerment, and faces possible charges of passport fraud.
Terry Schubert, with the Justice Department's Office of
International Affairs, was a part of that telephone conference. She
declined to comment Wednesday.
``This is a law enforcement agency that handles sensitive matters,
therefore I cannot say anything,'' she said.
The complaint follows Marinkovich's Oct. 1 testimony before the
Senate Foreign Relations Committee. He criticized U.S. and foreign
officials for ignoring and ``not taking seriously'' the problem of
international child abduction.
Marinkovich also criticized the Justice Department for its
``ineffectiveness'' in issuing provisional arrest warrants in
international parental abduction cases. Only one arrest warrant has
ever been issued in more than 10,000 reported cases since 1993,
according to the National Center for Missing and Exploited Children.
In the complaint filed with the Justice Department's Inspector
General, Marinkovich's attorney, Howard J. Fox, urges an investigation
of ``these government officials who are deviating from their duties and
using their powers to threaten citizens into silence.''
``It's time the department of Justice stopped treating the
suffering, left-behind parents as criminals and instead focus its
efforts on retrieving this nation's missing children,'' Fox said.
Note: The statement that ``Only one arrest warrant has ever been
issued in more than 10,000 reported cases since 1993, according to the
National Center for Missing and Exploited Children,'' is inaccurate.
Recent reports indicate that approximately 62 warrants have been
issued.
______
International Child Rescue League,
17068 Chatsworth St.,
Granada Hills, California, October 21, 1998.
RE: Complaint regarding the conduct of the Justice Department in
relation to Paul Marinkovich
Inspector General Michael Bromwich,
United States Department of Justice,
Office of the Inspector General,
10th and Constitution Avenue, NW,
Washington, DC.
Dear Inspector General Bromwich: I am Paul Marinkovich's personal
attorney and the Director of Legal Affairs for the International Child
Rescue League, Inc. Mr. Marinkovich has been engaged in a legal battle
to liberate his son, Gabriel Marinkovich, from a life of international
parental kidnaping.
Mr. Marinkovich testified on October 1, 1998, before the Senate
Foreign Relations Committee, at the invitation of Senator Jesse Helms,
regarding his two-year battle to get his son back. Mr. Marinkovich was
awarded sole legal custody of his son by a Texas State court on October
21, 1996, but the boy was abducted by his non-custodial mother to
Sweden. An indictment was subsequently issued by the Grand Jury for Ms.
Graber's arrest on May 28, 1997 for violation of Title 18, United
States Code, Section 1204(a). The case is further identified as
criminal no. C-97-129.
On October 20, 1998, I was present on a telephone conference with
Mr. Marinkovich, Assistant United States Attorney Tim Hammer, Special
Agent Abel Pena of the Federal Bureau of Investigation, and Ms. Terry
Schubert of the Office of International Affairs at the Department of
Justice.
It was my distinct impression that Mr. Hammer and Ms. Schubert were
attempting to verbally club my client into silence, threatening to open
false sexual abuse allegations against him and warning him to never
contact Mr. Hammer or Ms. Schubert about his son's case. Mr.
Marinkovich was bluntly informed that he had no right to know anything
about the Red Notice that was already supposed to be in place. It was
further implied that the Department of Justice would not issue a
provisional arrest warrant against the abducting parent due to Mr.
Marinkovich's testimony before the Senate Foreign Relations Committee.
Mr. Marinkovich has been exonerated of the false sexual abuse
charges by courts in both this country and Sweden, has passed lie
detector tests and court ordered psychological evaluations, as well as
extensive investigation by the Federal Bureau of Investigation, and yet
Mr. Hammer and Ms. Schubert attempted to use these false allegations as
leverage to silence Mr. Marinkovich.
Ominously, Mr. Hammer explicitly informed Mr. Marinkovich that Mr.
Hammer would no longer approve any deal to facilitate the return of
Gabriel by which the abducting parent would be charged with a lesser
offense. Two months ago, Mr. Hammer offered to drop all charges if the
abducting parent would return Gabriel. Now, Mr. Hammer has informed Mr.
Marinkovich that the prosecution of the abducting parent takes
precedence over the return of the child. This decision was made after
Mr. Marinkovich testified before the Senate Foreign Relations Committee
and participated in extensive media coverage.
Thus, the punishment of Mr. Marinkovich for being persistent in
locating his son takes precedence over the return of the child, a
United States citizen.
