REPORT ON COMPLIANCE OF THE HAGUE CONVENTION INTERNATIONAL CHILD ABDUCTION

REPORT ON COMPLIANCE WITH
THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF
INTERNATIONAL CHILD ABDUCTION

Submitted Pursuant to
Section 2803 of Public Law 105-277, (Foreign Affairs Reform and Restructuring Act of 1998), as amended by
Section 202 of Public Law 106-113 (The Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act for Fiscal Years 2000 and 2001)

April 2001

INTRODUCTION:

As mandated by Section 2803 of Public Law 105-277, (Foreign Affairs Reform and Restructuring Act of 1998), as amended by Section 202 of Public Law 106-113 (The Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act for Fiscal Years 2000 and 2001), the following is a report on compliance by signatory countries with the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), done at The Hague on October 25, 1980. Previous such reports were completed in April 1999 and September 2000.

This report discusses unresolved applications filed through the U.S. Central Authority for the return of children to the United States. Under the Convention, return applications may also be filed either directly with the Central Authority of the state where the child is located or with a foreign court with jurisdiction to hear the return request. The left-behind parent may pursue return without involving the U.S. Central Authority. In these circumstances, the U.S. Central Authority may never know about such a request and its disposition. Thus this report cannot give a complete picture of the outcome of all Hague applications for the return of children to the United States.

The U.S. Central Authority considers a Hague application to be "filed" on the date on which the application is forwarded by the U.S. Central Authority to the appropriate foreign Central Authority, rather than the date of the initial receipt of the application by the U.S. Central Authority. This is because in many cases supplementary materials must be obtained from the applicants before the application is considered complete and can be forwarded. Where this occurs, every effort is made by the U.S. Central Authority to obtain the needed information expeditiously.

The U.S. Central Authority may open a Hague case based on a parent expressing concern about his/her child abroad, without requiring that a Hague application be filed or complete. The U.S. Central Authority will forward to other Central Authorities incomplete applications lacking critical supporting documents and inform parents that, while other Central Authorities are often unable to process the case without complete documentation, they may be able to make limited preliminary inquiries while parents are gathering the required documents. Thus, a Hague case may be "open" even if no Hague application has been "filed." This further complicates reporting efforts on compliance, since an opened case may be resolved without an application ever being filed. The Department is naturally pleased if a case can be resolved in its earliest stages, even before an actual application need be filed.

As has been the practice in previous reports, the Department is reporting as "resolved" cases that are determined by the U.S. Central Authority to be "closed" as Hague cases or "inactive." Like other signatory countries, the U.S. Central Authority closes or inactivates Hague cases for a variety of reasons, including: return of child; parental reconciliation; withdrawal of request for assistance; inability to contact the requesting parent after numerous attempts; exhaustion of all judicial remedies pursuant to the Convention; or access rights granted and enforced. In all such cases, regardless of the outcome, no further proceedings pursuant to the Hague Convention are anticipated. Considering these cases "resolved" and closing them as Hague Convention cases is consistent with the practice of other Convention signatories.

Regrettably, the exhaustion of all judicial remedies pursuant to the Convention may result in a case that is "closed" under the terms of the Convention, but that has been resolved in a way that is unsatisfactory to the left-behind parent. The resolution of the case may or may not have been consistent with the Convention''s requirements, independent of whether the left-behind parent is satisfied. Even when the Hague return aspects of a case have been closed, however, the U.S. Central Authority stands ready to provide assistance to the left-behind parent by facilitating access (which may be sought under or independently of the Convention), reporting on the welfare of the child, or assisting the parent to achieve a more satisfactory solution. When the foreign court decision on the Hague aspects of a case indicates a lack of understanding or consideration of the Convention''s provisions, the U.S. Department of State registers its concern and dissatisfaction with the decision through the foreign Central Authority or diplomatic channels. Additional U.S. government interest has been manifested by the U.S. Central Authority, U.S. Ambassadors and Assistant Secretaries of State, as well as the former Secretary of State and Secretary Powell.

Annexed to this report is a list by country of the cases unresolved for more than 18 months as of March 1, 2001. Information that might identify a case to the abducting parent, or to others, has been removed to protect the privacy of the child and the applicant parent. Separately, in various places in the text of this report, certain illustrative cases are used to more fully address questions of compliance with the Convention. For the most part, these examples occurred outside the reporting period and are not, therefore, listed in the annex.

