[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
ENFORCEMENT IS NOT OPTIONAL: THE GOLDMAN ACT TO RETURN ABDUCTED
AMERICAN CHILDREN
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON AFRICA, GLOBAL HEALTH,
GLOBAL HUMAN RIGHTS, AND
INTERNATIONAL ORGANIZATIONS
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
APRIL 6, 2017
__________
Serial No. 115-17
__________
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COMMITTEE ON FOREIGN AFFAIRS
EDWARD R. ROYCE, California, Chairman
CHRISTOPHER H. SMITH, New Jersey ELIOT L. ENGEL, New York
ILEANA ROS-LEHTINEN, Florida BRAD SHERMAN, California
DANA ROHRABACHER, California GREGORY W. MEEKS, New York
STEVE CHABOT, Ohio ALBIO SIRES, New Jersey
JOE WILSON, South Carolina GERALD E. CONNOLLY, Virginia
MICHAEL T. McCAUL, Texas THEODORE E. DEUTCH, Florida
TED POE, Texas KAREN BASS, California
DARRELL E. ISSA, California WILLIAM R. KEATING, Massachusetts
TOM MARINO, Pennsylvania DAVID N. CICILLINE, Rhode Island
JEFF DUNCAN, South Carolina AMI BERA, California
MO BROOKS, Alabama LOIS FRANKEL, Florida
PAUL COOK, California TULSI GABBARD, Hawaii
SCOTT PERRY, Pennsylvania JOAQUIN CASTRO, Texas
RON DeSANTIS, Florida ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDAN F. BOYLE, Pennsylvania
TED S. YOHO, Florida DINA TITUS, Nevada
ADAM KINZINGER, Illinois NORMA J. TORRES, California
LEE M. ZELDIN, New York BRADLEY SCOTT SCHNEIDER, Illinois
DANIEL M. DONOVAN, Jr., New York THOMAS R. SUOZZI, New York
F. JAMES SENSENBRENNER, Jr., ADRIANO ESPAILLAT, New York
Wisconsin TED LIEU, California
ANN WAGNER, Missouri
BRIAN J. MAST, Florida
FRANCIS ROONEY, Florida
BRIAN K. FITZPATRICK, Pennsylvania
THOMAS A. GARRETT, Jr., Virginia
Amy Porter, Chief of Staff Thomas Sheehy, Staff Director
Jason Steinbaum, Democratic Staff Director
------
Subcommittee on Africa, Global Health, Global Human Rights, and
International Organizations
CHRISTOPHER H. SMITH, New Jersey, Chairman
MARK MEADOWS, North Carolina KAREN BASS, California
DANIEL M. DONOVAN, Jr., New York AMI BERA, California
F. JAMES SENSENBRENNER, Jr., JOAQUIN CASTRO, Texas
Wisconsin THOMAS R. SUOZZI, New York
THOMAS A. GARRETT, Jr., Virginia
C O N T E N T S
----------
Page
WITNESSES
Noelle Hunter, Ph.D., founder, iStand Parent Network (mother of
child returned from Mali)...................................... 4
Mr. James Cook (father of children abducted to Japan)............ 15
Augusto Frisancho, M.D. (father of children abducted to Slovakia) 26
Mr. Vikram Jagtiani, co-founder, Bring Our Kids Home (father of
child abducted to India)....................................... 50
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Noelle Hunter, Ph.D.: Prepared statement......................... 9
Mr. James Cook: Prepared statement............................... 21
Augusto Frisancho, M.D.: Prepared statement...................... 31
Mr. Vikram Jagtiani: Prepared statement.......................... 56
APPENDIX
Hearing notice................................................... 72
Hearing minutes.................................................. 73
The Honorable Christopher H. Smith, a Representative in Congress
from the State of New Jersey, and chairman, Subcommittee on
Africa, Global Health, Global Human Rights, and International
Organizations: Statement of Mr. Charles Ferrao................. 74
ENFORCEMENT IS NOT OPTIONAL:
THE GOLDMAN ACT TO RETURN
ABDUCTED AMERICAN CHILDREN
----------
THURSDAY, APRIL 6, 2017
House of Representatives,
Subcommittee on Africa, Global Health,
Global Human Rights, and International Organizations,
Committee on Foreign Affairs,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:00 a.m., in
room 2172, Rayburn House Office Building, Hon. Christopher H.
Smith (chairman of the subcommittee) presiding.
Mr. Smith. The subcommittee will come to order, and good
afternoon to everyone. I want to thank all of you, especially
all of the left-behind parents I see in the audience, for
joining us this afternoon to discuss the continuing crisis of
international parental child abduction.
Today there is hope that the new administration will change
the status quo. There is hope that the Sean and David Goldman
International Child Abduction Prevention and Return Act will
finally be enforced and there is hope for those of you who seek
to be reunited with your children that a better day is coming.
As many of you here today have experienced, international
parental child abduction rips children from their homes and
whisks them away to a foreign land, alienating them from the
love and care of the parent and family that is left behind.
Child abduction is child abuse and continues to plague
families across the United States. According to the State
Department's statistics, approximately 1,000 children are today
held hostage in a foreign country, separated from their
American parent. Several hundred additional children join their
ranks every year.
Based on historical trends, less than a third of these
children will ever come home, unless, of course, the Trump
administration decides to do what the previous administration
did not do: Change tack and stand up for the American parents
and children using the full--I repeat full--array of tools
prescribed by the Goldman Act to help achieve the necessary
objective.
I was heartened to hear that many of you visited the White
House this morning. This is a good sign and gives rise to the
expectation that your voices will be heard. Indeed, I join you
in imploring President Donald Trump to act and to act
decisively.
For decades and throughout the Obama administration, the
State Department has used quiet diplomacy to attempt to bring
these children home. In a hearing that I chaired back in 2009,
former Assistant Secretary of State Bernie Aronson called quiet
diplomacy, and I quote him, ``a sophisticated form of
begging.'' Thousands of American families are still ruptured
and grieving from years of unresolved abductions, confirming
that quiet diplomacy alone is gravely inadequate.
In 2014, after 5 years of persistence, Congress unanimously
passed the Goldman Act to give teeth to requests for return and
access. The actions against noncooperating governments required
by the law escalate in gravity and range from official protests
through diplomatic channels, to the suspension of development,
security, or other foreign assistance. Extradition of abducting
parents also may be called for.
The Goldman Act is a law designed to get results, as we did
with the return of Sean Goldman from Brazil in 2009. Brazil's
participation in the Generalized System of Preferences is up
again for renewal this year. Why should Brazil get billions of
dollars in tariff relief when their courts have not returned a
single child since Sean Goldman? We have 13 long-term cases
pending there, including the particularly egregious Brann and
Davenport cases. It is time for action and fully taking
advantage of our leverage.
More than 90 American children are separated from their
American parent in India. The many years required to resolve
such cases in India make it a magnet for abduction cases and
crimes. These numbers will continue to climb each year until
India creates a mechanism for resolution of current cases or
joins the Hague Convention for future cases, which to date it
has refused to do.
Thinking outside the box as to what leverage to apply,
India's visa allotment could be reduced every year if it is
noncompliant in the return of abducted American children. But
there are many, many options on the table and, again, so many
that were prescribed by the Goldman Act.
Japan is another country which is a flagrant violator.
American servicemembers, whose lives are on the line protecting
Japan, are some of the victims.
The Obama administration's indefensible refusal to use the
sanctioning tools embedded in the Goldman Act has been noted by
other governments and is hurting American children. On February
14, for example, Valentine's Day, Japan's Minister of Foreign
Affairs, Fumio Kishida, noted that in their Parliament, the
Diet, and I quote him, ``Until now, there is not a single
example in which the U.S. applied Goldman Act sanctions toward
foreign countries.''
Let me repeat that. Until now, the Foreign Minister has
said, there is not a single example in which the United States,
U.S., applied sanctions, Goldman Act sanctions, toward foreign
countries. That is outrageous and that has to change.
Three days later, the Osaka High Court overturned a return
order for four American children to James Cook, who will
testify today, in flagrant violation of the Hague Convention,
Japan's own Hague implementation guide, and United States law.
Japan fears no consequence--had no fear of consequence under
the Obama administration--and thus are children are left behind
and their parents suffer the pain of separation.
The Elias family is here today. They have been waiting 8
years to even speak with their children after a flagrant
abduction in which the Japanese Consulate was an accessory. I
traveled to Japan with the grandmother, and I can tell you, she
tried, as has Michael, over and over and over again to even
have access to his kids. And, again, there has been a closed-
door policy.
We need to apply the Goldman Act sanctions to Japan. Yes,
they are a friend and an ally. All the more reason. Friends
don't let friends commit human rights abuses.
Dr. Frisancho, who is one of our witnesses today, has been
waiting 7 years for Slovakia to enforce the return for his
children. As a matter of fact, he says in his testimony: Is
enforcement of U.S. law optional? Why is it that we have not
had the full, all-out enforcement of the United States law
under the Obama administration? I hope and I pray, and we will
press, that the new administration will not continue that
pattern of indifference.
When is enough enough? What we need is a change in the
culture of the State Department, which too often rewards
Foreign Service Officers for appeasing countries in the name of
maintaining harmonious relations. And, frankly, I have been on
this committee for 35 years, in Congress now 37, and I can tell
you, I travel. We have very fine people who serve as Foreign
Service Officers. But when you rock the boat, when you stand up
for Americans, that is not a career enhancement process for
you. That has to change. So the culture of the Department of
State has to change.
Implementing the Goldman Act fully and robustly will send a
message to allies and foes alike that the United States means
business about ending the suffering of American families and we
mean business when it comes to these children.
Dr. Hunter, I saw, and she will lead off our testimony
today, in her opening paragraphs makes a just very, very
profound statement, ``This Congress and this administration
represents our best opportunity ever to put America first for
America's stolen children, and make the return of American
children to the United States a priority again.''
I want to thank her and all of our witnesses for your
testimonies. Without objection, they all in their fullness and
any additional information you would like to add will be made a
part of the record.
We are joined by my good friend and colleague, Mr. Garrett.
Would you like to----
Mr. Garrett. Briefly, Mr. Chairman, I just want to thank
you and recognize you for your 35-year commitment to causes
such as this in this body. I tell people oftentimes, Mr.
Chairman, that sometimes you find your passion and sometimes
your passion finds you. It has been my great honor for just
these few months to serve on this subcommittee with you.
And these are issues that all too often are unheard by the
American public, and it is something that we sort of, as you
know, dove headlong into. And it is just an honor to be able to
work with you for such a great cause and with people such as
yourselves.
Please, I welcome anyone in the gallery to contact our
office as it relates to concerns that you may have so that we
can leverage whatever little power we have to yield to help to
have the return of our children to their families in our
Nation, and thank you.
