Smith Introduces the Philips-Davenport International Child Abduction Return Act

News Item

A new source of hope for left behind parents
Smith Introduces the Philips-Davenport International Child Abduction Return Act

Washington, Jul 28, 2017
Rep. Chris Smith (R-NJ), author of the Sean and David Goldman International Child Abduction Prevention and Return Act (P.L 113-150), introduced an innovative new bill that will automatically remove tariff benefits for countries that are found to be out of compliance in returning children home—the “Bindu Philips and Devon Davenport International Child Abduction Return Act of 2017.”
“Bindu Philips fought valiantly in India for over eight years for the return of her abducted twin sons, only to be given the incessant delays in India’s courts and little support from the Obama Administration,” said Smith, Chair of the House panel on global human rights. “Just recently, she was finally granted a short visit with her children in India, but the children’s father marred the time with harassment and monitoring, refusing to let the children and mother leave a hotel for 7 days.
“Devon Davenport has had a return order for his daughter, Nadia, from Brazil since 2009. He has won every single one of the 24 appeals against the order—but Brazil still will not enforce its own return order.
“Shockingly, 11 of the 13 countries found to be non-compliant in the annual Goldman Report by the U.S. State Department in the return of abducted American children are still receiving billions of dollars in tariff exemptions under the Generalized System of Preferences. We must cease rewarding countries that aid abductors. When is enough finally enough?”
In 2016, 629 American children were taken from the United States by one parent without the consent of the other, often in direct violation of valid United States court orders, United States criminal law and the Hague Convention on the Civil Aspects of International Child Abduction. The Obama Administration’s refusal to apply sanctions against countries that fail to return abducted children has led to a rate of return of only 16%.
“For years, the U.S. government response to abductions has been an engraved invitation to abductors,” said Smith. “Abductors have an 84% chance of no penalty for ripping their child from home and family in the United States. It is my hope and expectation that this year, the State Department will begin to act more decisively on behalf of American families so that more children come home.”
The new bill amends the Generalized System of Preferences, a trade program designed to promote economic growth in the developing world through duty free entry for some products, so that any country named as non-compliant in the prompted resolutions of abductions would lose trade benefits granted by the United States. The new legislation ensures that the loss of trade preference would be automatic and not dependent on the Executive Branch applying sanctions.
Abducted children in a foreign country are often blocked from any contact with the American parent, losing half of their family and heritage.  Such children are also at grave risk of serious emotional and psychological problems. Many such children experience anxiety, eating problems, nightmares, mood swings, aggressive behavior, resentment and fear. Every day the abduction continues only compounds these harms.
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Source:  “Smith Introduces the Philips-Davenport International Child Abduction Return Act”, News Item, Congressman Chris Smith’s website, published on 28 July 2017

 

New international family law convention proposed

New international family law convention proposed

Hague Convention
If created, the new international treaty would join the three existing Hague Conventions on family law matters – the 1980 Convention on the Civil Aspects of International Child Abduction; the 1996 Convention on Parental Responsibility and Protection of Children; and the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

Hague Conventions derive their name from the Dutch city of Den Haag (The Hague), where the first was signed as long ago as 1899. Since 1951 38 Conventions on different aspects of “private international law” have been created.

An expert’s group had been drawn together to explore issues surrounding the enforcement in participating countries of legal orders and agreements concerning children made in other participating states. Following their investigations they proposed the creation of the brand new Convention to facilitate this process and add value to the three earlier family law Hague Conventions.

A situation in which a family order made in one country is generally recognised and enforced in other nations was in the best interests of children they declared.

The three existing family law Conventions do not address longer term family arrangements – for example, child maintenance or contact, or other financial issues, including property. If created, the new Convention would provide an efficient and simple method for cross-border enforcement of such matters.

Stowe Family Law Web Team

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Source:  “New international family law convention proposed”, Stowe Family Law Blog, 16 July 2017

Most kidnapped children are taken by a parent. That doesn’t mean they’re safe

Most kidnapped children are taken by a parent. That doesn’t mean they’re safe

 

By Jane K. Stoever July 21
Jane K. Stoever is a clinical professor of law and director of the domestic violence clinic at University of California, Irvine School of Law.