This report identifies specific areas and cases in which signatory countries have not met the Convention''s goals or in which the Convention has not operated to achieve a satisfactory result for left-behind parents in the United States. The U.S. Department of State has continued to take steps to promote better information sharing and more consistent practices among signatory countries. At the March 2001 quadrennial Special Commission meeting to study the operation of the Hague Convention (the Special Commission), the U.S. delegation was a key participant in six days of intensive review and discussion of practices under the Convention. In addition, the U.S. delegation made full use of the opportunities presented by the Special Commission to address with every party state present systemic problems and difficult cases.

In addition to applications for the return of children, this report also discusses applications for access to children. While the Convention did not treat questions of parental access in depth and is less specific about terms of access than terms of return, the Department of State recognizes the importance of children having meaningful access to both parents. The Department has pursued access issues in every appropriate fora, including at the March 2001 Special Commission.

RESPONSE TO SECTION 2803(a):

Section 2803(a)(1) requests "the number of applications for the return of children submitted by applicants in the United States to the Central Authority for the United States that remain unresolved more than 18 months after the date of filing."

Taking into account the above clarifications, as of March 1, 2001, there were 29 applications that remained unresolved 18 months after the date of filing with the relevant foreign Central Authority.

Section 2803 (a)(2) requests "a list of the countries to which children in unresolved applications described in paragraph (1) are alleged to have been abducted, are being wrongfully retained in violation of United States court orders, or which have failed to comply with any of their obligations under such Convention with respect to applications for the return of children, access to children, or both, submitted by applicants in the United States."

The 29 applications identified above for the return of children that remain unresolved 18 months after the date of filing, as of March 1, 2001, pertain to eight countries: Australia, The Bahamas, Israel, Mexico, Poland, South Africa, Spain, and Switzerland. The extent to which these countries and others appear to present additional, systemic issues of compliance under the Hague Convention is discussed further in Sections (a)(3), (a)(4) and (a)(6), below.

In considering the question of compliance and court orders, it should be noted that, while most Hague cases are premised on custody rights established by a court order, a court order is not a requirement for filing a Hague application. Moreover, while the existence of rights of custody and access is a predicate of the Convention, the Convention does not itself require enforcement of foreign custody or visitation orders by states party. The U.S. Central Authority does not, therefore (and cannot fully) record and monitor whether foreign countries recognize U.S. custody or other court orders. The Department recognizes that this information, systematically collected, could prove useful and seeks to obtain it when possible. When fully developed, the Department of State''s new case management tracking system for international parental child abduction cases may enable the U.S. Central Authority to provide better information in the future about the recognition of United States court orders.

Section 2803 (a)(3) requests "a list of the countries that have demonstrated a pattern of noncompliance with the obligations of the Convention with respect to applications for the return of children, access to children, or both, submitted by applicants in the United States to the Central Authority for the United States."

There are many factors involved in implementing the provisions of the Convention, not least because the executive, legislative and judicial branches of each state party have important and varying roles. A country may thus perform well in some areas and poorly in others. The Department of State, building on recommendations of an inter-agency working group on international parental child abduction, has identified the elements involved in implementing the provisions of the Convention and has used these as factors for evaluating country performance. The elements are: the existence and effectiveness of implementing legislation; Central Authority performance; judicial performance; and enforcement of orders. "Implementing legislation" can be evaluated as to whether, after ratification of the Convention, implementing legislation has been enacted that enables the executive and judicial branches to carry out their Convention responsibilities. "Central Authority performance" involves the speed of processing applications; procedures for assisting left-behind parents in obtaining knowledgeable, affordable legal assistance; judicial education or resource programs; responsiveness to U.S. Central Authority and left-behind parent inquiries; and success in promptly locating abducted children. "Judicial performance" comprises the timeliness of first hearings and subsequent appeals and whether courts apply the Convention and its articles appropriately. "Enforcement of orders" involves the prompt enforcement of civil court orders under the Convention by civil or police authorities and the existence and effectiveness of sanctions compelling compliance with orders. Specific instances of failure to enforce orders since September 2000 are addressed in section (a) (6) below.

