U.S. GOVERNMENT PRINTING OFFICE

70–986 DTP WASHINGTON : 2001

S. HRG. 106–988

THE JUSTICE DEPARTMENT’S RESPONSE TO

INTERNATIONAL PARENTAL KIDNAPING

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON

THE JUSTICE DEPARTMENT’S RESPONSE TO INTERNATIONAL PARENTAL

CHILD KIDNAPING

OCTOBER 27, 1999

Serial No. J–106–56

Printed for the use of the Committee on the Judiciary

(

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

STROM THURMOND, South Carolina, Chairman

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

CHARLES E. SCHUMER, New York

JOSEPH R. BIDEN, JR., Delaware

ROBERT G. TORRICELLI, New Jersey

PATRICK J. LEAHY, Vermont

GARRY MALPHRUS, Chief Counsel

GLEN SHOR, Legislative Assistant

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(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina ........... 1

DeWine, Hon. Mike, U.S. Senator from the State of Ohio ................................... 2

CHRONOLOGICAL LIST OF WITNESSES

Panel consisting of James K. Robinson, Assistant Attorney General, Criminal

Division, U.S. Department of Justice, Washington, DC, accompanied by

Richard A. Rossman, Chief of Staff, Criminal Division, U.S. Department

of Justice, Washington, DC; and Jamison S. Borek, Deputy Legal Adviser,

Department of State, Washington, DC ............................................................... 4

Panel consisting of Catherine I. Meyer, co-chair, International Centre for

Missing and Exploited Children, Washington, DC; Laura Kingsley Hong,

Squire, Sanders and Dempsey, Cleveland Heights, OH; John J. Lebeau,

Jr., Palm Beach Gardens, FL; Craig E. Stein, attorney at law, Miami

Beach, FL; and Ernie Allen, president and chief executive officer, National

Center for Missing and Exploited Children, Alexandria, VA ........................... 28

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Allen, Ernie:

Testimony .......................................................................................................... 239

Prepared statement .......................................................................................... 241

Borek, Jamison S.:

Testimony .......................................................................................................... 10

Prepared statement .......................................................................................... 12

Hong, Laura Kingsley:

Testimony .......................................................................................................... 54

Prepared statement .......................................................................................... 56

Attachment: Case of American Citizen Rhonda Mei Mei Lan Zhang ... 61

Lebeau, John J., Jr.:

Testimony .......................................................................................................... 101

Prepared statement .......................................................................................... 103

Various attachments submitted ............................................................... 149

Meyer, Catherine I.:

Testimony .......................................................................................................... 28

Prepared statement .......................................................................................... 31

Letter from Prof. Dr. Herta Da ̈ubler-Gmelin, MdB, German Ministry

of Justice, dated Sept. 9, 1999 .............................................................. 30

Status of various cases .............................................................................. 40

Robinson, James K.:

Testimony .......................................................................................................... 4

Prepared statement .......................................................................................... 7

Stein, Craig E.:

Testimony .......................................................................................................... 236

Prepared statement .......................................................................................... 238

APPENDIX

QUESTIONS AND ANSWERS

Responses of James K. Robinson to Questions from Senators:

Thurmond .......................................................................................................... 251

DeWine .............................................................................................................. 254

Page

IV

Responses of Jamison Borek to Questions from Senators:

Thurmond .......................................................................................................... 255

DeWine .............................................................................................................. 260

Responses of Lady Meyer to Questions from Senators:

Thurmond .......................................................................................................... 260

DeWine .............................................................................................................. 264

Responses of Ernie Allen to Questions from Senators:

Thurmond .......................................................................................................... 266

DeWine .............................................................................................................. 267

ADDITIONAL SUBMISSIONS FOR THE RECORD

Prepared Statement of Thomas A. Johnson, Parent of Wrongly Retained

Child ...................................................................................................................... 269

Letter to Rob Chestnut, Chief, General Crime Section, Office of the

U.S. Attorney, Eastern District of Virginia, dated April 25, 1997 ............ 281

Summary of the Swedish Government System of International Abduction

and Wrongful Retention of Children ........................................................... 282

Prepared statement of Paul Marinkovich, Parent of Illegally Abducted Son ..... 304

Front page article from the Ventura County Star in Southern California,

dated Oct. 22, 1998 ....................................................................................... 307

Letter to Inspector General Michael Bromwich, from International Child

Rescue League, dated Oct. 21, 1998 ............................................................ 308

Prepared statement of Attorney Jan Rewers McMillan, On Behalf of Thomas

R. Sylvester ........................................................................................................... 309

Prepared statement of The International Centre for Missing and Exploited

Children ................................................................................................................ 311

Various documents and newspaper articles ................................................... 313

Letters to Senator Thurmond from:

David L. Levy, president, Children’s Rights Council, dated Oct. 27, 1999 .. 327

Michael C. Berry and Associates, P.A., dated Oct. 26, 1999 ......................... 330

Case of Danny and Michelle Cooke ........................................................................ 327

House of Representatives Report No. 103–390 on International Parental Kidnaping Crime Act of 1993 .................................................................................... 335

Chart of statistics compiled by U.S. Attorney and Federal Bureau of Investigation for cases under the 1993 International Parental Kidnaping Crime

Act ......................................................................................................................... 342

News article by Timothy A. Maier, dated Nov. 29, 1999 ..................................... 343

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THE JUSTICE DEPARTMENT’S RESPONSE TO

INTERNATIONAL PARENTAL KIDNAPING

WEDNESDAY, OCTOBER 27, 1999

U.S. SENATE, SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT, COMMITTEE ON THE JUDICIARY, Washington, DC.

The subcommittee met, pursuant to notice, at 1:45 p.m., in room

SD–226, Dirksen Senate Office Building, Hon. Strom Thurmond

(chairman of the subcommittee) presiding.

Also present: Senators DeWine, and Leahy.

OPENING STATEMENT OF HON. STROM THURMOND, A U.S.

SENATOR FROM THE STATE OF SOUTH CAROLINA

Senator THURMOND. The subcommittee will come to order. I am

pleased to hold this hearing today regarding the Justice Department’s response to international parental kidnaping.

Parental abduction is widely recognized in America as a serious

criminal act that is very harmful to a child’s well-being. It is a

growing problem for America, as more and more children are taken

to live in a foreign country in blatant violation of the legal rights

of custodial parents in the United States.

In these situations, children are often forcefully removed from familiar surroundings and taken to another country and another culture. It can be extremely traumatic and difficult for children to

adapt, especially while being deprived of their custodial parents.

Meanwhile, the left-behind parents undertake long, expensive court

battles in a foreign country to try to get their children back. Most

never succeed.

It is a complex undertaking to work with independent sovereign

nations and their judicial systems. Clearly, the preferred approach

is for the parent to undertake an action pursuant to the Hague

Convention. This treaty helps eliminate national bias by requiring

that children be immediately returned to the country of habitual

residence, where all custody determinations are to be made. Unfortunately, many countries are not signatories to this treaty. Also,

many countries that are, including some European countries, do

not fulfill their obligations under it.

Children are returned to the United States in only about 30 percent of these cases. I want to repeat that. Children are returned

to the United States in only about 30 percent of these cases. Clearly, the Hague Convention is insufficient to address the problem and

the State Department must work diligently to improve the treaty

and increase the number of countries that abide by it.

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The purpose of this hearing is to assess the role of the Department of Justice in addressing parental abduction. In 1993, the Congress passed the International Parental Kidnaping Act, which

makes it a Federal crime to remove a child from the United States

in an attempt to obstruct parental rights.

The law is rarely used. The administration discouraged the Congress from passing this statute, which is evident from the Department’s reluctance to enforce it. Although thousands of children

have been abducted from the United States in recent years,

charges have been brought against only about a dozen people per

year since the law went into effect.

Although the top priority is the return of the child, we should not

underestimate the significance of bringing the abductors to justice.

As with other criminal offense, enforcing IPKA could deter future

parents from breaking the law. Moreover, once an abductor is convicted in America, the court may order the offender to return the

child as a condition of release.

The Justice Department should develop a consistent policy of enforcing the law when the case can be proven and it will not interfere in Hague remedies. Also, the Justice Department must work

closely with the State Department to extradite those charged. Currently, many countries recognize the almost certainty that they

face no real world consequences or even adverse publicity from

their failure to cooperate.

Moreover, the criminal process is the only effective means to stop

an abduction in progress and may be critical to discovering the

whereabouts of the child. Through the criminal process, the FBI,

which has extensive resources and offices in many countries, can

assist. Also, passports can be revoked, the abductor can be entered

into the NCIC database, provisional arrest can be sought, and color

notices can be issued through INTERPOL. There are many reasons

to use the criminal process in many cases.

We cannot know if the statute will succeed in bringing the children home until we adopt a policy of aggressive enforcement. Abductors must not be permitted to blatantly violate American courts

with impunity. They cannot be permitted to achieve through illegal

means what they could not achieve legally through the child custody process.

I welcome our witnesses here today. I would also like to thank

Senator DeWine for his personal commitment to this issue. I now

call upon him.

STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR FROM

THE STATE OF OHIO

Senator DEWINE. Mr. Chairman, thank you very much. I want

to thank you for holding this hearing on this very, very important

issue.

As you pointed out, this is an issue that is devastating for the

families that are affected. It is devastating, though, not only for the

left behind parent. It is also devastating to the child who has been

denied illegally the love of one of his or her parents. Sadly, with

an increasing number of cross-national marriages and divorces,

international parental kidnapings are likely to occur with more and

more frequency in the future.

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When the international kidnaping of a child occurs, the parent

left behind often has no idea where to turn or to whom to turn to

for assistance. And when the parent does find where to turn, he or

she often receives conflicting information from different governmental sources. Worse still, past experiences have shown that once

a child is kidnaped and taken across international borders, the

likelihood, as the Chairman has pointed out, the likelihood of having that child returned to the other parent diminishes over time.

It is crucial that the left-behind parent receives accurate, immediate, timely information and assistance.

I learned about the difficulties that left-behind parents face when

two left-behind parents from Ohio, one of whom is here with us

today, came to my office for assistance. These parents have faced

many obstacles in their fights to get their children back. Many of

their troubles have been the result of foreign laws and cultural differences, but sadly, sadly, the conduct of U.S. Government agencies

many times has been of no help in overcoming the legal and bureaucratic obstacles these left-behind parents have encountered.

Can our government do a better job on behalf of these parents?

I believe that we can. I am most interested today to hear from the

State Department and the Department of Justice and to hear them

discuss how their efforts can be of more assistance to parents seeking the safe return of their children from abroad.

I am not alone in the belief that this government can and should

and must do more for these parents. Earlier this year, Mr. Chairman, the Subcommittee on International Child Abduction of the

Federal Agency Task Force on Missing and Exploited Children and

the Policy Group on International Child Abduction issued a report

to the Attorney General on international parental kidnapings. This

report identified gaps, gaps in the Federal response to these cases,

and they made some recommendations on how to fill these gaps.

The report acknowledged that the Federal Government could do

more for these families, and must do more.

I am interested, Mr. Chairman, in knowing how quickly the report’s recommendations will be implemented. I also find it interesting that the international parental kidnaping statute and law enforcement response is not mentioned as one of these gaps, and I intend to ask some questions about this, as well.

But I especially want to hear from the parents, parents who will

be testifying today, as to what they perceive are the gaps in our

Federal response. It is their suggestions that I hope will lead to improved government response.

Let me thank you again, Mr. Chairman, for convening this very

important hearing today. I am anxious to get to the bottom of some

of these issues and to learn more from the families who have faced

the tragic loss of a child from an international kidnaping. Again,

I thank you, Mr. Chairman.