And I yield back the remainder of my time.
Mr. Smith. Mr. Garrett, thank you very much. And thank you
for your service to our country in the Armed Services, but also
for stepping up on a variety of human rights issues so early in
your tenure as a Member of Congress.
I would like to now introduce our distinguished panel,
beginning first with Dr. Noelle Hunter, who is the executive
director of the Kentucky Office of Highway Safety and has been
in that role since June 2016.
In 2014, Dr. Hunter testified before the U.S. Senate
Committee on Foreign Relations on the problem of international
parental child abduction. She successfully recovered her
daughter from abduction to Mali that same year with the support
and resources from her home community of Morehead, her native
State of Alabama, and from Congress, the U.S. Department of
State, and the U.S. Department of Justice.
She co-founded iStand Parent Network to empower parents to
return their children from abduction and currently serves as
president of the board of directors.
Thank you, Doctor, for being here.
I then will turn to Mr. James Cook, who is the father of
four children, two sets of twins, who were abducted and are now
in Japan. In this time he has only been allowed one visit with
his children and has not been allowed any access to them since
August 2015.
Mr. Cook works for Boston Scientific Corporation, a
manufacturer of medical devices in Minnesota. Mr. Cook
testified before this subcommittee in July of last year and
again we welcome him back and look forward to updates and
insights that he can provide.
We will then hear from Dr. Augusto Frisancho, father of
children abducted to Slovakia. He is a physician and received
his medical degree in general medicine from Charles University
in Prague in the Czech Republic. He works at Johns Hopkins
University in Baltimore, in public health medical research. He
also works for the National Center for Missing and Exploited
Children as a consultant, providing support to families
impacted by a missing child. His three children were abducted
to Slovakia by his wife in 2010.
Then we will hear from Mr. Vikram Jagtiani, whose daughter
Nikhita was born in New York, taken by his wife in 2013 when
she was just 4 years old. Wanting to see his daughter again, he
co-founded Bring Our Kids Home, along with other left-behind
parents whose children have been abducted to India from the
United States. Bring Our Kids Home seeks to raise awareness
about international parental child abductions community and
advocates for the prompt return of all American children.
Dr. Hunter, the floor is yours.
STATEMENT OF NOELLE HUNTER, PH.D., FOUNDER, ISTAND PARENT
NETWORK (MOTHER OF CHILD RETURNED FROM MALI)
Ms. Hunter. Good morning. Thank you, Mr. Chairman, thank
you, Mr. Garrett, for taking the opportunity to attend today.
We have just recently come from the White House, myself and
my fellow parents. It was a very productive meeting. We were
very candid about the concerns that we have about current
enforcement of the Goldman Act. But more importantly, there is
an opportunity here to put America first for America's stolen
children.
I am honored to share my story and speak for fellow parents
of internationally abducted children. As you said, sir, this
Congress and this administration represent our best opportunity
ever to put America first for America's stolen children and
make the return of America's kidnapped children a priority to
the United States.
I am president and co-founder of iStand Parent Network. My
daughter, Muna, was a victim of international parental child
abduction. She was abducted from our home in Morehead,
Kentucky, on December 27, 2011--she was only 4 years old at the
time--and taken to Mali, west Africa, by her father.
Despite some initial delays, I soon had court orders for
her return and cases with the FBI, the Department of State's
Office of Children's Issues, and the National Center for
Missing and Exploited Children. My experience with all of these
agencies was exceptional, responsive, and accomplished the
goal.
Sadly, this is not most parents' experience. Most parents
find the return of their children is subordinated to not making
nations feel uncomfortable.
Mali initially showed no interest in working with me or our
Government to return Muna. That all changed in November 2012,
the day I staged a protest in front of the Mali Embassy here in
Washington and subsequently engaged my congressional
delegation, including Senate Majority Leader Mitch McConnell,
Senator Rand Paul, and Chairman Hal Rogers.
I am grateful that Muna's case became very personal for
Senator McConnell and Chairman Rogers in particular. They
constantly engaged with the Department of State, Department of
Justice, and Malian officials in Washington and Bamako.
Chairman Rogers raised our case directly with former Secretary
of State John Kerry during an Appropriations hearing. Senator
McConnell progressively escalated his interactions with the
nation of Mali while receiving regular updates from the State
Department.
I was blessed to have benefited from a whole-of-government
response, and that is the reason that Muna is home today.
Just before she came home, as you said, sir, Senator Corker
invited me to testify on the Goldman Act, legislation that was
supposed to make life easier for parents who are trying to
return their children, before the Senate Committee on Foreign
Relations. And, of course, Mr. Chairman, you have been our
champion all along, drafting and shepherding the Goldman Act
until its eventual enactment. And I believe I speak for all of
the parents when I say that we thank you. You give us hope that
our children can come home.
This is all the momentum that I took with me to Mali in the
summer of 2014. U.S. Ambassador Mary Beth Leonard and consular
officers facilitated a meeting with Mali's Minister of Justice,
and that day I knew that I was coming home with my daughter. We
were escorted out of the country by United States Marines, and
Ambassador Leonard herself put us on the airplane. When we
arrived at Cincinnati/Northern Kentucky International Airport,
my beloved Senator McConnell was there to welcome us home.
I am told that my story is unique, and, sir, this is
tragic. It should not be this way. If every Member of Congress
with kidnapped constituents would begin to regularly inquire of
Federal agencies and the nations in which they are held and
also require enforcement of the Goldman Act and other laws that
are designed to make it easier to bring our children home, we
would see an immediate surge in returns and reunifications of
children with their parents.
A whole-of-government support of parents who have had their
children stolen from them would also create a very strong
deterrent for would-be abductors and put nations on notice that
America will not tolerate the theft of its children.
There are a few things, sir, that need to happen to hasten
those outcomes and make my story less unique. The Trump
administration has a golden opportunity to show parents across
these United States whose children have been kidnapped to
countries that actively work against their return that it
supports these parents and will do all it can to bring our
children home.
As I said, I was blessed to have the active involvement of
the Kentucky congressional delegation, the Department of State,
and the Department of Justice, including in the Department of
State Ambassador Leonard and Embassy staff in Bamako. But every
taxpaying parent, every single one in the United States,
deserves the full-throated, aggressive support of our
Government.
The Trump administration has a chance to signal its intent
to support American parents where prior administrations have
failed to do so. ``America First'' must mean putting America's
stolen children first.
Countries around the world that are harboring American
children and ignoring their legal obligations need to be put on
notice that it is time to comply. The worst offenders in the
international community, countries like Brazil, India, and
Japan, need to be more forcefully addressed and not given a
pass by diplomats. Laws need to be taken seriously and
enforced, and there need to be consequences for failing to
adhere to international obligations and other commitments. And
in circumstances where countries still refuse to return our
children, they should no longer receive the benefits from the
United States, such as favorable trade agreements, visas, and
foreign aid, until they do comply.
Case in point, Brazil, as you mentioned earlier, has aided
and abetted the kidnapping of many American citizen children,
but the United States Government has to date failed to take
this issue seriously, and Brazil has responded accordingly. If
Brazil does not start returning children to the United States
quickly and make other good faith efforts to show that it
intends to return all American children, the United States has
an opportunity later this year, in 2017, to deny Brazil the
over $2 billion benefit it receives by taking part in the
United States Generalized System of Preferences, or GSP. Brazil
must literally pay a price for noncompliance here, and the GSP
represents a perfect opportunity to demonstrate seriousness.
Similarly, India has aggressively refused to return
American children, but the President has the authority to
prevent H-1B visas and other lucrative work visas from being
issued to an India national if it does not start returning
American children. India, too, can be forced to pay a price.
The Department of State must prioritize the return of
American children over diplomatic niceties. It is
understandable that diplomats believe in success through
dialogue, but when it comes to international parental child
abduction, let's be clear: The goal is not dialogue, but the
return of abducted children, period. The Department of State
needs to be refocused on what is most important: Putting
America's children first. Dialogue is a means to an end and not
an end itself.
Transparency with the Congress and the American people is
essential. The Department of State definitively has the
capability to report specific data to Congress to inform your
casework, legislation, and oversight. It has the data
collection and analytical tools necessary to report abductions
by state and plot abductor destination countries on a world
map.
Despite this capacity, the Department of State has,
respectfully, made a concerted effort to keep the scope of this
problem hidden, particularly during the previous
administration, and it did so for one very important reason: It
was terrified that Congress might not only have a fuller
understanding of the scope of this problem, but that it,
Congress, might also have more tools to bring many of these
children home. The State Department can improve its forthcoming
report by drilling down on this data and making it publicly
available.
Federal laws, both civil and criminal, must be enforced.
Enforcement of the Goldman Act and other Federal laws that are
supposed to help parents is the way forward. It directs
progressive sanctions against worst offender nations who
benefit from economic, cultural, and diplomatic relationships
with the United States and yet refuse to return our children,
hold them captive.
The Department of State need to stop issuing demarches,
diplomatic wrist slaps behind closed doors, and start using the
full array of tools outlined in the Goldman Act, including
sanctions against noncompliant countries, in order to be most
effective.
The Department of Justice has options that can and should
be considered as well. While many abducting parents do not
generally leave the country where they have taken their
abducted children, some do. In fact, some own property and
assets internationally, including in the United States, and
even travel for business, sometimes frequently. Each of these
international assets and points of travel is a point of
leverage for abducting parents and should be actively explored.
International agreements governing international child
abductions must also be enforced. The Hague Convention on the
Civil Aspects of International Child Abduction, which is the
governing treaty for international parental child abductions,
does work for some, and we are aware of a handful of cases,
comparatively speaking, of children who have come home by this
process. In fact, I just learned of a parent whose son was
abducted to Italy who recently came through a Hague return
order.
We are very happy any time a parent and child are reunited
for whom this process is working. But they are, I am, in a
minority of successful cases. The aforementioned nations and
other state parties which acceded to the Hague Convention and
yet decline to enforce access or return of children to their
habitual residence in the United States under that convention
must be held accountable.
Finally, there must be a persistent whole-of-government
approach to bring children home. For nations like Mali, which
is not a signatory to the Hague Abduction Convention, there
must be pressure and insistence on returns. Though it was never
said to me, sir, I am quite certain that Mali was becoming
distinctively uncomfortable with the level of attention by me,
Muna's supporters, and my Government, the United States
Government, which would not let my daughter be lost.
I am confident that other nations would follow suit as Mali
to let these children go should they come under greater
scrutiny. We can see the result in every country that is
harboring abducted children if every Presidential trip, every
diplomatic delegation, every congressional delegation raises
the crisis of our children when visiting these countries. More
children will come home once these countries understand that we
are not going away and we will not forget our children.