This report identifies those countries that the Department of State has found to have demonstrated a pattern of noncompliance or that, despite a small number of cases, have such systemic problems that the Department believes a larger volume of cases would demonstrate continued noncompliance constituting a pattern. In addition, the Department recognizes that countries may demonstrate varying levels of commitment to and effort in meeting their obligations under the Convention. The Department considers that countries listed as noncompliant are not taking effective steps to address deficiencies.

As discussed further below, the Department of State considers Austria, Honduras, Mauritius, and Panama to be noncompliant using this standard, and Mexico to be not fully compliant. The Department of State has also identified several countries of concern that have inadequately addressed some aspects of their obligations under the Hague Convention. These countries are The Bahamas, Colombia, Germany, Poland, Spain, Sweden, and Switzerland.

Noncompliant Countries

AUSTRIA: Austria was identified as noncompliant in the Department''s previous Compliance Reports to Congress because of delays in case processing that the Department believed reflected a lack of understanding by the Austrian judiciary of the Convention and indifference to the importance of expeditiously handling cases. This suggested the need for the Austrian Central Authority to better meet its Convention obligation under Article 7 to provide information about the Convention to the judiciary. In addition, Hague court orders were neither enforced adequately, nor were sanctions applied against an abducting parent who defied court orders.

The Department''s concerns about Austrian compliance continue, despite assurances that Austria''s Central Authority has undertaken measures to educate the judiciary. Bilateral exchanges at high levels with the Austrian Government have produced a more forthcoming stance by the Central Authority. The Ministry of Justice is working on legislation that would reorganize court responsibilities for international child abduction cases. The Department is hopeful that these legislative reforms, when implemented, will improve the handling of Hague cases. Legislation passed in November 2000 may also encourage the recognition of joint custody orders and enhance access to both parents. Whether these developments will produce satisfactory results remains in question.

In particular, the Department clearly differs with the Austrian Government on interpretation of Article 13 of the Hague Convention, which addresses protection of the abducted child. One particular case, discussed in previous reports, suggests that the previously cited problems remain systemic. In this case, Austrian courts to the highest court ordered the return of the child to the United States. The taking parent appealed the enforcement of the return order. The courts then determined that the Austrian return order should not be enforced because the delays in the case had caused the child to become settled in Austria and return would cause psychological harm. After the Austrian court denied the child''s return to the United States, the left-behind parent sought access rights under the Hague Convention. The courts finally granted very limited access in Austria. It is not yet clear whether new, more expansive access orders will be granted and, if granted, will be effective in promoting the child''s access to both parents. The Department of State notes that Austria''s Minister of Justice and Minister of Foreign Affairs attempted to assist the parties in this case to seek a resolution that will allow both parents to participate more fully in the life of their child. This attempt at mediation did not succeed, but the Department is encouraged that Austrian government officials have demonstrated a commitment to addressing the issues raised by this case.

The Department notes considerable efforts by Ambassador Hall and former Secretary of State Albright to raise our concerns at the highest levels of the Austrian Government. At the March 2001 Hague Special Commission, the Department''s Assistant Secretary for Consular Affairs and head of the U.S. delegation raised this case and the systemic problems noted above with the Austrian delegation.

HONDURAS: Honduras was cited as noncompliant in the two previous Compliance Reports to Congress. Since that time, there has been no change. The Honduran government has taken no actions with regard to applications for assistance pursuant to the Convention nor has the Government of Honduras submitted domestic legislation to implement the provisions of the Convention in effect between the United States and Honduras.

