[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
NO ABDUCTED CHILD LEFT BEHIND: AN UPDATE ON THE GOLDMAN ACT
=======================================================================
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
SECOND SESSION
__________
APRIL 11, 2018
__________
Serial No. 115-121
__________
Printed for the use of the Committee on Foreign Affairs
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U.S. GOVERNMENT PUBLISHING OFFICE
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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
MO BROOKS, Alabama AMI BERA, California
PAUL COOK, California LOIS FRANKEL, Florida
SCOTT PERRY, Pennsylvania TULSI GABBARD, Hawaii
RON DeSANTIS, Florida JOAQUIN CASTRO, Texas
MARK MEADOWS, North Carolina ROBIN L. KELLY, Illinois
TED S. YOHO, Florida BRENDAN F. BOYLE, Pennsylvania
ADAM KINZINGER, Illinois DINA TITUS, Nevada
LEE M. ZELDIN, New York NORMA J. TORRES, California
DANIEL M. DONOVAN, Jr., New York BRADLEY SCOTT SCHNEIDER, Illinois
F. JAMES SENSENBRENNER, Jr., THOMAS R. SUOZZI, New York
Wisconsin ADRIANO ESPAILLAT, New York
ANN WAGNER, Missouri TED LIEU, California
BRIAN J. MAST, Florida
FRANCIS ROONEY, Florida
BRIAN K. FITZPATRICK, Pennsylvania
THOMAS A. GARRETT, Jr., Virginia
JOHN R. CURTIS, Utah
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
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Page
WITNESSES
Ms. Suzanne Lawrence, Special Advisor for Children's Issues,
Office of Children's Issues, Bureau of Consular Affairs, U.S.
Department of State............................................ 5
Ms. Patricia Apy, international and interstate family law
attorney, Paras, Apy, and Reiss................................ 31
Mr. James Cook, father of four children abducted in Japan........ 42
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Ms. Suzanne Lawrence: Prepared statement......................... 8
Ms. Patricia Apy: Prepared statement............................. 37
Mr. James Cook: Prepared statement............................... 45
APPENDIX
Hearing notice................................................... 66
Hearing minutes.................................................. 67
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:
``The Case for Reciprocity,'' by Patricia Apy.................. 68
Dr. Samina Rahman submission for the record.................... 76
Written responses from Ms. Suzanne Lawrence to questions
submitted for the record by the Honorable Christopher H. Smith. 84
NO ABDUCTED CHILD LEFT BEHIND: AN UPDATE ON THE GOLDMAN ACT
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WEDNESDAY, APRIL 11, 2018
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 2:00 p.m., in
room 2200 Rayburn House Office Building, Hon. Christopher H.
Smith (chairman of the subcommittee) presiding.
Mr. Smith. The hearing will come to order, and good
afternoon to everybody. Thank you for being here.
I would just like to make one introduction. Sue Kiley,
who's the mayor, now deputy mayor of Hazlet, and her husband,
three decades on the police force as well as number two there,
is also with us today.
I want to thank them for joining us and would like to thank
all of you for being at this hearing, which is one of a large
number of hearings we have held on child abduction and pretty
much a series on it.
And, of course, we will be focusing on this afternoon a
continuing and excruciatingly painful crisis of international
parental-child abduction and what the Trump administration can
and must do to stop it.
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 a parent and the family that has been left
behind.
Child abduction is child abuse and continues to plague
families across the United states and, really, around the
world.
According to the U.S. Department of State and their
statistics, almost 800 children are today held hostage in a
foreign country, separated from their American parent.
Several hundred additional children join their ranks each
and every year. If past is prologue, only 16 percent of these
children will be returned to the United States.
In 2014, Congress adopted legislation that I wrote known as
the Sean and David Goldman International Child Abduction
Prevention and Return Act, Public Law 113150, to change the
status quo.
Its template was the Trafficking Victims Protection Act and
the International Religious Freedom Act, and on the former I
was the author of that.
Frank Wolf authored the International Religious Freedom Act
and what we did was come up with ways of holding countries to
account, and then prescribing a series of increasingly strong,
or stronger, sanctions to try to change the behavior of
offending countries.
Since 2014, we have seen the reduction in new abductions of
children but not an increase in percentage of returns of
ongoing cases. Despite the new legislation, the State
Department has persistently refused to use the return tools
contained in the Goldman Act as envisioned by Congress.
Moving beyond letters and meetings, the Goldman Act is an
enforcement tool for the Hague Convention on the civil aspects
of international child abduction and leverage for return
agreements with non-Hague countries.
The Goldman Act takes the lessons again from not only other
legislation but from the successful return of Sean Goldman from
Brazil and lays out actions like delaying or canceling of one
or more bilateral working meetings or state visits, the
withdrawal limitation or suspension of U.S. development,
security, or economic support assistance and extradition.
To my knowledge, extradition has been used only once and
the other options not at all. The Obama administration said in
the past that sanctions will not work.
But in one case where sanctions were employed by Congress,
they worked, and they've certainly worked in other programs
both domestically and internationally and, frankly, all of our
civil rights laws have enforcement that includes significant
sanctions and that has worked as well.
The inaction by the Obama administration has been noted and
challenged. On February 14, 2017, 1 month into the new Trump
administration's tenure, Japan's Minister of Foreign Affairs,
Kishida, noted in the Diet discussion of abduction that, and I
quote him, ``Until now, there is not a single example in which
the U.S. applied the Goldman Act sanctions toward foreign
countries.''
He went on to note that, ``According to the United States,
Japan is not included in the category of the noncompliant
countries.'' In other words, no fear. Hasn't been used, will
not be used, and Japan is off the list.
Three days later, the Osaka High Court overturned a return
order for the four American children of James Cook, who will be
testifying today, in flagrant violation of the Hague
Convention, Japan's own Hague implementation guide, and U.S.
law.
The court has reopened the case because Mr. Cook has moved
into an apartment after the enormous legal bills from years in
court in Japan.
When did sharing a bedroom with a sibling--and this is
something that has become part of his concerns--become a grave
risk to a child's physical or psychological wellbeing? It's
not, and yet that now is being thrown in his face.
I believe and I urge the new administration to do more on
behalf of these parents and especially on behalf of these
children.
At least 300 to 400 children have suffered abduction from
the United States to Japan since 1994 and more than 35
currently wait reunification with their American parent. Most
of these are left over from the previous administrations.
In almost all cases, the child is completely cut off from
contact with the left-behind parent. Most have aged out of the
system without ever being reunited with their left-behind
parent and, of course, then that's a closed case.
Some parents have won in court only to find that Japan's
law enforcement could not return their children unless the
taking parent agreed to abide by the decision and the taking
parent did not.
That is underscored in James Cook's testimony today, if I
can find it. It certainly will make the point and it's worth
repeating what he will be telling us shortly.
Numerous enforcement attempts have been made in Japan using
all legal means of enforcement--talking about his own case--
starting in February 2016 through September 2016. All attempts
were unsuccessful.
At the heart of Japan's enforcement articles for Hague is
required voluntary compliance from abductor for enforcement.
When abductors says no, the enforcement ends. In contrast, if
we were to go to see our children in Japan without permission,
I risk arrest and being held for 23 days in jail before any
changes need to be filed, after which I could be denied entry
into Japan in the future.
This is just one example he points out of systemic
deterrents against left-behind parents attempting to have a
relationship with their abducted children or effectuate foreign
court ordered returns.
So enforcement, even when the courts do the right thing,
enforcement stands out like the sword of Damocles that says
there is no way you're getting your child to come back.
The systemic non-enforcement of access and return orders is
so bad in Japan that 26 EU countries recently issued a joint
demarche to Japan asking Japan to fix the problem.
Although non-enforcement has plagued many U.S. cases, the
U.S. did not join in that demarche. However, in the upcoming
Goldman report, the U.S. has the chance, the opportunity, to
hold Japan accountable for its failures in the Cook case as
well as so many others, like that of the Elias children taken
from my home state of New Jersey after their mother obtained
duplicate passports from the Japanese consulate in
contravention of a judge's order in New Jersey.
The report can and must better reflect the reality of the
child abduction issue and the suffering of American children
separating from their American parent every day in Japan.
According to the Goldman Act, the country can find itself
on the noncompliance list and eligible for sanctions if the
country regularly fails to enforce return orders in Japan.
The State Department should also put the country on the
list if the judiciary fails to properly apply the Hague
Convention, as we have seen in the Cook case in the past.
Finally, a country should be put on the noncompliance list
if 30 percent of more of the cases in the country are
unresolved or cases that have been pending for more than a
year.
Notably, the definition of an unresolved case makes no
mention of a country's Hague status. In other words, all of the
cases that began before Japan's ascension to the Hague
Convention and that were communicated to the Japanese
Government should be counted against Japan.
No child should be left behind. We received assurances from
the State Department years ago as they myopically pursued
Japan's ascension to the Hague Convention, knowing that the
convention would not cover the existing cases grand fathered
out of more than 50 children that they would not leave these
children behind--that they would find ways to resolve those
cases.
How many of these children have come home 4 years later?
How many have even had access to their left-behind parent.
Almost zero.
The Goldman Act directed the State Department to develop an
agreement with Japan for the previous children that were
already abducted. The Goldman Act made a way for the State
Department to hold Japan accountable for these cases.
Four years later, we have no agreement, no MOUs with Japan
for these cases. We have no action against Japan for these
cases or current cases and we have yet to see the department
even list Japan as noncompliant in the annual report.
Every day these children are separated from their U.S.
parent the damage compounds. It's bad in the beginning. It gets
worse, gets worse, then gets even worse.
As the State Department's own 2010 report on compliance
with the Hague Convention on the civil aspects of intentional
child abduction observes,
``[A]bducted children are at risk of serious
emotional and psychological problems. Research shows
that recovered children often experience a range of
problems including anxiety, nightmares, mood swings,
sleep disturbances, aggressive behavior, resentment,
guilt, and fearfulness.
``As adults, individuals who have been abducted as
children struggle with identity issues, personal
relationships, and experience problems in parenting
their own children.''
We must do better by our children. We must not leave any
abducted child behind. Congress is currently looking at new
ways to put pressure on countries with low resolution rates,
like Japan, Brazil, and India.
Last year, I introduced H.R. 3512, the Bindu Philips and
Devon Davenport International Child Abduction Return Act of
2017, to amend the generalized system of preferences system so
that any country named as noncompliant would use their trade
benefits.
The loss of trade preference would be automatic and not
dependent of the administration choosing to apply sanctions.
Currently 11 of the 13 noncompliant countries receive trade
benefits from the United States. That has got to change.
In addition, I am working on a bill that would limit H-1B
and other business visas for countries that have low abduction
resolution rates and, again, that would affect Japan, Brazil,
and India, among others.
We have 13 egregious long-term cases pending in Brazil
including Dr. Brann and Davenport cases. More than 90 American
children were separated from their American parent in India.
India will not even appoint a person to receive the
applications and they have refused to join the Hague
Convention.
We asked in our hearing last year when is enough enough. We
hope that the State Department will do its job and implement
the Goldman Act robustly.
We hope the Trump administration will be different than the
last administration. But we are--so I do--would like to yield.
We are joined by Dr. Harris of Maryland and I thank you for
being here. I'd like to now introduce our first witness. We
have two panels today, beginning first with Ms. Suzanne
Lawrence, who is the new Special Advisor for Children's Issues,
having assumed the role late last year.
Ms. Lawrence has previously served as the Deputy Chief of
Mission at the U.S. Embassy in Athens, Greece, and as a Senior
Advisor for the Assistant Secretary in the U.S. Department of
State's Bureau of Consular Affairs.
Her career at U.S. Foreign Service has given her a wide
breadth of experience to apply to child abduction cases and we
are very grateful that she's here and look forward to her
tenure in office, and without objection her full resume will be
made a part of the record.
