Foreign Affairs: Status of U.S. Parental Child Abductions to Germany,
Sweden, and Austria (Briefing Report, 09/08/2000, GAO/NSIAD-00-226BR).
Pursuant to a congressional request, GAO reviewed international parental
child abduction issues, focusing on German, Swedish, and Austrian
handling of U.S. cases.
GAO noted that: (1) from January 1995 through May 15, 2000, left-behind
parents in the United States initiated 298 cases under the Hague
Convention indicating that the child had been taken to, or retained in
Germany, Sweden, and Austria by the other parent; (2) the Department of
State closed 227 of these cases, and 71 cases remain open; (3) in 97 of
the closed cases (43 percent), the child was returned or the left-behind
parent was granted visitation rights; (4) nearly 90 percent of both
opened and closed cases involved abductions to, or retentions in,
Germany; (5) various reasons were cited for the 130 closed cases in
which the children have not been returned or visitation was not granted;
(6) in 49 cases, left-behind parents withdrew or did not actively pursue
their applications; (7) in 16 cases, children were not returned because
German courts concluded that the left-behind parent did not possess
custody rights or subsequently acquiesced to the removal; and (8) in 17
cases, children were not returned because German courts ruled that the
child's mental or physical well-being would be at risk.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: NSIAD-00-226BR
TITLE: Foreign Affairs: Status of U.S. Parental Child Abductions
to Germany, Sweden, and Austria
DATE: 09/08/2000
SUBJECT: Children
Child custody
Parents
International agreements
Crimes or offenses
Law enforcement
International cooperation
Foreign governments
IDENTIFIER: Germany
Sweden
Austria
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GAO/NSIAD-00-226BR
Briefing Section I: U.S. Parental Child Abduction Cases
Involving Germany
12
Briefing Section II: U.S. Parental Child Abduction Cases
Involving Sweden
26
Briefing Section III: U.S. Parental Child Abduction Cases
Involving Austria
36
Appendix I: The Hague Convention and the Processing of
Hague Cases
44
Appendix II: Comments From the Department of State
48
Appendix III: GAO Contact and Staff Acknowledgments
53
Table 1: U.S. Cases With Germany, Sweden, and Austria
Under the Hague Convention Seeking Return of
Parentally Abducted Children or Visitation, Opened
From January 1995 Through May 15, 2000 4
Figure 1: Process for Filing and Adjudicating an Application for Return or
Visitation of a Parentally Abducted Child Under the Hague Convention 45
National Security and
International Affairs Division
B-285990
September 8, 2000
The Honorable Jesse Helms
Chairman, Committee on Foreign Relations
United States Senate
Dear Mr. Chairman:
The State Department estimates that about 1,000 children are abducted by one
of their parents from the United States annually.1 Pursuant to the 1980
Hague Convention on the Civil Aspects of International Child Abduction,2
left-behind parents3 can apply for the return of, or access to (that is,
visitation), their children located in countries that are parties to the
Convention with the foreign country's government through the Department of
State. The Convention governs how these applications are handled and
adjudicated in the foreign country where the child is located. A May 2000
congressional resolution4 cited several countries, including Germany,
Sweden, and Austria, for not meeting their commitments under this
Convention.
As agreed with your office and in response to your concerns involving
German, Swedish, and Austrian handling of U.S. cases, we obtained
information from State Department files to determine the status and outcome
of cases initiated by parents left behind in the United States from January
1995 through May 15, 2000. We briefed your staff on the results of our work
on August 29, 2000. This report summarizes the contents of the briefing. As
you also requested, we plan to meet with your staff to discuss additional
work on international parental child abduction issues.
From January 1995 through May 15, 2000, left-behind parents in the United
States initiated 298 cases under the Hague Convention indicating that the
child had been taken to, or retained in Germany, Sweden, and Austria by the
other parent. The State Department closed 227 of these cases, and 71 cases
remain open. In 97 of the closed cases (43 percent), the child was returned
or the left-behind parent was granted visitation rights. Nearly
90 percent of both opened and closed cases involved abductions to, or
retentions in, Germany. Table 1 summarizes the status and outcome of cases
involving each country.
Status of all cases Outcome of closed cases
Percentage
of
Child not Child cases
CountryType of Opened Unresolved Closedreturned or returned or children
case visitation visitation were
denied granted returned or
visitation
granted
GermanyReturn 215 43 172 105 67 39
Visitation 42 16 26 12a 14 54
Sweden Return 27 6 21 7 14 67
Visitation 3 1 2 2 0 0
AustriaReturn 9 3 6 4 2 33
Visitation 2 2 0 0 0 - -
Total 298 71 227 130 97 43
aIncludes two cases in which the information in State's files did not
indicate whether visitation had been granted.