Honduras acceded to the Convention on March 1, 1994. Hague Convention records state that the Convention entered into force bilaterally between the U.S. and Honduras on June 1, 1994. On July 1, 1996, the Honduran government notified The Hague that it had designated its Junta Nacional de Bienestar Social, now known as the Instituto Hondureno de La Ninez y la Familia (INHFA), as the Central Authority for the Convention in Honduras. Notwithstanding The Hague records, the Honduran executive branch and the INHFA continue to claim that their constitution requires the Honduran Congress to ratify the treaty prior to its being in force. On March 21, 2000, the U.S. Embassy in Honduras issued a Diplomatic Note to the Government of Honduras reiterating U.S. concerns about the implementation of the Treaty and requesting clarification as to what steps the Honduras was taking to enforce the Convention. In response, on October 11, 2000, the Honduran Ministry of Foreign Affairs forwarded the Convention to the President''s Office for approval prior to the Foreign Ministry submitting it to the Congress for ratification. On November 30, 2000, the U.S. Ambassador to Honduras formally advised the Honduran Foreign Minister that by becoming a party to the Vienna Convention on the Law of Treaties in 1979, Honduras accepted the rules in Articles 26 and 27 that every treaty in force is binding upon the parties to it and must be performed by those parties in good faith, and that a state may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The U.S. Ambassador asked how the Government of Honduras planned to rectify the supposed procedural omission and handle the four Hague return applications, filed pursuant to the Treaty since June 1994. Although the Honduran Foreign Minister expressed his concerns about Honduras not recognizing its own accession to the Convention, Honduras has not responded formally.

MAURITIUS: Mauritius was cited in the previous two Compliance Reports to Congress because it had not taken the necessary steps to properly implement the Convention. Mauritius became a party to the Convention in 1993, but only passed implementing legislation in July 2000. To date, Mauritius courts have not accepted two U.S. cases presented to the Mauritian Central Authority after Mauritius became party to the Convention.

In the first case, the Mauritian court rejected return of the child. This rejection was upheld in the appeals court, and the Privy Council refused to hear the case further. We understand that the Mauritius Attorney General''s office plans to submit the Hague application in this case to the Supreme Court for reconsideration. The Department and the U.S. Embassy are continuing to follow this case. The government of Mauritius is holding the second U.S. case pending the outcome of the first. At the March 2001 Hague Special Commission, the U.S. delegation raised the cases and the systemic problems noted above with the Mauritius delegation.

PANAMA: Panama was cited as noncompliant in the two previous Compliance Reports to Congress. The Convention entered into force between the United States and Panama in 1994. Since then, nine Hague return applications have been filed by left-behind parents in the United States. In only one case was a child returned pursuant to orders under the Convention.

The Panamanian Government has not adopted implementing legislation clarifying the role of the Central Authority vis-a-vis the judicial system. Without such legislation, the Panamanian code of family justice takes precedence over the Convention. There is also an apparent lack of understanding among the Panamanian judiciary about the Convention, suggesting the need for judicial education. In January 2000, a Panamanian superior court overturned a lower court ruling of "international restitution" on the basis of appellant''s arguments that included an incorrect claim the Convention was not in force between the United States and Panama at the time of the child''s removal, and that cited the absence of a child custody order at the time of removal (not a prerequisite for Hague compliance).

The Department acknowledges that the Panamanian government has made some efforts on this front. We note that the Government of Panama states that it has written implementing legislation for the Convention. We look forward to adoption and full implementation of that legislation, and remedying of the problems with existing cases. The Panamanian Central Authority has also begun conducting training on the Convention for family court judges.

The Department and U.S. Embassy officials have raised problems with the Convention in several bilateral and other meetings with high level officials of the Panamanian Foreign Ministry and the Panamanian judicial branch. The U.S. Embassy has engaged high level Panamanian officials in discussion on implementation of the Convention. At the March 2001 Hague Special Commission, the U.S. delegation raised the cases and the systemic problems noted above with the Panamanian delegation.

Countries That Are Not Fully Compliant

MEXICO: Mexico is the destination country of the greatest number of children parentally abducted from the United States. While systemic problems continue and a large number of cases remain unresolved, Mexico has shown impressive efforts to better meet its Convention responsibilities. As a result, it was moved from "noncompliant" status (1999 Report to Congress) to "not fully compliant" (2000 Report to Congress). Further progress has been shown since the last report; however, many cases remain unresolved 18 months after the filing of a Hague application. The September 2000 Compliance Report listed 18 such cases; twelve of these remain open. An additional six cases have been added to this report.

There remain several areas in which systemic problems appear to delay resolution of cases. Mexico has no implementing legislation integrating the Convention into the Mexican legal system. The Convention, therefore, is implemented under existing state family code and varies from state to state. This lack of a legal structure facilitating the Convention''s operation is a major obstacle to the Convention''s effective implementation in Mexico. Significant processing delays have occurred in at least two of the states. However, one of these states has recently notified the Mexican Central Authority that the primary judicial concern delaying cases has been resolved and has pledged to process cases more expeditiously. The Department is also encouraged by recent discussions with the Mexican Central Authority concerning plans for the development of implementing legislation.