Senator THURMOND. Our first witness today is James Robinson,

Assistant Attorney General for the Criminal Division at the Department of Justice. Following graduation from Wayne State University Law School, Mr. Robinson clerked on the Michigan Supreme Court and the Sixth Circuit. He served as U.S. Attorney for

the Eastern District of Michigan during the Carter administration.

Before assuming the current position, Mr. Robinson was dean and

4

professor of law at Wayne State University Law School. Mr. Robinson is accompanied by Mr. Richard Rossman, his Chief of Staff to

the Criminal Division.

Our second witness is Ms. Jamison Borek, Deputy Legal Advisor

at the Department of State, where she has worked in the office of

the Legal Adviser since 1979. Ms. Borek holds a law degree from

the University of California at Berkeley and a bachelor’s degree

from the University of California at San Diego.

I ask that the witnesses please limit your opening statements to

5 minutes. Your written testimony will be placed in the record,

without objection, in full.

I want to start with Mr. Robinson. Mr. Robinson, we would be

glad to hear from you.

PANEL CONSISTING OF JAMES K. ROBINSON, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT

OF JUSTICE, WASHINGTON, DC, ACCOMPANIED BY RICHARD

A. ROSSMAN, CHIEF OF STAFF, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC; AND JAMISON S.

BOREK, DEPUTY LEGAL ADVISER, DEPARTMENT OF STATE,

WASHINGTON, DC

STATEMENT OF JAMES K. ROBINSON

Mr. ROBINSON. Thank you, Mr. Chairman and Senator DeWine.

I am pleased to appear before the committee today to address the

important subject of international parental child abduction, and I

appreciate your receiving my prepared statement, which covers the

spectrum of Department of Justice activities and programs which

are underway to address this difficult subject. I will concentrate my

brief introductory remarks on the Department’s criminal enforcement effort.

I also appreciate the chair acknowledging the presence with me

of Richard Rossman. Mr. Rossman joined me a little over a year

ago in the Criminal Division. He and I go way back. He was my

chief assistant when I was the U.S. Attorney in Detroit, and then

succeeded me as the U.S. Attorney for the Eastern District of

Michigan.

Because of the great importance of this topic to me and to the

Attorney General, and one which I must say I had conversations

with Senator DeWine about during my confirmation hearings in

which he made it clear his very, very intense interest in this topic,

I asked Mr. Rossman to lead the Criminal Division’s efforts in this

area on all policy and interagency initiatives on international parental abduction, and I think that reflects the importance that I

place on this topic. In fact, just a few weeks ago, Mr. Rossman testified before the House International Relations Committee on these

subjects.

At the end of my brief remarks today and after Ms. Borek’s remarks and during the questions, Mr. Rossman and I will be

pleased to answer the questions and I would defer to the superior

understanding of some of the details of this to Mr. Rossman.

As the chairman noted, in 1993, Congress passed the International Parental Kidnaping Act. This statute has proven to be a

very useful supplement to the laws in all 50 States, criminalizing

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parental child abduction. IPKA can be particularly helpful because

it reaches wrongful abduction or retention, even in the absence of

preexisting custody orders, an option not always available under

State parental kidnaping laws.

However, it is also crucial to understand that this Federal criminal statute is not a substitute for civil remedies in obtaining the

return of internationally abducted children. Prosecutions under

this statute, as with any Federal criminal statute, are brought by

Federal prosecutors on their own merits, evaluating the facts of the

case in relationship to the legal requirements of the law. Once Federal prosecutors determine that IPKA charges may be appropriate

under the facts of a particular case, and only then is it appropriate

to consider the impact of such charges on the very worthy but quite

different goal of obtaining the return of the child.

We agree with Congress, as was stated in its sense of the Congress which accompanied the passage of IPKA, that when available, the Hague Convention should remain the option of first choice

for a parent who actually seeks the return of his or her child. Even

when the involved foreign country is not a party to the Hague Convention, it is not necessarily the case that IPKA criminal charges

will facilitate rather than frustrate child recovery efforts, as the

chairman indicated in his opening remarks.

For example, there is at least some anecdotal evidence that some

foreign judges are reluctant to order the return of a child to the

United States when one of the parents faces criminal prosecution

and potential incarceration. Moreover, there are real cases in which

IPKA prosecutions, even when successful, have not resulted in the

return of the abducted child.

For example, in 1995, in the Eastern District of New York, a father who abducted his children and moved with them to Egypt was

arrested, tried, and convicted after he reentered the United States.

That is the Ahmed Amir case. He was sentenced to 24 months’ incarceration followed by 1 year of supervised release with the special condition that he return the children to New York. He served

his term, he was released, he violated his probation by not returning his children, and then he served additional time and he now

is once again a free man and the children remain abroad.

Despite these limitations, IPKA can, in appropriate cases, provide an effective vehicle for charging and punishing abducting parents. While the number of indictments brought pursuant to this

still relatively new statute, 62, as we continue to train agents and

prosecutors on its existence and availability, we expect the numbers will grow. It will remain the case, however, that IPKA supplements and was not intended to preempt the State statutes which

criminalize parental abduction.

Moreover, the resources of the Department of Justice, whether

the investigatory resources of the FBI or the Criminal Division’s resources in securing the arrest and extradition of offenders, are

equally available in State cases. Thus, we will continue to seek

international extradition when possible and appropriate for violations of State parental kidnaping laws and the Federal IPKA statute.

However, once again, it is important to keep in mind that extradition of the abducting parent will often not result in the return

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of the abducted child. We do make efforts to coordinate the extradition process with the Hague Convention or other civil recovery efforts in the foreign country, but, of course, there are no clear guarantees.

The initial decision to seek criminal charges, whether to seek extradition, is a decision made on the merits of the facts of each case,

taking into account all of the relevant considerations and the applicable laws and treaties. In each case, we will need to determine

whether parental kidnaping is an extraditable offense under the

applicable treaty and whether the other requirements for extradition can be met.

Thus, we are reluctant to seek extradition from countries in

which we have no reasonable basis to believe the fugitive is located

or from countries with which we know that our treaty does not

cover the offense. Such requests would often be futile and, indeed,

maybe perceived as bordering on a bad faith request.

Also, it is sometimes the case that the abducting parent is located in his or her country of citizenship and we know that the

country will not extradite its own nationals. Such obstacles, however, do not mean we close our case. If the parent moves to another

jurisdiction, then extradition may become possible and should be

sought.

Thanks to recent action by Congress, extradition for parental

kidnaping may now be possible from several countries from which

we could not request such extraditions just a short time ago. Last

year, Congress passed the Extradition Treaties Interpretation Act

of 1998, and pursuant to it, we may now interpret the crime of kidnaping in our old list treaties to include parental kidnaping. So far,

officials in 11 foreign countries have responded to a State Department survey indicating that they agree with the United States that

parental kidnaping is covered by an existing list treaty. Thus, extradition may now be possible on such charges from places like

Luxembourg and New Zealand and possibly soon from other countries which have not yet responded to the State Department’s survey.

In short, while the Justice Department enforcement efforts targeting abducting parents cannot and should not take the place of

civil efforts to obtain the return of abducted children, we will continue to make such efforts, including charging IPKA criminal violations and seeking extraditions on IPKA or State parental kidnaping charges whenever it is appropriate.

Continuous improvement is the order of the day with regard to

this and many other Federal criminal law enforcement efforts, and

Senator DeWine’s interest and the chairman’s interest in this activity, these oversight hearings certainly keep us constantly reminded

of the importance of the enforcement of the statute and our other

efforts.

I thank you for the opportunity to appear before the committee

on this very important topic and would be happy at the appropriate

time to try to respond to the committee’s questions and suggestions.

Senator THURMOND. Thank you.

[The prepared statement of Mr. Robinson follows:]

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PREPARED STATEMENT OF JAMES K. ROBINSON

I. INTRODUCTION

Mr. Chairman and Members of the Subcommittee: I am very pleased to appear

before the subcommittee today to address the topic of international parental child

abduction. This is a subject of particular importance and interest to the Attorney

General. It is also a difficult subject. Difficult both because of its heartbreaking impact upon cherished personal relationships, and because of the legal and policy challenges created by the need to work with separate sovereign countries and their laws.

I commend the committee for bringing additional public attention to this issue, and

thank you for providing me with an opportunity to discuss the role the department

of justice plays in addressing it.

II. INTERAGENCY AND POLICY INITIATIVES

One year ago, the Attorney General demonstrated the department’s commitment

to addressing the international parental abduction problem by appearing personally

at the Senate Foreign Relations Committee’s hearing on this subject. One of the lessons drawn from that hearing was the need for increased coordination between the

various agencies which play a role in this area, and the development of policies to

fill ‘‘gaps’’ in existing procedures. I am pleased to report that significant strides have

been made during the past year to accomplish these goals.

Specifically, the Attorney General and the Secretary of State appointed a senior

policy group—on which I asked my chief of staff, Mr. Richard Rossman, to serve— to work with the subcommittee on international child abduction of the federal agency task force on missing and exploited children. As the result of the efforts of the

subcommittee and policy group, earlier this year a detailed report on international

parental kidnaping was presented to the attorney general. A copy of that report was

also provided to the Senate Foreign Relations Committee, and is available to this

committee. That report identifies a series of problems or ‘‘gaps’’ which often exist

in international parental kidnaping cases, and contains a series of recommendations

on how federal responses to those gaps can be improved.

We are now working on an interagency basis to implement as many of the report’s recommendations as possible. The policy group has developed an ‘‘action plan’’ setting out the tasks to be addressed, and the federal offices to address them, and has

created an interagency working group chaired by the Department of State, Office

of Children’s Issues, to coordinate implementation of this plan. By way of example,

efforts are underway to create a comprehensive case tracking system for international parental child abduction cases; develop an enhanced role for the National

Center for Missing and Exploited Children; improve the overseas implementation of

the Hague Convention on the civil aspects of international child abduction; further

strengthen interagency coordination here in the U.S.; increase education and training on legal options available in abduction cases and how to pursue them; foster

more widespread and effective use of the National Crime Information Center (NCIC)

and Interpol to stop abductions in progress and to locate abducted children and abductors; and expand the services available to left behind parents. While this remains a ‘‘work in progress’’, we are pleased that this critical issue is now receiving

the high level interagency attention and planning it deserves.

III. DOJ’S PROGRAMMATIC EFFORTS

Within the Department of Justice, the Office of Juvenile Justice and Delinquency

Prevention (OJJDP) serves an important programmatic role in addressing international parental kidnaping—and as a member of the interagency working group is

actively involved in implementation of the interagency action plan. OJJDP has long

provided training programs for state and local law enforcement on child protection

issues, and remains the primary departmental office involved in missing and exploited children’s initiatives.

Under the auspices of that office’s Missing and Exploited Children’s Program

(MECP), new training on the roles of law enforcement, state and local prosecutors,

private attorneys, and the judiciary will be developed in coordination with the working group, as will a program to promote the use of a coordinated, multi-disciplinary

and community based approach for preventing, investigating, and prosecuting these

cases. Input for these training courses will be obtained from the interagency working group; state, local, and federal law enforcement and judicial agencies; the National Center for Missing and Exploited Children (NCMEC or ‘‘The National Center’’); and parents.