Source: GAO analysis of State Department case files.
Various reasons were cited for the 130 closed cases in which the children
have not been returned or visitation was not granted. In 49 cases,
left-behind parents withdrew or did not actively pursue their applications.
In 16 cases, children were not returned because German courts concluded that
the left-behind parent did not possess custody rights or subsequently
acquiesced to the removal. In 17 cases, children were not returned because
German courts ruled that the child's mental or physical well-being would be
at risk. Reasons for the other 48 cases, as well as other information on the
cases for each country, are included in the briefing sections of this
report.
A left-behind parent who believes a child has been wrongfully removed from,
or retained outside, the United States by the other parent can apply under
the Hague Convention for either the return or visitation of the child.5 Each
of the 60 countries that have agreed to the Convention is required to
establish a lead agency (called a "central authority") to serve as a primary
point of contact. The State Department's Office of Children's Issues, Bureau
of Consular Affairs, is the central authority for the United States. The
Office is responsible for assisting parents in filing an application under
the Convention, contacting the central authority and other officials in the
foreign country on behalf of left-behind parents, and providing information
on the status of foreign judicial and administrative proceedings as well as
advising on possible courses of action. In Germany and Austria, the central
authority is located within the Ministry of Justice. In Sweden, the central
authority is located within the Ministry of Foreign Affairs.
Upon receipt of an application by a left-behind parent, the Office of
Children's Issues forwards the application and supporting documents to the
appropriate central authority in the country in which the child is believed
to be located. The central authority in the foreign country reviews the
application to ensure that the case falls within the parameters of the
Convention and that all necessary information has been included. In some
cases, the central authority will deny the application if it contains
information showing that the Hague Convention does not apply. Following
acceptance of the application, a judicial review is conducted, and a case
determination is made. If an application is denied, the left-behind parent
can appeal the decision. The State Department considers a Hague case closed
when (1) the child is returned to the United States or the left-behind
parent can exercise visitation rights, (2) the left-behind parent has
withdrawn the application either explicitly or implicitly by not maintaining
contact with the State Department on the progress of the case and is unable
to be contacted,6 (3) the left-behind parent has lost the case at all
adjudicative levels or has lost the case at one level and decided not to
appeal, or (4) a settlement was reached between the abducting and
left-behind parents. Additional information on the Convention and its
processes is included in appendix I.
Germany, Sweden, and Austria, as party states to the Hague Convention, have
agreed to follow the processes established by the Convention. However, each
country has its own administrative and judicial processes for adjudicating
the cases. Although the State Department can attempt to influence the
processes followed and actions taken by Germany, Sweden, and Austria as well
as other countries, judicial authorities in each respective country make the
final case decisions.
We reviewed files that State's Office of Children's Issues maintains on
cases initiated by left-behind parents seeking the return or visitation of
their children in Germany, Sweden, and Austria under the Hague Convention.7
We reviewed cases opened from January 1, 1995, through May 15, 2000. The
State Department indicated that files for cases opened before 1995 might be
unavailable or incomplete. We reviewed cases filed under the Hague
Convention, including cases in which the foreign authorities subsequently
determined that the Convention did not apply.
To determine the status, outcome, and other characteristics of cases, we
reviewed information maintained in the case files that are State's official
records. The files included administrative, judicial, and communicative
information related to each case. In general, case files included (1) the
application submitted by the left-behind parent to the foreign country's
central authority; (2) State Department correspondence with counterpart
central authorities and U.S. embassies; (3) correspondence with left-behind
parents on case status; (4) judicial and other legal documents; and (5)
other correspondence between left-behind parents, family, lawyers, and
foreign entities involved in the case. However, not all files had the same
types or extent of information, and, in some cases important documents, such
as an application, were not included.
We identified key pieces of information for each case. For closed cases, we
identified (1) when the application was submitted to the Office of
Children's Issues, (2) when the application was forwarded to the central
authority counterpart in the foreign country, (3) what type of application
was submitted (that is, return or visitation), (4) when the case was closed,
(5) how long the case was open−from the time the application was
submitted to State until State closed the case, and (6) what was the case
outcome and what factors were cited as having affected the outcome. For
cases that remained open, we identified the status of the case and what
factors were affecting resolution, such as appeals. We did not independently
assess the rationale underlying decisions of foreign courts or
administrative bodies. State's files contained limited information on the
enforcement of relevant court orders; therefore, we did not attempt to
determine whether decisions of foreign courts or administrative bodies were
actually enforced.