Mexican law enforcement agencies have not consistently undertaken serious efforts to locate parentally abducted children. Location of the child remains undetermined for eight of the cases included in the September 2000 Compliance Report and in all six of the cases added to this report. In June 2000, Mexico passed a law making familial child abduction a federal crime and forming a federal police unit charged with investigating crimes against children, including the location of missing children. These recent actions may result in improved efforts to locate children.

Although not a problem in recent cases, the amparo (a special appeal claiming a violation of constitutional rights) has been used by taking parents to block Hague proceedings indefinitely and remains a problem in at least three long-term cases. Other judicial delays, such as judges not scheduling hearings in a timely manner, also have affected prompt case resolution.

Several of the cases cited above, and the issue of implementation of the Convention in general, were raised at the Binational Commission meetings in 1999 and 2000 and by the Ambassador in a discussion with a Foreign Ministry Under Secretary in February 2001. In addition, on-going meetings between Mexican and U.S. Central Authority officials have resulted in better communication, case updates, and case resolutions. At the March 2001 Hague Special Commission, the Department''s Assistant Secretary for Consular Affairs and head of the U.S. delegation raised the cases and the systemic problems noted above with the Mexican delegation.

Countries of Concern

THE BAHAMAS: The judicial or administrative authorities fail to act expeditiously in proceedings for the return of the child as required by Article 11. There are three open cases, one open for over five years and another open for almost three years. Neither case has yet been brought to trial.

The Bahamian Central Authority is consistently non-responsive to inquiries and requests by the U.S. Central Authority as required pursuant to Article 7. The Bahamian Central Authority has also been non-responsive to repeated representations by the U.S. Embassy during the past year.

In an encouraging development, the Bahamas Central Authority and the Office of the Attorney General did respond quickly to a Hague application filed in February 2001. This case was resolved by the parents themselves in March without the need for a court hearing. At the March 2001 Hague Special Commission, the U.S. delegation raised the cases and the systemic problems noted above with the Bahamian delegation.

COLOMBIA: Colombian courts frequently request a home study of the left-behind parent in the United States before ordering a child''s return to the United States. Such inquiries go to the merits of custody and are inappropriate for consideration in the context of a Hague proceeding, and are properly left to the courts of the country of habitual residence, as per Convention Article 16. A Hague Convention case is not a child custody case but a mechanism to return a child to his or her country of habitual residence so that the courts there may decide contested custody issues. In addition, the U.S. Central Authority often has difficulty reaching the Colombian Central Authority and in receiving responses to routine inquiries.

GERMANY: In mid-2000, the President and Secretary of State raised the issue of international parental child abduction with their German counterparts. As a result, a binational working group of experts on this issue is conducting discussions and developing a list of specific actions to take to improve the situation. German authorities have been forthcoming in sharing views and information with the United States. For instance, German authorities confirmed that in an effort to encourage greater judicial familiarity and expertise in Hague cases, the number of courts authorized to hear Hague Convention cases has been significantly reduced from over 600 to 24. In addition, since the beginning of bilateral discussions, the German government has introduced expedited procedures for handling Hague cases. In a further encouraging development, there have already been two seminars for German judges to discuss and clarify issues under the Convention. Since the last Report, the German government has made unusual and extensive efforts to assist a left-behind parent in a long-standing case to meet with his children and lay the basis for further progress.

Good progress has been made, and we hope that the ongoing training of judges who handle Hague convention cases will address our concerns in the following areas. In a number of past cases in Germany judges have made an overly broad use of the Convention''s exceptions to return. Parents seeking return of their abducted children are sometimes asked to prove that return would not harm the child, even though the Convention places the burden of proof on the abducting parent. German courts have often used a traditional "best interests of the child" analysis to justify refusing to return children, thereby addressing those issues as if they were domestic custody issues while asserting that non-return is on the basis of Article 13(b) (grave risk of psychological or physical harm). In addition, the wishes of children as young as five years old have been given considerable consideration in German courts, despite the Convention''s requirement that the child must have "attained an age and degree of maturity at which it is appropriate to take account of its views." In other cases, courts have denied the return of abducted children because of evidence provided by individuals who were interested parties in the case.