Ms. Lawrence, the floor is yours.
STATEMENT OF MS. SUZANNE LAWRENCE, SPECIAL ADVISOR FOR
CHILDREN'S ISSUES, OFFICE OF CHILDREN'S ISSUES, BUREAU OF
CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE
Ms. Lawrence. Thank you.
Chairman Smith, other members of the subcommittee, thank
you for the opportunity to speak about the work we do to
prevent and resolve international parental-child abduction. My
written statement, which I ask to be entered into the
congressional record, provides----
Mr. Smith. Without objection, so ordered.
Ms. Lawrence [continuing]. Comprehensive review of our
accomplishments and challenges. I will highlight the most
critical of these in my opening statement. Allow me first to
take a moment to thank Ms. Patricia Apy and Mr. James Cook for
their commitment to our shared objectives.
I also want to acknowledge the parents who are here today
and who work to resolve their cases with my colleagues in the
Office of Children's Issues.
I have had the pleasure of meeting many of them in the past
7 months. My colleagues and I are encouraged by the continued
interest and support from the American public and from
Congress. As we advocate on behalf of the children and parents
affected by the heartbreak of abductions, congressional
involvement and oversight are unique tools we can use in our
diplomacy.
The 1980 Hague Abduction Convention remains one of the best
methods for resolving abduction cases. Over the past 10 years,
more than 4,500 children have returned to the United States.
Further, the existence of the convention's return mechanism
has deterred an untold number of abductions, and we are
heartened to see the number of new abductions reported to the
Department of State has declined by more than 60 percent over
the past 10 years.
Allow me to mention three examples of the effectiveness of
the convention. From 2014 through 2016, 95 percent of abduction
cases to the United Kingdom, one of our biggest partners in
terms of cases, closed in less than 1 year.
In Mexico, our largest convention partner, more than 73
percent of abduction cases were closed within 1 year, and more
than 340 children returned to the United States from 2014
through 2016.
And in Japan, there has been a 46 percent decrease in
reported abductions since 2014. There is additional detail on
the convention's successes in my written statement, and these
outcomes underscore our goal to encourage all countries to join
and properly implement the convention.
The Sean and David Goldman International Child Abduction
Prevention and Return Act has supported our efforts to promote
accession to, and implementation of, the convention.
For example, since 2014, seven countries that previously
did not adhere to any established protocols to resolve
abduction cases have acceded to the convention, and we are in
the process of moving toward partnership with some of these
countries.
We have also welcomed five other countries into our
community of convention partners, which now include 77 members
committed to the shared purpose of resolving child abduction.
In countries where the convention has not been embraced, we
turn to other tools. Non-convention cases are extremely
complex, and we work with left-behind parents, interagency
partners, and foreign counterparts to resolve those cases.
Since my arrival in September of last year as the Special
Advisor for Children's Issues, I have traveled the Hague, to
India, to Japan, and to South Korea to personally engage in
elicit cooperation.
In India, I urged the government find a resolution for the
many abducted children located there and for India to join the
convention.
In Japan, I raised our concerns about the enforcement of
convention court orders and also urged the Government of Japan
to find a resolution for the children involved in pre-
convention cases.
In South Korea, I addressed potential areas of improvement
in their handling of convention cases and explored
opportunities to strengthen multilateral efforts to advance the
convention in that region, and at the Hague, I worked with the
Hague Permanent Bureau and representatives from dozens of
member countries to improve implementation of the convention
around the globe.
The act has also bolstered our ability to manage a robust
prevention program which continues to be a key priority.
In 2017, we enrolled over 4,000 children in the Passport
Alert program, which is a 13 percent increase from the previous
year, and thanks to the act, the department continues to meet
biannually with the Interagency Working Group, which has had a
daily direct impact on preventing abductions and has improve
the U.S. Government's response to combating abduction.
In conclusion, Mr. Chairman, please be assured that the act
has significantly reinforced our work to address international
parental/child abduction around the world.
We constantly strive to increase our effectiveness and
always look for ways to collaborate with our partners,
including you, Members of Congress, who have committed so much
time and energy to addressing this very important and urgent
issue.
Thank you, and I look forward to answering your questions.
[The prepared statement of Ms. Lawrence follows:]
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Mr. Smith. I thank you so very much.
If I could, Ms. Lawrence, if you could tell us--you said
you raised with India and Japan, other countries. What was
India's response when you raised it? When you spoke in Japan
not only about Hague cases since they have become--acceded to
it but all the pre-Hague cases, the legacy cases, what was
their response? What did they say they were going to do and did
you do it by name? Did you raise specific cases?
Ms. Lawrence. Thank you for that question, Mr. Chairman.
I'll start with India. So I was in India in February, and I met
with a number of staffers before I went to India to discuss
some of the issues that we have had.
When I was there, I was joined, of course, by the team at
our mission there, and I know that that has been a concern
previously to have our chiefs of mission, our Ambassadors
engaged, and I can assure you that Ambassador Juster has taken
this onboard from the time he arrived to take up his
responsibilities there through today, and he will continue to
advocate on behalf of the families that are, tragically,
affected by this issue.
He had meetings with Minister Gandhi, who is the head of
India's Ministry for Women and Child Development, and when I
traveled to India it was, hopefully, to build on some of the
momentum that we felt the Indian Government was showing with
regards to accession to the convention and also with the
willingness to work with us on those pre-convention or the
current cases.
I met with a range of individuals. I was in Chennai. I was
in Delhi. I spoke with the attorney general for India. I spoke
with members of the judiciary. I spoke with Minister Gandhi at
the Ambassador's residence.
I spoke with opponents to the convention, proponents of the
convention. It is an issue that we will not stop advocating
for.
We have engaged with--as you know, the Chandigarh Committee
was the committee that the Indian Government put together to
investigate a recommendation that they would make to the Indian
Government about accession to the convention.
We have spent several hours answering questions with the
Chandigarh Committee. I spent another hour-plus with the
Chandigarh Committee via digital video conference, again
addressing some of the myths that persist about the types of
cases we are talking about and also about what the convention
actually means.
So we did have a range of meetings. We had them at the
highest levels of the government. Ambassador Juster has raised
this at the highest levels of the government, and we are told
that they are still considering accession to the convention.
With respect to the cases that we have now, we have offered
to the Indian Government to sit down and meet on all of those
cases individually and, again, in my conversations I have
emphasized that if we sat down and looked through all of those
cases, that in and of itself would inform them of the scope of
the problem and perhaps open up some areas where they could
work productively to resolve some of these cases.
Without the convention or any other protocols in place for
these cases, the parents are left to pursue their custody of
abducted children in the Indian courts and typically the
resolution of custody cases in India has been slow.
Indian courts generally do not order the return of abducted
children to the United States, and in general, custody is given
to the taking parent and the parents are left really to pursue
their matter in the court system which has not been a very
effective method.
So that is the short answer of my time spent there. I
believe you also asked about Japan. In my travels there, again,
I will say that Ambassador Hagerty has also been very engaged
in this issue.
He has raised this issue at the highest levels appropriate
to him in the Japanese Government. I have myself met--I've been
in this position for a little over 7 months. I've had four
occasions to meet with the head of the Central Authority in
Japan.
And while, as I did in my opening statement, I have
acknowledged that the number of cases has gone down since Japan
acceded to the convention and that we have a very productive
working relationship with the Central Authority, there are
still problems with enforcement of judicial orders.
When you cannot enforce those orders, it undermines
confidence in the system and it does not bode well for the
future of the convention with respect to Japan.
So I met with, again, the Central Authority there.
I met with the Ministry of Foreign Affairs to talk about
the pre-convention cases. They are well aware of which cases
those are.
We meet regularly with them to review that they have the
correct cases that we consider to be open pre-convention cases
and, again, we are in some--to some degree stymied by the
fact--and I know the parents who are affected by these pre-
convention cases are reluctant, under the convention, to even
file an access case because they also feel that in the instance
where there might a judicial ruling that would give them some
sort of access that the enforcement of that ruling also would
be ineffective or not take place.
So I have made those concerns known. The Ambassador has
made those concerns known. We also met with the officials from
the Indian Embassy and the Japanese Embassy here in Washington
to deliver those same messages.
Mr. Smith. What's your take on the Foreign Minister saying
how did the department respond to his comments that they are
not going to be put on the list of noncompliant countries,
there has been no enforcement, no sanctions meted out as they
should be?
You know, when a country shows such a pattern of
noncompliance, the decision to enforce it ought to be almost
automatic.
There can be mitigating circumstances. We all know that.
But in Japan's case, they are gaming the system. And so your
answer to that, and also Mr. Cook's comment about the required
voluntary compliance from the abductor for enforcement to
occur, when the abductor says no he will write and say
enforcement ends.
That seems to be--I have to say when the previous
administration kept arguing that if they just signed the Hague
our problems will go away and the legacy cases would take care
of themselves.
There would be a good will that would be generated and
would lead to resolution and not resolution by way of aging out
so it's no longer a case that we look at.
I traveled with Mike Elias' mother and father to Japan,
raised all of these issues and said, look, to me it seems like
the nose on my face it's so stark, looking in the mirror.
You can't get away from it that, one, the past cases will
be treated with even more prejudice than before if they sign
the Hague and that when they get to enforcement they are going
to do it in a way that it's like Swiss cheese and it won't
happen.
All of that has happened. I am not a prophet, but it seemed
very clear from the conversations and from their past very
quickly becoming a prologue.
So this idea of required voluntary compliance from the
abductor for enforcement, to me, that's outrageous that a
country, a great country like Japan, would use that kind of
impediment.
That makes all the Hague cases, you know, moot. It's going
to be, you know, a voluntary--you know, yes, you can have the
children back. So why do you even need the Hague except for a
nice backdrop to say, look, we have got a treaty and a
convention.
So if you could speak to those two, and again, when you
talk about Michael Elias, one of the concerns that many of us
have had, and we have this with several of our left-behind
parents, as you know, these are military men and women who are
deployed to Japan for the defense of Japan in Okinawa, in
Yokohama, and other places.
And then their child was abducted and then they ran into
this buzz saw of opposition from a government that if Japan
isn't put on the noncompliant list this year, I can't tell you
how egregious that will be not to see that happen, and then
followed very quickly thereafter with serious sanctions.
You know, if President Trump--because Obama wouldn't do it
so let's lay that aside--and I found that to be outrageous--but
if President Trump can levy sanctions on China and talks
sanctions, NAFTA--renegotiating NAFTA on economic issues and if
our aluminum industry and steel and other things are so
important, which they are, how about for people, for American
children who've been abducted.
That, to me, is in a class of its own, a league of its own,
and there needs to be--if ever there was an America first, this
looks like this is one of them--it's the children. It's their
parents.
So I would appeal to you because it starts with what your
findings will be and then, obviously, it goes up the chain of
command as to what they finally do.
But it seems to me it's a no-brainer. It's been a no-
brainer. This year it's got to be.
Ms. Lawrence. Thank you, Mr. Chairman.
We share your concerns, as I said, about Japan's failure to
enforce convention court orders and in many of my meetings I
don't only talk about the convention writ large or the issue of
parental-child abduction.
But I do take it to that personal level. As you have
referred to, these are people, these are their lives, and
people need to be reminded that for someone who has not seen
their child in a day, a week, a month, years, this is a life or
death matter.
This is a very important life-altering event, and we owe it
to all of these children, all of these families, to continue to
press where we need to press.
When a Japanese parent--taking parent refuses to comply
with the return order, we have found that Japanese authorities
have very limited means to enforce the order and we have worked
to broaden the discussion to different parts of the Japanese
Government.
But it will require some changes in their domestic
legislation to give law enforcement the kind of power you're
talking about in terms of enforcement.