OJJDP’s missing and exploited children’s program is also supporting efforts within the working group to increase the services available for victim families in interVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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national abduction cases (e.g., counseling, identifying legal services resources, mentoring, family mediation, translation services), and to help them identify and access

more quickly and effectively the services that are already available. That office, in

collaboration with others, is working to address the frustration caused by the lack

of knowledge which still persists among left-behind parents, their advocates, law enforcement, and state and local authorities about remedies and resources in international abduction cases. To do so, MECP is developing resource guides which will

assist parents and law enforcement agencies in the investigation process, and hopefully in the recovery of, and reunification with, abducted children.

OJJDP also provides funding for the National Center for Missing and Exploited

Children. For the past few years, through a cooperative agreement with the Department of State, the National Center has played an important role in handling incoming Hague Convention applications from parents outside the United States seeking

children who have been taken to this country. We are very pleased that the National Center’s role is being expanded to include activities related to cases in which

children have been taken from the United States to other countries. Among the

technical assistance and services which may be available to parents and law enforcement in such cases are poster creation and dissemination, age progression and

reconstruction technology, translation of legal documents, law enforcement liaison,

international contacts, and parental support. In addition, through an interagency

agreement, OJJDP may upon request transfer monies available from the department’s federal crime victim assistance fund to the National Center to provide needed services through its Victim Reunification Travel program (VRT) to victims of parental kidnaping. Thus, in some instances the national center may be in a position

to provide emergency transportation for American parents, crisis intervention services, assistance in participating in criminal justice proceedings, and payment for forensic medical examinations of the victim.

IV. DOJ’S ENFORCEMENT EFFORTS

International parental child abduction cases may be addressed through the Hague

Convention or other civil means to recover the child, and when appropriate through

criminal statutes combined with extradition procedures to prosecute and punish the

abducting parent. The Department of Justice does not play a direct role in the civil

mechanisms for the recovery of children internationally, but we do and will continue

to support and work with the Department of State in its efforts to see that wrongfully abducted or retained children are returned to their left-behind parents.

The Department of Justice’s role is more significant in the investigation and prosecution of parents who violate applicable criminal laws. The laws of the fifty states

and the District of Colombia all provide criminal penalties for parents who wrongfully abduct their children. The FBI for many years has, when appropriate, obtained

federal warrants for Unlawful Flight (UFAP’s) for those abducting parents charged

with state or local offenses who cross state or international borders. Such UFAP

warrants, while themselves not providing an independent basis for extradition, may

assist in the devotion of federal resources to locating abducting parents who have

fled overseas. Moreover, for the past six years, international parental kidnaping has

been a federal crime (International Parental Kidnapping Crime Act, 18 USC 1204).

Specially trained FBI agents around the country designated as ‘‘crimes against children coordinators’’ serve as points of contact on exploitation, abduction, and other

crimes against children. They or other agents in their field offices work with assistant U.S. attorneys to investigate and prosecute violators of the IPKCA statute.

The department’s Child Exploitation and Obscenity Section (CEOS) in the criminal division maintains oversight responsibility for IPKCA, and provides advice and

assistance to agents and prosecutors throughout the country who call with questions

concerning investigations or prosecutions under that statute. Along with the division’s office of international affairs, CEOS works closely with U.S. attorneys offices

and the state department’s office of children’s issues to ensure that prosecutorial decisions are closely coordinated with child recovery efforts.

Records obtained from the department’s Executive Office for United States Attorneys (EOUSA) indicate that since the passage of the IPKCA statute through the end

of the second quarter of fiscal year 1999, United States attorneys opened files on

229 international parental kidnaping matters. As of April 30, 1999, 77 investigations were pending. Of the 62 defendants actually indicted, 23 cases have been concluded resulting in 13 convictions.

While the numbers of IPKCA prosecutions and convictions are relatively small,

it is important to keep in mind that a large but undetermined number of international parental kidnaping cases are charged by state and local authorities under

their own laws. We have also been informed that the number of IPKCA prosecutions

9

which have resulted in the return of the abducted child is very small. Here it is

important to remember that while we of course hope that such prosecutions have

the residual effect of facilitating the return of the victim child, the IPKCA statute

was not designed, nor can it be expected to fulfill, that goal.

Both the National Crime Information Center (NCIC), and Interpol, provide considerable assistance in locating and identifying criminally charged abducting parents

and their victim children.

In response to the previously mentioned report to the attorney general, the FBI

is examining the possibility of seeking a change in one of the ways the NCIC maintains records. Specifically, the change would permit the name of an abducted child

located abroad to remain in NCIC until issues related to where the child will ultimately reside are resolved.

Interpol’s National Central Bureau (USNCB) here in Washington, D.C., which is

staffed by senior agents from U.S. law enforcement agencies, facilitates the issuance

of international lookouts (e.g., ‘‘red notices’’ seeking fugitives including abducting

parents, and ‘‘yellow notices’’ seeking missing or lost persons including victims of

parental abductions). Interpol was recently instrumental in a case in which an abducting parent, who had a history of violent criminal offenses and drug abuse,

brought his four year old child to the United States. At the request of Interpol Canada, the USNCB coordinated investigative actions in eight states and the District

of Columbia. Thanks to those efforts, the father was arrested by the D.C. Metropolitan Police and the United States Marshals Service, and the child was taken into

protective custody.

Once an abducting parent is charged by state or federal authorities and located

abroad, extradition my be considered. However, it is crucial to understand that even

when successful, an extradition by no means ensures the return of an abducted

child. There have been sad cases in which a fugitive parent is returned for prosecution, but the victim child is hidden in the foreign country with friends or relatives,

or the foreign courts fail to grant custody to the left-behind U.S. parent. It is even

possible that an extradition request may complicate the return of the child under

the Hague Convention (e.g., should the foreign authorities be reluctant to return a

child to the U.S. when one parent faces the prospect of prosecution and incarceration). In short, the decision to seek criminal charges against and pursue the extradition of an abducting parent must be made on its own merits for law enforcement

reasons, and not viewed as a quick, or even an effective, means of securing the return of the child.

Extradition may be available to a state or federal prosecutor for international parental abduction if (1) an extradition treaty is in force between the United States

and the country where the fugitive is located; (2) the treaty recognizes parental kidnaping as an extraditable offense; and (3) no other treaty provision would bar the

fugitive’s return to the United States for prosecution for the offense. When a prosecutor is interested in requesting extradition, he or she contacts the criminal division’s Office of International Affairs (OIA) for advice and assistance. OIA works

through the Department of State to make such requests.

There are presently over 100 bilateral U.S. extradition treaties in force. Under the

most modern of those, extradition is usually based upon ‘‘dual criminality’’. That

means if an offense is punishable in both countries by and agreed upon term of imprisonment (often at least one year), the offense is extraditable under the treaty.

Under our older treaties, extradition is provided only for crimes listed in the treaties themselves. And while most of these treaties list ‘‘kidnaping’’ or ‘‘child stealing’’

as extraditable offenses, for many years the State Department was concerned that

those terms were not intended by the treaty negotiators or the Senate when it authorized ratification to cover parental kidnaping or abduction. Thanks to action by

Congress in passing the Extradition Treaties Interpretation Act of 1998, we may

now interpret ‘‘kidnaping’’ to include parental kidnaping. The State Department informs us that twelve of our treaty partners have already agreed with the United

States that parental kidnaping is covered by our existing ‘‘list’’ extradition treaties.

This has opened the door to possible extradition requests on such charges to those

countries, (e.g., Cyprus, Luxembourg, New Zealand), and possibly soon to other

countries which have not yet responded to the State Department survey.

Unfortunately, even when a treaty exists and the parental abduction crime is extraditable pursuant to it, there may exist other obstacles to obtaining extradition.

For example, many countries refuse, often because of a constitutional or other important public policy prohibition, to extradite their own nationals. Our treaties with

such countries often do not require the surrender of nationals. Because abducting

parents are often nationals of the countries to which they flee with an abducted

child, they are able to avoid extradition to the United States. And although most

of the countries which refuse to extradite their citizens can in theory assert criminal

10

jurisdiction over them for crimes committed anywhere in the world, as a practical

matter this is rarely done.

This is not to suggest that we would not or should not ever request extradition

knowing that the request well be denied on the basis of nationality—such decisions

are carefully made taking into consideration all of the particular circumstances—

but only that the existence of a treaty which seems to cover the crime is not always

sufficient to ensure that the offender is brought to justice. I can assure this committee that expanding the number of U.S. extradition treaties which mandate the extradition of nationals is among the department’s highest international law enforcement priorities.

V. CONCLUSION

In a shrinking world with increasing numbers of bi-national marriages, the problem of international parental child abduction will not disappear anytime soon. However, we at the Department of Justice will continue to do whatever we can to address this problem, through enhanced interagency coordination, continued programmatic initiatives, and vigorous enforcement efforts.

Again, thank you for the opportunity to appear before this subcommittee on this

most important topic.

Senator THURMOND. Ms. Borek.

STATEMENT OF JAMISON S. BOREK

Ms. BOREK. Thank you, Mr. Chairman. As you have suggested,

I will make briefer remarks and ask that my statement be accepted

in full for the record.

Senator THURMOND. Your entire statement, of course, will be put

in the record.

Ms. BOREK. Mr. Chairman and Senator DeWine, thank you for

holding this hearing today to discuss the important subject of international parental child abduction. I will first give briefly an overview of the different ways the Department of State is involved with

this problem.

First, of course, it grows out of our concern for the welfare of

American citizens, both who are overseas or who become involved

in transnational problems. There is no greater responsibility than

the welfare of our children. The protection of Americans abroad, including those children victimized by international parental child

abduction, is of the highest priority to the Department of State.

As the corollary to our interest in this area, we are also responsible for coordinating U.S. efforts in international organizations to

develop mechanisms and laws to protect private citizens in these

areas, such as the Hague Conference on private international law.

It was in 1980 that the Hague Conference developed the convention

on the civil aspects of international child abduction and the United

States became a party in 1988.

This convention aims at providing a civil legal remedy for prompt

return of a child who is either abducted or who may be retained

in violation of custody rights. The latter case could be in a case

where there is a court order, or it could be where there is no court

order but there is simple joint custody prior to divorce. So the

Hague Convention covers a broad range of cases, including not only

the classic abduction, but also a situation where a mother in a bad

marriage simply takes a small child and returns home, if the home

happens to be a foreign country.

The underlying premise of the convention is that it is bad for

children. It is not in the best interest of the child to be abducted.

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shopping. It is understood that every country has a mechanism for

determining the custody of this child and it is based, at least in

principle in most countries, on the best interest of the child. But

under the Hague Convention, the decision is made that the custody

determination should be in the place of habitual residence of a

child, and where a child is abducted to get a different forum, the

child should be sent home.

To implement this convention, the Bureau of Consular Affairs

started with a small staff an effort and has constantly increased it

over time. In 1994, they created an Office of Children’s Issues as

a formal office to be concerned not only with implementation of the

Hague Convention, but other situations where children are taken

by parents abroad, and protection of children in all countries, not

only Hague countries.

In addition to the efforts under the Hague Convention, the Department of State is also concerned with the question of passports

and travel, and recently, they have moved the function concerned

with passport issuance for children into the Office of Children’s

Issues so that it can be better coordinated in the case of preventing

and deterring international child abduction.

Finally, we also play a role with respect to the criminal aspects

of international child abduction by virtue of our role in connection

with extradition. Of course, we coordinate very closely with the Department of Justice, who is responsible for most operational aspects.

I might say that the Hague Convention, overall, has been a clear

success story as compared to the prior situation. In the first 10

years that we have been a party, proceedings have resulted in the

return of over 20,000 children to the United States. We believe, although we have no way to know, that the existence of the treaty’s

return mechanism has deterred a number of abductions.

