Richard S. Diamond Family Law Blog on Lawyers.com

Approximately 200 nations have signed on to an international  treaty known as the Hague Convention on child abduction, which treaty requires the country where a child is taken to ( regardless of whether the child is taken by a biological parent or not) to return the child to his/ her country of origin.

A central purpose of the treaty is to prevent parents from abducting their children from one country and taking their children to another country hoping that the new country will permit them to remain with the child and not force them to return home with the child. Unfortunately despite signing the treaty and agreeing to all of its obligations, it appears that there are numerous counties who are not honoring their obligations under the treaty, including  Mexico and  Switzerland.

The U.S. State Department recently published its annual Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction,” the treaty under which participating countries agree to return abducted children to the United States.

Congress requires a report each year that analyzes country compliance in the areas of 1) Central Authority performance, 2) Judicial performance and 3) Law enforcement performance.  Countries that the State Department considers to be failing in all three categories are listed as “Non Compliant”.  See 42 U.S.C. § 11611(a)(2).  Countries that demonstrate a failure to comply with the Convention in one or two performance areas are listed as showing “Patterns of Noncompliance.”  See 42 U.S.C. § 11611(a)(3).

In the recently published report that covers fiscal year 2008, the following designations were made:

Countries non compliant:  Honduras

Countries demonstrating patterns of non-compliance: Brazil, Chile, Greece, Mexico, Slovakia, Switzerland and Venezuela

Mexico had the highest incidence of reported child abductions of children taken from the United States, 316 with only 92 children returned.

What is shocking reading this report is that countries such as Switzerland, with efficient government and an established court system are listed as “non-compliant”.  As the report notes, Swiss courts often treat Convention cases as custody decisions, invoking the child’s “best interests” for denying return. There is no authority for this under the Convention.  Article 16, specifically states that a court deciding a Convention application shall not decide the merits of custody rights, instead the child should be returned to the country of habitual residence for any custody determination.

Additionally, the report notes that Swiss courts have shown bias towards mothers who abduct children.  In one notable case where Swiss courts refused to return a child back to the father who lived in the United States, the European Court of Human Rights issued a decision finding that Switzerland had violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits interference by a public authority with the exercise of an individual’s right to respect for his family life.  Despite this ruling, the U.S. father has still been unsuccessful in having the Swiss courts assist him in getting access to his child.  

The report notes the disturbing trend that returns of children under the Convention are increasingly coming with preconditions or “undertakings’ e.g. guaranteed visas to enter the United States, pre-payment of legal fees or long-term spousal support.

The United States partners with 68 countries who are party to the Convention but most are in Europe, North America and South America.  Many countries are not party to the Convention. Those with the highest incidence of reported child abductions from the United States include: China, Egypt, Ghana, India, Jamaica, Japan, Jordan, Kenya, Lebanon, Morocco, Nigeria, Pakistan, the Philippines, Russia, Saudia Arabia, South Korea and the United Arab Emirates.

This post was previously published on my New Jersey Divorce Law Blog. For a consultation on any New Jersey family law matter please contact me at 973 379 9292. Further information on the law firm of Diamond & Diamond, P.A. can be found on our web-site.