In a particularly difficult case, several years ago two American citizen children were taken from the United States to Germany by their German mother and placed in foster care there without the knowledge of their American citizen father who was in the United States. Following a lengthy search, the father finally located the children. Despite his many attempts to regain custody of them and bring them back to the United States, he was rebuffed at every turn by the German foster family, judiciary, and bureaucracy. Building on the personal intervention of former President Clinton, former Secretary Albright and efforts of the U.S./German binational working group, German officials recently facilitated the father''s first meeting with the children in over five years.

We are encouraged, however, by the fact that over the last year, German courts have ordered an increasing number of returns under the Hague Convention, and the processing time for such cases has shortened considerably. The educational efforts recently undertaken by the Government of Germany to address these problems will require time to become fully effective. In most of these cases, the children have returned to the United States. This is indeed encouraging and indicates that the consolidation of courts handling Hague cases is having a positive effect. However, in at least one case, German authorities were unwilling to use reasonable measures to carry out a return order in the face of resistance from the German family of the child. Effective enforcement of orders is an issue that must be addressed more directly by German courts.

In access proceedings under Article 21 of the Convention, some German court orders do not provide for children to have a meaningful relationship with both their parents and both their cultures. Access is sometimes limited and conditioned to the point of causing emotional stress to both parents and children. Even when the courts issue access orders, the systemic failure to enforce contempt of court sanctions allows abducting parents to resist enforcement of orders indefinitely. German Ministry of Justice officials have begun a consultative process to determine which steps may realistically be taken under German law to ensure better enforcement of court-ordered access. At the March 2001 Hague Special Commission, the Department''s Assistant Secretary for Consular Affairs and head of the U.S. delegation raised the cases and the systemic problems noted above with the German delegation.

POLAND: The Polish Central Authority has been cooperative and responsive in its dealings with the U.S. Central Authority. However, the U.S. Central Authority has informed the Polish Central Authority of concerns that the Polish judiciary is not fulfilling its obligations under the Convention, in large measure because it considers issues related to custody in Hague proceedings, makes inappropriate use of Article 13 (b), and affords uncertain, uneven enforcement of orders.

There is no specific legislation that implements the Hague Convention in Poland. Hague cases are generally not handled expeditiously. Unless there is a voluntary return, children normally remain in Poland during the entire appeals process, which usually takes a minimum of two years. In addition, in almost every Hague case, Polish courts require the left-behind parent to undergo psychological testing, and in many cases have also requested home studies of left-behind parents. The courts also call and accept the testimony of witnesses on behalf of both parents; this places an undue burden on a left-behind parent in another country. Such inquiries go to the merits of custody and are thus inappropriate for consideration in the context of a Hague proceeding, and are properly left to the courts of the country of habitual residence, as per Convention Article 16. Enforcement of Hague decisions is also problematic, as there is no entity charged with enforcement of Hague rulings. Because these are civil matters, police will not intervene to enforce Hague orders.

There has been some progress in the past year. In October 2000, the U.S. Ambassador to Poland sent a letter to the Minister of Justice regarding our areas of concern. In response, the Ministry stated that Poland required no special implementing legislation due to the nature of the Polish legal system. Procedural legislation was implemented on July 1, 2000 whereby Hague cases may no longer be appealed beyond the Appeals Court (i.e., to the Supreme Court). The Ministry has not addressed our concern that there is no legal requirement for a higher court to hear Hague cases expeditiously, but stated there are changes pending in regulations governing Hague orders, which will simplify enforcement procedures. While a December 1999 Polish Supreme Court review pointed out that proving an Article 13(b) allegation is the responsibility of the taking parent, the Ministry advised us that the Supreme Court decision is not binding on judges adjudicating Hague cases.

Communication with the Central Authority continues to improve. The Central Authority has been responsive to our inquiries and helpful in explaining Hague procedures in Poland. We recently received a copy of a Hague court decision (already translated into English) for the first time in almost four years. The decision, while recognizing that the removal was wrongful, declares that the child is firmly resettled in Poland. There is also an assumption that returning the child to the United States would automatically preclude any exercise of custodial rights by the mother which would cause "grave risk to the child" under Article 13(b). At the March 2001 Hague Special Commission, the U.S. delegation raised the cases and the systemic problems noted above with the Polish delegation.