The statistics, unfortunately, within the State Department have

not been kept especially well or consistently over the years. We are

trying to improve these efforts. In recent years, we believe that the

percentage of returns under the Hague Convention is closer to 60

percent, so that there is—and, of course, it depends on the country—there is a considerable body of success under this convention.

However, it is clearly not a perfect remedy. There are a number

of grounds even within the convention for non-return of the child,

for example, if there is a danger of serious harm to the child or if

the child is old enough to have views and objects to the return. In

addition, a number of countries have created what we believe to be

loopholes, taking advantage of grounds in the convention but applying it in ways that we dispute.

In addition, there are some additional problems that have grown

out of either the nature of the legal systems in some countries or

in some countries their commitment to implementing the convention.

Another problem is that there is ultimately the idea of a custody

determination under the Hague Convention in the country which

the child was abducted, and in some cases, the courts have gone

to lengths to make sure that if the child is returned, both parents

will be able to participate in that custody determination.

12

In this context, it can be a serious problem—it has been in some

cases—if one of the parents is subject to arrest and prosecution on

return to the United States. Some courts have said that is a reason

to be concerned about returning the child because they would not

be able to participate adequately in the custody determination in

the country from which the child was taken.

There are other problems. I see that I am on the yellow light, so

I will not go into all of them. I do want to note that we have been

concerned about improving our efforts for a considerable period,

and starting in late 1997, both the Departments of State and Justice embarked on a serious working-level review of all of the problems and gaps. This was the major input to the report.

In late 1988, the Attorney General and Secretary of State determined to jointly create a senior policy group that would work together with the working-level group and take an overall comprehensive look at the problems and recommendations which resulted in the report, which we have mentioned and which you have

mentioned, Senator DeWine. It makes a number of recommendations for improvement, and as many as possible of them that can

be implemented within existing resources, we are pursuing. But

this is in very large part a question of resources and some of them

are very expensive items, such as an entire new computer system,

and, of course, there is the question of staff.

I might note that the Office of Children’s Issues has had a staffing ratio of one person for 120 cases. Recently, we have added

enough people to bring it down to 80 cases per person, but this is

still a tremendous burden and, of course, sharply curtails the intensity and the level of attention that we can give to any one case.

We seek to systematize and become more aggressive in our approach to the problem of implementation. As I said, all of these

things will go on, but they will go on, to a certain extent, in direct

relationship to the resources that we are able to note to them. In

that connection, I have to note that the funding for the State Department as a whole has become an issue and that full funding—

it is not a question simply of funding this particular small part of

the State Department because the overall situation is one of constraint.

I am told that I may have said that we have returned since 1988

20,000 children, or had them returned to us. I meant to say that

there were 2,000 children returned to us.

I think that is it for my initial remarks, and, therefore, I would

be happy to close and say that I will take any questions, and thank

you again for this opportunity to testify.

Senator THURMOND. Thank you very much.

[The prepared statement of Ms. Borek follows:]

PREPARED STATEMENT OF JAMISON S. BOREK

Mr. Chairman and Members of the Subcommittee: I am pleased to appear before

the Subcommittee today to address the important topic of international parental

child abduction.

ROLE OF THE DEPARTMENT OF STATE

As you know, Mr. Chairman, this is a topic that has a number of both criminal

and civil aspects. Although the focus of the hearing today is on the Department of

Justice’s response, the Department of State is also seriously involved in this probVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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lem, in a number of ways. By way of background, therefore, I would like to give

you an overview of the Department of State’s involvement in this problem.

First, and most significantly, our concern about international child abduction is

an extension of our responsibility and concern for the welfare of American citizens

who are overseas or involved in transnational problems.

There is no greater responsibility than the welfare of our children. The protection

of Americans abroad, including those children victimized by international parental

child abduction, is of the highest priority to the Department of State. Matters involving the welfare and custody of children are some of the most difficult and emotional cases with which we must deal. When a parent abducts, or wrongfully retains, a child from his or her home, and prevents the child from having a relationship with the other parent, the trauma to the child is immediate and compounded

each day the child is not returned home.

As a corollary to our concern for the welfare of Americans in foreign or

transnational situations, the Department of State is also responsible for leading and

coordinating United States participation in relevant international organizations,

such as the Hague Conference on Private International Law. This is the organization that developed the 1980 Hague Convention on the Civil Aspects of International

Child Abduction, to which the U.S. became party in 1988. The Convention provides

a civil ‘‘legal mechanism in the country where the child is located for parents to seek

the return of, and access to, their child. It applies only to cases where children resident in a Hague Convention country have been abducted to, or wrongfully retained

in, another country party to the Convention.

To implement this Convention, and to focus on other relevant efforts of the Department of State on behalf of children, the Bureau of Consular Affairs created an

Office of Children’s Issues in 1994. This Office not only acts as the Central Authority for the Convention in the United States, but also tries to assist left behind parents of children abducted to other countries, that do not belong to the Hague Convention. This Office would also be the Central Authority for the Hague Convention

on Protection of Children and Cooperation In Respect of Intercountry Adoption, if

the Senate gives its advice and consent to ratification.

The responsibilities of the Department of State that are relevant to international

child abduction also include those involving passports and travel from the United

States. Parents may ask that they be notified if the other parent applies for a

United States passport for their child, or, if they have a supporting court order, th6y

may prevent issuance of a passport to a child without their consent.

Finally, the Department of State also plays a role with respect to the criminal aspects of international child abduction by virtue of its role with respect to international extradition matters. In this area, we coordinate very closely with the Department of Justice, of course, since the Department of Justice has the lead role in

most operational respects.

OVERVIEW OF INTERNATIONAL CHILD ABDUCTION

The problem of international child abduction can be both tragic and complex.

Even within the United States, custody battles over children can be devastating for

all concerned. Translated to the international plane, every problem can multiply,

and the parent victim can be faced with significant additional complication, difficulty, and expense.

The best means of protecting children from the harmful effects of international

parental child abduction is prevention: through the deterrent effect of legal mechanisms, and through education and understanding of the steps that can be taken to

make abduction more difficult in the first instance, so that fewer successful abductions occur. Second, we must give attention to any efforts that can be made to prevent abductors from actually leaving the United States.

International child abductions are often complicated by the fact that many abducted children are from multi-cultural relationships. They are often citizens of both

the United States and the country to which they were abducted. Ultimately the fate

of these children is decided by the courts of the countries to which they have been

abducted or in which they have been wrongfully retained. Often custody orders entered into by U.S. State courts are not enforceable outside our country. Even when

everyone involved is a U.S. citizen, these cases are often difficult to resolve once the

child has been removed from the United States.

Thus, once the abductor and child are outside the United States, the only avenue

for return of a child, apart from a voluntary resolution, is likely to be legal proceedings under the Hague Convention. If the abductor is in a non-Hague Convention

country, there may be only limited legal recourse, if any.

14

A Hague Convention proceeding does not decide custody; instead, it decides in

which country custody determination should be made. Basically, the Convention is

aimed at using abduction as a means of forum-shopping, by providing that the

courts in the country to which the child is abducted should, with very few and limited exceptions, return the child to the country of habitual residence without considering the merits of the custody dispute.

Overall, the Convention is a success story. In the first ten years that the United

States has been party to the Convention, proceedings have resulted in the return

of over 2,000 children to the United States. Further, we believe the existence of the

treaty’s return mechanism has deterred an untold number of abductions. Approximately 60 percent of the cases in which we provide assistance are now covered by

the Convention. When the U.S. joined the Convention in 1988, only nine other countries were party. Today the Convention is in effect between the U.S. and 53 other

countries. We have an active program to encourage countries to join the Convention

as the best possible means of protecting children from the harmful effects of abduction. For example, in an August trip to Japan, which is not currently party to the

Convention, Mary Ryan, the Assistant Secretary for the Bureau of Consular Affairs,

discussed with a Justice Ministry official the benefits of the Convention for both our

countries. As we look to improve the Convention’s effectiveness, we must remember

the many parents who wish that they had even this less than ideal mechanism to

seek return of their children.

While the Hague Convention has facilitated the return of many children to the

United States, and while it is a vast improvement over the lack of any international

mechanism whatsoever, it is not a perfect remedy. There are some bona fide

grounds for non-return under the Convention, and in some cases parents or courts

have created loopholes even where there should be a return. The world has changed

since the Convention was conceived 19 years ago when the majority of taking parents were fathers. Now, 70 percent of taking parents are mothers, and courts in

some countries are reluctant to compel children’s return to the United States when

the mothers face significant obstacles to return, including possible criminal sanctions. There may also be particular problems associated with ‘‘wrongful retention’’ of a child, when there is no actual physical abduction, particularly in certain joint

custody situations.

We have identified a number of the biggest obstacles to the effective implementation of the Hague Convention. These include:

• Locating children: Many countries, including Mexico and other Latin American

countries, Sweden, Norway and Denmark, have difficulties locating children believed to have been taken to their country. The problem in Mexico appears to

be primarily a lack of resources and infrastructure, while the problem in the

Scandinavian countries may be more of a lack of interagency cooperation and

coordination within the country. Often social welfare agencies do not share information with the Hague Central Authority. Other countries have laws that

prohibit information sharing among government agencies. • Duration of cases: Although Article 11 of the Hague Convention calls for expeditious processing of return cases, and specifies that courts may be asked the reason for delay if they have not decided a Hague case within six weeks, the courts

in some countries do not proceed in a timely fashion. • Non-enforcement of orders: Many civil law countries do not have effective mechanisms for enforcement of their own civil orders for the return of abducted children. The country may not have any penalty for noncompliance with a court

order, may levy only a small fine, or have no authority responsible for enforcing

a civil order. In some instances, a left-behind parent may have to hire a designated authority (such as a bailiff) to enforce a civil order. • Consent of the child: The Convention allows judges to refuse to order the return

of a child if the child objects to being returned ‘‘* * * and has attained an age

and degree of maturity at which it is appropriate to take account of its views.’’ While in the United States we would expect that judges would consider a child

of perhaps ten or twelve years old to be mature enough to think independently

of the taking parent’s influence, we have seen the views of significantly younger

children taken into account in some countries. In Germany, for instance, we

have seen judges take into consideration the wishes of children as young as five.

• Undertakings: The courts in a number of Commonwealth countries, including

the United Kingdom and Australia, often require the left-behind parent to agree

to extensive ‘‘undertakings’’ (conditions for return) before an order for the return of an abducted child will be issued. These undertakings expand rather

than limit the exceptions for return of abducted children under the Convention.

Examples have included requiring the left-behind parent to pay the abducting

parent’s transportation costs back to the United States, providing housing costs

15

once the taking parent returns to the U.S., and/or furnishing the abductor with

an automobile for the duration of custody hearings. In at least one instance, the

left-behind parent was required to demonstrate that he had pre-paid a substantial sum to the taking parent’s attorney. These undertakings are not provided

for in the Convention, have the effect of rewarding abduction and impose additional hardships on the left-behind parent.

Nevertheless, overall the Hague Convention is a significant improvement. Before

we became party to the Convention, return to the U.S. of abducted children was approximately 20 percent. Under the Convention about 72 percent of cases result in

return or access. The rate of returns from the U.S. to other countries is even higher,

approximately 90 percent, including voluntary returns.

This reality offers little comfort to the left-behind parents who have suffered the

frustration and anguish of losing contact with a beloved child. Nor does it comfort

the traumatized child who has been abruptly wrenched from the arms of one parent

and asked in effect to choose sides. That is why we continue to work to improve

the functioning of the Convention.