Where multiple reasons were cited for denying left-behind parents' request
for return or visitation of their child, we made a judgment based on
documentation in the case file as to which was the primary reason. When
information in the case file was not clear, we interviewed the U.S.
caseworker and other State Department officials involved in the case to
obtain clarification. We also reviewed data in the Office of Children's
Issues' case-tracking system. However, where data on cases in the files and
the tracking system differed, we relied on the case files. We did so because
of data problems in State's system described in our March 2000 report.8 In
two closed visitation cases, we could not determine whether visitation had
been granted; therefore, in the absence of documentation that visitation had
been granted, we assumed that it had not.
Our analysis adopted the State Department's practice of maintaining an
individual case for each child, even when siblings were involved. However,
we did not adopt State's practice of maintaining a single case when a
left-behind parent sought both the return and visitation of the child. This
situation could occur when the left-behind parent's request for return of
the child was denied and the left-behind parent requested visitation rights.
To simplify our analyses and to ensure that we captured information for
these situations, we established two cases with separate records for the
return and visitation requests. Consequently, our data on the number of
cases may be slightly higher than State's data.
We recorded the results of our analysis of State's files in a database. We
subsequently performed independent checks to ensure that data for each case
were accurate and that the judgment we made regarding the case outcome was
supported by information in the case file.
We conducted our work from May through September 2000 in accordance with
generally accepted government auditing standards.
The State Department provided written comments on a draft of this report
(see app. II). State also provided technical comments that we incorporated
as appropriate. In its written comments, State described a number of actions
that it is taking to deal with the problem of international parental child
abduction, such as increasing staffing in the Office of Children's Issues.
Although State did not comment on its agreement with our report, it did
comment on aspects of the report's scope and methodology.
State noted that our report would have been more useful if we had included
information on cases filed by left-behind parents in Germany, Sweden, and
Austria for return, or access to, children abducted to, or wrongfully
retained in, the United States. Although such cases were not in our work
scope, we agree that information on U.S. handling of cases filed by persons
in other countries would provide a useful benchmark that may help State
address Convention implementation problems with other countries. The State
Department's Office of Children's Issues oversees handling of cases filed by
left-behind parents from other countries and could develop this information.
The State Department noted that in cases where foreign courts ruled that the
child had not been habitually resident in the United States or the
left-behind parent did not have custody rights, the U.S. left-behind parents
had not established that an abduction or wrongful retention had occurred
under the Hague Convention. There were 22 such cases out of the 199 return
cases closed by State; 17 involving Germany, 3 involving Sweden, and 2
involving Austria. State believed that including these cases in our
calculations of the number of cases in which a child was not returned is
misleading. Our report accurately shows the outcomes of cases that were
filed under the Hague Convention, including the outcome of the 22 cases
where U.S. left-behind parents did not establish that an abduction or
retention had occurred under the Convention. We did not independently assess
the rationale underlying rejections of applications. We modified the scope
and methodology to clarify that our analysis included cases in which an
application was filed under the Hague Convention, regardless of whether it
was subsequently determined by foreign authorities that the Convention did
not apply.
State indicated that it often forwards an application to a central authority
in another country even if the application is incomplete (for example, when
the application has not been translated into the language of the foreign
country). State believed that our calculation of the duration of cases was
not an accurate measurement of other countries' case processing time because
the foreign country is not required to take action until it receives a
complete application. We calculated case duration beginning with the day a
left-behind parent submitted an application to the State Department. We
chose this start time to measure the total number of days that a left-behind
parent had to wait until the case was closed. Although actions on some cases
were delayed because submitted applications were incomplete, foreign
authority processing and decision-making accounted for most of the time
taken to resolve most cases. We modified our scope and methodology to
describe how we computed case duration.
State also indicated that its files have limited information on cases and do
not indicate what may have occurred after cases were closed. It suggested
that in some instances an abducting parent may agree to return a child or
permit visitation without State being informed. As described in our scope
and methodology, we based our review on information in State's files, and,
therefore, events that are not documented in the files such as those
occurring after a case was closed or without State's knowledge are not
reflected in our report.
We are sending copies of this report to interested congressional committees.
We are also sending copies to the Honorable Madeleine K. Albright, Secretary
of State. We will also make copies available to others upon request.
Please contact me at (202) 512-4128 if you or your staff have any questions
about this report. Additional GAO contact and staff acknowledgments are
listed in appendix III.