And we have--we have raised our concerns about enforcement
failures at the highest level. This year, the relevant entities
across the Japanese Government have heard our call to take a
whole-of-government approach, and they have brought others to
the table, and we have had a chance to talk to those agencies
about the needed legislation to improve their enforcement of
court orders.
With respect to citations, we can't, of course, discuss the
individual country citation before we give the report to
Congress and it's published.
But I can assure you that we have had a number of
conversations about how those decisions are made and
enforcement of convention court orders is a component of the
Hague Convention.
Your compliance with the convention also depends on your
enforcement of court orders, and the department will most
certainly take into account Japan's enforcement failures in
this year's ICAPRA report.
Mr. Smith. Patricia Apy, who is the brilliant lawyer who
was the lawyer for David Goldman--the American lawyer who just
did a wonderful job in helping to make his reunification with
this son, Sean, possible, she's testifying today and in her
comments notes, and I'd appreciate your reaction to this, prior
to the enactment of the treaty--this is regarding Japan--
parents who had pending abduction matters were sent from time
to time urgent time-sensitive updates, repeatedly promised that
the Hague ratification would enable them to at least secure
access to their children. The promises were entirely
illusionary.
Now, those memos came from OCI, and I am wondering, how do
you respond to that? I mean, here's what the parents tell me,
and I meet with so many of them.
They get frustrated. They know that there are good people
working--you and the others are wonderful people. But you do
have the tools with the Goldman Act and it seems like those
tools stay in the toolbox.
We were just talking about access here, not even
reunification and bringing those children back home.
Your thoughts on that?
Ms. Lawrence. Thank you, Mr. Chairman.
We have already discussed a little bit about the pre-
convention cases. But, again, we do continue to work with the
parents who are--there are approximately 20 preconvention cases
that remain active and we work with the left-behind parents to
see which methods or avenues they might have available to them.
As I said too in my written statement approximately half of
those left-behind parents have achieved some access. It's
limited. Sometimes it's a Skype call. Sometimes it's an
exchange of letters and gifts.
We know of one parent who has had an in-person visit. Going
back to what we just spoke about, if you're a parent, that's
your child, is that adequate?
That is not adequate. However, we continue to press, again,
on this enforcement issue because I think a lot of parents are
put off by the idea that even if they pursued an access case
under the convention, their sense is there may be no effective
mechanism to enforce the court order for access.
And so, again, what I am saying to you here about access,
about these parents, about their disappointment, is what I have
said to Japanese officials and we will continue to say that,
and I appreciate your support in carrying that method forward.
Mr. Smith. Well, again, putting Japan on the list and then
enforcing it with sanctions will send the message that none of
our words can possibly achieve.
So that the Foreign Minister, so that the Prime Minister
cannot, in their meetings, or even as he did before the Diet,
claim accurately that there has been non-enforcement and they
are not on any list.
I can't stress that enough. It would be negligence of the
highest degree to leave them off the list, given their track
record, which is abominable.
I mean, if this were reversed and the U.S. was doing this,
I could tell you I'd be holding hearings on that and pressing
our own Government to, in the sense of reciprocity and good
governance, to hold ourselves to account.
And what we do in not putting them on the list has bearing
with what the judges will do when they get a case before them.
They will say, well, I guess Japan's not so bad.
And what's your sense on that? So it's not only is the risk
factor to a potential abduction very high if the judges get the
wrong information about a specific country, including Japan.
Ms. Lawrence. Thank you, Mr. Chairman.
I've had a lot of opportunity to consider the efficacy of
the report in and of itself as I travel around, as I meet with
other countries, and it's a really powerful tool. The
convention is a powerful tool. The report is a powerful tool.
As far as I am aware, we are the only country that produces
a report like that, and I know what you mean by sanctions, but
I can say that in my meetings very often the foreign
counterparts will bring the report up.
And I agree with you that the citations in the report can
have very positive effects in terms of the actions that a
country will take.
Sometimes it takes a while. But I do think that the report
is an extraordinarily valuable tool and for some countries they
believe they are being sanctioned by having their--the citation
in the report.
And, of course, beyond the citations there are narratives
in there that really talk about performance and countries are
very keen to see how that will be characterized in the report.
So I do believe that we have some tools at our disposal
that are very meaningful to these countries.
Mr. Smith. Ms. Jayapal.
Ms. Jayapal. Thank you, Mr. Chairman. Thank you for having
me here. Thank you for having this hearing and I want to thank
you for your years of work on this important issue.
I think we all understand that there are many of us that
are deeply concerned and we are grateful to the State
Department for your efforts over the years and I want to
especially just recognize the families in the room that some of
you have traveled.
I know, as a mother, I cannot imagine the pain of what you
have gone through and I want to thank you for continuing to be
here and continuing to push for us to resolve these situations
to bring children home to their--safely into their loving
families.
I was introduced to this issue--I am new to the issue but I
was introduced to it by my constituent, Jeffrey Morehouse, who
has been fighting for the return of his kidnapped son, Mochi,
since Father's Day of 2010, and that was the last time that Mr.
Morehouse saw or heard from his son.
And despite having custody of his son under Washington
State law since 2007, a mutual agreement with his ex-wife that
she would not travel outside of the state or get a passport--an
agreement that the United States is actually Mochi's home
country--that was all outlined in this agreement--and the
jurisdiction for any custodial dispute, Mochi was still
abducted.
And Mr. Morehouse even took the preemptive step of
notifying all of the Japanese consulates and their Embassy in
the U.S. in writing that he was the custodial parent and
requested that they deny any requests for a passport for Mochi.
However, in June 2010, as you may know, his ex-wife was
provided a passport for their son by the Portland consulate so
he went over our state's border into Oregon. He was provided a
passport after being denied one by the Seattle consulate and in
2014 and 2017 Mr. Morehouse then went and actually defended
successfully his custodial rights in Japan where the courts
ruled that his U.S. sole custody order is legal in Japan.
His ex-wife has twice been denied custody rights under
Japanese law and during proceedings she admitted to committing
passport fraud and forgery in order to abduct Mochi to Japan.
Mr. Morehouse is the executive director of Bring Abducted
Children Home. He's come to Washington, DC, over a dozen times
on his own case and the more than 300 U.S. children that have
been kidnapped to Japan since 1994 when the Office of
Children's Issues was formed.
And yet for nearly 8 years he's been shuttling back and
forth between Seattle and Japan all in vain, and there have
been some small victories but really nothing that has resulted
in his actually reuniting with his son.
And so I just wanted to follow up on the chairman's
questions and I apologize if you said some of this before I
walked in the room.
But my understanding is that we have provided in the
Goldman Act a number of steps that can be taken and, obviously,
the first of that is, you know, using the diplomatic channels.
But there are others, and they go all the way up to formal
requests to the foreign country to extradite somebody. But
there is other things around an official public statement that
details the unresolved cases. I guess that's our report.
I don't believe we have done a public condemnation in any
of these situations but perhaps you can educate me if we have,
and I guess I am just--it seems clear to me from reading these,
and I am, as I said, new to the issue but it seems clear to me
that voluntary is not--is not going to produce the results we
are looking for and that we can continue using diplomatic
channels and we should. But we have provided other tools here
for the State Department to utilize.
And so I am just wondering what brings this issue to the
threshold where--because we have already crossed the thresholds
that are outlined in the Goldman Act, as I read it, and so
how--what can you do differently to ensure, for example, that
Japan is going to reunite Mr. Morehouse's son because I--my
deep concern is that the more these different countries see
that the United States is not using the tools, the easier it
gets for these countries to continue to just say, well, we will
just work through diplomatic channels, which really means
nothing would move forward.
And so if you can just help educate me about how you see
that. What is the threshold to move from one step to another
within the tools that we have given to you and what can we
possibly tell our families about what we are going to do
differently than what we have been doing because, clearly, that
has not produced the results we are looking for.
Ms. Lawrence. Thank you, Congresswoman.
Again, with respect to Japan, as the chairman has pointed
out, we pursued their accession to the convention--Mr.
Morehouse's case is, clearly, pre-convention--and we have seen
a result since they acceded to the convention in terms of a
reduction in the number of reported cases and a resolution to
the 2014 and beyond cases.
We have actually, as a Central Authority to Central
Authority, filed 18 cases with the Japanese Central Authority,
and we have had resolution in 14 of those 18 cases. These are
convention cases.
Most of those have come through this voluntary mediation
process. Again, we understand that enforcement of judicial
orders is a failure, and it is something that we continue to
work on.
The Central Authority doesn't have, it seems, the power or
authority to make changes that would make enforcements work,
which means we have had to broaden--ask them to bring other
people to the table.
We do consider all the tools we have at our disposal, and
we do that with our interagency partners and try to use the
best tool at the best moment on a case-by-case basis.
I hear your concerns about the use of the other tools, and
we continue to speak with our interagency partners and the rest
of the department who clearly have interests in our bilateral
relationships with many of these countries, Japan included, and
we know that we have those tools at our disposal and consider
them when we think they will be effective.
Ms. Jayapal. So what would--what would move--what would
move the threshold in order to use those tools? I am still not
clear on that, because I understand you're discussing with
other agencies and maybe you could describe that a little bit
more which are the agencies and departments that you routinely
work with and are there some that have not engaged that need to
be engaged?
But I am just trying to understand what would be done
differently now that has not been done before, because it's
very difficult for us to go back to our constituents who
actually have gone through everything that they could possibly
go through, both here in the United States and, in some cases,
in the country where their child has been abducted to.
What more do we need to do to ensure that you utilize those
tools and crossed that threshold from just pure diplomatic
advocacy?
And I do--I just want to, you know, echo and recognize the
work that you all have done. I think you have made tremendous
progress in a number of places and particularly on those post-
convention cases.
But I feel like some of these--some countries are hiding
behind that specific date and we are not getting resolution.
Ms. Lawrence. And again, I think, Congresswoman, that from
many countries' point of view, citation in the report would be
considered a serious step, and it has resulted in some profound
changes in many places.
As I said, we wouldn't be able to talk right now about what
citations will appear in this upcoming report, but we have had
a number of conversations with our Japanese counterparts
explaining our frustration with the lack of momentum on
enforcement of orders.
And in the case of Mr. Morehouse, because I've had the
opportunity to meet with him a number of times, we have--the
characterization of the history of his case is something that
we have directly spoken with them about.
So, again, we do our best to use the tools at our disposal.
I don't have a specific answer for you on what the threshold
is. We are one voice, one part of the conversation, and I will
take back certainly the frustration from Members of Congress on
not utilizing the full range of tools.
And we do feel that we are getting results from a lot of
our engagement, certainly from the annual reports and certainly
from the engagement by our chiefs of mission including
Ambassador Hagerty.
They are the President's personal representative in that
country and the chief of our bilateral relationship with that
country, and I think their voice on these issues carries an
enormous amount of weight.
So we are working in the avenues that we think will produce
the best results, and I take on board your point that you
believe that there may be results from the use of other tools.
At this point, the tools that we have employed and continue
to employ have shown some results.
Ms. Jayapal. You mentioned earlier that Japanese
authorities--I think I wrote this down--Japanese authorities
have very limited means to enforce the orders.
That seems to me to be--you know, if they are saying that I
think it feels a little perhaps not fully forthright--that
there are many more things that could be done and it seems to
me that if they need to hear that this is critically important
to us that that's where that list of tools--and I don't want to
continue to harp on this point but I just think that at some
point we need to move down that list.
Otherwise, the act is not really being implemented the way
I think the chairman and others had envisioned when we put it
into place because it is working on some but I think we need to
really look at that whole piece and I hope you hear our
frustration in not seeing, particularly on certain cases that
have been in process for a long time, not seeing any results
there and not having anything to advocate for our children.