Please note that we were asked repeatedly at the outset of the
conversation whether we were taping the conversation. By the end of the
conversation, we understood the Justice Department's concern that there
be no recording.
Mr. Marinkovich has requested that a provisional arrest warrant be
sent to Sweden where the abductor is suspected to be in hiding with the
child. He has provided evidence clearly showing that Ms. Graber would
met all the standards required for extradition. This would provide the
Swedish authorities with the authority they need to expand their
investigation and would further show that the United States is serious
about the return of Gabriel Marinkovich. Ms. Schubert stated that this
request would have to come from Mr. Hammer. Mr. Hammer stated that Mr.
Marinkovich has no right to even inquire about a provisional arrest
warrant.
We were told that such an application is already at the Office of
International Affairs but it has not, and will not, be sent to Sweden.
I again believe that this is another punishment for Mr. Marinkovich's
Senate Foreign Relations testimony and the resulting news coverage.
The warrant must be sent immediately because the last appeal in
Sweden is set to be heard in the high courts on November 9, 1998. The
Swedish police have very recently observed furniture being moved out of
the abductor's husband's house in preparation of a move following the
hearing. They believe that this move will most likely result in placing
the child further underground and exposing him to adverse conditions.
We need this request sent to Sweden before the hearing date so the
Swedish Police have the full authority from the United States
Government to trace the abductor's husband's movements immediately
after his November 9, 1998 appearance in the high courts.
I have practiced law since 1985. It is my professional opinion that
Mr. Hammer and Ms. Schubert were threatening Mr. Marinkovich with dire
consequences if he continued to pursue looking for his son. It is
further my opinion that these malicious efforts are a direct result of
Mr. Marinkovich's testimony to the Senate Foreign Relations Committee
and his ability to obtain publicity for his son's case in the media.
The problem is that Mr. Marinkovich's effort to locate his son far
outstrip the efforts made by the Department of Justice, thus causing
political embarrassment.
It is imperative for the health, safety and welfare of Gabriel
Marinkovich and other missing children that you thoroughly investigate
this matter to document why these government officials are deviating
from their duties and using their governmental powers to attempt to
threaten citizens into silence.
Mr. Marinkovich has abided by the letter of the law and has not
engaged in any, self-help measures despite being continually offered
such services from many sources. I do not know that I would have had
the same restraint if it were my child, given the open hostility and
lack of effective effort that Mr. Marinkovich has encountered from his
Department of Justice.
I pray that you will join Mr. Marinkovich and myself in
investigating these offenses and bringing the grievous facts to
Congress and the American people. It is time that the Department of
Justice stopped treating the suffering left-behind parents as criminals
and instead focused its efforts on the international investigation and
prosecution of those who violate the International Parental Kidnapping
Crime Act of 1993, and to assist in the retrieval of this nation's
missing children.
Very truly yours,
Howard J. Fox,
Director of Legal Affairs,
International Child Rescue League, Inc.
__________
Prepared Statement of Attorney Jan Rewers McMillan, On Behalf of Thomas
R. Sylvester
Senator Thurmond and Members of the Subcommittee: I am the Michigan
attorney representing the left-behind parent, Thomas R. Sylvester,
whose only child, Carina, was abducted from Michigan in Austria on
October 30, 1995 by her mother, an Austrian native. Mr. Sylvester and I
have experienced first-hand the difficulties in dealing with the
Department of Justice in our quest to obtain a criminal remedy against
Carina's abductor under the International Parental Kidnaping Act, 18
USC 1204 (``IPKA''). In the process we have been educated as to the
shortfalls of both the criminal procedure and the underlying criminal
remedy of IPKA. It is for these reasons that I sincerely regret that
due to prior commitments I was unable to be present and participate in
your hearings on October 27, 1999 on international parental kidnapping,
I commend your interest in this matter and greatly appreciate your
consideration of a problem experienced by many left-behind parents and
guardians like Mr. Sylvester. I am also particularly grateful to
Senator Mike DeWine for his outrage at the handling of the Sylvester
case and his unflagging efforts to give Mr. Sylvester and other
similarly-situated parents the assistance of the federal government
they deserve.
In addition to the compelling testimony of Lady Meyer, you were
fortunate to hear the testimony of two American left-behinds, John
LeBeau and Laura Hong. Their cases represent opposite ends of the
spectrum on the effectiveness of a warrant and indictment under IPKA.