Sincerely yours,
Jess T. Ford, Associate Director
International Relations and Trade Issues
U.S. Parental Child Abduction Cases Involving Germany
Source: GAO analysis of State Department case files.
Left-behind parents filed 257 cases from January 1995 through May 15, 2000,
through the State Department with the German central authority. Of these,
215 cases were filed in which the left-behind parent was seeking the return
of the child to the United States. Of the 215 return cases, 172 have been
closed, of which 67 resulted in the return of the child. In 105 cases, the
child was not returned. Forty-three cases remain open.
There were 42 cases in which the left-behind parent was seeking visitation.
Twenty-six of these cases have been closed, of which visitation was granted
in 14 cases. In 12 cases, visitation was denied. There are 16 cases that
remain open.
For the 5-year period ending 1999, left-behind parents have filed an average
of 47 cases annually with the State Department for the return or visitation
of a child in Germany.
aArticle 13a allows a Hague Convention party state to refuse to return the
child if the left-behind parent did not have custody at the time of removal,
or subsequently acquiesced to the removal or retention.
bNonjudicial actions include determinations by the central authority that
Hague conditions had not been met or that a settlement was reached between
the parents.
cJudicial actions include determinations by legal authorities that the
application for return was filed more than a year after the abduction
occurred or that the left-behind parent did not have custody rights.
dArticle 13b allows a Hague Convention party state to refuse to return the
child if the return would pose a grave risk to the child's mental or
physical well-being.
Source: GAO analysis of State Department case files.
Of the 172 closed return cases involving Germany, 67, or 39 percent, have
resulted in a return of the child. In the remaining 105 cases, the child was
not returned. In 34 of the 105 cases in which a child was not returned, the
case was closed due to parental withdrawal of the application. Withdrawal of
the application was characterized by (1) failure to pay the cost of
litigation; (2) failure to maintain communication with or provide
information to the German central authority to allow the case to proceed; or
(3) a decision to pursue other options, such as private settlements, with
the abducting parent. In some cases, the State Department closed the file
because the left-behind parent ceased contact with the Department despite
efforts by State to contact the parent.
German courts denied return in 16 cases based on a provision of the
Convention, provided for in article 13a, which permits a court not to order
return when it is established that the left-behind parent was not actually
exercising custody rights at the time the abduction or retention took place
(thus removal or retention was not wrongful as defined by the Convention),
or had consented to or subsequently accepted the removal or retention. In 14
other cases, German courts relied on the exception in article 13b in denying
the return of the children. Article 13b permits denial of a return request
if return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.
In another 16 cases, the denial of return occurred because of other judicial
actions. These include four cases in which article 12 was cited in the
denial of return--article 12 of the Convention allows denial in cases in
which the application for return was filed more than a year after the
abduction occurred and the child is settled in his or her new environment
and five cases in which the court ruled that the left-behind parent did not
have custody rights. In seven cases, State's files indicated that the return
was denied by judicial actions but did not have evidence of the specific
reasons for the action. In two of these cases, return was denied but a
German court mediated a settlement for visitation rights.
In 18 cases, the child was not returned because of nonjudicial actions or
circumstances. Of these cases, the central authority denied 13 applications
on the grounds that information contained within the application
demonstrated that Hague qualifications had not been met. In some of these
cases, the applications stated that the left-behind parent did not have
custody rights of the child at the time of abduction, which is a requisite
to establish that a wrongful removal or retention, as provided in article 3,
has occurred. In two cases, a settlement was reached between the parents. In
the remaining three cases, the left-behind parent did not submit all
required documents to either the German central authority or the State
Department.
In 5 of the 105 cases, the child did not wish to return and was considered
by Germany to be old enough and mature enough to make the decision. In one
of these cases, the courts allowed a 9-year old child to exercise this
right.
In one case, the German court ordered the child returned, but the child
could not be located. The abducting parent allegedly removed the child to
another country. In the remaining case, a German court denied return, citing
that the child's habitual residence was not the United States.
Source: GAO analysis of State Department case files.
Twenty-six visitation cases were closed involving Germany, of which 14
resulted in visitation being granted to the left-behind parent. In the
remaining 12 cases, visitation was not granted. Of these cases, visitation
was not granted in nine cases either because of inactivity by the
left-behind parent or withdrawal of the application by the left-behind
parent. In two other cases, State's files had insufficient information to
determine why visitation was not granted. In the remaining case, the court
did not grant visitation, citing that the child did not want to be visited
by the left-behind parent.