SPAIN: Lengthy delays in locating children mean that left-behind parents have difficulty filing Hague applications within one year of the child''s abduction. Hague orders for return have not been enforced due to the apparent inability to locate children. The Department and the U.S. Embassy have addressed this issue with the Spanish Central Authority. Spanish authorities conferred with U.S. Embassy officials in March 2001 to provide an update on their efforts to locate children who have been ordered returned to the United States. At the March 2001 Hague Special Commission, the U.S. delegation raised the cases and the systemic problems noted above with the Spanish delegation.

SWEDEN: Sweden was cited in the 2000 Compliance Report as not fully complaint. Progress continues to be made in resolving cases and returning children and the Central Authority has been increasingly cooperative. However, the Department of State remains concerned about the commitment of Swedish authorities to act promptly to locate children and enforce return and access orders issued under the Convention.

As noted in the previous report, the U.S. Ambassador to Sweden met with Swedish justice officials and appeared on Swedish television to press the U.S. interest in prompt action on Hague cases. In one case, a child was located in Sweden and returned to the United States, but only after a lengthy delay and despite initial assurances by Swedish authorities that the child was not in Sweden.

One older case, discussed in previous reports, continues nevertheless to illustrate the potential for disputes over interpretation of the Hague Convention and enforcement of custody orders, which the convention does not address. The Regeringsratten, the Supreme Administrative Court in Sweden, denied a petition by an American parent for the return of a child to the United States. Return would have been required under an existing U.S. joint custody order that included a consensual agreement that the United States would remain the child''s habitual residence and that a U.S. court would maintain continuing and exclusive jurisdiction to resolve all future custody issues, but that allowed the Swedish parent to take the child to Sweden for a two-year period. The Swedish parent filed a petition in a Swedish court seeking to establish sole custody of the child and refused to return the child to the parent in the United States in August 1995, as agreed to in the U.S. custody order. The U.S. parent filed a petition under the Convention with the Swedish Central Authority. Although the lower courts in Sweden ordered the child''s return to the United States, the Regeringsratten found that Sweden had become the child''s place of habitual residence, stating that a determination of habitual residence is a finding of fact that cannot be legally agreed upon in advance. The Department protested to the Swedish Ministry of Foreign Affairs that the failure to recognize the United States as the habitual residence was inconsistent with the goals of the Convention and with the fact that the United States was, in fact, the habitual residence when the custody dispute arose. The child has never been returned to the United States. The applicant in this case subsequently obtained a Swedish court order for joint custody and unsupervised access, but enforcement of the order depends on the acquiescence of the Swedish parent who as of the time of this report has not permitted access.

The lack of effective measures in the Swedish judicial system to grant and enforce access rights compounds the negative consequences for the left-behind parent of a judicial decision not to return a child under the Convention. Swedish courts appear reluctant even to consider permitting access in the United States, in spite of the fact that judicial arrangements could be made in the United States to help ensure the return of a child to Sweden. In the absence of contempt of court sanctions, the abducting parent can, in any case, effectively disregard court ordered access.

Senior officials of the Swedish foreign ministry have visited the United States to meet with the U.S. Central Authority and members of Congress to discuss U.S. concerns on Sweden''s implementation of the Convention. Despite the resolution of several long-standing cases, the failure to grant and enforce access rights, and the lack of effective contempt-of-court sanctions in access cases, and instances where Swedish courts refuse to honor U.S. court orders even when both parents have agreed to a U.S. venue for custody determinations, are areas for continuing concern. At the March 2001 Hague Special Commission, the Department''s Assistant Secretary for Consular Affairs and head of the U.S. delegation raised the case and the systemic problems noted above with the Swedish delegation.

SWITZERLAND: Switzerland is a federal country with powerful cantons. Authorities at the federal level, including the Swiss Central Authority, are cooperative and responsive, but there are problems with cantonal-level governments, courts and child welfare agencies, which have favored the Swiss parent in some parental abduction cases. While federal authorities understand the Hague Convention and take it seriously, they are sometimes reluctant to intervene on behalf of U.S. court orders that are in opposition to Swiss federal or cantonal court decisions. In addition, the federal level will not intervene in an ongoing cantonal legal process supposedly based on new evidence, even if federal courts have already definitively ordered the return of a child. In November 2000, the Swiss Central Authority oversaw the establishment of Coordination Offices in each canton to improve federal-cantonal communication on international parental child abduction matters. While it is too early to determine the impact of these bodies on federal-cantonal cooperation, they clearly represent a step in the right direction.