Ms. Lawrence. Thank you, again, for that question and also
for expressing that level of dissatisfaction with the progress
to date because it is useful when we sit down and talk about
the lack of enforcement.
Again, I think when the United States Government was
pursuing Japan's accession to the convention we understood that
there was quite a gulf in terms of the cultural norms and the
way in which Japanese society viewed custody, and we knew that
there would be a period of adjustment.
When I say law, the Japanese Central Authority or the
Ministry of Foreign Affairs is limited and also law enforcement
is limited.
It's the perspective of how they carry out these kinds of
judicial decisions, and we have spoken about that, and I think
the chairman referred to a letter earlier that a number of the
EU countries sent.
Again, there is nothing in existence even in their domestic
law about these kinds of enforcements of judicial decisions
with respect to custody that are useful at this moment and
that's why, you know, we continue to implore them to look at
ways to put into place domestic legislation that would also
have an effect on these international cases and it's something
that we continue to talk about and raise at every opportunity.
So thank you again for sharing your perspective with me and
your frustration on that level. It is helpful when we are
talking to our counterparts to explain that this is felt
throughout the U.S. Government and it is on behalf of our
citizens and our--and your constituents that we bring these
matters to their attention and ask that they do something to
resolve the problem.
Ms. Jayapal. Thank you, Mr. Chairman. I yield back.
Mr. Smith. Thank you, Ms. Jayapal.
Let me just note for the record, and I know you know this,
Jeffrey Morehouse has done it by the book. He is so
disciplined, like so many of the left-behind parents, dotting
every I, crossing every T.
He testified in May 2015 before our subcommittee--very,
very comprehensive testimony he made. So thank you for raising
his case.
I'll go to Dr. Harris in 2 seconds--as you may know I am
the author of the Trafficking Victims Protection Act. That has
sanctions on it.
When Israel and South Korea, two of our closest allies,
had--were deemed to be Tier 3 egregious violators on human
trafficking--they were worried about security assistance and
other assistance, but particularly security assistance, being
limited in some way.
They change their laws. They enforced, in the case of
Israel, existing law and they shut down the brothels and came
into compliance within 1 year.
Sanctions work, and if Japan doesn't get it through your
persuasion--and I thank you for trying so hard--it is time to
lower the boom, please, with respect, and say, you have failed
utterly.
These longer-term cases are egregious. These families are
broken, and security assistance, as you know, in the Goldman
Act is one of those sanctions that can be levied upon a
country.
Dr. Harris.
Mr. Harris. Thank you very much, Mr. Chairman, and thank
you for giving me the opportunity to be at today's hearing.
And Ms. Lawrence, thank you for the work you do because,
you know, there is some things where Americans have to look to
the Federal Government as their one and only hope.
There is just some issues that they--the Federal Government
is the only thing that's going to solve their problems and this
is one of those issues.
So and we probably, you know, move a little broader than
just Japan but, obviously, the Goldman Act lists a series of
escalating actions that the State Department can take when an
international child case--abduction case remain unresolved.
But I am curious--just to run down some of these things to
see if, you know, what tools in the toolbox have been used, has
the State Department cancelled or delayed any state visits,
bilateral working groups, or other official visits in response
to any unresolved abduction cases in any country?
Because that's one of the tools in the toolbox and that--
you know, that seems like a pretty simple tool because some of
these nations I think need a bilateral working relation.
So has the State Department done that in any case?
Ms. Lawrence. I've looked through the list of tools--thank
you, Representative Harris, for raising that. I am sure that
there have been some meetings or other events that may have
been canceled, but I cannot speak to the fact if they were
canceled directly related to the issue of international
abduction.
So I would have to go back and really----
Mr. Harris. If you can get back to me, that's fine. And,
you know, I sit on the Appropriations Committee so, you know,
we want to make sure that American taxpayer dollars are spent
appropriately and according to the law, including the Goldman
Act.
So has the State Department limited or suspended U.S.
development assistance in response to any unresolved abduction
cases since the act was passed 4 years ago?
Ms. Lawrence. I am not--I am not aware of us having used
that particular aspect of the act.
Mr. Harris. Okay. How about foreign assistance?
Ms. Lawrence. Again, I am not aware of any instance where
we have suspended foreign assistance in relation to the act.
Mr. Harris. Okay. Even though you, clearly, have the
ability? And the Appropriations Committee has never, you know,
said you have to do it. But you've had the ability over the
years, right?
Ms. Lawrence. Correct.
Mr. Harris. What about security assistance, which I think
the chairman has spoken about in terms of Japan? But there are
other countries where that is important.
Ms. Lawrence. Again, I am not aware of where we have used
that.
Mr. Harris. Okay. The reason I am asking that is because
one of my constituents, Stanley Hunkovic, has been fighting for
the repatriation of his children since 2011. It's a case, by
the way, that's mentioned in your annual report.
His children, Gabriel and Anastasia, are American citizens
who were abducted by their mother, Leah, and they are currently
wards of the state in Trinidad and Tobago. So the issue of
noncompliance with orders is kind of rendered moot because they
are actually wards of the state.
Now, he's not been able to see or speak to them in years
and until very recently the State Department could not even
confirm the children's whereabouts, much less their wellbeing.
And that's despite the fact that, again, the Goldman Act
has been in place going on 4 years now. Can you commit to me
today that the State Department will use any and all means at
their disposal to pursue the return of any and all abducted
American children, including Gabriel and Anastasia Hunkovic,
from any country to which they've been abducted including
Trinidad and Tobago?
Ms. Lawrence. Thank you, Mr. Harris, for that question and
thank you for your interest in his case. I know that one of--
several of my colleagues will be meeting with you later this
afternoon to discuss with you the latest developments in that
case.
Of course, this is a pre-convention case. Trinidad did join
the convention, and we have had a productive relationship with
them which, of course, does not take away from the pain that
your constituent has expressed to you as he has worked through
this very difficult situation.
I absolutely will pledge to you that we do look at all the
tools available. We will continue to consult with you. We will
continue to consult with our interagency partners, with all of
the stakeholders in the Department of State and use the tools
that are most appropriate to get the best result.
Mr. Harris. Well, let me--and thank you. No, thank you for
that and, yes, I have met with people months ago and there is
still no resolution.
Of course, pre-convention is irrelevant because the Goldman
sanctions apply to that case regardless of whether it's pre-
convention or post. Am I correct in that assessment?
So that is--that makes no difference whatsoever, and the--
these children--it's now 7 years since they were abducted. They
are wards of the state.
The state actually has the legal authority over them. So I
just don't understand and, again, I can see where, you know,
compliance with orders and things like that are different in
other cases.
In this case, Trinidad and Tobago has the ability to decide
what's best for these children consistent with international
law and have not.
So is it going to take literally an act of Congress in an
appropriations bill to get you ramped up through the escalating
sanctions that can occur in some of these countries that the
State Department has been unwilling to pursue despite--again,
this a 7-year-old case.
You can only bang your head against the wall so many times
til you realize you got to try something else. Is that what
it's going to take?
I mean, I'd like to think the State Department is going to
use the tools in the toolbox. But, honestly, we have gone down
the list.
You know, cancelling state visits--you know, that's not--I
mean, I know it's something that would get someone's attention
but said you don't--you're not sure if that's ever even been
done.
These are serious cases and I am sure the State Department
takes them seriously. But I am not sure you use all the tools,
and, I mean, we have the same tools, to be honest with you.
I mean, we can limit anything we want to do because these
are American taxpayers. Is that what it's going to take?
Are you really honestly going to say look, we are going to
look at cases like this--7-year-olds, wards of the state. We
have tried everything with Trinidad and Tobago. Seven years
gone by.
You know, that developmental assistance that you have been
getting from us, which I am sure goes a long way in your
country or that foreign assistance or that security assistance,
I guess you just don't need it.
Ms. Lawrence. Thank you, Mr. Harris, again for bringing
attention to this case in this venue.
I know that my colleagues look forward to speaking with you
a little bit more deeply later this afternoon to go through
whatever options might be available to Mr. Hunkovic.
It is a long time. As we have said before, these are not
just issues. They are people and they are their children and
it's their lives and we take--we take that with us every time
we go into these meetings.
I know that you have had conversations with our Embassy
there. I know you've had conversations with our office in the
Western Hemisphere Bureau. I know you've had conversations with
my colleagues in the Office of Children's Issues.
We are all working together to try and find a way forward
and I hope that we will find a way to help resolve this case.
It has gone on too long.
Mr. Harris. I couldn't agree more. I thank you. All that--
my point is, I guess, it may be time for conversations to end
and, again, if we need to apply the tools that the State
Department is unwilling to apply, I am more than happy to do it
for Gabriel and Anastasia and with that, I yield back.
Mr. Smith. Thank you very much.
Just a few follow-on questions and then Ms. Jayapal has
some additional questions as well. As you know, India is the
country with the most long-standing abduction cases in the
world.
It has for many years been unwilling to join the Hague
Convention. Close to 100 American children there are denied
access to their American parent and suffer years in India's
family court system.
We have numerous left-behind mothers in the United States
who suffered both domestic violence from their husbands as well
as abduction of their children to India.
Ruchika Abbi and Dr. Samina Rahman are among them. They
continue to suffer for lack of a resolution mechanism in India.
Earlier this year, H.R. 3512, as I mentioned in my opening
comments, was introduced. It would remove countries like India
from GSP benefits until India begins to work cooperatively to
resolve the abductions.
Do you think an additional bill might limit India's H-1B
visas until abducted U.S. children are returned would also be
helpful?
Ms. Lawrence. Thank you, Mr. Chairman. Thank you for
mentioning the mothers who are left-behind parents.
When I was in India, again, part of that narrative and part
of the effort to unravel some of the myths surrounding
international parental child abduction is that the taking
parent is always the mother, and as we know, there are a number
of mothers who are the left-behind parents.
So that was, in part, as I suggested would be a useful
lesson in going through all of the cases one by one to start
looking at what patterns are really there. I think what you
will find is that the pattern is that people know that they
have a safe haven and we have made that known.
And I think the only way out of this, as we have said, is
to at least accede to the convention. I know we have discussed
this with respect to Japan.
It won't cover the pre-convention cases in terms of
returns, although there would be an access issue, but in the
meantime to find a mechanism, whether that's a memorandum of
understanding, whether that's a working group.
We put all of these things on the table. We advocated for
them. I think there is a lot to be gained by sitting down and
looking individually at these cases and seeing what more can be
done than to force the left-behind parent, whether it's a
mother or a father, into the Indian court system where they are
not going to see a resolution.
So, you know, again, I hear the range of tools that you are
talking about. We are--we are willing to sit down and talk with
you about what your ideas might be.
I don't know if our colleague from the Indian Embassy is
still here. He was before. I can't see out the back of my head.
But I hope that he has also heard a lot of these comments and
will take that back to the Embassy today.
Mr. Smith. And Bindu Philips from just outside of my
district has a very similar case. Her husband not only--and the
local police have reported this accurately--not only did he
steal, she tried to visit her children.
It was not a good experience. We are very concerned about
this and if India is, again, not on the list, which I believe
it will be, there needs to be a sanctions regime.
I can't stress it enough. We do it to our best friends in
trafficking. We can do it with our best friends when American
children are abducted.
Let me ask one final question. Nico Brann was abducted to
Brazil 5 years ago by his mother, Marcelle Guimaraes, with the
help of her parents, Carlos and Jemia.
In February, the parents were arrested in Miami, as you
know, and then indicted by a Federal grand jury for
international parental-child abduction and conspiracy.
They now face 8 years in prison if convicted. But Marcelle,
a dual U.S.-Brazilian national, remains a fugitive at large in
Brazil with Nico.