What matters most is that we stand united for their return,
for Hannah and Ryan, Eslam and Zander, Mochi and Keisuke,
Reyansh, Roshni and Rachel, Eliav and Abdallah, Gabriel and
Anastasia, Henry and Helena, and all of America's stolen
children.
May we not rest, may this country not rest, until the
banner of liberty and freedom that we enshrine and believe in
is extended over them to usher them home.
Thank you, sir.
[The prepared statement of Ms. Hunter follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
----------
Mr. Smith. Dr. Hunter, thank you so very much for your
testimony and for laying out a number of very, very important
ways forward. Thank you.
Ms. Hunter. Thank you.
Mr. Smith. Mr. Cook.
STATEMENT OF MR. JAMES COOK (FATHER OF CHILDREN ABDUCTED TO
JAPAN)
Mr. Cook. Thank you, Chairman Smith, members of the
subcommittee, and members of the audience watching these
proceedings all over the world. I really appreciate this
opportunity to speak to you a second time about my Hague
Convention case in Japan and the problems encountered following
the previous testimony given last July.
First, I want to say hello to my children, because I have
not been allowed any access to them since August 2015. This is
in direct violation of Hague and evidence of Japan's continuing
noncompliance.
Hello, children. I have not and will not give up having us
together again in the USA. I am sorry this situation has not
been resolved by now. I am closer than ever before to having us
together again. Please hold on. Love, Dad.
There were two failed Hague return enforcement attempts in
Nara, Japan, in September 2016. Direct enforcement was done
exactly as Japan requires, an almost SWAT-like ambush where
they were living. During the direct enforcement, I was only
able to hear the voices of my two older sons, and I did not
recognize those voices. It was a sobering reminder of how much
has been missed. As a parent, to be unable to recognize your
own child's voice brings a type of pain that cannot be
described but certainly can be felt as a visceral shudder by
all parents.
At the direct enforcement attempts, there were court
officers, police, psychologists, and officials from the
Japanese Central Authority and U.S. Consulate. With the
exception of U.S. officials, it was obvious that everyone else
was there to protect the children from me trying to see them
and to thoroughly document an anticipated, calculated failure.
I foolishly thought these officials I had paid to execute
direct enforcement were there for my success. In reality, they
were just playing their roles of predetermined outcome,
failure.
Furthermore, and worst of all, it severely traumatized our
children in a way that did not need to happen.
With the unsuccessful enforcement attempts, Japan has once
again failed to enforce a Hague return order. This time it was
the one issued by the Osaka High Court on January 28, 2016.
This indicates a systemic problem that was also reported in the
annual Hague Compliance report issued just a few days prior to
my last testimony in July 2016.
This is 2 years in a row that Japan has been unable to
enforce its Hague return orders. This is a systemic problem and
should be concerning for any foreign entity planning to enter
into contracts or binding agreements with parties in Japan. It
certainly should concern foreign governments regarding allowing
any of their children to visit Japan.
Assumption of subject matter jurisdiction, in accordance
with the Osaka High Court return order dated January 28, 2016,
and a mirror return order were issued from Hennepin County
Family Court in Minnesota on December 2, 2016; then again on
December 13, 2016; and then again on January 24, 2017; and then
again on March 24, 2017; and then a very thorough analysis of
continued subject matter jurisdiction and return order on April
4, 2017.
Will Japan even respect our court's rulings as we are
expected to respect theirs?
I was granted temporary sole custody and our children, and
they were ordered released to me on December 17, 2016, at the
U.S. Consulate in Osaka for their return to the United States.
Our children were never brought to the Consulate on that day,
in violation of two Minnesota court orders. Hitomi Arimitsu was
in contempt of the Minnesota court orders that mirrored the
Hague return order of Japan.
I take a moment here. I must acknowledge the significant
efforts and resources that were put forth and put in place for
that day by the Department of State. Unfortunately, it did not
turn out as we wanted it to, but I thank everyone because a
great amount of effort was put forth, and I appreciate that.
After a year of unsuccessful enforcement, on January 5,
2017, Hitomi Arimitsu filed for a modification of the Osaka
High Court return order citing ``grave risk'' standard under
Hague. The evidence of grave risk cited was of relative
lifestyle change if returned. On February 17, 2017, the Osaka
High Court Hague return order of January 28, 2016, was revoked,
and at this time our children are not being ordered returned by
the Osaka High Court.
The revocation of previous return order indicates invalid
interpretation of the Hague Convention and provides further
evidence of Japan's failure to comply with its international
obligation. Article 28 of the Japanese Hague implementing
legislation enables an expanded interpretation of grave risk
that gives judges broad leeway, way beyond international
precedent and language of the Hague, to deny returns. In this
instance, it overturned their own previous ruling and in effect
made use of the taking parent's ongoing noncompliance with the
Hague return order in Japan and from the habitual residence of
the children in Minnesota.
Article 28 is not compliant with the Hague, and it must be
ordered changed by fellow Hague signatories.
The February 17, 2017, order was signed by Presiding Judge
Toru Matsuda, Judge Yoshinori Tanaka, and Judge Takahiro
Hiwada. We have appealed this ruling to the Japan Supreme Court
and we received permission on March 29 to have our case heard.
According to my attorney, it will likely take up to 1 month for
the Supreme Court to receive the file from Osaka High Court. If
the February 17 decision is overturned, as we fully expect, it
will take an additional 6 to 12 months for a Supreme Court
hearing.
The projected timeline far exceeds the expeditious
processing of Hague cases as outlined in the convention. My
case began in August 2015, and it is still unresolved. Japan in
yet another way is not compliant with Hague.
On March 24, Hennepin County Family Court found Hitomi
Arimitsu in constructive contempt of all previous orders. As
part of her purge conditions, Hitomi Arimitsu must return to
U.S. or release our children to me on April 23 at the U.S.
Consulate in Osaka. Tomorrow, April 7, Hitomi Arimitsu must
surrender all passports of our children to the U.S. Consulate
in Osaka, Japan, or communicate to the Minnesota court her
intention to comply with the April 23 order.
On Monday and Tuesday, April 10th and 11th, the G7
Ministerial Foreign Affairs meeting will take place in Lucca,
Italy. I hereby respectfully request that our Secretary of
State, Rex Tillerson, brings the topic up during this important
G7 meeting in order to have it subsequently discussed in the
upcoming G7 summit that will be held in Italy on May 26th to
the 27th.
Considering the two Italian children abducted and abused in
Nagasaki shortly after moving to Japan in order to avoid Hague
Convention proceedings, it is also in Italy's best interest to
have this issue resolved before it is too late. The same goes
for the other cases that each one of the G7 countries has
pending with Japan. Yes, every G7 country has abduction cases
that are going unresolved, and Japan stands in the way of these
children being reunified with their parents. Kidnapping should
not be a protected societal value.
Five days prior to the April 23 ordered return date, Vice
President Pence will visit Japan on April 18th and 19th. He
will meet his counterpart, Japanese Deputy Prime Minister Taro
Aso. Vice President Pence will surely meet Prime Minister
Shinzo Abe and Minister of Foreign Affairs Fumio Kishida as
well.
I hereby respectfully request that Vice President Mike
Pence speak with these Japanese officials and ask them to have
Japan meet their international obligation to comply with the
Hague Convention and return our children to their habitual
residence in Minnesota. Excuses may be offered why they cannot,
but I know from 30 years of involvement with Japan, Japan will
force the return if required or given no other choice.
The following day, April 20, Italian Prime Minister Paolo
Gentiloni will meet with President Donald Trump right here in
Washington, DC. The significance of this is also related to the
upcoming G7 summit. The host country has determining influence
in setting the agenda of the G7 summit, and considering that
citizen safety is the number one topic among the official
priorities set by Italy for the G7 summit with a target area of
managing human mobility, we would like to officially request to
have child abductions in Japan, a form of human trafficking,
discussed and included in the agenda.
I hereby respectfully request that President Donald Trump
and Prime Minister Paolo Gentiloni talk about Japan's
noncompliance with Hague Convention and resolve to put the
issue on the G7 agenda. Japan's continuing failure to comply
with international standards puts children in all G7 member
states at risk of being abducted with no feasible means of
recovery.
Japan remains an ongoing international threat to our
children and our human rights. They are by all means victims of
an outdated legal system. It is an opportunity for President
Trump to demonstrate ``America First'' by demanding Japan
respects a properly rendered decision and several return orders
from a U.S. court.
There is no viable legal means at present to recover
children through the Hague Convention if the taking parent in
Japan refuses to cooperate with court orders, as I know well,
and there are no consequences in Japan for contempt.
Our children remain with Hitomi Arimitsu in contempt of
court with courts in both countries, aided and abetted by Mr.
Yukinori Arimitsu of Arimitsu Industry Co., Ltd., of Osaka,
Japan. I wonder if anyone in Japan has influence over Mr.
Arimitsu to persuade him to end this conflict between Japan and
the USA. Why would he want to put the country of Japan in
jeopardy any longer?
Hitomi Arimitsu owes me approximately $95,000 in unpaid
legal expenses and fines that have accrued since the time they
were imposed by the Japanese legal system. The money remains
uncollected owing to Japan's dysfunctional legal system. I
wonder how any foreign party or government can feel their legal
rights will be protected in Japan. There exists ample evidence
of a dysfunctional judiciary, generating capricious rulings
based upon pragmatism of situations, not principles of existing
law.
There are good people and groups in Japan pushing for
children's rights and Hague compliance. For example, Japanese
Diet Representative Kenta Matsunami on March 8 of this year
repeatedly asked the Japanese Minister of Justice, Katsutoshi
Kaneda, whether he agreed with the interpretation of the
revised Japanese Civil Code, Article 766, given by his
predecessor, Satsuki Eda. At the time of those deliberations in
the Judicial Affairs Committee, Mr. Eda stated that Article
766's meaning was to disqualify an abducting parent from
custody preference. After a longwinded evasion of the question
and repeated questioning by Mr. Matsunami, Mr. Kaneda was
finally brought to respond in the affirmative, in English,
``yes.''
Likewise, Director General of the Japan Supreme Court
Family Division, the Honorable Hitoshi Murata, acknowledged the
statement of his predecessor at the time in 2011 when the
revision of the Article 766 was being deliberated that the best
interests of the child should be considered, and this has not
changed since.
The revised Article 766 was designed to prevent abducting
parents from retaining custody of their abducted children or
gaining an advantage in court. Article 766 took effect 5 years
ago and has been ignored by an unaccountable, rogue judiciary
mired in tradition ever since.
On the same day the Hague Convention went into effect in
Japan, April 1, 2014, the current Chief Justice of the Japanese
Supreme Court, Itsuro Terada, assumed office as well. He issued
a statement, and the translation reads, I quote:
It becomes common for the courts to deal with cases
which have to be considered domestic matters and
international matters as the Hague Convention having
come into effect today. So, I believe that we judges
are asked to make sustained effort to meet the
expectation and trust of the people in us and to tackle
these matters by studying the real state of affairs
happening in Japan and the international trend in order
to strengthen the function of the judicial branch.