When my client told me her abusive ex-boyfriend had shown up after a long absence, beaten her and kidnapped their children, I assumed the police would respond quickly and issue Amber alerts. But a D.C. police officer refused even to write a report, dismissing the complaint as a “private family matter” and opining, “What safer place for the children than with their dad?”
We were met with similar indifference from the child-abduction unit supervisor, who pondered, “Isn’t possession nine-tenths of the law?” (No, it’s not.)
The reaction of the judge in the family court’s domestic violence unit was equally alarming. She incorrectly questioned whether she had jurisdiction, now that the children were several states away. And when she learned that my client had declined her ex-boyfriend’s marriage proposal, and that he’d texted that if she wanted to see their children again she would agree to marry him, the judge said, “Aw, it sounds like he’s just heartbroken.”
Eventually, persuaded by my clinical law student’s recitation of the applicable law and by my client’s visible bruises, the judge entered a temporary protection order that awarded my client custody of the children. After several days on the road, the ex-boyfriend said he would return with the children if my client would not pursue criminal charges for abduction. She desperately wanted her children back home with her and readily agreed.

I was relieved — but also disheartened that the justice system seemed to care so little about the plight of these children who had been abducted by their abusive, estranged father.

(Asked by The Washington Post this past week about parental abductions, a D.C. police spokeswoman said that the department “treats each missing persons case with seriousness and utmost zeal. We use the press, social media and a variety of other avenues to locate missing children as quickly as possible.”)
On the other side of the country, when I began representing abuse survivors in California five years ago, I saw the same state refusal to respond to abductions committed by abusive parents. One client found our domestic violence law clinic after her abuser reported her to immigration authorities, fled with their infant and went to extreme lengths to hide. His actions violated multiple laws. Moreover, we had serious concerns about the baby’s safety — our client had been granted a domestic violence green card because of the life-threatening abuse she experienced from this man. Yet several police departments refused to take a police report on the kidnapping, even when presented with evidence of the man’s domestic violence convictions. I had to read aloud to a police chief the criminal-code section detailing how taking, withholding or concealing a child from someone who has a lawful right to the child is the definition of child abduction. Even with a police report, though, the district attorney’s office did not act.

The case haunted my students in the legal clinic, my co-teacher and me. “Have you found my baby yet?” our client asked every time we spoke with her. And so we continued to search for possible leads, hired private investigators, hung “missing child” posters throughout the region and engaged in a media campaign that, one year after the baby went missing, proved key to recovering her.
Our society fixates on “stranger danger.” Popular media portrays abductors as pedophiles, serial killers and other strangers who prey on children. Parental and societal fears are fueled by the well-known murders of Danielle van Dam, Adam Walsh, Polly Klaas, Samantha Runnion and Carlie Brucia, and the stories of Elizabeth Smart, Erica Pratt and Jaycee Dugard, who lived to tell of their kidnappings.
But contrary to the dominant narrative, nearly all child abductions are perpetrated by family members. Stranger abductions — certainly alarming and tragic — actually occur with “lightning-strike rarity,” as a report in the journal Criminal Justice Studies put it, in contrast to the more than 200,000 parental abductions committed each year that meet the criminal criteria and are not merely delayed visitations or misunderstandings.

That might seem reassuring, but it shouldn’t be. Abduction by a parent can pose significant risk to a child’s safety and well-being. And for the domestic violence survivor whose child is abducted, this is the ultimate form of abuse.
Parental abduction frequently is part of a larger dynamic of domestic violence. Most left-behind parents report that the abductor physically abused them, threatened their lives and threatened to kidnap the child before doing so. Particularly when the victimized parent seeks to end the relationship, abusive partners commit abduction as a way to exert control, fulfill a quest for revenge or hurt them. And it works. Left-behind victims report that the trauma of losing their children far exceeds any physical, sexual or mental abuse they experienced during the relationship.

Abusive abductors may also be motivated by a fear of losing custody or a desire to gain custody of a child. Because such scenarios are common, and parental abductions occur in families in discord, police often dismiss complaints as messy family situations, assume complainants are overreacting or think that parents are embellishing reports of parental abduction to further their own custody claims.