Under the Goldman Act, the Secretary of State has the
authority, as you know, to ask for her extradition. While
Brazil's constitution forbids the extradition of Brazilian
nationals, Brazil could denaturalize and extradite her just
like they did in another case this year involving a dual
national who was indicted for allegedly murdering her husband
in Ohio.
Given this precedent, will the U.S. now request that Brazil
denaturalize and extradite Marcelle Guimaraes to the United
States to face similar criminal charges?
Ms. Lawrence. Thank you, Mr. Chairman.
I haven't had the opportunity to let you know that I'll be
traveling to Brazil in a couple of weeks and many of the issues
that you raised about Brazil will be on our agenda.
Of course, as you know, a request to return a child under
the convention is separate from the filing of criminal charges
against a parent, and criminal charges are not generally
initiated in order to influence the outcome of the civil
matter.
Mr. Smith. But as you know, it's already been done toward
the grandparents.
Ms. Lawrence. Correct. And we remain in contact with the
Department of Justice and I would have to defer to the Office
of International Affairs there to speak on extradition because
they do have lead on extradition.
Mr. Smith. Could you make that request or at least an
inquiry as to whether or not this process can be followed?
Ms. Lawrence. We will certainly--we will certainly follow
up with the Department of Justice on this particular case and
the issue, more broadly, and get back to you, of course.
Mr. Smith. Ms. Jayapal.
Ms. Jayapal. Thank you, Mr. Chairman.
I just wanted to--I forgot that I wanted to raise, and
perhaps the chairman did in his opening statements, but the
statements of the Japan's--Japan's Minister of Foreign Affairs,
Fumio Kishida, who observed recently that--and this is his
quote--until now, there is not a single example in which the
United States applied these actions, and he's talking about the
Goldman Act sanctions, toward foreign countries.
And then he went on specifically to note that we had not
labeled Japan as noncompliant, and 3 days later the Osaka High
Court overturned a final return order for Mr. Cook's four
children.
And so I just wanted to reiterate that and ask you
whether--how you read that comment, because to me that comment
goes back to what I said in my opening statement, which is that
we are not being taken seriously.
Nobody thinks that we are actually going to do anything
with the tools that have been provided, and I think that's
extremely harmful because I do think that it also affects what
happens in these courts in--around these cases in these various
countries.
And so I'd be interested in how you read that comment and
what do you see as the--as the remedy to the idea that the
United States is not actually going to do anything about these
cases.
Ms. Lawrence. Thank you again, Congresswoman, and thank you
for raising Mr. Cook's case. I know he's on the next panel and,
again, in his case he did everything right.
So, again, we have made that point to our Japanese
counterparts. I don't know the context with which the Foreign
Minister spoke.
I don't know why he chose to say what he did. I am not
going to answer on behalf of the Japanese Government. I will
leave that to them.
What I can say is that when we have discussed their failure
on enforcement and the shortcomings in terms of compliance with
all aspects of the convention, we have discussed citations.
We have discussed the full range of tools available, and I
think there are many people that I have met with, certainly
that Ambassador Hagerty has met with, that we have met with
here in Washington who do understand the severity of what we
are talking about.
So, again, I can't answer for that comment specifically. I
don't know why that comment was made or in what context. But I
can say that the people that I have met with have heard our
message and, again, I thank you for this time to speak about
all of this openly and publicly.
I think, in my almost three decades of serving the United
States and working as a diplomat both here in Washington and
overseas, we are most effective when we speak with one voice
and when people know that we are serious and together on the
issue.
And so I appreciate the opportunity to have this dialogue
and hope that this will reach some of our colleagues so they
understand the seriousness with which Members of Congress view
this issue.
Thank you.
Ms. Jayapal. Thank you.
But I think I know why he said that, because it is true
that Japan has not been designated as noncompliant. Do you
think that there is a high likelihood that Japan might be
designated as noncompliant?
Ms. Lawrence. Thank you.
Again, as I stated earlier and I think I've said a couple
of times, I have been very clear with the head of the Japanese
Central Authority and with all of the people that I have met
with who have told us all of the things that they have done as
a Central Authority and as a country to be a good partner under
the Hague Convention and also to address pre-convention cases.
My response has been we appreciate the development of the
Central Authority. We appreciate whatever they have done to be
a good partner.
However, when we are looking at the full measure of their
performance we must take note of the fact that they cannot
enforce the court orders, and what we have said previously--and
that gets to this comment--is that it undermines the confidence
that people have in their seriousness with which they approach
the convention.
And so, again, there is no mistaking what we think about
that aspect of their performance and, hopefully, they
understand where we are.
Ms. Jayapal. Thank you, Ms. Lawrence. I am going to yield
back.
But I do think it also undermines our credibility on--and
our seriousness. It's not just the Japanese Government's
seriousness. It's the United States' seriousness about how we
approach these cases.
And so I recognize that yours is a very challenging
position and a very difficult job, and but I think what you're
hearing is we would like to see our seriousness reinforced
around these cases.
We'd like to bring these children home, and we'd like to
make sure that the governments that we are interacting with
understand that we do mean that.
Ms. Lawrence. Thank you, Congresswoman. We have many shared
objectives.
Mr. Smith. One just final question. As you know, we have
talked a lot about enforcement or the lack thereof in Japan.
Another threshold for a country being found noncompliant is
judicial decisions inconsistent with the Hague Convention. As
we will hear from Mr. Cook next, the courts in Japan reversed
the final return order in his case because they thought it
would be bad for the children to live in an apartment in the
United States.
Do you believe this public decision by Japan is consistent
with the Hague Convention's exception to return Article 13-B,
grave risk of psychological or physical harm or an intolerable
situation? How Japan's de novo best interest determination here
affects future cases? I mean, it's an awful precedent but I'd
appreciate your thoughts and response.
Ms. Lawrence. Thank you, Mr. Chairman.
I think that one of the areas that we work on very
carefully is education through seminars, through workshops,
through exchanges of information, through our Hague network of
judges.
We have had many discussions with many partners about the
exceptions in the convention and the use of those exceptions.
Again, I think Mr. Cook did everything he could in the correct
way, and so, we do look to improve always the consistency of
the decisions over time and the application of the convention.
That's the purpose of the convention. And, I also would
mention, because this case has gone on for some time, that the
purpose of the convention is to bring a quick resolution.
It's to return the child to the country of habitual
residence unless the case falls within those very specific
exceptions. That's the purpose of the convention.
As you mentioned at the outset, time is not a good thing in
these cases. This is not to our advantage for the child, for
the family, for anybody.
And so again, we are looking for application of the
convention, correct implementation. We are looking for speedy
results. That is in the best interests of all the people
involved in these tragic circumstances.
And so, I have heard your concerns, and we share your
concern for----
Mr. Smith. But publicly on the issue of living in an
apartment, and the only reason he lives in an apartment is all
the money he has spent in adjudicating this case--paying the
lawyers' fees and everything else.
So he's been drained by the process and now that's used
against him by a court in Japan. Do you find that outrageous?
Ms. Lawrence. As I said, Mr. Chairman, Mr. Cook did
everything he could and----
Mr. Smith. But it's not a viable----
Ms. Lawrence. We have pointed that out to----
Mr. Smith [continuing]. Point for Japan to take, is it?
Ms. Lawrence. Correct. We went and talked specifically
about this case as well. Again, we are looking for consistent
implementation of the convention, which will give people
confidence in the convention and that's to everyone's
advantage.
And, again, these should be speedy resolutions. The
children should be returned to the case of--to the country of
habitual residence, and the courts are the place to properly
decide custody of children. It is not a unilateral action by
one parent. That is not the way to do this.
So thank you again for those comments and that will be
helpful to us.
Mr. Smith. Just for the record, could you tell us how many
cases were resolved last year in Japan?
Ms. Lawrence. I don't have the exact number. As I said, I
only have a number from when they acceded to the convention.
We, as I said, had filed 18 cases officially.
Mr. Smith. How many children does that----
Ms. Lawrence. And I don't know the total number of children
affected but 14 of those cases were resolved. Again, they were
resolved through voluntary means, perhaps mediation. None were
resolved through enforced court orders.
Mr. Smith. None were resolved. So, again, all the more
reason why, in neon lights, Japan isn't on the list.
I remember in the journalism class, the first one I took--
and I wish it was followed by many of our journalists today--
was the three A's of journalism--it's accuracy, accuracy,
accuracy. Get the book right.
I mean, what we do in terms of what you do, because you do
have discretion in terms of following the prescribed potential
sanctions. Reasonable men and women have to decide what is the
best way to get from here to there.
By just stating the clear truth with the backdrop of the
Goldman Act as the criteria, I don't see how Japan can be
anywhere but is my complaint.
Thank you. I appreciate your testimony and your service.
Ms. Lawrence. Thank you very much.
Mr. Smith. I'd like to now welcome our second panel,
beginning first with Patricia Apy, internationally well known
expert, an attorney practicing international and interstate
family law.
Among many countries in which she has litigated, been an
expert witness or served as a consultant on international
family disputes are the United Kingdom, Brazil, the United Arab
Emirates, Italy, Pakistan, Australia, India, Japan, South
Africa, Israel, Lebanon, and Canada.
She is frequently sought out by both family law attorneys
and litigants nationwide to serve as an expert co-counsel in
their own state courts on international matters. Notably, Ms.
Apy is an attorney--was the attorney for David and Sean
Goldman, successfully resolving the 5-year abduction case with
Brazil with Sean's return to the United States in 2009.
Ms. Apy consulted very broadly with us, provided expert
counsel while we were writing the Goldman Act and I am forever
grateful to her for that, which passed into law and is now the
subject of part of this implementation hearing.
I'd also like to introduce Mr. James Cook. As the father of
four children, two sets of twins, who were abducted and are in
Japan. At 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 committee before twice during his ordeal,
beginning with the--begging, asking, appealing to the State
Department to take action.
Ms. Apy, the floor is yours.
STATEMENT OF MS. PATRICIA APY, INTERNATIONAL AND INTERSTATE
FAMILY LAW ATTORNEY, PARAS, APY, AND REISS
Ms. Apy. Thank you, Chairman Smith and distinguished
members of the committee. It's a privilege to return.
My first testimony before the subcommittee in support of
the Goldman Act was actually in 2009. So I've been living with
this act and its implementation, particularly in the context of
private practice since that time.
I would respectfully request that my written statement be
included in the formal record.
Mr. Smith. Without objection, so ordered.
Ms. Apy. Thank you.
I had the opportunity to listen to the prior testimony and
I think it would be most helpful if I addressed some of the
issues and the questions that were raised at that testimony
from a practical perspective.
The very first thing that I want to say is that the work of
this subcommittee in--which went on for a number of years with
extensive hearings with a great deal of work, created an act
which has had an immediate impact on the prevention of child
abduction.
The report that was--that is a strong part of the act was
actually opposed by the United States Department of State along
with the body of the act when it was originally preferred.
The opposition was that it would not be effective, that it
would--that it would be met with a response diplomatically that
would not foster the return of children, that it was not
consistent with the abduction convention.
All of those criticisms proved to be untrue. In fact, the
number that you've been given for the reduction in the amount
of cases of child abduction is a direct result of American
judges who have had the opportunity to review the report and to
make a determination whether asked by individual parents for
preventative measures to make a determination objectively based
on that information as to whether or not there exist obstacles
to recovery of children systemically in a country. This is
without necessarily consideration of the individual
characteristics of the parties.
So, for example, if a judge is looking at a report and it
indicates that there is a noncompliant state, the judge then
knows that there needs to be a broader and more protective
aspect of parenting and access protections, which is why
language is so important.
One of the things what concerns me about the report and
concerns me about the testimony that we have heard today is
that language has been used very loosely, and I want to point
out some of the places so that this committee can appreciate it
and consider it in some of the questions that have been raised
in some of the legislative actions which may need to be taken.