Shouldn't Japanese courts be following both the principle
of the revised code Article 766, their domestic law, and the
principle of the Hague Convention, their international
obligation? In actuality, both legal standards are in abeyance
in Japan. Japan's courts are not even functional for Japanese.
A case in point involves Mr. Yasuyuki Watanabe. Mr.
Watanabe has battled in court many years to see his child. In
an unprecedented decision, Matsudo, Chiba Family Court awarded
Mr. Watanabe, a father, custody of their child, taking it away
from the mother. This decision was appealed to the High Court
on January 26 of this year, and the High Court overturned the
previous decision in Matsudo.
The High Court ruling explicitly cited the old discarded
legal standard, the continuity principle, a principle that
rewarded the abducting parent with custody in order to not
upset the child. The court ignored the 5-year-old Article 766,
the current law. Mr. Watanabe is appealing this errant ruling
to the Supreme Court in Japan.
Please note, joint custody is not a legal option in Japan,
only sole custody. It is a zero-sum game in which the child is
guaranteed to lose every time.
This abduction appears to have been well organized and well
planned. We can see there is such activity by groups in Japan
as described in a Liberal Time article about Shelter Net. There
is also organized activity by radical left activists and
communists in Japan. I believe these groups and their followers
in Japan's judiciary were responsible for the noncompliant
ruling of February 17. With more international pressure on
Japan, groups such as these will be exposed and brought out of
the shadows.
Now, I am required to go to the U.S. Consulate in Osaka for
a second time to wait for our children to be released to me on
April 23. Will the request by Vice President Mike Pence make a
difference? Will Prime Minister Shinzo Abe, Foreign Minister
Fumio Kishida, and Minister of Justice Katsutoshi Kaneda
respond in kind and facilitate the return of our children?
I urge the Bureau of Consular Affairs in its annual Hague
Compliance report, due by law on April 30, to reflect the
failure to enforce Hague return orders once again in the Japan
Country report. Moreover, I urge the report to finally
categorize Japan as a noncompliant country.
Then, as indicated in the Goldman Act, Secretary of State
Rex Tillerson ought to use his discretion to implement the most
pernicious executive actions available to him by law, and
specifically, extradition of our children and Hitomi Arimitsu
to USA to appear in Minnesota court as repeatedly ordered.
Secretary Tillerson possesses the character and stature to
resolve this issue.
At a forum of the international community in which Japan
takes part, this issue must be addressed at the G7 summit in
Italy. Other G7 members must demand immediate changes to
Japan's dysfunctional legal system and laws in order for Japan
to be considered worthy of continued membership. It used to be
G8, and it may be time for it to become G6.
In closing, I am here alone, but my voice represents not
only my children and I, but hundreds of thousands of children,
Japanese and foreign, that every year lose access to one parent
in Japan. Japan has been complicit in ongoing retention of our
children and failure to enforce several court orders.
Parental abduction is a penal crime in most advanced
countries, but in Japan it is not. Japan cannot be trusted
moving forward to voluntarily take steps necessary to effect
functional enforcement of court orders of any kind,
specifically Hague.
The tools exist in the U.S. Code to motivate Japan to
comply. It is not a matter of ambiguity. The bright line has
been blurred to suit others' interests, not the U.S., in the
past. The Goldman Act provides a process and consequences in
these situations. Within the Goldman Act there are a myriad of
consequences to choose. The power to choose and impose these
sanctions resides in one office, one official, one individual,
Secretary of State Rex Tillerson.
Thank you again for this opportunity to speak before this
committee. And I have tried to keep my testimony brief because
I understand subcommittee members have family and perhaps even
children they expect will be there when they return home.
[The prepared statement of Mr. Cook follows:]
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----------
Mr. Smith. Mr. Cook, thank you so very much for again
laying out your own case, but also with some very, very doable
recommendations. And with the G7 meeting coming up, I think
that is a tremendous opportunity for us to really rally with
letters to Vice President Pence, the President, and to Rex
Tillerson. And so I think your points were extremely well
taken.
Dr. Frisancho.
STATEMENT OF AUGUSTO FRISANCHO, M.D. (FATHER OF CHILDREN
ABDUCTED TO SLOVAKIA)
Dr. Frisancho. I would like to thank you, Chairman Smith
and Ranking Member Bass and all the members of the
subcommittee.
I would like to say how this nightmare started. In 2008 my
wife asked me for a divorce. I totally refused, and I told her
we couldn't do this to the children. She told me, ``You would
give your life for your children but not for me. This is how
you men think. When there is no longer love in the marriage,
all you men want is to stay together only because of the
children.''
I asked her to try to work things out, seek professional
help, get counseling, but nothing worked. After a year I
accepted it. I did apologize to her for trying to keep our
marriage alive. We agreed on joint custody, and I accepted her
petition to go and together tell our children that we both have
decided to divorce. However, we are still married.
Slovakia. In 2010, my wife abducted our children to
Slovakia. I filed an application for the return of the children
under the Hague Convention on the Civil Aspects of
International Child Abduction. My wife was called upon by the
Central Authority for the Hague Convention in Slovakia to
discuss the peaceful return of our children home. When no
agreement could be reached, the case was sent to the Slovak
court for Hague legal proceedings that continue to this day.
My wife acknowledged in court that the children love their
father, and at the end the Slovak courts ruled the return of
the children to the United States, but they never enforced it.
A court order that was once final and binding was reopened
later, and the case continues to this day.
Travel ban. The Slovak courts also prohibited the removal
of our children outside of Slovakia until the Hague proceedings
were finished, but my wife, in violation of that travel ban,
removed our children to Hungary.
European Court of Human Rights. Later on, I filed a
complaint against Slovakia under the European Court of Human
Rights in Strasbourg where a chamber of seven judges
unanimously ruled that Slovakia had violated my human rights as
a father with respect for my family life, and it ordered
Slovakia to pay me damages. This court concluded that there was
no dispute that the relationship between the father and his
children was one of family life. The Slovak ruling can by no
means be said to have been in the children's best interest.
So where are we now? Three judges in the United States,
four in Slovakia, and seven judges in Strasbourg, a total of 14
judges, men and women from different backgrounds and countries,
all have acknowledged that the abduction of our children is
wrong. However, the Slovak courts have stayed the Hague
proceedings on the mistaken presumption that Slovakia no longer
has jurisdiction, and currently the Slovak Constitutional Court
is reviewing my appeal.
Slovakia needs to comply not only with the Hague
Convention, but also with the European treaty called Brussels
II that gave Slovakia the tools to order again the return of
the children to the U.S. and enforce that order in Slovakia in
the event that the children are found in Slovakia or to
cooperate with any other country member of Brussels II, such as
Hungary, to have the Slovak court order enforced in that third
country. How can we start a new litigation in Hungary when
Slovakia has already accumulated evidence during 6 years?
Criminal charges. To top all that injustice, my wife is
trying to file in Slovakia criminal charges against me for
unpaid child support for children who, according to the Slovak
courts, say no longer reside in Slovakia. I have said in the
past that by doing that I would be supporting this emotional
abuse of the children, and, moreover, it is the U.S. court that
has jurisdiction over the children. This court has given full
custody, legal and physical, to me, and it says that child
support will be decided by the Baltimore court, not by
Slovakia.
Access to my children. I have repeatedly obtained court
rulings ordering the mother to allow the children to meet with
me. I traveled multiple times to Europe. In 1 year alone, I
took 14 weeks off from my work trying to stay in touch with my
children. With the court orders in my hands, I went to my
wife's parents' house, and my children's grandmother, Mrs.
Piroska Kiss, told me, ``Don't you know, Augusto, that you will
never see the children again? Go away. Stop bothering us.''
On another occasion, I filed a missing persons report in
Slovakia, but not even the law enforcement will help me see the
children. I went to their schools repeatedly in both Slovakia
and Hungary, met with the teachers and principals, who
introduced me to my children's classmates in their classrooms,
but I couldn't see the children. I never saw my children
because my wife had taken them away for days and weeks until
she learned that I had returned to the United States.
The courts also ordered my wife to let me Skype, email, and
talk over the phone with our children, but she declared openly
in the court that she didn't have a computer, she didn't have
Internet, and she will never let me see ``her'' children
anyway.
My boys need me. Every boy needs his father. They are
teenagers. Their bodies and minds are changing from boys to
men.
Besides being father and sons, we were friends. We had a
very strong, respectful, and very much a loving relationship.
When my wife had stayed at work from early morning to late
evenings, our children stayed with me all day long.
I did everything with them. Woke them up. Got them ready
for school. Gave them breakfast. Made lunch boxes. Drove them
to school. Then I ran to work and left my job early in order to
pick the boys up from school. Then we had lunch and rested,
played, did the sports. Then we went home back, and while the
older boys were doing homework, I did art, drawing with Raymi,
my little son. Then we had dinner together, showered before
going to bed, prayed, and got ready for sleeping. And when the
lights went off, I would tell them stories until they fell
asleep.
Once it happened that while I was talking to them about
life and that one day we would go to heaven, one of my boys
asked me, ``But, Daddy, why do we have to go if this life is so
beautiful?''
I am sorry. I am just sharing with you this because I would
like you to know that my children had a good life in the United
States. They attended one of the top schools in the Nation.
And before all this idea of divorcing came up and the
kidnapping, I had concerns about my wife's mental health. She
collapsed in the parking lot of our children's schools and was
taken to a psychiatric hospital where she was retained against
her will and put on strong antipsychotics.
After she was released, she described to me that she said
there that she was sick because of her boss, so that all the
guilt will go on her boss' shoulders, because she fought with
her boss and she resigned her job. A mother of three children
one day came to my house saying, ``I resigned.'' I said, ``What
happened?'' ``Well, I had a fight with my boss, and I told her
I don't need the job.''
We were actually in that time making the same amount of
money. We had to pay credit cards, a mortgage, two cars,
private schools, and my salary would not suffice for all that,
and she knew that. But she just resigned from her job. That is
indicating how she was mentally.
She raised accusations against some of our children's
teachers, neighbors, pediatricians, dentists, and other people.
One year prior to the abduction, she went to Slovakia
supposedly to rest, but later on she emailed me saying if I
could come quickly to Slovakia to pick her up because she could
no longer live under the same roof with her parents. According
to her, everybody in the village where they lived looked at her
as she was a criminal because of the complaints her father, Mr.
Alexander Kiss, had made against her.
Department of State, Office of Children's Issues. I would
like to express my gratitude to the Department of State for
having assisted me from day one. U.S. Embassy officials
attended each and every hearing in Slovakia. They sent
diplomatic notes and demarches to the Slovak Government and had
personal meetings with government officials.