Source: GAO analysis of State Department case files.
Twenty of the 43 open return cases were opened in 1999 or 2000, and the
left-behind parents are still in the process of submitting necessary
documents or are awaiting the first court date. In the remaining 23 open
return cases, which were opened before 1999, the left-behind parent (1) has
been asked to provide additional information such as whether custody rights
have been established in the United States, (2) is appealing or is
responding to appeals made by the abducting parent, or (3) has not notified
State or the German central authority on their next course of action (to
pursue or close the case).
In 3 of the 16 open visitation cases, the left-behind parent is waiting for
the first German court hearing. In the remaining 13 cases, the left-behind
parent is either (1) litigating enforcement of visitation rights,
(2) negotiating the terms of visitation rights with the abducting parent, or
(3) preparing financial aid forms to cover the legal costs of adjudicating
the visitation rights.
Note: Data include closed return and visitation cases that were opened from
January 1995 through May 15, 2000. Each case number represents an individual
case.
Source: GAO analysis of State Department case files.
In the 198 closed cases involving Germany, the duration of the cases ranged
from 4 to 1,019 days, with the median duration being 288 days. A primary
reason for the lengthy duration of some cases is the appeal process. A
left-behind parent may go through numerous appeals in an attempt to secure
the return of a child, but the abducting parent can also appeal decisions.
For example, two return cases that lasted 1,019 days each had several
appeals. However, there are other reasons why cases take so long to resolve.
For example, in a 704-day case, the German court ordered the child returned,
but the abducting parent subsequently removed the child to a third country
to avoid enforcement of the return order. The abducting parent and child
have not been located.
In a May 1999 report to Congress,9 the State Department raised concerns
about the length of time Germany takes to adjudicate cases. Although the
Department cited five countries in this report for demonstrating a pattern
of noncompliance with obligations under the Convention,10 it did not cite
Germany for pattern noncompliance. In October 1999, a State official
testified about State's concerns with German courts' inconsistent
application of the Convention.11
In July 1999, Germany reduced the number of courts that could hear cases
filed under the Convention from 600 to 24. State Department officials
believe that the consolidation may improve Germany's handling of Convention
cases because (1) it may be easier to educate a smaller number of courts
about Germany's obligations under the Convention, (2) each of the 24 courts
will hear more Convention cases and should develop practical expertise in
handling them, and (3) the consolidation may limit the possibility of local
bias in the adjudication of cases.
In May 2000, according to State Department officials, President Clinton and
German Chancellor Schroeder discussed a high-profile case involving a
left-behind parent whose children were placed in foster care in Germany by
the abducting parent and remain with foster parents. The left-behind parent
was not informed of the children's placement. In 1995, the German courts
denied return to the father by invoking article 13b of the Convention,
ruling that return may risk psychological harm to the children. At the time
of the abduction, the children were less than 5 years old and living with
both parents. In July 2000, German authorities announced their willingness
to facilitate visitation between the left-behind parent and his children.
However, it is not clear when this visit may take place or whether this
process may lead to the childrens' return.
In June 2000, State Department and German Ministry of Justice officials
created a bilateral working group to address problems with cases filed under
the Convention. The working group met in July 2000 to begin discussing
actions that could be taken to improve the processing of cases. The group
has scheduled another meeting on September 25, 2000, in Berlin, Germany.
State Department officials told us that the agenda for this next meeting
would include discussion of Germany's interpretation of exceptions under the
Convention as well as enforcement of German court decisions.
U.S. Parental Child Abduction Cases Involving Sweden
Source: GAO analysis of State Department case files.
Between January 1995 and May 15, 2000, left-behind parents filed 30 Hague
applications with the State Department's Office of Children's Issues seeking
return of, or access to, children abducted to or retained in Sweden. Of
these cases, the left-behind parent pursued the return of a child to the
United States in 27 cases. Of the 27 cases seeking return of a child from
Sweden, 21 have been closed. Of the 21 closed cases, the child was returned
in 14 cases but was not in 7 cases. Six cases remain open.
There were only three cases in which left-behind parents sought visitation
rights. Of these, two have been closed without visitation being granted. One
case remains open.
aSettlement was reached between the two parents.
bArticle 13b allows a Hague Convention party state to refuse to return the
child if return would expose the child to a grave risk of physical or
psychological harm.
Source: GAO analysis of State Department case files.