In the specific case cited in section (a)(6) below, the Swiss federal court ruled that the child must be returned to the left-behind parent in the United States, and the cantonal court of original jurisdiction rejected the taking parent''s appeal of this decision. When the taking parent moved to another canton and jurisdiction was transferred to the new place of residence, this new canton refused to implement the federal court order. In addition, the cantonal court ordered a psychological examination of the child. The examination gave considerable weight to statements made by the eight-year-old child, and concluded that return of the child would cause grave psychological harm because the child had by then become integrated in Switzerland.

The above-referenced case was raised by the Charge d''Affaires with the highest Swiss non-elected children''s issues official in October 1999. The Embassy made a demarche to cantonal authorities. On November 14, 2000, the Ambassador and Consul General delivered a demarche in this case to the Minister of Justice. In March 2001, the Embassy learned that the Aargau cantonal court, which had been slated to rule on the left-behind parent''s appeal of the canton''s order of non-return, was likely to reach a decision in April 2001. The Embassy maintains ongoing close contacts with the Swiss Central Authority on children''s issues.

Section 2803 (a)(4) requests "detailed information on each unresolved case described in paragraph (1) and on actions taken by the Department of State to resolve each such case, including the specific actions taken by the United States chief of mission in the country to which the child is alleged to have been abducted." The information requested under this section is attached in Attachment A.

Section 2803 (a)(5) requests "information on efforts by the Department of State to encourage other countries to become signatories to the Convention." The Department avails itself of appropriate opportunities that arise in bilateral contacts to persuade other countries not party to the Convention of the advantages that would derive from ratification or accession. The Assistant Secretary for Consular Affairs routinely raises the Convention in talks with foreign officials on other bilateral consular matters. The Department maintains a library of talking points and materials for its overseas posts to use in explaining to foreign governments the advantages of adhering to the Convention. The Department and its overseas posts have worked with the following countries in the past year to encourage accession, ratification, or passage of implementing legislation: Costa Rica, El Salvador, Ghana, Guatemala, Japan, Lithuania, Nicaragua, Panama, Peru, Thailand, and Trinidad and Tobago. Subsequently, El Salvador, Nicaragua, and Trinidad and Tobago acceded to the Convention. The Department is in the process of assessing the ability of these countries to comply with the Convention.

Section 2803 (a)(6) requests "a list of the countries that are parties to the Convention in which, during the reporting period, parents who have been left-behind in the United States have not been able to secure prompt enforcement of a final return or access order under a Hague proceeding, of a United States custody, access, or visitation order, or of an access or visitation order by authorities in the country concerned, due to the absence of a prompt and effective method for enforcement of civil court orders, the absence of a doctrine of comity, or other factors."

The reporting period is considered as the period from July 30, 2000 until March 1, 2001. The information provided is that available to the U.S Central Authority within these dates.

GERMANY: Orders for parental access are sometimes not enforced due to a lack of effective sanctions for failure to comply with orders. More recently, as noted above, a problem has arisen in one case with regard to enforcement of a return order.

ISRAEL: Orders for return have not been enforced due to difficulty in locating the child and taking parent. In several cases, orders for return have been overturned on appeal or not executed because of provisions in the orders requiring guarantees regarding the taking parent''s immigration and employment status upon return to the U.S. with the child.

SPAIN: In several cases, orders for return have not been enforced because local law enforcement officials have not been aggressive in locating the children.

SWITZERLAND: Federal court orders for return and access must be enforced by local officials. In one significant case, local officials have failed to enforce an order for return issued by the federal courts.

Section 2803 (a)(7) requests "a description of the efforts of the Secretary of State to encourage the parties to the Convention to facilitate the work of nongovernmental organizations within their countries that assist parents seeking the return of children under the Convention." Because of the recent change in Administration, there have not been opportunities for the Secretary of State to engage in such efforts.

 

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