Domestic violence is also a motivating factor in a smaller number of abduction cases in which an abused parent seeks to safeguard a child from harm. Abuse survivors who flee with their children tend to do so when the courts and law enforcement have failed to provide needed protection.
As with stranger abduction, children kidnapped by their parents are often traumatized and harmed. Unsurprisingly, these children face greater physical danger when the abducting parent has a history of perpetrating domestic violence. A Justice Department study concluded that one-third of children abducted by a parent suffer serious sexual, physical or mental harm, with many more children experiencing other emotional and physical trauma. The abducting parent’s deception, which may involve adopting a fugitive lifestyle, creates its own set of problems. Children may be pulled out of school, denied medical attention, coached to lie and warned away from making friends. While some abducting parents return children on their own and some left-behind parents succeed in their self-initiated efforts, 20 percent of abducted children remain missing for more than a month, and some are never recovered.
These kidnappings can end tragically. In one prominent case, Simon Gonzales violated a restraining order and abducted his three daughters in Colorado in 1999. Their mother sought help from police seven times on the phone and twice in person in the hours that followed, but she was rebuffed with comments such as, “At least you know the children are with their father.” Gonzales went to a police station that night and opened fire. After a shootout, police found the bodies of the three girls inside his truck.
Despite the harms of parental abduction, and state and federal laws prohibiting parental kidnapping and custodial interference, these crimes are not typically viewed as requiring legal intervention. Police response and prosecution are rare.
The Justice Department reports that although an estimated 155,800 children are victims of “serious” parental abductions each year, only 30,500 police reports are officially registered, 9,200 cases are officially opened in prosecutors’ offices, an estimated 4,500 arrests for parental abduction are made, and 3,500 criminal complaints are filed. In a national survey of law enforcement offices, about half of the 17,000 responding offices said they always refuse to take a missing-child report for a parentally abducted child, instead viewing it as a private family issue or a matter for family court.
The failure to initiate investigations, take reports or obtain photographs is contrary to national guidelines recommending that police be immediately dispatched in response to all complaints of missing or abducted children. Police often instead misinform parents that the child has to be taken across state lines or be missing for a specified period of time before they can respond. Parental abductions most often occur during scheduled visitation with the non-custodial parent, so police instruct the left-behind parent to wait, presuming the issue will resolve itself. However, the first few hours are crucial for locating an abducted child, and any delay favors abductors.
The reluctance to intervene does not reflect legal gray areas. Although the 1932 Federal Kidnapping Act, which made abduction a federal offense, excluded parental abduction based on the presumption that parents always act out of concern for their children, numerous federal and state laws now address parental abduction. For instance, the 1990 National Child Search and Assistance Act prohibits law enforcement agencies from creating waiting periods before accepting a missing-child report, regardless of custody status. Congress went further with the International Parental Kidnapping Crime Act of 1993 and the Uniform Child Abduction Prevention Act of 2006. Current laws could be improved — especially at the state level, where some states require preexisting custody orders to act and others lack family violence defenses — but the failure to implement and enforce existing laws is the first hurdle.
So how can the failure of legal authorities to respond to parental abduction be explained? Although domestic violence is increasingly recognized as a serious crime, we still tend to be socialized to believe that danger lurks outside the home and that harm doesn’t often occur within a family. Violent crimes committed by strangers garner significantly more resources and attention, and are more likely to lead to arrests and prosecution, than identical crimes committed against family members or intimate partners.
At the same time, our society longs for parental engagement, especially by fathers. Judges tend to reward fathers who demonstrate interest in custody of their children — overlooking histories of domestic abuse.
Gendered and racialized intervention practices are also telling. The majority of parents who abduct their children, including abusive abductors, are white men . Yet women are more likely than men to be convicted and incarcerated for abduction-related offenses, even when they are fleeing to protect their children from family violence. Studies show that police and courts trivialize and distrust legal complaints from women but don’t apply the same skepticism to complaints from men.
And beyond the context of parental abduction, the state has shown itself to be more comfortable targeting, regulating and punitively intruding on families of color, especially poor ones, than it appears to be with white families. For example, poor parents of color are disproportionately incarcerated for not paying child support, which is pitched as a crime against the state. Low-income women of color who experience abuse are often charged with neglect for exposing their children to domestic violence or for living in conditions of poverty. Officials also increasingly arrest and prosecute abuse survivors who inflict defensive wounds, and they incarcerate victims who refuse to testify against their abusers.
Although state intervention is unwarranted and unwanted in some family matters, it is desperately needed to prevent and respond to abusive abductors.
Because histories of violence and kidnapping threats commonly precede parental abduction, family court judges could issue more restrictive visitation or custody orders to prevent kidnappings. Law enforcement, prosecutors and judges also need training on the many laws that facilitate abduction investigations, authorize protective court orders, and enforce and prosecute custodial interference or child abduction. And they need to be able to distinguish between the very different motives and situations of abusive abductors and survivor abductors. Exemptions or affirmative defenses for family violence victims also need to be available and used.
I woke up on Thursday to an email from a fellow West Coast lawyer who represents abuse survivors, seeking help recovering a child who was abducted by an abusive parent to the Midwest. The parent had fled their state with the child in violation of a domestic violence protection order, but, still, law enforcement officials refused to intervene because the child was with a parent.
These children, and the left-behind parents who desperately ask, “Have you found my baby yet?,” deserve the help of our justice system.