In the LeBeau case, a warrant was ultimately issued and the abducting
parent and children returned to the U.S. in its shadow, In the Hong
case, no indictment or warrant was issued and neither the abductor nor
the child were returned. These cases provide a good example to the
Subcommittee of the value and effectiveness of a warrant and indictment
under the IPKA in bringing back both the abductor and the abducted
children even though the remedy intended is punishment of the criminal
alone. However, it is important that the Subcommittee be apprised that
an indictment and warrant under IPKA alone is insufficient. It must be
acted upon swiftly and aggressively before it can be turned on the
American parent as a basis for the court of the other country to deny
the return of a child.
My experience with the Sylvester warrant is obviously unique.
However, there are similar elements in each and every case which has
been brought to my attention and this Subcommittee's attention. These
are as follows.
1. an inconsistency in the response by the u.s. attorney's office to a
request for an indictment and warrant under ipka
Mr. Sylvester was fortunate in obtaining a warrant under IPKA from
the U.S. District Court for the Eastern District of Michigan when the
information was, presented. He had waited to do so until the
finalization of the civil proceedings in Austria and after the abductor
had refused to voluntarily comply with the order for return of Carina
affirmed on appeal. Ms. Hong in her testimony refers to an IPKA warrant
issued from her very district prior to her own request. Ease of
obtaining an IPKA warrant was obviously not the case for Mr. LeBeau and
Ms. Hong along with others such as Paul Marinkovich. Their stories,
presented to this Subcommittee and the Senate Foreign Relations
Committee last year, tell of a U.S. Attorney's Office (USAO) clearly
under-informed on IPKA and willfully remaining so. Thus the
availability of a warrant under IPKA varies from Cleveland to
California, from Florida to Michigan. The determination of whether a
warrant will be issued in any particular case is less a matter of the
thoughtful discretion of the USAO than a matter of dumb luck.
It is important to note to the Subcommittee that the standard for
issuance of a warrant under IPKA should be consistently applied in all
50 states and should be based on a clear understanding of 1PKA. Mr.
LeBeau was incorrectly informed that a warrant could not issue under
IPKA until all civil remedies had been exhausted, Ms. Hong was given a
good deal of misinformation for the refusal of the issuance of a
warrant in her case, most notably that a issuance of a state warrant
was a condition precedent to the issuance of a federal warrant. The
Cleveland U.S. Attorney even memorialized USAO ignorance of IPKA by
writing that to seek an indictment against an individual in order to
facilitate enforcement of a civil court order would be improper use of
the grand jury.
These circumstances suggest a lack of education on IPKA in the USAO
and the absence of protocols in the U.S. Attorney's Manual on IPKA.
These shortcomings could be remedied by the Department of Justice with
an informational program as to IPKA followed up with the implementation
of policy as to the handling of such cases with their inclusion in the
U.S. Attorneys' Manual. This simple step appears not to have been
covered in either the recent Joint Report to the Attorney General or in
Mr. Robinson' s statement to this Subcommittee.
2. once obtained ipka criminal warrants are not pursued by the usao
For three years after the Sylvester warrant was obtained, nothing
was done to act on it toward the ultimate end of obtaining a
conviction. Even obtaining information from the USAO as to the options
available and next steps was impossible. It was subsequently learned
that the stumbling block for pursuing the warrant was Austria's ban on
extraditing its own nationals. Without extradition of the abductor, no
conviction could follow. Bearing this in mind, it seemed reasonable
that ``provisional arrest requests'' could be made by the U.S. to the
countries neighboring Austria to which the abductor traveled. After
three years of pursuing this avenue, Mr. Sylvester just recently
learned of such a request being made to Italy, which denied the
request. Unfortunate as the response of Italy is, it is
incomprehensible why it took three years for the request to be made.
Interestingly, I myself learned of the availability of a ``provisional
arrest request'' to neighboring countries not in response to my
requests to the USAO for information as to options available but rather
through Mr. Sylvester's networking with other parents.
As found in the Sylvester case, if an IPKA warrant remains in
effect in the States, but is not vigorously pursued, its existence will
be used by the court of the country into which the child has been
abducted to justify that court's not returning the child. The reasoning
of those courts is that to return the child with the abductor would
mean the abductor would be tossed in jail, necessarily separating the
child and the abductor for some extended period of time. This, the
court concludes, would not be in the child's best interests. As a
result, the very existence of the IPKA warrant, the issuance of which
is so hard fought by left-behind parents, if unpursued, will work
against the left-behind parent in the courts of the country into which
the child has been abducted. Further, in the Sylvester case, the
lifting of the IPKA warrant is being demanded by the abductor before
she will consider granting Mr. Sylvester any meaningful visitation with
his daughter. Therefore, to avoid hindering the return of the child and
even jeopardizing visitation with the child, an IPKA warrant must be
acted on swiftly and urgently for the protection of all American
citizens involved.