First of all, you keep hearing the word resolved--cases are
resolved. Let me remind the committee that the--under the
convention--we are talking about convention cases--there is one
remedy that is provided with respect to an abduction and that
is return.
The Hague Convention does not address custody. It doesn't
address jurisdiction. It addresses the return of a child
wrongfully removed or retained outside of the child's habitual
residence.
With respect to the organization of rights of access, there
is one remedy. It is that there is an identifiable opportunity
for actual access between a parent and their child.
In the reports that went along with the original
identification of the organization of rights of access, access
was supposed to be the ability of a child, for example, to
return and visit the other country of the parent, whether it's
a left-behind parent or a parent in a case in which the parties
just live in other countries.
That's not what you're hearing in either the testimony or
in the reporting. When you hear resolution, a careful follow-up
question is how many returns have there been, and the answer is
there have been none.
When you're asked how many--what are the--there was a
reference to half of the cases that were filed when Japan
ratified the convention, providing an opportunity for access.
The careful follow-up question, and I believe I did hear
some response to this, is that the access that provided is not
an identifiable access order.
It might have been one Skype call. They are including the
definition of access the ability to send packages to a child
without any contact whatsoever. Nothing in the convention
contemplates that as access.
So the first piece that has to be addressed is that the
report has to be accurate because an American judge had to know
that in fact there is no ability to obtain an access order if a
child is retained in Japan, for example. There is no ability
for a U.S. order in any state to be provided an opportunity for
enforcement.
The Hague Abduction Convection is a reciprocal treaty
which, of course, means that both parties have to be signators,
have to have provided the responsibilities under the treaty and
to afford those responsibilities.
It is not a situation in which you can merely assert a
treaty is applicable whether or not it is actually--there is
actually been any type of treaty relationship.
I need to point out that in the written remarks that you've
been provided there is reference, for example, to a number of
countries and work on the part of the Department of State with
respect to those issues.
I have to caution that that information is inaccurate. In
fact, Jamaica, Pakistan, and Tunisia have deposited their
accessions with the Hague Conference but their accessions have
not been accepted by the United States Department of State.
So there is no treaty relationship right now that exists
with respect to those countries. With respect to Fiji, I agree
that we--they reference it as having been welcomed as a
partner. But you should know that the accession was deposited
in 1999 originally, and it's taken until now.
And again, that there could be very good reasons for the
failure to accept the accession of a country that has indicated
that they are filing it.
In the prior testimony, you heard repeated reference to
Japan acceding to the convention. So we are clear, Japan did
not file letters of accession.
Japan, once it ratified, became immediately affected. The
United States had no oversight or--and there was no ability to
accept the accession.
Why that is important is that there--the idea that they
would need some time to get up to speed, as you have heard,
referenced that there was no way to place any conditions or to
impact on the way the treaty was going to be applied in Japan.
As I've testified in prior hearings, I was deeply concerned
that Japan would ratify the treaty and what would follow is
exactly what we have and that is it is in name only.
One of the most important aspects of the report has to be
its accuracy and its transparency. If a country is listed as
compliant, then a judge sitting in Washington State is going to
look at the report and believe that a parent requesting the
opportunity to visit that country will be doing so under an
effective and existing mechanism for the return of the child.
Without accurate information and accurate language, it
creates the impression that there is a reciprocal active
relationship. Same with if we are talking about context of
countries in which there are difficulties going on with their
treaty partnership.
There has to be transparency about where the difficulties
are even if it's a circumstance in which the State Department
is reticent to list them as noncompliant. You still have to
identify oh by the way, they are not going to enforce an order.
They are not going to provide rights of access. You're not
going to be able to have a child returned.
That, to me, the unapologetic identification of actual
issues in the report has got to be--has got to be the number-
one issue that the United States Department of State does as it
addresses and provides the information in this report.
The second issue that was addressed and questions were
asked that I think is extremely important is accurately
describing what steps are being taken when you have identified
that a country is noncompliant, there are a number of standard
phrases that are found in the report that are not descriptive
and not helpful.
For example, talking about we are working with, we are
talking with, we are trying to find practical solutions, we are
working on educational opportunities are not responsive, very
frankly, to the issues of the particular difficulties that you
would find in the country.
For example, if we were talking about a country where the
problem is the enforcement of orders where the mutual
recognition of orders depended upon the nature of the problem,
you might want to seek the entry of a mirror order in that
country so there are orders in both places before a child is
permitted to visit.
You might have additional passport and border restrictions
that you would not otherwise have. There was reference in
testimony to India. I think it's very important that this
committee understand that India has taken a formal position
against the execution of the treaty.
There is--a study was commissioned in 2009. During the time
period of that study, which took a number of years, most
lawyers and judges supported the India joining the convention.
However, the Indian Government, when that issue was pressed
and it was provided to public comment, strongly took the
position that they believed, rightly or wrongly, that the
treaty would not be a benefit to their citizens.
In particular, it focused on the ability to permit, as they
said, women to return to India without the necessity of having
to respond or return children to their habitual residences.
That's a formal position. It's not an educational problem
at this point, especially given the length of time which, of
course, gets us to the systemic problem of diplomacy.
There is a reference in the--in the written remarks of the
Special Advisor that is a little bit concerning and that is a
reference to diplomatic efforts.
She indicates much of the day-to-day diplomatic engagement
on abduction matters is handled by country officers in the
Office of Children's Issues.
There is no question that country officers work individual
cases. But the Goldman Act was designed to go beyond the
particular issue of any individual case and to broaden the
concept of fighting child abduction by looking at diplomatic
tools in an objective matter.
The point is, as I've testified before, no individual
parent should have to become, if you will, an officer of the
United Stated Department of State and engaged on a state level
basis in determining what the problems are with compliance or
reciprocity.
I could not hear in the testimony and I am unaware of any
objective process that has been instituted by the United States
Department of State with respect to any of the tools as we have
called them addressing noncompliant countries.
The last time I am aware of there having been any of
actions like the tools that have been described were before
this act was in place and that was in the case of David Goldman
when, based on individual effort and effort of the chairman and
effort of members of the Senate in addressing this issue.
Those elements were done from the congressional side. They
were not recommended by the United States Department of State
and they were not supported by the United States Department of
State.
Nevertheless, they were incredibly effective in the return.
When you have countries like we have had in the report since
its inception that have remained on the noncompliant list,
there has to be an objective process and you have to have, as
Members of Congress, an objective report as to was a
recommendation made that certain of these tools be employed.
And I didn't hear that there is even a process in place for
OCI--Office of Children's Issues--to identify what steps they
have taken and what the responses are so that you can not only
address the problems with respect to your constituents but so
that you can address in the committees in which you sit and the
legislative determinations that you make, whether or not that
is a consideration you have to have available.
In my discussions with attorneys and judges throughout the
world who address these issues, particularly in countries that
have been identified as noncompliant, they are almost
unanimously in support of the concept that understanding that
pressure will be placed upon the country on a systemic basis
will make a difference in treaty compliance and will make a
difference in looking at these issues seriously.
With respect to, for example, the use of memorandums of
understanding, their ideal for the circumstances in which there
is an educational issue, you can identify where are the
problems.
You can identify what actions have to be taken and what
time frame, and until they are, you can then notify judges and
lawyers in the United States that there does not currently
exist a reciprocal treaty relationship.
Again, when this was originally--when this act was
originally addressed, the concern was that it would somehow tie
the diplomatic hands of the United States Department of State.
Well, to my knowledge, since this act was--has been
enacted, other than a demarche, there has been no diplomatic
action taken, no requests or any objective process employed or
recommendations that I am aware of for the imposition of any of
the tools that you've identified.
My final point that I would like to address is the issue of
border control, and I do note that in the--in the report that
was provided by Ms. Lawrence, there is a reference to the
Department of State working closely with U.S. Customs and
Border Protection and referencing numbers.
May I tell you that the number 200 children being enrolled
in the program, Homeland Security's program, which is
authorized by ICAPRA, is woefully low.
We have had thousands of orders for protective measures.
There are significant difficulties in getting families onto
this list. The review process that's been employed with an
extra step by the Department of State has been difficult. There
has been a lack of communication back to judges as to whether
or not children are on or off the list, creating abduction
risk.
So that number is not a positive. Two hundred is woefully
low. It evidences that there is a lack of implementation that
needs to be looked at, seriously.
I'd be happy to take any of your questions or address any
of the countries that are referenced with which I have
experience that might be helpful.
[The prepared statement of Ms. Apy follows:]
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STATEMENT OF MR. JAMES COOK, FATHER OF FOUR CHILDREN ABDUCTED
IN JAPAN
Mr. Cook. Thank you.
Thank you, Chairman Smith and the committee members for
this opportunity to speak about Japan, Hague compliance, and my
experience in the process, and I request that my written
statements be entered into the record.
When I last testified it was last April before this
committee, 2 months after Osaka High Court had revoked the
return order of January 2016.
In May 2017, I appealed this ruling and in December 2017
Japan's Supreme Court ruled that the Osaka High Court was
correct and affirmed the order and closed my case.
A few weeks ago, the Osaka High Court cancelled the
previous enforcement orders and all penalties due to me, which
grew to $132,000--$84,000 of which at the time when the Osaka
High Court originally ruled and said that I had no financial
means, they had already ordered $84,000 paid to me.
This is how Japan executes the perfect Hague abduction.
After over 2\1/2\ years in this process, I have nothing. This
process has cost me everything.
Japan relitigated our Hague case as a successful ploy to
avoid compliance with the Hague. The Hague is specific in its
intended objective--a ruling to determine habitual residence
and legal jurisdiction. That jurisdiction is the venue to
evaluate a child's best interest and custody. Japan
intentionally conflates Hague jurisdictional decisions as
custody decisions.
When Article 16 of the Hague explicitly prohibits custody
determinations, the Osaka High Court's February ruling
basically was a best interest custody hearing. For further
details on this and other statements, please refer to my
written testimony.
Japan's court system is corrupt and must not be respected
by the USA. There are groups and organizations that control
much of the family law in Japan. Federation of Lawyers of
Japan, whose members include Yoko Yoshida, Yoriko Nishimura,
and Takayo Amata is one such group.
Yoko Yoshida, vice chairman of the Committee on Gender
Equality, an organ of the Federation of Lawyers of Japan,
opposes Japan's ratification of the Hague Convention.
Most of the attorneys who advise and help child abduction
are communists--members of Japan's Communist Party. See the
written testimony for further details and evidence that
communist attorneys control family courts and advocacy of
abduction.
A large piece of Japan's corrupt family court system is a
network of governmentally funded domestic violence shelters,
referred to as Shelter Net in Japan.
An attorney, like Yoko Yishida, will tell a woman seeking
divorce and sole custody of her child, to report to a DV
shelter. The shelter will receive money for this woman and
child.
It is obvious this situation is ripe for collusion between
federation attorneys and Shelter Net member shelters.
At the divorce hearing, applying the continuity principle,
the judge rules the child is to remain with the abducting
parent.
An important point about the continuity principle--it's
illegal. Civil Code 766 took effect in 2012 specifically
instructs judges to use abduction against a parent in
determining custody.
There is no--there are no consequences for judges
disregarding the law. Judges are rogue and create legislation
from the bench.
The jurisprudence of judges even at the Japan Supreme Court
in the Hague cases and even in Hague cases as so-called
continuity principle whereby abductors keep children.
We know this principle is operative based on empirical
evidence of many rulings including my Supreme Court ruling of
December 2017. Taking a child permanently from one parent is
crazy and inhuman.