Twitter: @jane_stoever

Source:  “Most kidnapped children are taken by a parent.  That doesn’t mean they’re safe”, The Washington Post, 21 July 2017

Japan signed abduction treaty but for ‘left-behind’ parents that doesn’t mean much

Japan signed abduction treaty but for ‘left-behind’ parents that doesn’t mean much

The Washington Post 

James Cook is a Minnesota man in a custody battle with the Japanese mother of his children. (James Cook,/Courtesy of James Cook)
James Cook wants his four children home in Minnesota. His estranged wife, Hitomi Arimitsu, says they want to stay with her in Japan. And so they have been going around in circles through the courts for almost three years.

If child custody battles are messy, expensive affairs when the parents live in the same country, they’re exponentially more so when the parents live in different countries and are fighting over where the children should live and which place should have jurisdiction.

Japan signed The Hague Abduction Convention, the treaty that governs international child abductions, in 2014 but is struggling to put its provisions into effect.

That is where the Cook family is caught.

“For three years of their lives, these kids have not had their dad. Kids need their dad, they need both their parents,” Cook said via Skype from his home in Minnesota. “I can’t describe to you the hell that this has been.”

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, had lived in the United States for almost the whole time they had been together. But three years ago this week, with their marriage on the rocks, Cook agreed that Arimitsu could take their four children to Japan for the summer — with a notarized agreement that she would bring them back.

When that ended, they agreed that Arimitsu and the children would stay on a little longer, while Cook, who had lost his job, looked for work.

By the end of the year, Cook realized his family wasn’t coming back.

In the past two years, the pair has been going through acrimonious court battles in Osaka and in Minnesota, and each has won some and lost some rounds.

As is common in such cases, they have wildly different versions of events and focus on the rounds they’ve won.

Cook says an order in Minnesota last month, which found Arimitsu in contempt of court and upheld two orders from December that she return the four children to their father, should stand. In that case, the judge awarded Cook temporary sole legal and physical custody of the children.

But Arimitsu, through her lawyer Tomoko Kamikawa, said that because the Osaka High Court in February rejected Cook’s request to have the children returned, there is no valid return order under The Hague Convention. Cook has appealed this ruling to Japan’s Supreme Court.

The children do not want to return to the United States, Kamikawa said.

The crux of the problem, Cook and other “left-behind parents,” say, is that Japan — unlike other signatories — has no way of following through on its Hague commitments.

“Enforcement is one of the key problems,” said John Gomez, an American who heads the Kizuna Child-Parent Reunion group in Tokyo and is helping Cook. “Every country has to create implementation legislation to enforce their orders, but Japan basically cannot enforce their orders.”

The legislation that Japan passed to implement The Hague provision forbids the use of force, and stipulates that the children must be retrieved from the premises of the parent who has taken them. The “taking parent” must be present. The enforcement officers are basically bailiffs who are more used to repossessing washing machines than extracting children from emotionally charged situations.

This essentially means that enforcement involves an official at the gate calling for the children to come out, while the taking parent is inside with them.

“All of this was completely predictable,” said Colin Jones, a law professor at Doshisha University in Kyoto and an expert on child custody law in Japan. “Without dealing with enforcement methods, it was just a matter of time until a case like the Cook case happened.”

The U.S. government has expressed misgivings about Japan’s implementation of The Hague convention provisions. “The [State] Department is concerned about Japan’s ability to quickly and consistently enforce return orders,” it said in its 2017 annual report on international child abductions.

But the Japanese government says that it is making good progress.

“It’s been only three years since Japan entered into The Hague Convention,” said Hajime Ueda, director of The Hague Convention Division in the Foreign Ministry. “It takes time because every case is unique. From that point of view, we have been doing quite a good job.”

Eight children involved in five cases have been returned to the United States since Japan signed The Hague Convention, Ueda said.

The convention was a politically charged issue in Japan, with a substantial amount of opposition to signing it, so even becoming a signatory in 2014 was a major achievement. Experts note that it took other signatories some time to change domestic legislation to allow enforcement of The Hague Convention provisions; Germany, for instance, took about five years.

The U.S. Embassy in Tokyo is dealing with about 70 child abduction cases, 42 of them filed since Japan signed the convention, and 10 of those seeking the return of children to the United States.

The other cases just involve access — another thorny issue in Japan, where there is no concept of joint custody.

The prevailing wisdom in Japan says it is upsetting or disruptive for children to continue to see both parents after a marriage breaks down, so one parent — almost always the mother — gets full custody and the other parent usually has two hours’ access to the children each month.