U.S. FEDERAL RESPONSE TO INTERNATIONAL PARENTAL CHILD ABDUCTION

Since the U.S. became party to the Hague Convention in 1988, the Department

of State has worked to improve its implementation. The first year we created a new

child custody division to coordinate our work in this area. In 1994, we formed the

Office of Children’s Issues, redoubling our efforts on this important subject and increasing the level of attention it received in the State Department. The benefits of

this new office were quickly realized. In 1994, the Office was recognized by the Administration when it won a Vice Presidential ‘‘Hammer Award’’ for reinventing government due to its work to return children home. Our efforts have increased steadily since that time.

The new Office of Children’s Issues saw the need for a comprehensive interagency

coordinated response to address the scourge of international parental child abduction—from prevention, to recovery, to reunification. In 1994, it co-hosted, with the

American Bar Association, the North American Symposium on International Child

Abduction, funded by the Department of Justice, and aimed at improving the operation of the Hague Abduction Convention.

In an effort to coordinate assistance to abducted children and their families, the

Office of Children’s Issues entered into a cooperative agreement with the Department of Justice and the National Center for Missing and Exploited Children on September 1, 1995, to work together on these cases. While the National Center had always helped us locate missing children, the agreement formalized this arrangement

and expanded the National Center’s work to include Hague cases in which children

were abducted to, or retained in, the United States.

There were other issues needing attention. One was the matter of legal costs. Although the Hague Convention provides that countries will pay the legal fees of parents in Hague return cases, the Convention allows party countries to take a reservation in this regard and the U.S. took that reservation. As a result, some Americans

pursuing return of their children under the Convention were receiving free or reduced fee legal assistance in other countries, while foreign parents pursuing return

of their children abducted to, or wrongfully retained in, the U.S. did not receive

equal benefits.

At the 1994 intergovernmental meeting of Convention Central Authorities, the

U.S. was roundly criticized by other party countries because the high cost of U.S.

litigation was effectively denying parents from pursuing Hague remedies in the U.S.

As a result of that criticism, the Department of Justice, in coordination with the

Office of Children’s Issues, agreed in 1995 to fund the American Bar Association’s

creation of the International Child Abduction Attorney Network (ICAAN) to expand

the pool of attorneys who provide pro bono or reduced fee legal assistance in Hague

cases involving children in the United States.

In 1998, the Office of Children’s Issues received another award from the Administration as a member of the team, which included the Department of Justice and the

National Center for Missing and Exploited Children, that created the family reunification program to help needy parents pay for the costs of returning their children

home. We have a robust interagency cooperative effort and are dedicated to using

every tool at our disposal.

Despite all the efforts of the Departments of State and Justice to coordinate and

cooperate, both the agencies involved and, more importantly, the left-behind parents

believed that the U.S. federal response to their cases was not sufficient and that

more needed to be done. There were failures in coordination on cases, in part because of the inherent tension between the civil aspects of a case in which the goal

16

is to effect the abducted child’s return and the criminal efforts to prosecute abducting parents.

The Senate Foreign Relations Committee invited the Attorney General to testify

on international parental child abduction in October 1998. Prior to her testimony,

the Attorney General spoke with the Secretary of State and together they committed

their two agencies to taking a hard look at how the federal response to international

parental child abduction could improve.

The Attorney General and the Secretary of State subsequently formed a Senior

Interagency Policy Group to undertake a comprehensive review of the federal government response to international parental child abduction. The Policy Group in

turn created a working group. Since they were created, the Policy Group and its

Working Group have met at least once a month. The Policy Group, with the input

of the Missing and Exploited Children Task Force’s Subcommittee on International

Parental Child Abduction, prepared ‘‘A Report to the Attorney General on International Parental Kidnapping’’ which the Attorney General submitted to Congress

in June. The report outlined the gaps in the federal response and recommendations

to improve the situation. The Policy Group developed an action plan to implement

the report’s recommendations, wherever possible, and to the extent resources permitted.

The action plan addresses:

• The creation of a comprehensive tracking system for international parental

child abduction cases;

• An enhanced role for the National Center for Missing and Exploited Children;

• The strengthening of inter-agency coordination;

• Enhanced diplomatic initiatives;

• Increased education and training;

• Strengthened mechanisms to prevent departure of abducted children and abducting parents;

• Expansion of services for parents and children;

• Coordinated budget and resource estimates.

Implementing the international parental child abduction recommendations will be

expensive, having a price tag in the millions, and taking several years. As a core

function of the Department of State, the Office of Children’s Issues should be funded

with appropriated resources. We are concerned about inadequate overall funding for

the Department, which may negatively affect our ability to implement the recommendations. * * * Additionally, we are pleased that the Senate receded on an

earlier effort to zero out funding for the Hague Conference, and want to emphasize

the important work that it does and the great amount of value we obtain in fully

funding this important organization.

The Bureau of Consular Affairs is on its way to completing the requirement study

for the interagency case tracking system. The contractor has had over a dozen meetings with Children’s Issues staff and the interagency community that will be using

this system. With needed funding, implementation of the first phase of this system

is scheduled for this spring. The Bureau has increased the staff of the Office of Children’s Issues so that country officers have fewer cases. They will soon be advertising

for a management analyst to oversee further development of the comprehensive

tracking system, to create accurate statistics on all abduction cases, both to and

from the U.S.

The Bureau of Consular Affairs has also expanded the cooperative agreement with

the National Center for Missing and Exploited Children to include additional assistance for parents and children in all international child abduction cases. The Bureau

recently established a National Center coordinator position within the Office of Children’s Issues. The passport custody lookout function currently in Passport Services

will be transferred to the Office of Children’s Issues in early 2000.

As we seek to improve services to parents, we recognize the need for continuing

feedback from our customers. Recently, Children’s Issues has had a number of meetings with left-behind parents to receive their input on how we might do things better. One of the new positions in Children’s Issues will be specifically devoted to enhancing our service to American citizen customers. We have also established Children’s Issues coordinators at our embassies and consulates around the world.

Recently, we have seen an example of how our increased interagency communication has aided the return process. Five children abducted from the U.S. to Syria

were returned home following extensive interagency cooperation involving the FBI,

Department of Justice, local law enforcement and the National Center for Missing

and Exploited Children, efforts coordinated by Children’s Issues. Children’s Issues

initiated numerous conference calls among the relevant organizations, ensuring that

the return of these children remained the focus of all U.S. Government efforts. FolVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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lowing excellent work by our Embassy in Damascus, one of the abducting parents

was arrested in Syria and all five children were returned using Justice Department

‘‘family reunification funds’’ and State Department repatriation loans.

In closing, Mr. Chairman, in considering the complexity of both Hague and nonHague abductions, we must remember that these cases are all centered on children

and their need to feel secure in their homes and not live in fear of abduction. Thank

you, Mr. Chairman, for the opportunity to address the Subcommittee on this important topic for our children and their parents.

Senator THURMOND. We will now go to questions. Mr. Robinson,

international parental child abduction is a growing problem. There

have been very few prosecutions under IPKA since Congress passed

the statute in 1993. The recent task force report to the Attorney

General that was released earlier this year did not even mention

enforcement of the statute as a gap in current efforts to address

international parental kidnaping. Do you think the Department

should make better enforcement of IPKA a priority?

Mr. ROBINSON. Let me say, preliminarily, that I would ask Mr.

Rossman, who was involved in that project directly and reporting

to me, that obviously it needs to be a continuous improvement priority. We need to get the word out. It is still a relatively new statute, but I think that within the constraints outlined in the statement that I indicated, we need to make sure that the investigators

and prosecutors are trained and understand this and we have the

network of information out there so people know of the availability

of this resource.

But perhaps Mr. Rossman can comment directly on the question

with regard to the statement in the report. Rich.

Mr. ROSSMAN. If I may, Mr. Chairman, I think the first thing to

keep in mind is that each one of our 50 States and the District of

Columbia have passed parental kidnaping statutes. The States, the

local governments, are really the primary force in this area. The

Federal statute was never meant to supplant State governments in

this regard, but only to supplement it and to be available in those

situations. For instance, if you have a case where there is a question about the custody situation at the time of the abduction, the

Federal statute can be more helpful than some of the State statutes, which would not create a crime in those circumstances. So I

think that is the first thing to keep in mind, is that the Federal

statute is not the primary force in this area but really is supplemental to the ongoing efforts of each of our 50 States.

Second, I think it is worth noticing that the numbers have increased over the period of time and the involvement of the FBI, but

the numbers are still low. There is no question about that. As Mr.

Robinson said, we are reaching out, and I think in this regard, the

policy group that I was involved in and the report that Senator

DeWine mentioned does specifically reference the idea of reaching

out to training our prosecutors, our State prosecutors, our Federal

prosecutors, and our agents, and that training process is ongoing.

OJJDP at the Justice Department is very involved in that process.

Just next week, down in South Carolina at the center that the

Department of Justice uses for training, we are having all of our

international reps from each of our U.S. attorney offices come in

and there is going to be a segment on international parental kidnaping at that program to try to further educate our U.S. attorney

18

offices around the country on the importance and the priority with

which we face the statute.

Senator THURMOND. Ms. Borek, the Department of Justice generally asks for a prosecution to be undertaken pursuant to UFAP

rather than IPKA. Given that IPKA itself is a direct Federal offense, are there times when proceeding under the IPKA warrant

rather than a UFAP warrant could be more persuasive with another country in encouraging them to extradite the abductors to the

United States?

Ms. BOREK. Mr. Chairman, I am not aware of any circumstances

in which we would think that a Federal charge was more important than a State charge in the eyes of a foreign government official. I think the problem here is, as has been mentioned by the Department of Justice that, and as you also noted in your speech, that

this can really impede the return of the child in some cases.

When the return of the child and the enjoinment of some form

of joint rights, whether it is joint custody or it is visitation, depends

on both parents agreeing to share the time of the child and one

parent is prosecuted, this can obviously cause problems with the

ability of the parents to reach agreement on things. Unless the

child is actually returned, which the extradition does not result in

the return of the child, it can actually make a situation worse in

some cases rather than better.

So I think the view of the foreign government is fairly straightforward as far as the Federal versus State angle. But the other

considerations in a particular case may be complicated.

Senator THURMOND. Mr. Robinson, I appreciate that the best way

to try to get a child returned is to use the Hague Convention. However, some signatory countries consistently fail to comply with their

obligations under the Hague. For these countries, do you think the

Justice Department today may be too reluctant to initiate criminal

proceedings quickly?

Mr. ROBINSON. I do not think that is the case, Senator. Obviously, it is a consideration and ought to be a consideration in making a charging decision in a situation in which the alternatives

for—the first choice, obviously, is to return the child, and I think

that is—and to the extent that that is not a possibility, the notion

of bringing the criminal charges and getting the deterrent effect for

future cases is an appropriate consideration.

Mr. ROSSMAN. If I could just add, for instance, in the case that

Senator DeWine is so familiar with, the Sylvester case, even

though Mrs. Sylvester is in Austria, which does not extradite its

nationals, and there are other problems in trying to use the criminal process in Austria, nevertheless, there is an outstanding criminal warrant out of the Eastern District of Michigan, and if Mrs.

Sylvester steps into any other jurisdiction that would extradite her,

then she would be subject to the criminal process and we have not

hesitated to use the criminal process in that regard, although, unfortunately, it has not resulted in the return of either Mrs. Sylvester or the children.

Senator THURMOND. Mr. Robinson, I understand that the primary purpose of IPKA is to punish the abductor. However, it appears to me that enforcing the law sometimes may pressure the abductor into returning the child. Also, a judge may condition the abVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 OCT27.TXT SJUD2 PsN: SJUD2
19

ductor’s release on the return of the child. Do you agree that criminal prosecution under the IPKA sometimes may result in helping

get the child back?