However, as we all can see, although this tremendous work
done by the Department of State is very much appreciated, after
almost 7 years my sons have still not returned home. This is
showing us that much more needs to be done.
The Department of State could use the additional tools
provided by the Goldman Act in order not to let Slovakia find
excuses to release its responsibility by saying that it no
longer has jurisdiction over my children's Hague return case,
forgiving my wife for removing our children to Hungary in
violation of a travel ban, and staying the proceedings in
Slovakia.
We are not telling Slovakia how to rule their judicial
system, but we are demanding Slovakia to follow the rules of
treaties for which Slovakia had signed a membership, with all
due respect to Slovakia.
Specifically, the Department of State could take the
following actions, as we all know. Delay or cancel bilateral
working, official, or state visits and student exchanges with
Slovakia. Withdraw, limit, or suspend United States
development, economic, or security assistance.
In summary, the Goldman Act not only empowers the
Department of State, but it even requires punitive actions
against countries that do not respect international agreements
like Slovakia.
Acknowledgements. I would like to express my gratitude to
the Department of Justice, FBI, and INTERPOL, especially to
Senator Cardin and Congressman Elijah Cummings for their
support; to Mr. Ausias Orti Moreno, who is here, my children's
case manager from International Social Services; and to the
National Center for Missing and Exploited Children who has been
helping me from day one, especially to Rami Zahr, Sarah Baker,
Team Hope Program Director Abby Potash, all present here. To
all my friends, members of church, colleagues from work, from
Hopkins, my lawyers. They have left their jobs today to be here
with me.
My very special thanks to you, Chairman Smith, and your
counsel Allison Hollabaugh.
I would like you to know that when I spoke to my children
over the phone just shortly after the abduction, they naively
asked me, ``Daddy, can you help us return home?'' My heart
breaks every time I remember these words. I promised my
children then that I was going to do whatever was only possible
in the world to help them.
During these past 7 years I have been working with lots of
people, but one thing I can say about you, Chairman Smith, is
that I can sense that you have sincere compassion for our
children. You, indeed, care for the well-being of the children
who are victims of all kinds of abuse committed by their own
parents as a result of their blind selfishness. Abductors put
themselves first, children are secondary, and often use this as
an act of revenge against the spouse.
But this is why the law exists. What would the world be
today if there were no laws? So on behalf of my three boys,
thank you, Mr. Smith, for creating the Goldman Act. Thank you
for asking the Department of State to enforce the Goldman Act
and request Slovakia and all the other countries who today are
still attempting to bypass the law to go ahead and simply
fulfill the law and return our American children.
We did the same for them. When a child was kidnapped to the
United States by a parent, our authorities made sure the child
was safely returned to the left-behind parent in Slovakia. We
did not create excuses. We acted fast, and we used all the
possible resources and will do it again.
I know that I have very short time, but just one paragraph
to my children.
To you, Ork'o, Amaru, and Raymi, this is the first time I
have been given the opportunity to talk to you since our phone
conversations were cut in 2010. I love you guys with all my
heart. You are my life. I miss you.
Every morning when I get up, I kneel and pray to God to
help us to be together again, to protect you from any evil. I
kiss your picture that I have placed on the door of the fridge.
I keep your picture on my cell phone. I dream about you often,
but I see you in my dreams as still little as you left our home
almost 7 years ago. I bet you are bigger and stronger today.
Hang in there, guys. Stay strong. Dad loves you more than
anything in the world. I live only for you. Forgive me for not
having been able to honor my promise to help you return home
until today.
And please now read my blog, read the court orders. I will
put them all online. Read the news. Please give me the chance
to tell you my part of the story, too. Every story has two
sides. You have heard only one side. No matter what you have
been told about me, please listen also to me.
You guys also pray to God all the time and pray for your
mother, too. God doesn't do anything wrong, but he only permits
bad things to happen. I am waiting for you and will always be.
Te amo Ork'o. Amaru te adoro. Raymi, I love you. Papa.
[The prepared statement of Dr. Frisancho follows:]
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Mr. Smith. Dr. Frisancho, thank you very much for your
testimony. It is very moving, and hopefully it will soon result
in the return of your children, and we will do everything we
can.
Dr. Frisancho. Thank you very much.
Mr. Smith. I would like to now ask to present his testimony
Mr. Jagtiani.
And thank you for being here.
STATEMENT OF MR. VIKRAM JAGTIANI, CO-FOUNDER, BRING OUR KIDS
HOME (FATHER OF CHILD ABDUCTED TO INDIA)
Mr. Jagtiani. Thank you, Honorable Chairman Smith, members
of the subcommittee, and Congress. Thank you for giving me the
opportunity to testify before this subcommittee today.
I wish none of us had to testify on an issue like parental
child abduction, but given the serious humanitarian crisis
affecting thousands of children and families in America and
around the world, I feel privileged to be able to speak about
my daughter's abduction from her home in New York to Mumbai,
India, and the challenges many other left-behind parents and
myself have faced in securing her return home.
Chairman Smith, with your permission, I would like to
submit my full testimony for the record.
Mr. Smith. Without objection.
Mr. Jagtiani. Thank you.
My testimony today centers around our children. They are a
product of love, and during their development, it is critical
for our children to receive the unconditional love of both
parents. Even if the parents decide to part ways, it is wrong
to rob a child the love of and access of the other parent. Any
problems that occur between a mother and father as they part
ways have to be worked out in an orderly fashion through a
court in the home jurisdiction. Abducting the child and using
them as a pawn for revenge or as leverage is incorrect and
unacceptable.
In my case, my daughter, Nikhita, was abducted to India, a
nonconvention, nonbilateral country, in September 2013, when
she was only 4 years old. Nikhita didn't know she was being
abducted, nor could she have prevented her own abduction.
This is the stark reality of International Parental Child
Abduction (IPCA), which many governments around the world,
including India, fail to acknowledge. Today, India has new
leadership, and it is my hope that the new leadership will see
this as an urgent problem and tackle it in the right way, so
that these cases get resolved. Just as the U.S. had a civil
rights leader in Dr. Martin Luther King, India had Mahatma
Gandhi. Both these leaders had human rights and social justice
at the forefront of their campaigns. If Gandhi were alive
today, he would support India's accession to The Hague
Convention on Civil Aspects of International Child Abduction.
At the time of the abduction, my wife and I had been living
separately, but we shared custody of Nikhita, who had just been
enrolled at a new school on Manhattan's Upper East Side for the
academic year 2013-2014. My daughter was abruptly removed from
school by the mother, citing a family emergency. Nikhita's
mother took a leave of absence from her job, terminated her
lease, and traveled to Mumbai, India, on a one-way ticket,
coincidentally on the very day my dear father passed on in
India.
I happened to be visiting my ailing father in Mumbai at the
time, and after his final rites and mourning period, I returned
to my home and my job in New York. My estranged wife,
meanwhile, announced that she would not be returning, nor would
she permit the child to travel back with me. She had
unilaterally decided to relocate to Mumbai because, she
claimed, her career prospects looked brighter there, and she
alleged Mumbai was her birth and matrimonial home now.
Nothing could be further from the truth. She is a U.S.
citizen, who abducted a U.S.-born and raised child, both of
whom--both of whose habitual residence was in New York. My
estranged wife was attempting to move the playing field to a
favorable forum, and using our child as a pawn to gain from her
wrongful act. It was a sinister plan, and I avowed to fight for
my child's rights.
On returning to New York, I heard from her friends that she
had been planning this abduction for months, so I immediately
consulted a lawyer and initiated a wrongful removal and
custodial interference complaint. Due to the challenges by the
abducting parent, it took me 18 months to complete service in
India, upon which she became party to the custody case in New
York.
The court conducted a detailed investigation. I was awarded
temporary custody, and my estranged wife was directed to
immediately return Nikhita to New York. Of course, she has not
complied. As a result, Nikhita's mother has been charged with
kidnapping by the Federal prosecutors in the Southern District
of New York.
A battle is won or lost by choosing the terrain on which it
will be fought. While thwarting service of New York proceedings
and orders, Nikhita's mother embarked on a series of malicious
civil and criminal proceedings in India, not only against me,
but against members of my extended family. With an array of
favorable laws and an extensive support base in India,
Nikhita's mother has relentlessly pursued a slandering campaign
in multiple courts and multiple jurisdictions.
Jurisdictional arbitrage is the practice of taking
advantage of discrepancies between competing legal
jurisdictions using whatever tactics and loopholes imaginable.
For those on the receiving end, India can feel like the
wild, wild west, and abducting parents in India play a
nefarious game by filing false, unsubstantiated criminal
charges in India, while in my case, using the local police to
harass my extended family.
Interestingly, India is a signatory to The Hague Convention
on Service of Process of Judicial Documents, a founding member
of The Hague Conference, but is not a signatory to The Hague
Convention on Civil Aspects of International Parental Child
Abduction. This has resulted in unnecessary hardships, wrongful
separations of children from their loving parents, legal
delays, and prohibitive costs.
Challenges in India: Based on recent press reports, more
than 27 million cases are pending in India's district courts, 6
million of which have lasted longer than 5 years, while another
4\1/2\ million are waiting to be heard in the high courts. The
former esteemed Supreme Court Justice of India, B.N. Agrawal,
stated, ``Delay and disposal of cases not only creates
disillusionment among the litigants, but also undermines the
capability of the system to impart justice in an efficient and
effective manner.''
Abducting parents and their aiders use India's systemic
delays in the judiciary as a tool to benefit from their
wrongdoing, seeking to delay or deny the return of abducted
children to the countries of their habitual residence.
Left-behind parents face other major hurdles. India's
institutional bias against recognizing parental child abduction
as a violation of human rights and law, and gender stereotypes,
which manifest itself in various forms. Indian judiciary and
policymakers view international parental child abduction not as
a child's rights issue and legal violation, but rather, as
routine child custody issues. When a mother perpetrates child
abductions, they often treat these cases as women's rights
issues, the result being Indian courts routinely relitigate the
divorce and child custody cases decided by competent courts in
other nations where children habitually resided, thus creating
a complex legal web.
When mothers of Indian origin, regardless of their
nationality, abduct children to India, they are often viewed as
helpless women, or Abla Naaris, who cannot legally defend
themselves in a foreign country and, hence, need protection in
mother India.
When a father abducts children to India, left-behind
mothers often face other forms of gender bias. Left-behind
mothers are asked by Indian courts to return to India to
fulfill their duty to their children and spouses.
Often, Indian courts usurp jurisdiction and issue arbitrary
orders without framing of issues or examining evidence that
then become cumbersome to remove. Ex parte interim orders are
often issued without due process, lingering for years,
compounding the pain for the seeking parent and the child.