Swedish courts ruled in three of the seven closed cases in which the child
was not returned that the child's habitual residence was not the United
States. In two cases, Swedish courts denied return based on an exception in
the Convention (article 13b) that allows denial of a return request if there
is a grave risk that return would expose the child to psychological or
physical harm. In one case, a left-behind parent withdrew the application
because the parents had informally reached an agreement. In the remaining
case, the State Department's file indicated that a mediated settlement had
been reached between the two parties.
In the two closed cases where the left-behind parent sought visitation of
the child, visitation was not granted. In one case, the left-behind parent
withdrew the visitation application, and in the other case, State's files
had insufficient information to determine why visitation was not granted.
Source: GAO analysis of State Department case files.
In four of the six return cases that remain open, the left-behind parent is
appealing a court decision. In each of these four cases, the Swedish court
of first instance denied the request for return of the child. In the fifth
case, the left-behind parent is awaiting the first court hearing on the
case. In the remaining case, the Swedish central authority has requested
additional information from the left-behind parent before the case can be
forwarded to the court for adjudication.
In the visitation case that remains open, the court has awarded visitation
rights to the left-behind parent, but the terms and the enforcement of the
court ruling are still being litigated. The left-behind parent is attempting
to ensure that visitation rights granted by the court will be enforced. This
case is the second action regarding the same child. In the first action, the
left-behind parent unsuccessfully sought the return of the child to the
United States.
Note: Data include closed return and visitation cases that were opened from
January 1995 through May 15, 2000. Each case number represents an individual
case.
Source: GAO analysis of State Department case files.
For the 23 closed cases with Sweden, the duration ranged from 28 to
1,329 days, with the median duration being 168 days. One reason for the
lengthy duration of some cases was Sweden's difficulty in locating a child.
For example, in a case that lasted 1,329 days, the abducting parent evaded
Swedish authorities on several occasions and was eventually located along
with the child in another country, where the abducting parent was arrested.
The child was subsequently returned to the United States in June 2000. In
another case that lasted 619 days, the left-behind parent was granted a
return order, but the Swedish authorities could not locate the abducting
parent and child for over a year. The child eventually was located and
returned to the United States in May 2000.
Another reason for lengthy durations for some cases is the time-consuming
appeal process. For example, in a case lasting 490 days, the left-behind
parent was initially granted return of the child. The abducting parent,
however, won an appeal in Sweden's Supreme Court which, notwithstanding that
the Convention applies to any child who was habitually resident in a party
state immediately before removal,12 denied return on the grounds that the
child was a habitual resident of Sweden. The court found that the child's
habitual residence had become Sweden during the child's 2-year stay with the
abducting parent. The left-behind parent has opened a case seeking
visitation with the child.
Although the number of cases filed involving Sweden is relatively
small--about six annually for the 5-year period ending 1999--the United
States has raised concerns about the country's fulfillment of its
obligations under the Convention. In a May 1999 report to Congress, State
said that Sweden was not in compliance with its obligations under the
Convention.13 Two return cases illustrate why. In a case filed in October
1996, the left-behind parent sought to have his child returned to the United
States, and the Swedish court ordered the return. The abducting parent
absconded with the child, and Swedish authorities were unable to locate the
child until June 2000, at which time the child was returned to the United
States.14 The State Department believed that Sweden was not fulfilling its
obligations in this case to locate "the whereabouts of children wrongfully
removed" to a country (specified in article 7a of the Convention). In July
1998, State delivered a diplomatic note to the Swedish Foreign Ministry
expressing U.S. concerns with Sweden's actions regarding this case.
In a second case, the left-behind parent was initially awarded the return of
his child by Sweden's lower courts in 1995. After losing several appeals in
lower courts, the abducting parent won an appeal with Sweden's Supreme
Administrative Court in May 1996. The Supreme Court overturned the lower
court rulings and denied the return of the child because the child's
habitual residence had over time become Sweden.15 This decision was made
despite a mutually agreed-upon U.S. custody order stipulating that the
child's habitual residence was to remain the United States and that
jurisdiction over issues of custody was to remain with the U.S. court. In
response to the Swedish Supreme Court's decision, State delivered a
diplomatic note in June 1996 to Sweden regarding Sweden's failure to abide
by its obligations under the Convention. As of July 2000, the child remains
in Sweden. Although Swedish courts granted the left-behind parent limited
visitation rights, it is not yet clear whether the left-behind parent will
be able to exercise those rights.
U.S. Parental Child Abduction Cases Involving Austria
Source: GAO analysis of State Department case files.
Six of the nine cases seeking the return of a child from Austria have been
closed. The child was returned in two cases; not returned in four cases; and
three cases remain open.