Mr. ROBINSON. I think it could under certain circumstances, but

as I indicated in my opening statement, there are times in which

it has not made any difference at all and has complicated the situation. So I think what needs to be done is a careful judgment on a

case-by-case basis, evaluating the impact of the criminal prosecution only after, of course, in the first instance, the prosecution decision has to be made on the merits of the facts, and only after that

determination has been made under the principles of Federal prosecution, then I think this needs to be taken into consideration and

evaluated in the context of where the parent is and what the circumstances are.

But I think that there are certainly circumstances in which this

is an appropriate consideration, so I would agree and it would depend on the particular circumstances of the case, Senator.

Senator THURMOND. Mr. Robinson, I understand that sometimes

local authorities do not seek a UFAP warrant because they cannot

afford to pay the extradition costs associated with enforcing the

warrant. However, for an IPKA warrant, the Federal Government

pays the extradition costs. Do you agree that the Federal authorities should consider IPKA warrants when local authorities cannot

afford the costs associated with UFAP warrants?

Mr. ROBINSON. I think it ought to be a consideration. I note that

there was a provision that would have provided—in the provision

of last year’s crime bill, would have been helpful in allowing the

Department on a case-by-case basis to assist States and localities

in defraying some of the extraordinary expenses that may arise in

pursuing international extraditions. These can be quite expensive

and time consuming, and perhaps at an appropriate time, there

could be some consideration for that.

Senator THURMOND. Mr. Robinson, one way to locate and detain

abductors is to revoke their passports. I understand that the State

Department denies all revoked passports when the abductor is the

subject of a Federal warrant. It appears to me that the possibility

of revoking the abductor’s passport is a good reason to invoke the

criminal process in many cases. Do you agree?

Mr. ROBINSON. I think it can, in appropriate cases. Perhaps Ms.

Borek could add to that in terms of the available options from the

State Department’s point of view.

Ms. BOREK. Thank you. One difficulty here is that, very often,

the abducting parent is a foreign national and, therefore, is traveling on a foreign passport. We do have a system for trying to control

the issuance of a U.S. passport to children who might be abducted

and we are trying to strengthen that. But the child often is a dual

national, also, and so the passport revocation is perhaps less effective for the parent, more effective for the child, not necessarily always effective for the child. But certainly there would be some

cases where this would be useful, where it is an American citizen

abductor.

Mr. ROBINSON. It is my understanding, also, Senator, that the

passport revocation is possible under either an unlawful flight or

an IPKA charge.

20

Senator THURMOND. Ms. Borek, the task force’s report to the Attorney General recommended that revoking a child’s passport is

one way to help stop an abduction in process. What specific efforts

is the State Department undertaking to make it easier to revoke

abducted children’s passports?

Ms. BOREK. We do have a system now where, at the request of

the parent or an attorney or an appropriate court, we will put the

child’s name in a passport name check system so that when an application is received, the parent will be notified. It will also be denied based on an appropriate court order. We have amended the

regulations to provide for denial based on joint as well as sole custody.

We recognized in looking at the efforts under the senior policy

group review that we could do more to improve revocation on an

internal basis through, I believe, regulatory change, and this was

approved as part of the policy review and is being implemented.

Senator THURMOND. Ms. Borek, I understand that some obstacle

to efforts to extradite an abduction is that the country may not recognize parental kidnaping as an extraditable offense. What specific

diplomatic efforts are being taken by the State Department to encourage countries that are parties with us to list extradition treaties to interpret them to include parental kidnaping as an extraditable offense?

Ms. BOREK. We have gone out to all of the countries that have

this treaty to suggest to them and encourage them to agree with

us to this interpretation. We have found a number of countries do

not make this a crime under their national law, and one of the concerns that was raised in Congress, and we shared it, was that there

be reciprocity, that we not be extraditing Americans to foreign

countries for parental kidnaping when they would not be in a similar position to extradite people back to us.

We have not made specific efforts to get people to change their

laws in these areas. I think we need to know more about why they

have not changed them. There are some trends, especially in Europe, I think, away from the views that were reflected in the 1980

Hague Convention. Therefore, the situation is not necessarily one

that is improving in all respects.

What we have been focusing on first of all, I think, in the civil

area is the question of enforcing the court orders, which we have

not gotten into, but this is something which has caused serious

problems in a lot of cases, where people have even gotten orders

in their favor for custody or visitation and they have not been enforced. So in terms of diplomatic efforts, I would say at this point

that is a priority, and also encouraging people to agree with us on

the interpretation of the treaty. But we have not been trying to get

people to change their criminal law as of yet.

Senator THURMOND. Ms. Borek, the General Accounting Office

recently noted that the Office of Children’s Issues and the FBI

sometimes make duplicate inquiries on the same case. Do you expect a new case tracking system to allow State and Justice agencies to know what each other is doing regarding ongoing cases?

Ms. BOREK. We certainly hope so, Mr. Chairman, at least at the

basic level of knowing there is a case and certain information

should be available to all to avoid making duplicative inquiries. I

21

think we have determined that very detailed information about

criminal process, for example, or all of the contacts to the particular parent might not be entered in this for a number of reasons.

But certainly, the kinds of basic inquiries and information that

would lead one agency to talk to each other should be in there.

Senator THURMOND. Senator DeWine.

Senator DEWINE. Thank you, Mr. Chairman.

I think what this hearing is about today, quite candidly, is priorities and discretion and judgment, and I am going to make a statement at the beginning and then I am going to ask some questions

about it. The panelists may consider this a very harsh and maybe

unfair statement.

I do not think parents taking children illegally out of this country and keeping these children out of the country, away from another parent, is a high enough priority with the State Department,

nor do I think it is a high enough priority with the Justice Department. Mr. Robinson, you spent almost your entire testimony, quite

candidly, and you and I have discussed this before, you spent almost your entire testimony telling us why you cannot do things and

all the problems that are there. I am a former prosecutor and I

think I appreciate what you had to say. I am not sure I disagreed

with what you had to say, but it troubles me about the emphasis,

I guess.

We know there is nothing perfect in the world. We know that if

a child is taken by one parent out of a State, we know there are

problems with that. We know filing charges does not necessarily

solve the problem, but we still file them. You still file charges when

someone commits murder or someone commits rape or someone

commits some other Federal offense that the Federal prosecutor decides to prosecute under, even though this person may have fled,

so I am not sure that is an answer.

Let me, if I could, just talk a little bit and ask some questions

about these priorities. You state, Mr. Robinson, that since the passage of the parental kidnaping law, through the middle of this

year, U.S. attorneys have opened 229 files on international parental kidnaping, that 62 defendants have been indicted and 13 convicted. Now, one of the intentions of Congress in passing this statute is set forth in the House committee report, ‘‘to deter at least

some abductions by ensuring that the kidnaping offender will be

pursued by the U.S. Government. At present, most abducting parents have little to fear with regard to effective pursuit.’’

I just want to ask you whether you think 62 indictments over 5

years has been given abducting parents anything to fear as far as

effective pursuit by the U.S. Government. Sixty-two—I mean, you

talk about it being a new statute and we have got to get the word

out to U.S. attorneys and assistant U.S. attorneys, but 5 years is

a long time.

Mr. ROBINSON. I think we indicated that we expect there will be

more prosecutions, and I think that as the testimony indicates, I

think your emphasis is the correct one. I think the priority issue

is an important one. I think there needs to be additional work, and

the issue of working with the States on their prosecutions and utilizing the resources of the Federal Government and the State DeVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6601 OCT27.TXT SJUD2 PsN: SJUD2
22

partment on extraditions to bring people back to face State kidnaping charges in this area.

I am not going to disagree with you at all on the notion that

there needs to be an additional effort, and I think that what we

have been trying to do with the senior policy group is to try to get

our arms around the scope of these issues and continue to press on

them. But I am not going to suggest to you that more cannot be

done or should not be done. I think we all agree that it should and

we ought to do more.

Senator DEWINE. I appreciate that, and we understand that the

Justice Department, U.S. attorneys, and assistant U.S. attorneys

have to make judgment calls. You cannot prosecute every case. You

cannot deal with every case. But we set our priorities. Any administration sets its priorities, or any prosecutor sets his or her priorities, by what cases you put emphasis on. County prosecutors put

special emphasis and set up teams on rape cases or on drug cases

or welfare fraud cases.

It just seems to me that this government needs to say this is important and there is a reason that we have this law, and yes, it

does supplement State laws, but there are some advantages, and

we do not have time today to go into all the advantages, but I think

there are very distinct advantages to file under a Federal law as

opposed to filing under a State law, which brings me to Ms. Borek’s

question.

Let me just make sure I understand your testimony. Your testimony was that you did not think it made any difference from a diplomatic point of view whether or not our ambassador had or could

reference a State of Alabama or a State of Ohio charge or a U.S.

Government charge. Now, is that my understanding of your testimony?

Ms. BOREK. Senator DeWine, when we make an extradition request, it is always a U.S. Government request.

Senator DEWINE. No, I understand that.

Ms. BOREK. So I think what I was saying is that in either case,

we are presenting the foreign government with a U.S. Government

request and we expect them all to be honored. I have not seen any

indication that a foreign country said, oh, well, that is just a State

of Alabama request. We will pay less attention to it. I think we expect them all to be honored and on an equal basis.

Senator DEWINE. The report that we have been referencing here,

the internal working report, stated that one of the practical problems that was identified in this report in the diplomatic initiative

section is that, ‘‘left-behind parents expect the U.S. Government to

intercede directly with foreign governments on their behalf to recover their children. When diplomatic action is not taken, some

may feel the government has let them down. Federal law and policy must be articulated and explained to parents.’’

Can you explain what Federal law and policy there is that prevents the U.S. Government from interceding directly with foreign

governments? I again must say, I find that statement to be a horribly condescending statement. I know you did not write it, but it

is just horribly condescending. We have to explain to these poor

parents why the U.S. Government cannot do anything.

23

Senator THURMOND. Senator, could I have the floor for just a

minute before you make your statement?

Senator DEWINE. Sure.

Senator THURMOND. I wish to note that I am pleased to have

Lady Catherine Meyer as a witness on the second panel. She is an

expert in the area of parental kidnaping. I plan to return later and

ask questions to the second panel, but right now, I have another

engagement I have to go to.

Senator DEWINE. Thank you, Mr. Chairman.

Senator THURMOND. I ask if you will take over here.

Senator DEWINE. Thank you.

Ms. BOREK. I think that—— Senator DEWINE [presiding]. Does that statement bother you at

all?

Ms. BOREK. Yes. I think it is not a very clearly written statement. It is not meant to say that the government cannot do anything at all. I think what it is intended to say is that we do not

press directly for return. In the Hague case, there are some reasons

under the convention why a court might decide not to return a

child, and we do not say, well, this parent is clearly right and this

parent is clearly wrong as a matter of course. We press the foreign

government and we do intervene and press to comply absolutely

with the spirit and the letter of the convention as we see it.

I do not think that is a very well-written statement because it

does suggest that we do not do that. All it means really is we do

not sort of walk in there and say, you must give us the child now.

Really, that is what the parents want, and very often, very rightly.

But this is not a mechanism, unfortunately, that is quite that automatic. There are some factual disputes, and these are kinds of

cases where there can be some really ugly factual disputes that ultimately do have to be resolved by the courts. A lot of the problems

we have been having—not all of them, by any means, but a lot of

them—are actually problems with courts and not with the governments of the countries in question.

Senator DEWINE. Let me follow up with that. Also in the report

to the Attorney General, there is a section, the same section on diplomatic initiatives, that sets forth the direct actions the State Department might take in an international parental kidnaping case.