When a mother abducts children and flees to India, there
are a whole cocktail of legal procedures to avail of, and
numerous nefarious operators to advise them. Two of the most
commonly misused and Draconian laws are related to the
Protection of Women Violence Act 2005, and Section 298 of the
Indian Penal Code. While the intent of many of these laws may
be good, quite often during implementation, the spirit is lost,
when lines get blurred between allegation, fact, imagination,
and reality. It is no wonder that parents, regardless of
gender, who abduct their children to India, find safe haven
under Indian laws. In all cases, children are the innocent
victims of a crime that India refuses to recognize.
My family and I are victims not only of IPCA, but of
India's legal system, which is failing to deliver justice. My
daughter is an innocent voiceless victim of a crime committed
by her mother, aided and abetted by India's refusal to
recognize IPCA's child abuse, a human rights violation, and a
crime. I am left with no choice but to litigate in a broken
legal system and a cross-border legal vacuum, trying to reunite
with my only child, my daughter, Nikhita.
For the last 3 years, since the passage of the Goldman Act,
we at Bring Our Kids Home have been tirelessly advocating for
the Indian and U.S. Governments to work together to address the
pain and suffering caused by the lack of legal framework that
deals with the serious and growing issue.
For our part, the many left-behind parents have
successfully obtained U.S. court orders establishing our
children with habitual residence of the United States and were
wrongfully removed from the United States, or retained in
India. Starting in December 2012, the Department of State has
sent formal written requests to India's Ministry of External
Affairs, and our Government has engaged with the powers in
India to provide a commonsense solution to have our children
returned. However, the State Department, the Department of
Justice, and others, have failed to convince our strategic
partner, India, to cooperate with us in the return of American
children. The institutional and systematic complacency in
India, and the lack of urgency by both our Governments to
decisively address this serious and growing issue, only hurts
our children and our national interests.
We are a rule-of-law-based society, but when it comes to
international parental child abduction to India, there is no
rule of law. During Prime Minister Modi's visit to the U.S. in
June 2016, we were pleased to note that the issue of
international parental child abduction was raised in the
strategic dialogue and was part of the bilateral statement.
Recognizing its mutual goal of strengthening greater
people-to-people ties, the leaders' intent to renew
efforts to intensify dialogue, to address issues
affecting the citizens of both countries that arise due
to differences in the approaches of legal systems,
including issues relating to cross-country marriage,
divorce, and child custody.
Shortly after, we saw reports that the Ministry of Women
and Child Development, MWCD, posted a draft bill for India's
accession to The Hague Convention on Child Abduction on their
Web site and we were hopeful and excited to witness progress.
Bring Our Kids Home provided feedback and comments to help
guide a fair and commonsense solution for our kids.
Early in the fall of 2016, we heard sound bites that the
vested interests in India, including the National Commission
for Women, prominent women's rights attorneys, and abducting
parents were lobbying to maintain the status quo and convince
the Ministry of Women and Child Development to oppose its own
draft IPCA bill. Sure enough, by Thanksgiving, we received news
reports that they had junked their draft IPCA bill and would
not sign The Hague Convention, the reason stated being, we
found that there are more cases of Indian women who returned to
the safety of their homes in India after escaping a bad
marriage. Cases of women who are foreign citizens married to
Indian men going away with their children are far fewer. Hence,
signing The Hague Convention would be a disadvantage to Indian
women. Also, a majority of such cases pertain to women instead
of men running away, said a Women and Child Development
official.
As you can imagine, we had a pretty dismal holiday season
without our children and being robbed of our hope of any
solution at all.
Five weeks later, on January 3, 2017, we saw a report that
India will reconsider the hasty decision and invite all
stakeholders to a meeting on February 3, 2017. As important
stakeholders, we reached out to the Ministry of Women and Child
Development through multiple channels, only to be informed that
this would be a closed inter-ministerial rule meeting, and the
MWCD suggested we participate via Twitter. After pushback from
several left-behind parents on Twitter, the ministry tweeted an
email address in a couple of days before the start of the
consultation, but would not disclose the precise time and venue
of the consultation, which would be a significant impact to the
lives of our children and families.
Bring Our Kids Home and several left-behind parents emailed
our concerns and suggestions to the Ministry to consider during
the IPCA Hague consultation held on February 3, 2017. Based
upon independent sources who attended the consultation in New
Delhi, we were informed that mothers who had abducted American
children to India were at the consultation, and even presented
at the event. However, no representation from left-behind
parents was invited. I was aghast to find out that amongst
those who presented at the Ministry of Women and Child
Development consultation was my estranged wife, who made a
detailed presentation on why India must not accede to The Hague
Convention on Child Abduction, and presented a perverse
narrative on IPCA.
Thus, over the past several months, left-behind parents
have been on an emotional and psychological roller coaster,
while the Government of India gives mixed signals at best and
the U.S. Government offers no substantive relief. Left-behind
parents across the spectrum feel like we are fighting a David-
versus-Goliath battle, and our administration isn't pulling its
weight in this fight.
Before I conclude my testimony, I would like to make a
direct appeal to Prime Minister Modi, to Foreign Minister
Swarage, to Minister Menaka Gandhi, and to policymakers and
judges in India. Instead of dehumanizing us left-behind
parents, who have had our children taken away from us, been
robbed of the love and affection of our children in the best
years of their lives, most often being denied any access, and,
in my case, the abducting parent will not even disclose the
physical location of my child in Mumbai, it is heartbreaking
when I receive a message from my Indian attorney the morning of
a scheduled Skype call with my daughter that she is too busy
with her friends or her activities to come to the phone or the
computer to say hello.
This could happen to anyone. Imagine it was your child.
Please engage with us, not symbolically, but as important
stakeholders, and allow us to participate in creating a fair
and just policy so that no parent or child has to go through
this trauma we have endured.
In conclusion, I respectfully ask you, Chairman Smith and
Members of Congress, is enforcement of the U.S. law optional?
How long should we, parents of America's stolen children, wait
for our Government to enforce our laws and hold perpetrators
accountable? How many more hearings do we need before countries
like India, Japan, and Brazil be held accountable for their
lack of cooperation in returning American children?
We have a new President who puts America first. I urge
President Trump and our Federal agencies to enforce the Goldman
Act and put America's children first above other bilateral
priorities. With Prime Minister Modi's possible trip to the
U.S. in May of this year, I respectfully urge President Trump
to use this opportunity with Prime Minister Modi to resolve
this issue as a bilateral priority and usher a new era of
bilateral friendship between our two countries.
Please help bring my Nikhita back. Please help bring all
our children home. Thank you.
[The prepared statement of Mr. Jagtiani follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
----------
Mr. Smith. Mr. Jagtiani, thank you very much for your
testimony and for your appeal to Prime Minister Modi. When he
was here last year, I actually introduced him to one left-
behind parent, a young woman whose two children, two sons were
abducted, and asked him personally to intervene. I have met
with the Ambassador. There has been a pushback on all of these
cases, which is deeply troubling.
And my first question is that the Goldman Act provided a
very, I believe, effective framework, but it requires faithful
implementation. We got less than adequate implementation under
the Obama administration. It is unclear whether or not
President Trump will faithfully implement it. I hope and pray
that he does. When he met with Prime Minister Abe, we sent a
detailed letter to him before that meeting regarding the left-
behind parents, the older cases, as well as the new Hague
cases, both of which are being inadequately cared for by the
Japanese Government. And I would just point out that in 2011,
when I went to Japan with Nancy and Miguel Elias on behalf of
their grandchildren, Jane and Michael, we met with the Minister
of Foreign Affairs, he was then the Vice Minister, Matsumoto,
and he was very empathetic. We found empathetic ears, but not
empathetic actions on the part of individuals. The Eliases now
are still waiting many years later, the abduction was right
before Christmas 2008. And so many other of the longer cases
have been agonizing beyond words.
Then last year, a couple years ago, at the first oversight
hearing of what OCI was doing in terms of its report, it was an
embarrassment, how poorly crafted the report was, how it left
out critical details and information, so bad that they went
back and said they would redo it, and it came back better, but
certainly not covering the fullness that we had hoped that they
would.
In 2016, for example, Japan was not listed as a country
demonstrating a pattern of noncompliance, despite the fact that
it hit all of the criteria that should have put them on that
list, which would have then led to the hoped-for sanctions to
sharpen the minds of our friends in Japan; and they noted that
there was a problem with enforcement of return orders, exactly
what Mr. Cook has raised to us today.
Enforcement of Goldman is first. That, we can do. And
Goldman was not enforced by the Obama administration, and I
find that to be a missed opportunity. And for all of you, it
must be agony beyond words, because there were tools that were
unutilized and remained in the toolbox.
Dr. Hunter, you had a successful case, thank God, and we
have three individuals whose cases remain unresolved. I would
ask all of you, first the report has to be done right. The
April 30 deadline has been missed before. Last year, it was 72
days late. And, frankly, I would rather have lateness and
tardiness than an inadequate report. So my hope is that they
will get it right this year. And Japan certainly jumps off the
page. India needs, I think, a much more robust response once it
is so designated as a noncompliant country. So getting it right
on the report, and, Dr. Hunter, you might want to lead off on
that.
One of the things that I found appalling was a pattern with
the last administration in not speaking truth to power.
I also authored, besides the Goldman Act, the Trafficking
Victims Protection Act, and that requires a report every year
that lays out countries along a tiered system, Tier 3 being
egregious violators. Well, 16 countries were improperly given a
passing grade by the Obama administration. And I am not saying
here what I didn't say then. I had a series of hearings at
which we said, how could you falsify the report on sex and
labor trafficking to give Malaysia, Oman, China, and other
countries, Cuba, a passing grade because of other political
considerations? The report has to get it right and state
clearly and without any ambiguity where the country stands,
list the cases honestly. And I can tell you if the report comes
out inadequate again, no matter what comes out in the report,
we will have a hearing on that to hold whoever the new person
is to account and to encourage that at least get the report
right done first, and then the sanctions regime and enforcement
and the imposition of penalties will be part two, which is the
way the law designed it.
I am very concerned as well that there were no MOUs. When I
was in Japan with the Eliases, we raised with our delegation
there, the Ambassador was out of the area then, but we raised
it repeatedly since, and with every other country where there
are individual left-behind parents who, when a Hague, for
example, was entered into, are left behind a second time,
because obviously Hague is from the date of ascension, and
anyone before that is not covered by Hague.
So we have pleaded with the Obama administration to enter
into MOUs with countries to figure out a mechanism to get those
children back home to their left-behind parents. Not a one. Not
a one. We also wanted that for countries that are not part of
the Hague Convention, because obviously, there needs to be a
durable mechanism for effectuating the return of those
children, and you need a system; the bottom line is to make
that happen. And, so, I am very, very concerned about that. But
I have brought it up and when Prime Minister Modi, if he does
come again, that is something we will appeal to the
administration to raise.