“Visitation is the most problematic thing with Japan. A lot of cases about return orders are actually about access, about the noncustodial parent being able to maintain a relationship with their child,” said Jones of Doshisha University.

According to Gomez’s research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

Children age out of the system at 16, so time is on the taking parent’s side, according to people involved in custody disputes.

And nothing will change for international custody cases until the domestic system that favors sole custody changes, experts say.

This is difficult because Japan has a family registry system, which operates as the foundation for all documentation. A person can be on only one family registry so after a divorce, children are usually removed from their father’s family registry and placed on their mother’s.

“The parent who becomes noncustodial loses all of their parental rights and effectively becomes a stranger to the child,” said Bruce Gherbetti, another “left-behind” parent who is advocating for change through the Kizuna group.

For now, that leaves Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his children.

“I’m sad we are in this mess and I’m concerned about my children,” he said. “This is the heartbreak of being a ‘left behind.’ ”

An earlier version of this article misspelled the name of Hitomi Arimitsu. The story has been updated.

 

Source:  “Japan signed abduction treaty but for ‘left behind parents’ that doesn’t mean much”, The Washington Post, 16 July 2017

 

JT leading article (from Jan 2017): “Rules” on handing over a child

The Japan Times

Rules on handing over a child

Court rulings ordering a divorced parent to hand over a child to his or her former spouse are often ignored — largely because there are no specific procedures under the law governing enforcement of such a custody transfer. A revision of the relevant law is imperative to ensure that court decisions on child custody are enforced. There are two important points for consideration — creating a clear rule for the compulsory enforcement of a court order by a legally empowered official, and imposing financial penalties on the parties defying court orders to get them to comply. Either way, due consideration should be paid to the welfare of the children, including the potential psychological damage from the procedure.

In the absence of a specific legal procedure for custody transfers between divorced parents, the Civil Execution Law’s provision on the transfer of movable property is currently referred to in enforcing a court ruling ordering a divorced parent to hand over a child to the other party. But it would not stand to reason to treat children as if they were “property.”

In the case of international marriages, the compulsory execution of a court order on a custody transfer is possible under the 1980 Convention on the Civil Aspects of International Child Abduction, popularly known as the Hague Convention. As of November, 95 countries were parties to the convention, which Japan signed and ratified in 2014. A law setting domestic procedures needed to implement the convention has been enacted and put in force.

The law includes a detailed provision stating what an enforcement officer in charge of removing a child from a parent who abducted that child to Japan and handing that child over to the other parent should and should not do, including the need to try to persuade the abducting parent and asking for police assistance if necessary. The provision says an officer can use some form of power to restrain or make a parent who resists giving up the child comply, but prohibits the officer from using this power if it causes harmful effects on the child. The law says that if a court rules that a child must be moved back to his or her “state of habitual residence,” the parent who won the case can in principle ask for the decision to be executed by an enforcement officer after two weeks have passed. This rule leaves room for the disputing parents to agree on the transfer of the child in an amicable way without the involvement of an enforcement officer.

Last year, Justice Minister Katsutoshi Kaneda asked the Legislative Council, an advisory body, to look into revising the Civil Execution Law to set down specific procedures to enforce court decisions ordering the handover of children between divorced parents. Based on its recommendation, the government is expected to submit a bill for the revision to the Diet as early as next year.

Setting down the relevant procedures makes sense given what is happening to divorced parents and their children. In 2015, there were 97 cases in which divorced parents with parental prerogatives or the care and custody right over their children asked that their former spouses turn the children over to them, but the children were handed over in only 27 of the cases, according to the Supreme Court.

Merely setting the procedures for a compulsory execution of the court order — which would involve an enforcement officer stepping in to physically remove a child from one parent and hand him over to the other — may be too rigid and may not serve the intended purpose of the amendment. The procedures should include an indirect approach that may seem lukewarm but will eventually lead to the transfer of a child. One option would be to fine a parent who refuses to comply with the court and, to encourage compliance, the size of the fine would rise as long as the parent keeps refusing to obey the order.

Priority should be placed on the indirect approach so that the child handover can take place in a more amicable manner. But a mechanism should also be included that will trigger a compulsory enforcement if, for example, it’s suspected that a parent ordered to give up the child is seeking to dodge the ruling by continuing to make the payments. The law to implement the Hague Convention says that the removal of a child must be carried out when the child is together with the parent who took him or her to Japan, out of consideration for the psychological effects on the child. The advisory council should take into account how to minimize the risk of trauma on children in executing court rulings.

Source:  “Rules on handing over a child”, The Japan Times (leader), 26 January 2017