The two cases in which the left-behind parent sought visitation both remain
open. In one of these cases, the left-behind parent lost an original request
to have the child returned and then applied for visitation rights.
aArticle 13b allows a Hague Convention party state to refuse to return the
child if return would expose the child to a grave risk of physical or
psychological harm.
Source: GAO analysis of State Department case files.
Of the nine return cases involving Austria, six have been closed, of which
only two resulted in the return of the child. Of the remaining four cases,
three denials of return were based on Austrian judicial decisions. In two of
these cases, the Austrian courts ruled that the child's habitual residence
was not the United States. In the third case, the abducting parent
effectively resisted an attempt by Austrian authorities to enforce the
return order. The Austrian appeals court allowed an appeal by the mother to
the Supreme Court, which decided to reopen the Hague case. In April 1997,
the Austrian Court approved the mother's petition not to enforce the order
for return under article 13b of the Hague Convention. It found that the
child had over time become settled in Austria and would be harmed by being
uprooted. In the remaining case, the left-behind parent withdrew the
application. No reason was listed in the files as to why the application was
withdrawn.
The median duration of the six closed cases was 176 days. However, one case
lasted 819 days, and a second case lasted 571 days.
Source: GAO analysis of State Department case files.
One of the three return cases that remain open is being appealed by the
left-behind parent. The Austrian court of first instance denied the return
of the child ruling that the left-behind parent did not have custody. In the
two remaining cases, filed by the same left-behind parent for the return of
two children, the Austrian central authority has requested information on
whether the children are habitual residents of the United States.
One of the two visitation cases that remain open is a second action in which
the left-behind parent lost an initial request for return. In this case, the
left-behind parent was granted visitation rights but is still attempting to
broaden the terms of visitation rights to include visits to the United
States. In the second case, the left-behind parent is appealing the
visitation terms granted by an Austrian court.
Despite the relatively small number of cases involving Austria, the State
Department has expressed concern regarding Austria's implementation of the
Convention. In a November 1998 diplomatic note to Austria, State raised its
concern over the judiciary's lack of understanding of the Convention,
especially its slowness in handling cases filed under the Convention. In
March 1999, State officials met with the Austrian central authority to
discuss overall compliance with the Convention.
Subsequently, State noted in a May 1999 report to Congress that Austria had
demonstrated a pattern of noncompliance with its obligations under the
Convention.16 State based its finding primarily on a case in which the
Austrian court ordered the return of a child to the left-behind parent but
did not enforce the order. The abducting parent absconded with the child,
and their whereabouts were unknown for more than 18 months. Upon
resurfacing, the abducting parent appealed any further enforcement of the
existing return order and won. The Austrian court ruled the child had
"resettled into her new environment" in Austria during the period when the
abducting parent was evading the final return order. State officials have
discussed this case with the Austrian central authority, but the child
remains in Austria.
The Hague Convention and the Processing of Hague Cases
The goal of the 1980 Hague Convention on the Civil Aspects of International
Child Abduction is to protect children from the harmful effects of wrongful
removal or retention. The Convention establishes procedures to (1) promptly
return a child wrongfully removed to, or retained in, a party country to the
country in which the child was habitually resident prior to the abduction or
retention and (2) ensure that custody and visitation rights established
under the law of one party country are respected in the other party
countries. As provided for under article 3 of the Convention, the removal or
retention of a child is considered wrongful when it is in breach of custody
rights actually being exercised by a
left-behind parent when the removal or retention took place. Sixty countries
are party to the treaty, including the United States, Germany, Sweden, and
Austria.
Under the Convention, a left-behind parent who believes his or her child was
wrongfully removed or retained in a foreign country can apply to have the
child returned and/or to have visitation rights to the child. Filing an
application under the Hague Convention is a private civil legal action, and
the left-behind parent is a party to the legal and administrative processes
in the foreign country. The party country governments are expected to
facilitate case processing in a manner that is consistent with the
Convention. As illustrated in figure 1, when an abducting parent refuses
voluntarily to return a child to, or grant visitation to, a child by the
left-behind parent, the case may be resolved through judicial review or
other actions.
aA left-behind parent can file for the return of or access to a child
through the State Department or directly with either the foreign
government's central authority or courts.
Source: State Department.