So the idea of the report, MOUs, and this issue--and,
again, Mr. Cook, your idea of the G7 is a fantastic one. We
will circulate letters. I know that Allison brought that up
earlier today at the meeting at the White House. I do hope that
the White House--you know, of all things, when the theme that
the Italians have put for this, citizen safety, well, how about
the safety of abducted children? That should jump off the page.
Your thought of a G6, that was an interesting and very novel
idea as well.
So speak to the reports, getting them right. Again, I would
rather miss the deadline and get it right. They are 72 days
late last year and didn't get it right on a number of
countries, like Japan. Then I will yield to my friend and
colleague, and we will have some additional questions after
that.
Dr. Hunter.
Ms. Hunter. Thank you, Mr. Chairman. And the reporting is
essential for a few reasons. One, transparency is important for
us as parents, who have been advocating for this.
So in my professional capacity, data drives our decisions.
I work for the Kentucky Office of Highway Safety. We use data
about driver behavior, vehicle miles traveled, fatalities,
serious injuries. We rely on data to address the solutions and
to drive our solutions. And so, it is very, very important that
we aren't, in my professional capacity, doing what we think
needs to be done; we are relying on good, quality information.
And that is something that we have been, for some time, asking
the State Department and the Office of Children's Issues for.
Part of that, we have begun to take it into our own hands,
and we are trying to collect data from parents to help us to
fully identify the scale and scope of this problem. We were
very pleased at the White House meeting to learn this morning
that there are indeed mechanisms and analytical tools that are
available. So we are hopeful.
And from iStand's position, there is not much that can be
done about what has happened. What we can do is look at a way
forward. And for us, the ability for the State Department to
clearly, accurately, honestly, and with integrity, report on
the full scope and scale of the problem is essential. And I
would venture to say that once there are true numbers out, that
will mean great things for Congress, and your ability to
effectively advocate for your constituents as a casework
function, but then also, to effectively engage with nations,
but we can't know any of that until there is proper reporting.
And so we do call upon the State Department as they issue the
next report to make sure that the information is reliable and
it is consistent, and if it is reliable and consistent, these
worst-offending countries are going to rise straight to the
top. We are going to see Japan as noncompliant, we are going to
see Brazil as noncompliant, we are going to see India as
noncompliant. Even the countries that aren't signatories, if
the information is reported accurately, the United States will
be in a position of strength, the President will be in a
position of strength when he engages with these nations to
effectively advocate for American children.
And if I might just very briefly say on MOUs (Memoranda of
Understanding) or other types of agreements, these are
essential. It is our understanding that this administration
has, for all intents and purposes, thrown out the playbook
about how it has been done and multilateral agreements and
multilateral treaties. We are in favor of that. We are in favor
of the United States negotiating directly with every single
nation individually and from a position of strength. We have
many, many tools in our arsenal in the Goldman Act to require
countries to return our children, and I think that there ought
to be both that dialogue, and that has its place, but, yes,
strongly worded memoranda that make it uncomfortable for
countries.
Mr. Cook. One of the ideas I have scribbled down here and I
left it out of my testimony, but it would be wise and would
make a statement if the State Department were to come out and
issue a travel warning, specifically for the country of Japan,
and as the United States, indicating that we do not recommend
anybody, any children of half Japanese descent, or anybody that
has a child of that to travel out of the United States at any
point, because to circumvent The Hague, the latest gimmick, if
you will, is--what is happening is that, let's say a Japanese
spouse will play all nice and say, can we just go visit my
family in Japan? Okay. Let's just take a vacation, which to a
compassionate and understanding U.S. citizen might say, sure,
let's go visit the family.
Once you are in Japan, it is done. She can have you
arrested, or he, excuse me, but it is mostly women, so put it
that way. She can have you arrested. And as we know, too many
cases of people that get held for 23 days in the Tokyo hotel,
and other things like that. And so that, one, sends a
statement, symbolic; two, it is very practical sense, because
good-hearted, compassionate people are being hoodwinked into
returning with their children to Japan, and at that point, they
are just like this individual from Italy, he went back and
everything turned suddenly. And there is nothing that can be
done at that point, because we all know The Hague is
ineffective once you are in Japan.
Mr. Jagtiani. Yes, Chairman Smith. We thank you so much for
your efforts, you know, in engaging with India's leaders on
behalf of Bindu Philips and with Prime Minister Modi and the
Indian Ambassador. We heard you used to get him in the halls at
Rayburn, and we thank you so much for that. And actually, Bindu
is in India right now, I think visiting her kids, after 8
years, she had an order from the Supreme Court of India to be
able to see them. And they have now actually aged out of the
system, which is really pretty tragic.
As I was actually talking to Dr. Hunter off the record, one
of the issues with India is we effectively are dealing with
cultural biases, and we have to change the thinking before we
can solve the problem. And it is a long haul, but I think with
the tools within the Goldman Act now, soft diplomacy might not
work as well. So we need to do something to really get them to
take some action on our orders here. And it is my hope that
President Trump, who is a family man, will take cognizance of
this issue in the upcoming visit, and we will see some
resolutions. Thank you, sir.
Mr. Smith. Mr. Garrett.
Mr. Garrett. Thank you, Mr. Chairman.
It strikes me--and I will tell you by way of background,
that I spent about 10 years as a criminal prosecutor, and when
I finished law school, I swore never to do domestic law. I
would rather try a murder case. And I mean that, and I don't
mean it to be funny.
A couple of times during the testimony today, Mr. Chair, I
had very itchy eyes that needed wiping. The circumstances are
just heartbreaking. I want to commend the folks who came, I
believe probably with Dr. Frisancho. You obviously have a good
strong support network, a lot of people here on your behalf.
It strikes me that perhaps wording, as it relates to the
status of your respective children, might get in the way of
messaging. And what is beyond my ability as a father and a
divorcee of two children to wrap my brain around, is not that
you don't have custody of your children--and I am going to tell
you how I feel, not perhaps what you want to hear--it is that
you are not able to see your children.
And as I think through this process in my limited tenure
here, Mr. Chairman, and members of the panel, I try to think
about what outcomes are possible, what can we get to. And so
what I will promise you that our office will do is reach out,
specifically starting with Japan, to the Ambassadors and
Embassies and start to ask questions. And I say starting with
Japan, because obviously Slovakia and Brazil and India are
other nations of note, but my questions won't be driven toward
gaining custody of your children, it will be driven toward
gaining the right of you to see your children, right? Because
there are two sides to every case, the court can come to
whatever conclusion it wants, but to deny you the right to even
see your children is beyond my ability to wrap my brain around.
It is a grave injustice not only to yourselves, but to your
children.
Dr. Hunter, you talked about the scope of the problem. And
there is a handout up here that we haven't received, I am going
to ask if our office can be made privy to, but I want to wrap
my brain around that, if you all have amalgamated data on what
countries have how many U.S. dual-citizen children residing.
What is the scope of the problem? And I don't know if there is
an answer to that except for I am asking for your data so that
we can wrap our brains around it. Do you know a number off the
top of your head?
Ms. Hunter. We know numbers, but we are concerned about the
accuracy of those numbers. And we truly believe that they have
been low-balled, so to speak.
The State Department reports that every year, about 1,000
American children are abducted, and taken to a foreign nation,
where it is a fight to bring them home. However, we suspect
those numbers are much higher, for a few reasons. One, many,
parents don't know that they need to report. They feel when
their child has been abducted, that either if they can't solve
it themselves, there is no hope. And so we know that there are
probably cases in which children don't report.
We have been able to quantify the numbers. And we like to
look at this from a whole-number perspective. So over the last
5 years or so, we can imagine that over 5,000 children have
been taken. My colleague, Jeffery Morehouse, from Bring
Abducted Children Home, they often indicate that over the span
of the time that the Office of Children's Issues was
established, 29,000 children have been abducted, and a fraction
of those have come home.
But to your answer, Mr. Garrett, we don't know, which is
why I am actually optimistic that now that--that we know that
the State Department has this reporting ability, perhaps we can
get more accurate numbers, and there are many data points that
we could parse out of that.
Mr. Garrett. Well, a number obviously is a number, but a
name and a face are compelling, and so I would encourage you,
and I will work with the chairman to try to--and obviously
there are privacy concerns, we are dealing with minors, but at
least as it relates to the specific Members of Congress,
compile a list. I would love to know the names, dates of birth,
and dual nationality status of the young people from my
congressional district. I encourage you to send to each Senator
and Congressperson the list, because names and faces make
people move. Numbers are scary. But I am asking if you guys can
do that, starting with us, and that will help us have a
jumping-off point; not that someone by virtue of living in my
district is any more important than any of you, but we have a
limited amount of bandwidth.
Mr. Cook, you talked about the legal process in Japan. I am
vaguely familiar with the barriers to entry to the legal
profession in Japan. And suffice it to say, we have an awful
lot of lawyers in this country who might not be practicing law
if they were subject to the requirements of the Japanese bar.
It can't be cheap. Do you have a dollar figure? I heard $96,000
at some point.
Mr. Cook. Well, with respect to the situation going on in
Japan legally and culturally, there are several things that I
can't disclose or say.
Mr. Garrett. But how much have you spent? And if you can't
disclose that, that is fine.
Mr. Cook. It is a lot.
Mr. Garrett. So what I am driving at here is----
Mr. Cook. I quoted a $95,000 figure. That is some time in
history. That is not a current.
Mr. Garrett. Right. So what I am driving at here--and this
is bound to be a cottage industry in the legal profession in
Japan of people who represent foreigners who have children in
Japan.
Mr. Cook. Yes.
Mr. Garrett. And I don't begrudge them, although I think
they owe you a duty of forthrightness on the front end, that it
is a tough system and that the results aren't guaranteed. What
I am driving at here, though, is that if you are not able to
earn the amount of money required to fight the fight that you
are fighting, you have got nothing, right? I mean, and that----
Mr. Cook. Well, Mr. Garrett, here is a case in point: I am
virtually without financial means anymore. And after a year of
trying to enforce the return order of the Osaka High Court of
over a year ago, that drained significant assets that I had. In
fact, lost our house in the process. Okay?
Well, the loss of the house and my drained financial
resources was used as the primary rationale for the Osaka High
Court to revoke their order of return, because, ``He has no
money, why would you send him back to America?'' And that
fundamental, and so, in essence, they just wait you out. They
want you to quit legally, financially, emotionally,
spiritually. And that has been allowed to occur, primarily
because we have had a Department of State unwilling to use the
Goldman Act tools that it has had.