More information on this issue is within my written
testimony. As a result, Japan's Supreme Court's noncompliant
ruling of December 21st, 2017, on April 6th I submitted through
legal counsel in Japan a petition for impeachment to Japan's
Diet of the following Supreme Court justices: Atsushi
Yamaguchi, Masayuki Ikegami, Naoto Otani, who is now the chief
justice of Japan's Supreme Court and his elevation is a
curious, almost quid pro quo nature with relation to when my
order or decision came out; Judge Hiroshi Koike, whose opinion
at the end of my ruling illustrates at least one justice has a
complete disconnect with the elements and the intention of the
Hague; and finally, Katsuyuki Kizawa.
The 52-page impeachment petition plus supporting evidence
details illegal practices by the judiciary, collusion by
attorneys, and ties to politicians in Japan's Diet and details
the several ways that Japan's Supreme Court's decision 2017
ruling is in direct violation of the Hague. Such wilful
malpractice must only be resolved through impeachment.
This petition is available to the 26 EU member countries,
Canada, and U.S. Department of State to aid in their unified
efforts against Japan regarding international parental-child
abduction. The original Japanese language petition is available
from Kisna Child Parent Reunion, an NGO in Japan.
Japan must be held accountable. Diplomacy on this issue
with Japan has not been successful for decades. More than 400
children, supported by DOS statistics, have been lost to U.S.
parents in this time.
Children are not bargaining chips or pawns because their
rights are non-negotiable. For reasons outlined above,
including the noncompliant Japan's Supreme Court Hague ruling,
Japan's corrupt judiciary, and Japan's unrepentant abduction
practices, I recommend the following actions be taken.
One, placement of indefinite tariffs upon strategic
Japanese imports until the following occur: A, revocation and
invalidation of the Osaka High Court's February 2017 ruling and
Japan's Supreme Court's December 2017 ruling, and the immediate
return of my four children without delay or condition; B,
criminalization of parent-child abduction to Japan; C,
criminalization of denial of access to pre-Hague abducted
children; D, creation of a quick legal path to criminalization
and prosecution and contempt of Hague return orders that
include forcible arrest of abductor, prosecution of harboring
individuals, and physical remove of children by law enforcement
or the left-behind parent; E, recognition and enforcement of
all previous and future U.S. court custody and return orders;
and F, extradition of U.S. or court ordered persons by any
means including arrest, physical force, and arraignment of
harboring individuals.
Suggestion number two: The Department of State to issue
indefinite travel alert in caution to parents travelling to
Japan with minor children of Japanese descent due to extreme
abduction risk and Japan's history of noncompliance.
This alert can be rescinded at some point when Japan shows
2 years with perfect Hague compliance. More recommendations are
found in my written testimony.
Finally, Japan has ignored demarches and similar toothless
diplomatic efforts for years. Japan, at its core, is an
economic nation that relies on asymmetric trade. That is, they
sell far more than they buy.
Effective strategies will use tactics that affect trade,
not diplomatic talk. Tariffs, not talk. Deadlines, not debate.
Progress, not promises.
I ask this committee and fellow lawmakers to make laws as
I've outlined above. I ask judges across the United States to
heed my testimony when contemplating joint custody arrangements
between U.S. and Japanese parents and, certainly, any
consideration of allowed travel out of the U.S. There is no
such thing as a harmless vacation to Japan.
I ask President Trump to make the call, write the executive
order, or take the action that returns my children immediately.
When you are with P.M. Abe next week, tell him he must do
it and he will. Please refer to my written testimony for
recognition of groups and individuals who have helped. I am not
short on gratitude but I am limited on time before this
committee.
Thank you again, Chairman Smith, and I am forever grateful
for your years of work, the opportunity to speak, and most of
all, I thank you for caring, which you have.
[The prepared statement of Mr. Cook follows:]
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Mr. Smith. Thank you, Mr. Cook, and I think your point
about upcoming meetings with Mr. Abe is an excellent
opportunity for the President to raise these issues.
In previous meetings, we have given detailed memos to the
White House in the hopes that he would raise it in a way that
was significant and detailed.
We'll do it again, so thank you, and your testimony, I can
assure you, will be clear and hopefully as well as a summary of
it that we will convey to he and others within the
administration.
These are great opportunities. As a matter of fact, when in
a previous meeting, obviously, there's always been concerns
about abductions from Japan to Pyongyang to North Korea and the
President has spoken out, as I have and so many others have,
for years.
Congressman Honda had a resolution years ago on that and I
was the Republican co-sponsor on it, believing that too is an
egregious violation.
Well, Japan itself needs to be held to account as well. So
we did ask that he raise it with Abe. We will do it again, and
I appreciate that.
If I could, Ms. Apy, if you could, when a judge is dealing
with a case before him or her, do they read the report to get a
sense of what that country's potential risks are? Do they often
contact, for example, the State Department or the Office of
Children's Issues to get a further delineation of how good or
bad?
Because a report is always dated except for the first few
weeks when it comes out and even then they might want to get an
update if there's been any turn of events. How does that
actually work?
Ms. Apy. Of course, as you mentioned, the report is
retrospective in that it tells us about the numbers for the
prior year, which is why the classifications of noncompliance
versus compliance are so important because it means you don't
have to deconstruct what's happening yesterday.
In most family court cases, of course, a judge doesn't do
independent fact finding. The information is presented to the
court subject to the rules of evidence, which is why the report
is so important.
Because it's been generated by the United States Department
of State, it can be taken--judicial notice can be taken of the
content of the report and it can be used then by the court in
assessing risk, which places the burden on someone who is--who
is arguing that the classification of the Department of State
should not be accepted. It places the burden on that person to
come forward.
So, for example, in a circumstance like Japan that we've
been discussing, because Japan has heretofore not been listed
as noncompliant, it places the burden on the parent who wishes
to provide protections against travel in bringing--in hiring an
expert and having that expert come and testify specifically to
the very issues that you have heard testimony on today and I've
served in that capacity.
So the problem with that is, of course, it's an expensive
process. It involves having to find an expert and to present
that information to the court and, of course, the court is
looking at a report issued by the Department of State saying
that, in the case of Japan, as we've been discussing, they're
compliant. So it's extremely problematic.
The court doesn't get--it wouldn't have the opportunity, as
I said, to get updates, but the counsel can and in fact if
they're on--if on the State Department Web site and on other
identifiable State Department sources of information their
updated data, that would be something that the attorneys could
reference and would look at and when, in fact, we do.
Mr. Smith. If I could just ask you on the necessity and
efficacy of MOUs, which I know you have spoken to many times.
We included it in the Goldman Act.
I know prior to Japan's accession to the Hague the view
from the State Department, not only for the Goldman Act itself
because the official position was against, until it was
reversed later by John Kerry.
I didn't get any sense today that the department is any
closer to pursuing an MOU with Japan or anyone else. What is
this reluctance to find a durable predictable means to resolve
cases? Is it the effort that it----
Ms. Apy. The Department of State took a position early on
that they would not support any memorandums of understanding
related to child abduction on the theory that by setting up
MOUs that they would somehow dilute the pressure upon countries
to become signatories to the Hague abduction convention.
What it misses, unfortunately, is the opportunity to use an
MOU to address specific problems and to provide diplomatic
solutions.
So, for example, if you're talking about a convention
signatory like Brazil, you could use an MOU to identify the
areas that there are problems and then set objective goals
while at the same time saying, A, you're noncompliant, and B,
until the following things happen we are going to announce and
make it clear that there is no reciprocal relationship, which
means, for example, that American children would not be
returned unless the treaty process was back in place.
That's an example. The advantage of doing MOUs in non-Hague
countries can be seen by--if we look at Pakistan, who has filed
their accession, I am looking forward. Hopefully, the accession
will be very soon accepted.
Pakistan is one of the very only Sharif-based systems
that's a common law system. We have high court judges prepared
to apply the treaty and part of the reason they're prepared is
there's been a memorandum of understanding between Pakistan and
the United Kingdom that has been working for a number of years,
establishing the legal culture that allows now the treaty to
become part of a normalized concept of the law there.
That's an example when an MOU, especially when we have
religious-based legal systems, can be used to bridge the
culture so that we don't run into a problem where a country--
the accession is accepted and there's nothing in place.
You have no underlying law. You have no underlying process.
But you have on paper a reciprocal treaty agreement. I can only
assume that the reason that MOUs haven't been used, now that
you have got the numbers and the report that provides for them,
is that there's just not been the diplomatic will to do the
hard work to do that.
And I--and, frankly, it's a, from my perspective at least,
I know that member of the bench and bar in the United States,
members of organizations like the International Academy of
Family Lawyers and the American Bar Association have been
willing to work with the State Department as private
practitioners providing technical assistance in drafting MOUs,
in providing model orders, in doing things that would, if you
will, advance the ball.
Again, it's nowhere on the radar screen because there is no
process employed for moving beyond a demarche. There's just--I
don't see how the--the whole point of considering MOUs was to
provide objective information so that we were not talking about
speculative subjective reviews of countries.
We had objective information so that if we were talking to
our friends we could say, look, I am sorry--you know, we have a
valued relationship with you but the following numbers need to
be addressed and here's how.
I just don't see that there's been the diplomatic will or
the political will to do that on the executive side and I--
since I've been doing this for a very long time I am hopeful.
Again, the work of this committee cannot be overstated in
that when you look at those--the reduction and the preventative
numbers it's only because of the work of this committee and
it's made a huge impact on American families.
Mr. Smith. Suzanne Lawrence did talk about redoubling our
efforts. We worked tirelessly both in the U.S. and in our
Embassies.
It seems to me that working tirelessly and redoubling our
efforts--since we are at the threshold now where MOUs are--
should be a given as a remedy to--as a means to a remedy of
these cases.
So we'll redouble our efforts to try to get them to do it
because I think it's just missing by a mile. You know, nice
conversations, diplomatic meetings are all fine. But they
should not be a substitute for a durable mechanism that could
employed with predictability and, hopefully, with success.
Just a couple final questions and I deeply appreciate
both--the subcommittee deeply appreciates both of your
testimonies. It helps us to know what to do next and how to go
forward, and I thank you for that.
Ms. Apy, if you could maybe speak to countries that you
have found to be more Hague compliant. Do you find that it's a
problem worldwide that everyone seems to have serious problems
or are there countries that you have found that really seem to
be on the ball and really want to do the right thing?
And, again, if you could, Mr. Cook, I said it to Ms.
Lawrence. You, obviously, said it in your testimony. But the
whole idea that seems to be missing--people say what about
Japan--oh, we've brought some people back.
Well, as you have pointed out, when the abductor says no,
enforcement ends. That is absolutely absurd to think that the
veto power is vested in the abductor--the person who has
committed this egregious action.
So perhaps you might want to speak to that again because I
think the Japanese Government needs to know that we find this
outrageous. You know, you cannot convey that kind of veto power
to someone who has committed such a terrible act.
Ms. Apy. I would just reference, on countries that are
particularly successful, keep in mind, of course, that the
Hague abduction convention was executed in 1980. The United
States ratified it in 1988.
So for 8 years, a number of countries had already begun the
process and begun the--the body of case law began to be
established. And so you have, frankly, leadership in that
regard. The United Kingdom, the Netherlands, Sweden, Canada
would be places that have continued to apply the convention.
I would note one common element to their success, however,
and that is that in virtually all of those countries where the
success rates are extremely high, left-behind parents are
provided support in having legal representatives to assist them
in having their children returned.
In--for example, in the United--in cases for Sweden, if a
child is removed from Sweden to somewhere else in the world,
the Swedish Government assists in underwriting the costs of the
return and repatriation of those children.
The result is that their numbers are far higher in the
return of children. The same in the United Kingdom. There are--
there are particular judges that have been denominated as Hague
judges. Legal aid is provided for left-behind parents who are
specialists in the issue of the Hague abduction convention.
Of course, the United States took a reservation to that
portion of the treaty that provided for assistance in legal
services for the return of abducted children.