3. the absolute ban on the extradition of the nationals of many
countries renders ipka warrants for the arrest of abductors returning
to those countries wholly ineffective
The success of an IPKA warrant, once issued and pursued, is
dependant entirely on the ability of the abductor to be extradited to
face trial here. Since the abductor is usually a national of the
country into which he or she flees, the bilateral extradition treaty
with that country controls. These treaties often contain a general bar
against the extradition of the nationals of that country, thwarting
entirely the usefulness of the warrant and, more broadly, the
underlying criminal remedy. Although available and the extradition
process underway, the warrant under IPKA in the LeBeau case worked only
because of the threat of extradition from England, Had the abductor not
fled from Denmark to England, the warrant would have been less
effective and extradition no threat whatsoever. Because a suit was
already underway to re-open the Hague Convention case, it is indeed
quite possible that the LeBeau children never would have been returned
had the abductor simply stayed in Denmark. This is the unfortunate
reality of the Sylvester case.
Therefore, the criminal remedy sought by IPKA is impossible to
achieve in a large number of abduction cases. In order to effectuate
the intended criminal remedy of IPKA, the Congress must look to the
extradition treaties negotiated between the U.S. and those countries
who refuse to extradite for a means of re-negotiation of those treaties
to provide for some method for the return of these abductors.
On behalf of Mr. Sylvester and all parents left-behind after
international parental abductions, I express my gratitude to the
Subcommittee and my hopes that these hearings will result in positive
steps taken to improve the implementation of IPKA.
__________
Prepared Statement of The International Centre for Missing and
Exploited Children
First Lady Hillary Rodham Clinton and Cherie Booth, wife of British
Prime Minister Tony Blair, were the principal speakers at the launch of
the International Centre for Missing and Exploited Children in
Washington DC in April 1999. The purpose of this new organisation is to
find and return missing children worldwide and end international child
abduction, an abuse Mrs. Clinton called ``a human rights issue.''
The International Centre for Missing and Exploited Children is a
subsidiary of the U.S. based National Center for Missing and Exploited
Children\1\ which has helped to return thousands of missing or abducted
children to their families since 1984. The International Centre will
have offices in the U.S. and in Great Britain. It will provide
instantaneous dissemination of pictures and information on missing
children through the Internet, advocate stronger laws to protect
children, assist other non-governmental organisations, and offer
training to professionals and law enforcement agencies around the
world.
---------------------------------------------------------------------------
\1\ NCMEC is a private, nonprofit organization mandated by the
United States Congress, which serves as a national resource center and
clearinghouse for information on missing children and child protection
issues. Founded in 1984, NCNMC is located in the Washington, DC-area
and works closely with the United States Department of Justice to
assist families of missing children and the law-enforcement and social-
service professionals who serve them. Since NCMEC's inception, it has
assisted police in more than 65,000 cases of missing children playing a
role in reuniting more than 46,000 children with their families. NCMEC
has been referred to as a ``high-tech search center'' by the national
news media in the U.S. and is routinely visited by world leaders from
around the globe who view it as a model for the creation of similar
centers in their own nations.
---------------------------------------------------------------------------
Another goal of the International Centre is to improve the working
of the Hague Convention on the Civil Aspects of International Parental
Abduction. The Convention is designed to discourage child abduction and
to secure the prompt return of abducted children who have been removed
from, or retained outside, their country of habitual residence, so that
any subsequent custody decision can be made in the home jurisdiction.
In the past few years there has been growing concern that the
effectiveness of the Convention is being undermined by the failure of
some signatory states to fulfil their obligations.
The International Parental Kidnapping Act of 1993 makes it a
federal crime to remove a child from the U.S. or retain a child outside
the U.S. with intent to obstruct the lawful exercise of parental
rights. Similarly, the Child Abduction Act of 1984 makes it a criminal
offence in England. In some signatory countries, however, parental
child abduction is not considered a crime.
International child abduction is a growing problem. The recorded
figures, which almost certainly understate the problem, are alarmingly
high. The National Center for Missing and Exploited Children reports
that over 1,000 American children are illegally transported or retained
abroad every year (over 3 children every day). In Britain, Reunite (the
National Council for Abducted Children) has recorded a 58 percent
increase since 1995 in the number of children abducted or retained
abroad by an estranged parent.