There is a Convention obligation to return an abducted or wrongfully
retained child below the age of 16 if the application is made within 1 year
from the date of the wrongful removal or retention. However, this obligation
does not exist under the following circumstances:
� The Convention does not apply to any child that was not "habitually
resident in a contracting [country] immediately before any breach of custody
or visitation rights." This provision, under article 4 of the Convention,
does not define "habitual residence." Most U.S. courts, and the courts of
some foreign jurisdictions, define habitual residence as the place where a
child has been physically present for an amount of time sufficient for
acclimatization and that has a degree of settled purpose from the child's
perspective.17 The child's parents need not intend to reside permanently in
a country for it to be considered the child's habitual residence.18
� The Convention does not require the return of the child when the
left-behind parent seeking the child's return "was not actually exercising
custody rights at the time of the removal, or had consented to or
subsequently acquiesced in the removal or retention" (article 3b and article
13a of the Convention).
� The Convention does not require return or visitation of the child if the
country's legal authority rules that "there is a grave risk that [the
child's] return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation" (article 13b of the
Convention).
� The Convention permits but does not require return where return
proceedings are commenced after 1 year has passed since the child's
abduction (article 12 of the Convention) and the child has become settled in
its new environment.
Cases may also be concluded by (1) the left-behind and abducting parent
reaching an agreement with or without judicial mediation or (2) a
left-behind parent withdrawing the application.
Comments From the Department of State
GAO Contact and Staff Acknowledgments
John Brummet (202) 512-5260
In addition to the person named above, Mark B. Dowling, Ryan P. Hartman,
Kathleen M. Joyce, Edward D. Kennedy, Janice Villar Morrison, and Michael C.
Zola made key contributions to this report.
(711517)
Table 1: U.S. Cases With Germany, Sweden, and Austria
Under the Hague Convention Seeking Return of
Parentally Abducted Children or Visitation, Opened
From January 1995 Through May 15, 2000 4
Figure 1: Process for Filing and Adjudicating an Application for Return or
Visitation of a Parentally Abducted Child Under the Hague Convention 45
1. International parental child abduction occurs when a parent removes a
child from the United States or retains a child outside the United States,
with the intent to obstruct the parental rights (including visitation
rights) of the left-behind parent. 18 U.S.C. 1204. The actual number of
cases may be greater because some parents never report the abductions to the
State Department but instead pursue a remedy directly with foreign
authorities.
2. 29 ILM 1501 (1980).
3. Throughout this report, we refer to the left-behind parents. However, any
person, institution, or other body may utilize the Convention.
4. H.Con.Res. 293.
5. This is applicable only when the Hague Convention is in force between the
United States and the other country.
6. The State Department indicated that there is no standard as to when to
close a case under these circumstances.
7. In addition to filing cases through the State Department under the Hague
Convention, a
left-behind parent has the option of filing cases directly with the central
authority or the court system in the relevant foreign country. Because the
State Department does not have data on these cases, we did not include these
cases in our review. We also did not include in our review cases in which a
left-behind parent requested State Department assistance (such as in
locating and verifying the welfare of the child) that is outside the scope
of the Hague Convention.
8. See Foreign Affairs: Specific Action Plan Needed to Improve Responses to
Parental Child Abductions (GAO/NSIAD-00-10 , Mar. 29, 2000).
9. Report on Compliance with the Hague Convention on the Civil Aspects of
International Child Abduction (Washington, D.C.: Department of State, May
1999).
10. The five countries are Austria, Honduras, Mauritius, Mexico, and Sweden.
11. Statement of the Assistant Secretary for Consular Affairs, Department of
State, before the Committee on International Relations, U.S. House of
Representatives, October 14, 1999.
12. Hague Convention, article 4.
13. Report on Compliance With the Hague Convention on the Civil Aspects of
International Child Abduction.
14. This case was cited earlier on page 33 as having a lengthy duration of
1,329 days.
15. This case was cited earlier on page 33 as lasting 490 days.
16. Report on Compliance With the Hague Convention on the Civil Aspects of
International Child Abductions.
17. See, for example, Feder v. Feder, 63 F.3d 217 (3d Cir. 1995) citing In
re Bates, No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal
Courts of Justice, United Kingdom (1989); Friedrich v. Friedrich, 983 F. 2d
1396 (6th Cir. 1993).
18. Elisa Perez-Vera, "Report of the Special Commission," Conference de La
Haye de droit international prive: Actes et documents de la Quatorzieme
session, Vol. III, Child Abduction, para. 66. According to the State Department,
this report by the Hague Conference Reporter for the Convention is
"recognized as the official history and commentary on the Convention and is
a source of background on the meaning of the provisions of the Convention."
U.S. Department of State, Legal Analysis, Hague International Child
Abduction Convention,
51 Fed. Reg. 10494, 10503.
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