So members of the family bar throughout the United States,
those of us who do this work volunteer our time as pro bono
lawyers, like the Elias case, keeping in mind that the average
length of time for these cases--for treaty cases run between 18
months and 2 years from beginning to end if they're successful.
For nontreaty cases and treaties in countries that are
noncompliant and nonreciprocal the average is closer to 5
years. That's a long time to have to pay a lawyer. It's a long
time to have to do travel and repatriation and expenses, and
the crippling impact of those resources cannot be overstated.
In the Goldman case, there were over $\1/4\ million of
expenses in--direct expenses that Mr. Goldman had to find and
borrow and do whatever he could in order to accomplish the
repatriation of this child and it would not have been enough
but for the assistance of the Congress of the United States in
taking direct diplomatic action.
Mr. Smith. Okay.
Mr. Cook. I resemble that comment. [Laughter.]
I recognize that situation of having--of spending
everything you have and it's still not enough. In fact, one of
the recommendations I had is that the respective governments
who sign the treaties are the ones that foot the bills for the
two--their respective citizens for this so that way--like I
wrote--it'd be important for the--for the State Department to
have skin in the game.
If they had to pay off--if they had to pay left-behind
parents, which was myself, all of the awarded penalties as a
result of this, they might have a little bit different view on
doing this.
But with respect to the--your question or talking about
permission to enforce in Japan, the--it is accurate to say that
you need the consent, which is a little different than
permission--consent of the abductor to have access to the left-
behind--to have the--to the stolen children.
It's also you need to have the consent of the abductor or
those that are found guilty of abducting to comply with the
order because in Japan there is no contempt, or there is
contempt--there are no consequences for contempt.
So even though my children were ordered twice returned, my
wife, he told me, was able to be in contempt for no
consequence. Meanwhile, she accrued, as I said in one instance,
$132,000 of per diem fines and enforcement fines that after the
court had done its magic and flipped this order and revoked it
they then also just--like I said, 2 weeks ago took away any of
the--the contempt fines.
So I am absolutely left with nothing, and this isn't just
about me. This is--this is how Japan operates absent some
external effort.
And a little thing I wrote in here is when--you know, we
asked numbers of--Ms. Lawrence about the returns of children.
We keep pretty close tabs on each other, everybody in this
community, okay, and the numbers that I am told is that there
have been now seven total children returned to the United
States.
Of those seven, three of them were U.S. children returned
to U.S. parents, none of which were done the result of Japanese
enforcement powers because they don't have any. One was the
death of the taking parent--the father in Japan--and so the
child was reunited with the mother at the funeral.
The--another one was--well, I can't use the words here--it
was a mess of how that she reneged at the last second and
chased the man out of the country. There's a third, and then we
have the case of four children--four children returned--
Japanese children returned to a Japanese mother living in
Oregon.
Now we have another case that was just decided with four of
the five Supreme Court justices that were in my case--just
miraculously understood that alienated children's opinions many
not--should not be taken seriously and being in contempt of a
court order is a crime.
So they're going to allow the possibility of this child to
be returned to the left-behind parent in the United States, who
is also a Japanese citizen.
So by using the State Department's own metrics, five of the
eight children returned under the Hague will be from one
Japanese parent in Japan to a Japanese parent living in the
United States.
The Hague is not working for U.S. children. It's just an
extension of the Japanese family law system, and our State
Department does nothing about it.
And I have dealt with Japan for over 30 years and there
is--we, as people in the cause, trying to get our children
back, have to battle through our State Department over into
another land, and I believe there are forces within the State
Department that are going to prevent or, I should say, are
going to give a pass to Japan almost permanently with the
exception of someone like President Trump or maybe the future
Secretary of State stepping in and saying, ``We are done.''
Anybody that--anybody that--you know, we cannot allow Japan
to continue to be noncompliant. These are children. I don't
care what deals were done, what agreements were made,
whatever--whoever. They were sold out for whatever donations to
whatever foundations.
We need to get these kids back and it has to change, and
whoever is left from that mind set needs to be blown out of the
State Department so we have people that actually follow the
rule of law and follow, particularly, the Goldman Act because
these are--this is the only way we are going to get kids back
is to exert some sort of force upon Japan, some economic pain,
because at the end of the day they're an economic country.
They're excellent at the diplomatic rope-a-dope. They'll
listen to you and they'll make promises all day long and, oh,
they seem sincere. They're not. But they have to experience
some pain.
Mr. Smith. Just one final question before I go to Ms.
Jayapal. India has been noncompliant, pursuant to the Goldman
Act and on the reports since 2014. No penalty whatsoever.
It seems to me this needs to be the year of getting the
report accurate with regards to countries like Japan and also a
year of significant sanctions. What are your thoughts on that?
Again, a regimen that goes without--you know, it's all on
paper and nobody does anything with it. It has a perverse
outcome of countries saying it's a paper tiger and this law was
meant to be a game changer.
Ms. Apy. Well, and this is a good example of needing to
look at the country that we are talking about and identifying
what the problem is to find a diplomatic remedy that matches
it.
In India, as I've mentioned, the significant portion of the
judiciary and the lawyers, particularly in this area, support
joining the Hague, support taking those steps and there have
been constant bar reports in support.
The government has pushed back for political reasons and
has indicated they will not do so. So----
Mr. Smith. Does that have anything--if you don't mind me
interrupting--to the fact that so many of those who are left
behind are mothers--are women? Because we've had testifying
here a number of women who have had their children abducted to
India.
Ms. Apy. The push back came--was led by the Ministry of
Women and Children that indicated that they did not think that
the treaty provided adequate protections and--for women and
that they did not want the return to--which was, again,
considering the limitations of protection of women in India
under Indian law was sort of interesting to me.
But the real--but looking--focussing on the issue of India,
we have a tremendous diaspora of Indian--Americans--those of
Indian descent in this country. There's regularly going back
and forth and in a--actually covers the entire subcontinent.
That's something where, for example, as you mentioned
earlier, consideration of those issues in sanctions, whether
it's dealing with visa issues, dealing with the circumstances
under which someone can easily go back and forth in
circumstances in which we have a country that's going to--
that's creating an environment where there is no ability to
enforce U.S. orders--where there is an ongoing problem--where
we do want to find a way to encourage them that--to look at
what their own judiciary and judges are saying needs to happen
in their country. That might be one of the ways to creatively
look at it.
I would also say that this would lend itself to an MOU,
identifying that we are going--we need to see these changes in
this period of time. If you don't do that, then we are going to
look at the circumstances under which we place our citizens at
risk in going back and forth and under what circumstances.
Ms. Jayapal. Thank you, Mr. Chairman. I am actually one of
those Indians--people of Indian descent and actually proud to
be the first Indian-American woman here in the U.S. House of
Representatives, and so I am looking forward to just
understanding more about the situation with India. I think I
know quite a bit about the treaty piece of it but in terms of
this specific issue.
I just wanted to go back to what you said about other
countries being more successful in negotiating for the return
of some of these abducted children.
Have you found that countries have had success with the
very countries that we are having the most challenges with? For
example, have other countries been successful at negotiating
real resolutions with Japan?
Ms. Apy. My experience with Japan is that the rest of the
countries that deal directly with Japan have the same problems
we do.
I've had a number of meetings with a consul general from
other--representing other countries having these kind of
conversations, all of which, I think, would be led by and
encouraged by joint activity in diplomatic activity whether
it's a joint MOU and signing on to a joint MOU, looking at
identifying the problems and treaty reciprocity together, which
is why it's so disheartening when you don't see the United
States Department of State signing on with or joining in joint
activity.
So I would say my experiences even with countries in the
Pacific Rim--and there are challenges there throughout the
Asia--but we have those--we have those issues. But we've got
the real leverage----
Ms. Jayapal. Yes.
Ms. Apy [continuing]. Is the issue. We have status of
forces agreements that we regularly negotiate. We are talking
about a disproportionate number of our military members
involved.
We have the ability to take leadership in that area where
we haven't. So in that context I would say everyone's sort of
in the same boat but we have the best leverage to be able to
address it.
With respect to some of the other parts of the world and
particularly India and Pakistan, I will tell you that the U.K.
has had a significantly better opportunity of negotiating and
working through some of these cases than we have and they've
been willing to, in some of these countries, enter into
bilateral agreements that they work very hard in making sure
work.
And of course, as I mentioned, they--the government in that
case provides a lot of skilled leadership in assisting those
cases both on an individual negotiated basis as well as in
assisting in litigation.
Ms. Jayapal. So you mentioned in your earlier testimony
just sort of ways that we should clarify the language, in
particular, the categories within the report.
What other--and Mr. Cook, thank you for your--for your
testimony. I just--I just listen to you and it--I can't--I
don't have any words to express how this must feel for you and
for other families.
I've sat with Mr. Morehouse and it's heart-breaking. So
thank you for being here in spite of that.
Just in terms of the specific recommendations of what we
might push for, we can--you know, we can make amendments to the
legislation.
We could work on those pieces. But just in terms of
immediate actions that if you had the magic wand and you were
in control of the State Department tomorrow, Ms. Apy, what
would----
Ms. Apy. I will take a pass on that. [Laughter.]
Ms. Jayapal. What would--maybe just this portion of it.
Ms. Apy. Right.
Ms. Jayapal. What would you--what would you recommend that
Congress do to push for those actions that you think would be
most effective?
Ms. Apy. Well, first of all, I believe that there are
adequate tools in this--in this act as it's written. I do not
believe that it needs to be amended.
I think that the problem is that there has not----
Ms. Jayapal. You don't--you don't think that the report
language should be clarified or----
Ms. Apy. I think that the--I think that the act absolutely
provides what should go in the report. I believe that the
United States Department of State has to be--has to actually
comply with the law as it's written and I don't believe that
they have enthusiastically been doing that in the sense that
they need to be, as I said, unapologetic and they need to be
objective.
The language is already there. I would add, however, that I
think that there needs to be an identified process for the
circumstances under which they must move the diplomatic
remedies that are provided in the act from a--the lowest
levels.
When you have a country--I don't know whether it's the
objective test of a country has been on in a noncompliance role
for a year or 2 years that at that point certain things have to
be done.
But I have to reiterate by saying a careful reading of the
existing law provides the test for a noncompliant country.
They're just not applying it.
Ms. Jayapal. Right.
Ms. Apy. And the existing law provides the circumstances
under which you have to move to diplomatic sanctions and
they're not being done.
So at some point, the mechanism is to come back and say, as
was alluded to, do we have to then look at whether or not the
State Department is accurately applying it and if they're not,
put additional steps in that force them to do that, which
seems--we have enough--the issues here are urgent.
Time is not a neutral for these families, and the idea that
there would be push back when you have given the State
Department objective ladder that they can climb is
extraordinarily frustrating. Pushing back at the 90-day report,
for example--they have a 90-day report process.
When the report first comes in and comments are made, they
should come back with direct response as they're required to do
under the act as to what steps they've taken in individual
country cases. They're just not doing it.
Ms. Jayapal. Thank you. I have nothing else.
Mr. Smith. Will the gentlelady yield?
Ms. Jayapal. Yes, I would.
Mr. Smith. And on that point, that's why we have had so
many hearings, not only to hear from left-behind parents and
experts like Patricia Apy but also to try to hold them to
account, to say listen to both spirit and letter of the law and
just follow it, which is why, again, this year we are having
this hearing before the report is issued.
We will have another afterwards and then probably another
one after that in this calendar year just to keep the pressure
on our own people just to do the right thing.
And but thank you. It was a great question.
Ms. Apy. Thank you.
Mr. Smith. And I thank you both for your testimony and for
your leadership and, Mr. Cook, know that our prayers and hopes
are with you and other left-behind parents.
The hearing is adjourned.
[Whereupon, at 4:30 p.m., the subcommittee was adjourned.]
A P P E N D I X
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