International child abduction separates children not only from
their families but also from their native countries. Putting an end to
this abuse will require the cooperation of govemments and the public at
large. The establishment of an international missing children's
organisation is a good first step.
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Children's Rights Council,
Washington, DC, October 27, 1999.
Re: Oversight Hearing on Justice Department's Response to International
Parental Kidnaping
Senator Strom Thurmond, Chairman,
Criminal Justice Oversight Subcommittee,
U.S. Senate,
Washington, DC.
Dear Chairman Thurmond and Members of the Subcommittee: This is a
statement for the record regarding your important hearing on The
Justice Department's Response to International Parental Kidnapping.
Catherine Meyer, the new honorary president of the Children's,
Rights Council, will testify at the hearing, as well as other witnesses
concerned about the International Parental Kidnaping Crime Act of 1993.
The Children's Rights Council has spoken out spoken out against
parental kidnaping of children since our inception in 1985. Abduction
often occurs in the context of custody battles. The sudden move to
foreign countries remote from friends and other family members can have
a lifelong negative effect on children.
When Congressman George Gekas was preparing legislation that led to
passage of the 1993 law, CRC was invited to be part of the planning for
that legislation. We were pleased when denial of access (visitation)
was included as one of the grounds for invoking criminal penalties
under the statute.
We urge the subcommittee to make certain that the Justice
Department and other authorities charged with enforcing this law are
aware that violations of court ordered access are forms of kidnaping
and child abuse, and the perpetrators need to be punished, accordingly.
A parent should not have to travel half way around the world so
that the child can have court-ordered access to that parent. CRC does
not favor arrests for minor infractions, such as a delay of a day or
two in returning the child; however, intentional withholding of a child
abroad during scheduled visits with the other parent are serious
violations and should be prosecuted.
While America moves to more effectively enforce anti-kidnaping
laws, we must seek ways to PREVENT parental kidnaping from occurring in
the first place. These ways include:
(1) Require the states and foreign countries to create uniform laws
against parental kidnaping. At present, all states treat interference
by the non-custodial parent as a crime; but less than half the states
(although this number is growing) treat kidnaping by the custodial
parent as a crime;
(2) Require the states and foreign countries to create a
presumption for shared parenting when parents separate or divorce.
Parents who seek to be actively involved in a child's life are less
likely to kidnap if they are assured of such active involvement;
(3) When parents are of two nationalities, require them to have a
parenting plan in place approved by a court stipulating an access
(visitation) schedule before allowing one parent to leave the country
with that child;
(4) Tighten the loophole in the Hague Convention Against Parental
Child Abduction, by making it more difficult for a young child to claim
that he or she wants to stay in the country to which the child has been
taken. Having a child of 5 or 6 saying he likes his new country so much
he wants to stay there, makes a mockery of child interviewing
techniques;
(5) Publicize the actions of countries like Germany, Sweden, and
Arab states which favor their own nationals--be they mothers or
fathers--rather than adhering to provision of the Hague Convention.
The Children's Rights Council supports this subcommittee's efforts
and offers to assist in any way we can. Thank you.
Sincerely your,
David L. Levy,
President CRC.
__________
Case of Danny and Michelle Cooke
Two American-born children, two innocent and defenseless U.S.
citizens, Danny Cooke, nine years old, a New Yorker, and Michelle
Cooke, eight years old, a Bostonian, remain since 1992 held in a remote
German village, Benningen, to reach which one takes a plane to Zurich,
a train to Singen, and a bus to Binningen; or from Zurich, a train to
Konstanz, another train to Singen and a bus to Binningen.
In brief, this is the way that incredible injustice is being
perpetuated:
Christiane Koch (a German national) and Joseph Cooke (a U.S.
American-born citizen) married here in Flushing, on September 1, 1989.
(They met while Joseph was in the U.S. Army serving in Germany.) On
February 8, 1990, their first child, Daniel Joseph, was born in North
Shore Hospital in Manhasset, NY. On May 23, 1991 Michelle Natalie their
second child, was born in Framingham Hospital, Boston, Massachusetts.
In July of 1992 Christiane took Danny and Michelle to Germany to
visit her family. Shortly after she called Joseph and told him that she
was not returning to the United States and that he would never see his
children again. In October Chrstiane, without Joseph's knowledge or
consent, placed their children in foster care in Germany. Joseph),
despite his efforts, could not locate his children for over one year.