These include having the U.S. ambassador meet with the leader of

another country, formal communications such as diplomatic notes,

and less formal communication such as an exchange of letters.

Let me ask you, are these direct actions taken only to promote

and improve implementation of the Hague Convention in general,

or are they taken in a specific case concerning a child in that country? Second, if taken in individual cases, how many times has an

ambassador, to your knowledge, met with the leader of another

country on an individual case of international parental kidnaping?

Ms. BOREK. In answer to the first question, we certainly do it in

the context of individual cases and for individual cases. There have

been, in addition, some efforts aimed purely at the systemic level,

but those are less likely to involve the ambassador.

I cannot tell you how many times exactly the ambassador has

met. Of course, this is the question in cases that seem to have

problems, where this seems to be a useful thing to do. Obviously,

24

there are a lot of cases that go smoothly and there is no reason for

the ambassador to talk to anyone. I could try to get you more information about—— Senator DEWINE. I would appreciate that. Again, it goes back to

priorities and it goes back to what we emphasize and what we

spend time on. All of us in government every day make choices,

priority choices. How do we spend our day? How do we spend our

time? It is finite. Time is finite. I guess I just would like some assurance from you or from the Department that this is, in fact, important.

I mean, your point is well taken that these are messy cases

sometimes, that sometimes the facts are in dispute. A lot of times,

the facts are not in dispute, frankly. A lot of times, someone just

takes off and they are just gone, because they are going back to

their home country and they want their baby and they are gone

and that is it. It does not take a rocket scientist to figure that one

out. But some, yes, there are some factual disputes.

It seems to me the question is, how involved is the State Department in trying to resolve these and to use the diplomatic skills that

our diplomats are trained in and to resolve these particular cases,

whether or not there is a formal charge filed or not, whether or not

we are interested in actually bringing the person back, or can we

just get this thing worked out. I am not suggesting that our ambassadors become domestic relations experts here, but these things are

important and these are important when these children are taken.

If it does not reach the ambassador’s level or if the ambassador in

a given embassy does not think it is important, then obviously the

foreign government will not think it is important.

Ms. BOREK. I agree with you, Senator DeWine. I need to add, I

think, in addition to the question of priority, which we decided we

did need to make more systematic efforts to make sure we were

doing everything possible in this area, I need to add two things.

One is the Office of Children’s Issues has no higher priority in the

world, and I think the Bureau of Consular Affairs, than to be concerned about these children and, of course, Americans generally,

but within the category of Americans, children call for a particularly high concern.

Second, I have to say, in addition to priority, there is also the

side of it that is resources. The whole State Department has a lot

of priorities, most of which are extremely important, and we will

not say which are and which are not, and is operating under a situation of continuing very limited resources. I read in the paper the

other day that the real value of the foreign affairs budget is like

50 percent of what it was some administrations ago. This is the

factor in the overall picture. It is not to negate your point. I think

your point is a very correct one. It is just that I think that also has

to be said.

Senator DEWINE. Mr. Robinson, in your testimony, you stated

that a large but undetermined number of international parental

kidnaping cases are charged under State and local law, and I think

Mr. Rossman has made that point very well, too, and I certainly

agree with that. You have also stated that warrants for unlawful

flight can be obtained where the abducting parent crosses State or

international borders. You acknowledge these UFAP warrants do

25

not provide an independent basis for extradition, but they may assist in obtaining Federal resources to locate the abducting parent.

Is it not true that a lot of State, though, and local prosecutors

do not follow through with State charges because of the prohibitive

costs of extradition? I just anecdotally will tell you that when I was

a county prosecutor, we convicted someone of murder. Unfortunately, he decided to leave the jurisdiction and ended up in a foreign country. I cannot tell you how much it cost Greene County,

OH, to bring this murderer back. It would cost a fortune for our

moderate-sized county. So it is something that, as Ms. Borek talks

about resources, clearly, a local prosecutor is going to think long

and hard about that. If that is true, is that not one reason for

charging the crime at the Federal level?

Mr. ROBINSON. It is, I think, a consideration, but the resources

issue is there, too. In the extradition area, as I am sure the Senator knows, because of the high visibility of some of these major

cases, the Einhorn case in France, the Scheinbein case in Israel, in

the Criminal Division of the Office of International Affairs, as we

allocate resources and determine where we are going to go after

and deploy resources, obviously, when you start with murderers

and other major individuals, these need to be taken into consideration.

But I think the resources question is a real one and I think that

was the reason why the notion in last year’s crime bill of providing

some additional resources to allow on a case-by-case basis the ability to assist the States, because as the Senator knows, the county

prosecutors throughout this country are close to their constituents.

That is where people go initially. There are 5,000 assistant U.S. attorneys throughout the country worrying about organized crime,

public corruption, narcotics trafficking, lots of other things, and we

need to have a cooperative relationship of constructive federalism

with our partners.

I think, working with State prosecutors and trying to come up

with ways we can work together to deal with this very important

problem and, I think, some resources to assist, because it is difficult to deal—and it is very, very difficult, and my hearts go out

to the parents who have to deal on an international basis with the

equivalent of a custody dispute. It is hard enough to deal with that

right in your own backyard, but to have to deal with it with another country with different laws is a staggering problem.

So I think that it would be wise for the policy makers in the Congress and the executive branch to address some of these resources

questions that might provide some assistance to State and local

prosecutors, as well as Federal prosecutors as we try to deal with

all the various extradition requests we have.

One of the things that I have certainly seen since returning to

the Justice Department, there has been a sea change here from

when I was U.S. attorney 20 years ago on the globalization of

crime. More than half the work of the Criminal Division deals with

international criminal activities. This whole issue of globalization

is going to find its way, as it does already, into this problem, as

well, and we need to use all of our best resources and thinking to

try to address these kinds of problems, and the resources would

26

help the States and it would help, I think, the Justice Department

and the State Department in dealing with these issues, as well.

Senator DEWINE. I thank you for that answer.

Let me just read from the House report in regard to the International Parental Kidnaping Crime Act of 1993. Again, I have read

parts of it, but let me read one additional part. It sets forth many

reasons for creating the offense, and this is sort of legislative history. But one is that the offense will provide the basis for Federal

warrants which will, in turn, enhance the force of U.S. diplomatic

representatives seeking the assistance of foreign governments in

returning abducted children. Apparently, the House and Congress

thought this was one more tool that we would give the State Department, and in some cases, it would work. Obviously, in some

cases, it might not work.

But I think we should not forget that that is a legitimate tool.

It is a tool that Congress intended by the filing of charges to give

for you, the Justice Department, to be giving to the State Department. I just would point that out, again with the understanding

that in any given case, it may work or it may not work. That is

the way the world is. But it certainly was intended as a tool, and

I think in some cases it can be a tool.

Mr. Robinson, let me ask you another question. Is not another

way the criminal charges could help bring about the return of a

child would be through imposing sentencing conditions? These were

used in the Amir case, which required the father to return to the

United States.

Now, in the report to the Attorney General, it points out that,

‘‘the imposition of such conditions have proven ineffective to date.

Therefore, the imposition of such conditions must be considered on

a case-by-case basis.’’ I do not disagree with that. But while sentencing conditions did not work in this particular case, is it not

really too soon to totally discard this as a tactic?

Mr. ROBINSON. I think it is, yes. I think that needs to be taken

into consideration, and I would expect that in the event the child

is still abroad and we have the parent here convicted, I would anticipate that that should be sought as an appropriate condition.

Unfortunately, as that particular case indicated, it does not always

work, but that does not mean we should not stop trying or that we

have enough data to conclude that we should not do it. I think it

is an appropriate consideration that can make a difference. It does

in other areas. Conditions often can make a difference.

Senator DEWINE. Mr. Robinson, Senator Thurmond had one additional question which I would like to ask on his behalf. American

judges generally have little experience with international abduction

law. Some are getting more experience than they want. But it appears to me that one way the Justice Department can help educate

judges, local judges, is to file amicus briefs in potentially precedentsetting cases of international child abduction. Does the Department

monitor litigation of this type to consider filing amicus briefs?

Mr. ROBINSON. Are you talking about State litigation? I am not

aware offhand——

Senator DEWINE. Obviously, you could expand that question to

State and the appropriate Federal, as well.

27

Mr. ROBINSON. I am confident that if we were aware of such a

situation and could weigh in, that it is the kind of thing we ought

to give serious consideration to do, because anything we can do to

get the word out that this is a serious matter, that any parent that

is even thinking about this ought to recognize there are not only

State sanctions, Federal criminal sanctions, and that we have the

resources and intend, although we have the obstacles, but I did not

mean by stressing the obstacles to suggest we ought to throw in

the towel. The obstacles are there, but we need to get the word out,

because deterrence is a major consideration.

I know the Senator has that in mind and I think you are right

in that regard. There ought to be a cost associated with doing this.

There ought to be more than nothing to fear, as you suggest, and

that can make a major difference.

Senator DEWINE. Mr. Robinson, on that, I think we will conclude

the panel. That was a good summation. I appreciate the three of

you being here very much. We look forward to working with you

in the future. This is an important area and I am sure we will be

all discussing it again. Thank you very much.

Mr. ROBINSON. That is right. Thank you, Senator.

Senator DEWINE. I would like to invite our second panel to now

start coming up. I will be introducing you as you come up.

Our first witness on the panel is Lady Catherine Meyer, wife of

the British ambassador to the United States. Lady Meyer holds a

bachelor’s degree from the London School of Slavonic and East European Studies and has been a successful commodities broker. She

is well known for her efforts to raise awareness of parental kidnaping, which is based on her own experience regarding the abduction

of her two sons by their father. She is Co-Chair of the International

Centre for Missing and Exploited Children, which she helped establish earlier this year.

Our second witness is Laura Kingsley Hong, a partner in the law

firm of Squire, Sanders and Dempsey. Ms. Hong has worked tirelessly for 3 years regarding her personal story of international parental kidnaping.

Our third witness is John Lebeau, Jr., who is a businessman in

West Palm Beach, FL. His twin children were taken from their

home by their mother in June 1996 and he eventually succeeded

in getting them returned to the United States in December 1998.

Our fourth witness is Craig Stein, a graduate of Swarthmore College and Emory University School of Law. Through his work in private practice, he has considerable experience in international child

abduction and holds the National Center for Missing and Exploited

Children’s Award of Merit.

Our final witness is Ernie Allen, President and Chief Executive

Officer of the National Center for Missing and Exploited Children,

which has helped recover over 48,000 children. The nonprofit center is taking an increasingly important role with the Federal Government in international parental abductions. Mr. Allen, a member

of the Kentucky bar, served as Director of Public Health and Safety

for the City of Louisville and director of the Louisville–Jefferson

County Crime Commission before co-founding the National Center.

I would ask that the witnesses limit your opening statements to

no more than 5 minutes. All of your written testimony will be

28

placed in the record, certainly, without objection. We will start with

Lady Meyer and we will just go right down the line.

PANEL CONSISTING OF CATHERINE I. MEYER, CO-CHAIR,

INTERNATIONAL CENTRE FOR MISSING AND EXPLOITED

CHILDREN, WASHINGTON, DC; LAURA KINGSLEY HONG,

SQUIRE, SANDERS AND DEMPSEY, CLEVELAND HEIGHTS,

OH; JOHN J. LEBEAU, JR., PALM BEACH GARDENS, FL; CRAIG

E. STEIN, ATTORNEY AT LAW, MIAMI BEACH, FL; AND ERNIE

ALLEN, PRESIDENT AND CHIEF EXECUTIVE OFFICER, NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN,

ALEXANDRIA, VA

STATEMENT OF CATHERINE I. MEYER

Lady Meyer. Thank you very much for having this hearing and

thank you very much for inviting us. I spent, as you all know, 51⁄2

years trying to secure the return of my abducted children and then

simply to obtain what is the most elementary human right, that of

seeing my children. I have been lobbying in France, in England,

now in the States, to no avail.