A view, since you come from the legal background, a view to
the enforcement in Japan, and I use the term ``enforcement''
loosely, every step of the way for me to have--first of all, to
have access to my children, I require the abductor, my wife's,
permission. In order to do the direct enforcement or do the
ambush, we needed her permission to do it that day.
So I ask you, what do you think the likelihood is I am
going to have access to my children if the legal foundation in
Japan requires the permission of the abductor to allow me to do
it? And there is nobody to enforce that, and so Japan will be
in indefinite noncompliance with The Hague.
Mr. Garrett. Have any of you on the panel had any contact,
even via telephone or mail or email, with your children, or is
it just radio silence, to use a military sort of cliche?
Mr. Jagtiani. Yes, I have, actually. There was a court
order for me to get Skype access. Initially it was phone, and
then they escalated it to Skype, which I got, but that has been
discontinued now over the last couple months.
Mr. Garrett. Well, again, I pride myself on not telling
people what I think they want to hear, but the truth, and I
will tell you that you have enlisted a warrior for your cause
today in the form of myself and our office, but my goal is not
to fight for you to receive sole custody, my goal is to fight
for you to receive access, because the courts will arbitrate
who the custodial parent is, what have you, but I can't fathom
that you have no access.
Mr. Jagtiani. Yep.
Mr. Garrett. And I think that requires the light of day be
shown on these circumstances, and that the fourth estate be
enlisted, and that we shame them, if you will, into simply
allowing you access.
Mr. Cook. Currently in Japan, there is an evolving, I will
call it a scandal, I am going to the heading called Shelter
Net, but I can't get into the details too much, because it is
not my country, but it is being slowly handled. And I alluded
to it in my testimony about there are forces within Japan that
are doing their level best to make sure Japan does not change
one iota from the sole custody zero sum game, and also to make
sure that they will not comply with anything in The Hague. And
those people, those individuals, are peppered all throughout
the judiciary and the legal system, and so, to shine the light
on them is not going to do much, and I am being maybe imprudent
by talking about it now. I would like to have said a lot more
in my letter to my children, but I have been advised that I
have a very, very narrow scope of what I can say, because when
it does get over to Japan, it will be spun in such an egregious
manner, that even my testimony here today will be cast as some
out of control, violent, rageful individual.
Mr. Garrett. Well, that is not what I have seen.
Mr. Chairman, I thank you for your latitude as it relates
to my questioning. And I sincerely ask each of you to reach out
to our office with your specifics. And James Van Den Berg is
here with me today, and will be working on this subject matter.
And, again, I think a realistic goal is that you should receive
access to your children. It might even be that you have to
travel to them, but, by gosh, that is not a big ask, it is not
a big ask. And as a father, again, I can't wrap my brain around
what you all have gone through. So----
Ms. Hunter. Mr. Garrett, may I offer one other piece of
information. The Goldman Act certainly does require the State
Department to report to you and every Member of Congress, the
children who have been abducted and wrongfully retained in
another nation. We will certainly get with your office and
James to help you identify cases, but you should be receiving
this information also from the State Department.
Mr. Garrett. At the risk of angering the State Department,
I find that I receive more forthcoming, good information from
private citizens than from the State Department.
Ms. Hunter. Yes, sir. I agree.
Mr. Garrett. If anybody from State is here, I apologize.
Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Garrett.
Let me just conclude with a few final comments. First of
all, I want to welcome back Ravi Parmar, who is from my
district. He is from Manalapan. His son was abducted to India 4
years ago. He has previously testified, and gave very, very
insightful testimony. And, again, like so many others from
India, his case remains totally unresolved, and so it is not
just disturbing, it needs to be changed, and certainly our
hopes are rising that this new administration will do it. The
tools are there.
I will give you an example, Dr. Frisancho, your case,
Slovakia is trying to, as you know better than anyone else,
make you begin your case anew in Hungary because of the
proximity of where the children are right next to Slovakia, and
yet, the State Department, in the 2016 Goldman report by the
State Department, suggested that Slovakia is proof that
diplomacy works, and notes in 2015, and I quote,
U.S. Ambassador to Slovakia joined the chiefs of
mission from the French, Irish, Italian, Spanish, and
Norwegian Embassies to address problems that parents
experienced with the legal system in Slovakia,
including a lengthy appeals process and difficulty
enforcing Hague Abduction Convention return orders. The
Slovak Ministry of Justice introduced new legislation
that entered into force on January 1, 2016. The
legislation set a twelve-week time limit for the
resolution of Convention cases, limits the number of
appeals, and provides for expeditious enforcement of
Convention orders.
Didn't apply to you. You found no remedy in that. As a
matter of fact, ironically, the new limit on appeals is
actually preventing you from appealing Slovakia's decision to
close your case and to move it to Hungary.
For its part, the U.S. Government is refusing to get
involved in ``legal matters.'' That is an abandonment of you,
frankly, and I apologize for the State Department for doing
that. Yes, there are some very good Foreign Service Officers
that take these cases seriously, work hard on them, and I
applaud them and have singled them out over and over again. But
time and time again, without an MOU, without vigorous
enforcement of Hague where Hague is in force, and without the
penalty phase prescribed in the Goldman Act, these countries
like we saw with the Foreign Minister of Japan, they go to
their Parliament and say, the Americans don't enforce their own
law. There have been no sanctions meted out to any nation under
the Obama administration, and that has got to change with this
administration. Doctor, you might want to speak to that, if you
would like, but it seems a twisted way of applauding a country,
and yet, you have been so further penalized by even a law that
we lift up as being a good one.
Dr. Frisancho. Yes, Chairman Smith. The truth is that my
wife and her parents, they live on the border between Slovakia
and Hungary.
Mr. Smith. Right.
Dr. Frisancho. It is only 14 miles distance from the house
in Slovakia to the school that the children attend in Hungary.
She holds two jobs. She works in Slovakia and in Hungary. It is
like keeping one foot in each country. I think she is hoping
that we are going to transfer the whole litigation to Hungary,
and once Hungarian judges decide that this is wrong again and
the children have to return back to the United States, I think
she believes she can go again to Slovakia. And it is just this
game, like ping-pong.
I have explained all this to the State Department years
ago, and I have met with a couple of officials from there, and
they have told me, they have advised me that it would be good
to start a new case in Hungary. And I have repeatedly said that
I don't think this is the best idea, because how can we start a
new litigation in Hungary when Slovakia has accumulated
evidence for 6 years. That just doesn't make sense.
I also would like to note that one of my Slovakian lawyers
advised me and said, Dr. Frisancho, I am a Slovakian citizen
and I know how our people think. If Slovakian authorities are
getting these demarches, diplomatic notes, and whatever from
the U.S. Embassy, that is not going to work. You have to ask
the State Department to directly contact the Minister of
Justice or someone in Slovakia at the highest level.
I have repeatedly said that to the State Department for
years, and my case managers have always answered, we have to
escalate, but we are escalating for years, and we never got to
the top. As I said before, I am very grateful for what they
have done for me and for my children, but we all can see that
nothing of this works.
So if I could ask one more thing from the State Department,
it would be to follow the instructions of a Slovakian lawyer
that is a Slovakian citizen. He knows what he is saying. He
understands the Slovakian mentality. They are not going to
listen to these diplomatic notes, personal meetings, demarches.
They are upset, of course, that Slovakia has appeared on the
report of noncompliance. They are upset, I am sure, that they
lost a case under the European Court of Human Rights. They had
to pay me damages, with that they had to acknowledge that they
did wrong, they violated my human rights, but the cases are
still pending, and it is because we need more pressure from the
top.
Mr. Smith. I think that point is well spoken, and I thank
you for it.
You know, there are others in the audience, Jeffery
Morehouse was mentioned; Edeanna Barbirou, who testified some
years ago; last year, I believe it was. She has an unenforced
order, like so many others. And if there ever was an Achilles
heel, there are lots of them, it is the unenforced order. You
get the piece of paper, you think, I got it, and then it is not
enforced. This is the first hearing this year on child
abduction. It will be followed by several others, including
inviting the Trump administration to send its top
representatives here, and I hope the same thing happens on the
Senate side, to begin an all-out effort to enforce the law, the
U.S. law, and find if there needs to be any additions to it,
but above all, enforce what we have got. It was painstakingly
arrived at. I introduced it 5 years before it was actually
enacted and went over it multiple times, always looking to
finely tune it. The Senate wouldn't take it up, and then they
finally did, thank God, and we were able to get it down to the
President for signature. A law that is unenforced is just
sitting on the table. We need enforcement, and that is going to
be my mantra going forward, I can assure you.
Anything you would like to add before we conclude? And I
thank you again for coming forward. And I certainly, as a
father myself, so deeply respect your love for your children,
and all of us feel that way on my staff, that we are just in
awe of your tenacity, of your love. And so if there is anything
you would like to say, or we will just conclude.
Yes, Doctor.
Dr. Frisancho. I would like just to send a short message to
all the fathers and mothers who are dealing with similar cases.
What the abductor wants, and sometimes the courts in their
countries, and all the authorities in their countries who are
supporting the abductors, what they want is to wear you out.
Please stay strong. Find any kind of support in your church,
your friends. You see how many people I got here today. You
have to fight for your children. And use us as an example. Look
at Noelle, James, everybody here, Edeanna, Randy, and so many
people.
We struggle. We cannot sleep. We think of our children all
the time. And we know what this means for you, so please, you
have to keep going, stay strong and fight. Your children will
appreciate it one day. And you have to make sure that they
know. Like my kids, I don't think they know. The National
Center for Missing and Exploited Children just helped me to
publish my blog in December 2010.
For the first time, my kids have the opportunity to see
something about me. When I went to courts, I almost never spoke
anything wrong about my wife. The court proceedings took place
mainly about her accusing me of everything possible, and me and
my lawyers defending. But I changed my mind, and so from this
year, I am going to start making all the real information
public so that my children can see that. And I cannot just live
without continuing trying to help my children. It is nothing
against the mother. I believe that there is a law, and we have
to fight to make sure that those who are responsible have to
fulfill the law. So parents, please, stay strong and keep
fighting for your children.
That is all what I wanted to say. Thank you.
Mr. Smith. Thank you.
Ms. Hunter. Mr. Chairman, thank you. Just in closing, a few
words from us.
We truly do believe, again, that this is the time to put
America first for America's stolen children. We expect this
administration to hold true to that as it relates to this
vulnerable population.
Transparency is very, very important. Good data from the
State Department reported to Congress, you can use, and we as
an organizing and growing parent community can use. We are not
going away. More parents are coming along every day that
believe that there is a solution and the only solution is
children returning home. And then we call for strong leadership
in the Office of Children's Issues that would make this a
transformative process. Thank you.
Mr. Smith. Thank you so very much.
[Whereupon, at 1:54 p.m., the subcommittee was adjourned.]
A P P E N D I X
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