In February of 1994 Joseph and Christiane finalized their divorce
in the New York State Supreme Court in Queens County. Judge Simeon
Golar awarded Joseph full legal custody of his children.
In April of 1994 Joseph appeared in Court in Singen, Germany,
before Judge Dallinger with an order from the Supreme Court of New York
ordering the return of these American children to their natural father.
The German Court admitted that the German Youth Agency had erred in not
contacting Joseph although they knew where he was through the
children's passport. Judge Dallinger requested Joseph to stay in
Germany for two months to get reacquainted with his children. Joseph
complied. At end of the two months Judge Dallinger refused to return
the children to their natural American father as ordered by the Supreme
Court of New York.
In July of 1994 Joseph returned to Germany to request Judge
Dallinger to hold a hearing in the case. Successful, in September,
Joseph returned to Germany to the German court. The German judge still
refused to reach a decision. The German Court requested that Joseph be
investigated. All reports and investigations found Joseph a stable
citizen capable and willing to raise in the United States his American-
born children. In March of 1995 Judge Dallinger rendered his decision:
his order of September 17, 1993 should remain; the children should
continue to reside in Germany. On May 22, 1995, by letter, the
children's mother, Christiane Koch, petitioned Judge Dallinger to
return the children to the care of their natural, American-born father,
Joseph Cooke. It was ignored.
In April of 1995 Judge Simeon Solar issued an order for the return
of Danny and Michelle to their custodial parent, Joseph Cooke. Judge
Dallinger's decision was appealed to the court in Konstanz. A hearing
was set for May 1995. Judge Dallinger's decision was upheld. The
decision in Konstanz was appealed to the court in Freiburg. The
decision in Konstanz was upheld: Joseph was a fit father but too much
time had passed to return the children. The excessive time now argued
as a reason for holding two innocent American citizens in Germany was
created by the very same government now using it as an excuse.
German legal counsel advised against any further appeals and Joseph
by now had run out of money and was not receiving any help from anyone
in the U.S. government.
Joseph was asked twice by the German government to send money for
the support of his children. Twice he answered such impudence by
refusing and stating that he was ready, willing and able to support
them right here in their own country where they belong.
For the Christmas of 1997 their paternal grandmother, Patricia
Alfaro Cooke, sent her grandchildren some Christmas gifts. They were
returned to her in February of 1998 because $20.00 had to be paid in
customs duties. In February of 1997 Patricia sent a birthday present.
Unopened, the package was returned in late April.
In June of 1998 Patricia Alfaro Cooke, the children's grandmother,
was allowed to visit her grandchildren for an hour. She brought back to
the children the Christmas gifts that had been returned. In November of
1998, she was permitted to visit them for two hours on two different
days. Mr. Ritter, possibly a social worker, agreed to allow her son
Arthur, the children's paternal uncle, to accompany her on the coming
1999 June visit to the children. In March of 1999 Patricia was allowed
to visit her grandchildren for two hours and a half. Mr. Ritter
suggested that Patricia should bring something to the other children
living in the foster home. In June of 1999 Patricia and Arthur went to
Germany to visit as agreed. Arthur was not allowed to see the children.
Patricia was permitted to visit them for two hours and a half on two
different days. At a meeting of Mr. Ritter, Patricia and Arthur, Mr.
Ritter promised three times to Patricia and Arthur that Arthur could
visit the children in November and asked Arthur to write to the
children, introduce himself to them and ask them if they wanted to see
him. Arthur did and the children replied that they wanted him to visit
them. Shortly after Mr. Ritter wrote to Patricia that the foster
parents would not allow any other visitors and that another meeting
should be held in November of 1999 to discussed the concerns of the
foster parents, concerns which were taken very seriously.
In November 1999, Patricia and Arthur went to Germany. A meeting
with Mr. Ritter, Mr. and Mrs. Weh and a German interpreter provided by
Mr. Ritter took place. She was made to sign a promise not to ``kidnap''
her grandchildren. Arthur was now denied permission to see the
children. One month after that meeting Patricia received from Mr.
Ritter a mendacious confirmation of the meeting that she was requested
to sign. In it, it was said, contrary to fact, that she had agreed to
leave her grandchildren to live in Germany. She refused to confirm such
a lie in her reply to him. He wrote to her, in an insolent, threatening
undertone, that she should write German correctly and get herself a
female translator to do it.
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