As I stand today, I have no access whatsoever, and in 51⁄2 years,

I have only managed to see my sons for a few hours—not weeks,

not days, just a few hours. In 51⁄2 years, I have never been able

to see them as a normal parent. I have never woken up with my

children and I have never put them to bed. I have never received

letters from them, and I have received in 51⁄2 years one school report.

Has anybody proved that I am a bad mother? No. Has any

proved that I do not love my children? No. But I am still denied

the rights that even women in prison are allowed. My parents, too,

have been denied this right. My father is 87 and he may never live

to see Alexander and Constantine again.

But the point is that who are the ultimate victims? It is my children. They will be scarred for life. They have become confused and

angry with me because they have been told from the beginning

that I have abandoned them. On two occasions, in 1994 and in

1998, when I saw my sons and I told them how happy I was to see

them, Alexander replied, ‘‘You lied. Daddy told us you could come

and see us whenever you wanted, but you never did.’’

My children were abducted in 1994. There was an order by the

British courts to send them back. The initial court in Germany was

also reinstating the first court order for the immediate return of

the children, but it was never enforced. In Germany, court orders,

like in Austria, are not enforceable. So my ex-husband asked for

half-an-hour to bring the children to the court, and taking advantage of this, he vanished and he managed to lodge an ex parte appeal in the higher court. The higher court, article 13b, was used

not to return the children to the U.K. The children objected to the

return, apparently. At that time, they were 7 and 9. I had not seen

them for 4 months. The children apparently felt they were living

in a foreign environment, because in England, one does not speak

German.

The problem is that once the children have not been returned,

all the further decisions were in the German courts, and the result

29

of that is that custody was transferred to my ex-husband and that

I have not been able to obtain access rights. The fear of re-abduction was used, and then the fact that the children no longer want

to see me. So you find yourself in a catch-22 situation. The few orders that I have got from the courts, that usually lasted for 3 hours

a month, were not enforced when my ex-husband did not bring the

children to the meeting place.

But I want to also talk about not my case, about all the other

cases, because since I have been lobbying, I have been approached

by hundreds of parents in the U.K., in England, and now in the

United States. Obviously, I have been approached by many parents

who have problems with Germany. The result of what I have found

is that three—I explain it much more in my written statement, but

there are really three main problems that article 13b has been

used all the time as a reason not to return abducted children, and

some children were three and five and apparently they objected to

a return.

The second problem that you find in some countries, and particularly in Germany, is the slowness of the proceedings. As I always

say, in children’s issues, 99 percent of the law is possession. The

longer the proceeding takes, the more indoctrinated the child will

be for the purposes of article 13.

The third problem is that in some countries, notably in Germany

and in Austria, court orders are not enforceable.

I have only managed to come up with 34 cases. Thirty-four cases

still involves 46 American children who are now held in Germany.

They all have been abducted or illegally retained, and those 46

children have no contact to the American parent.

One of the parents is here today, and I would like to introduce

him. He is on the top of my list of the parents that I have supplied.

His name is Joseph Cooke. He served as a U.S. Army officer in

Germany. He met a German woman. They returned to the States.

They married. They had two children. When the children were

three and five, his German wife went to Germany and then phoned

him saying, ‘‘I am not coming back and you will never see the children again.’’ The wife then fell ill and the children were given away

to the social services. The father was never informed. The father

tried to seek the help of the FBI and everybody in America. The

social services then poured the children to a foster family. The father was still not informed. This was 4 years ago. The father has

no access to his children.

I have other cases, and they are all rather similar. My point is

that I was very shocked today to receive a copy of the letter that

the German Ministry of Justice has sent to your ambassador in

Berlin, Ambassador Kornblum, and the letter says that Germany,

the Ministry of Justice, is not aware of any problems between

America and Germany and they are not aware that any children

have no access with American parents. So I would like to point that

out, because I have here some cases, and I believe there are many,

many other cases because I have to point that most parents are

very scared to come forward and talk.

Senator DEWINE. We will make that part of the record, if you

wish to submit the letter.

Lady Meyer. Yes.

30

Senator DEWINE. That will be made part of the record.

[The letter from the German Ministry of Justice follows:]

GERMAN MINISTRY OF JUSTICE,

Berlin, Germany, September 9, 1999.

S.E.

Dem Botschafter der Vereinigten Staaten von Amerika,

Herrn JOHN C. KORNBLUM,

Neusta ̈dtische Kirchstrasse 4–5,

10117 Berlin.

DEAR AMBASSADOR: First I would like to thank you for your letter regarding the

situation of Lady Catherine Meyer and the general situation of children living in

Germany and their contact with foreign parents.

I very much regret the fact, that for some time now the legal settlement for visits

between Lady Meyer and her children has not been realized. As we all know problems in the constant contacts between parents and children will have a strong negative impact in any normal family life and this will cause emotional imbalances. This

is true for bi-national as well as mono-national families. One of the goals that the

children’s law dd. 07/01/98 intended to achieve, was to approve the legal basis for

children to remain in contact with both parents after a separation or a divorce. To

achieve this it is not only aimed that both parents are responsible for the education

and upbringing, but also to define the right to regular visits as a right and a duty

as well as to implement legal structures to guarantee the settlements actually will

be realized.

In both Germany and the United States regulations concerning visiting-schedules

are supervised by independent specialized courts. In the case of Lady Meyer the

‘‘Amtsgericht’’ Verden refused to grant an urgent appeal of coercive fine against the

father in order to force him to agree to the visiting times. The children themselves

refused stubbornly to see their mother without any hint of coercion by their father.

Lady Meyer therefore withdrew all her applications saying she no longer trusted the

court system. I do not have any authority to comment on the decision of the

‘‘Amtsgericht’’ Verden either favorably or unfavorably.

Other German–American cases or problems with familial alienation due to conflict

over visiting schedule are unknown to me. Although it is said by the German Central Authority that law cases in connection with the Den Haag convention of children-abduction in German–American relationships are fairly high, the actual trials

have resolved disputes successfully. We believe this is partly the case because of the

good cooperation between German and American authorities, which is symbolized

in this year’s March-meeting. I would be happy to personally discuss the matter

with you to provide further clarification. I would however appreciate if you could

supply more detailed information about the relevant cases you would like to discuss

about.

I would personally like to add another issue to our conversation, as how we both

could help in avoiding and reducing the spread of right-wing extremist/fascist material via post and or email/internet coming from the United States of America.

I assume that this circumstance worries you as much as me, State Secretary Reno

received various letters and proposals concerning this matter. It would be helpful

and necessary especially with the Bundestags—questions on the record to move on

on that issue.

Kind regards,

PROF. DR. HERTA DA ̈ UBLER-GMELIN, MDB,

Bundesministerin Der Justiz.

Lady Meyer. Can I talk one more minute?

Senator DEWINE. Absolutely.

Lady Meyer. I am just saying that, first of all, there were a lot

of U.S. Army people in Germany and that there are many, many

other cases, I know, around. But the problem is, the parents do not

come out and they do not come out because while judicial proceedings are ongoing in Germany, they are afraid because they know

that that is going to play a bad part legally against them and that

is what was with my case. As soon as I spoke to the press, as soon

as I started making noises in France and in England, the German

courts used it against me and they used it as a reason for me not

to see my children, saying I am a bad mother.

31

But the problem, the issue is not really our ex-spouses, though

I think the ex-spouses are still a very interesting phenomenon. A

man who really loves his children, like my ex-husband, would not

deny the children the love of their mother, and I think a lot of parents—I mean, we have seen in the press, also, how some—I do not

know the case, so I do not comment on it, but recently, somebody

murdered his children rather than allow the ex-wife to see them.

It was around here.

But the point is that the problem is really not our ex-spouses, it

is more the courts. The fact that in some countries, the courts

make orders that are not enforceable and we find ourselves outside

of Germany not being able to do anything about it, which comes

back to the Hague Convention.

I think the Hague Convention is an international convention that

was signed and countries should abide by it internationally. They

should not hide behind their judicial independence, because in my

case, as in all the other cases, for the moment, the German authorities have consistently answered that the German courts are

independent and the German judicial system cannot intervene in

their courts. So we are in a catch-22 situation.

I think this is the main point that I want to make, is that there

is a problem of some countries not abiding by the international convention, some countries giving reasonings which I think are absolutely not acceptable, and that this basically is an issue which is

a human rights issue, that a parent like Joe Cooke, like myself,

and like the 34 other parents, have no access, no information, nothing on our children. This is a human rights issue and I would like

some way for it to become a human rights issue officially.

Senator DEWINE. Thank you very much.

[The prepared statement of Lady Meyer follows:]

PREPARED STATEMENT OF CATHERINE I. MEYER

The 1980 Hague Convention on the Civil Aspects of International Child Abduction

I. THE PURPOSE OF THE HAGUE CONVENTION

The 1980 Hague Convention on the Civil Aspects of International Child Abduction

(the Hague Convention) is a world-wide convention designed to secure the prompt

return of abducted children who have been removed from, or retained outside, their

country of habitual residence, so that any subsequent welfare issues relating to the

children can be decided in the home jurisdiction.

The Hague Convention is designed to discourage child abduction and to ensure

‘‘the protection of children against the harmful effects of their wrongful removal or

retention.’’ It is not intended to pass moral judgement. Most importantly it is not

concerned with the merits of a custody case. Criticisms or complaints about the custodial parent or the terms of a custody award, are matters to be dealt with by the

jurisdiction of the child’s habitual residence. The paramount objective of the Hague

Convention is to return the child 11promptly’’ and to confirm the jurisdiction of the

country of origin in custody matters.

Save in exceptional circumstances (see Article 13b), the Convention is based on

the assumption that it is in the child’s best interest to be returned quickly to its

country of habitual residence. This ensures that the courts of that country—which

are better placed to do so—can determine the issues relating to the child’s future.

The abducting parent cannot then profit from the abduction by choosing one jurisdiction over another in the hope of reversing previous custody decisions.

32

1My personal experience and that of the cases I am presenting today are with Germany. This

explains the focus of this paper. But of course the problem is not confined to Germany.

II. THE PROBLEM: INCONSISTENT APPLICATION1

For the Hague Convention to work effectively in its dual purpose of discouraging

abductions and returning abducted children promptly to their country of habitual

residence, it must be consistently interpreted and enforced.

But, in the past few years there has been growing concern that the effectiveness

of the Convention is being undermined by the failure of some signatory states to

fulfill their obligations.

One of the reasons is that judicial systems lie at the heart of national sovereignty.

This often inhibits cross-border co-operation, which requires the competence of national courts to be limited by international obligations. The issue of child abduction

is a prime example of the limitations of international co-operation in the judicial

area. The Forum on International Child Abduction held in Washington on 15th and

16th September 1998, under the auspices of the National Center for Missing & Exploited Children (NCMEC) and opened by Chairman Ben Gilman identified the

major weaknesses in the Hague Convention; weaknesses, which some signatories exploit to avoid returning abducted children to their country of habitual residence. The

NCMEC’s report on the Conference pointed in particular to three problems: the systematic use of the exception in Article 13b (‘‘the loophole clause’’), the slowness of

proceedings and the non enforcement of court orders by some countries.

1. Article 13b defence—the loophole clause

The exception to the requirement for the immediate return of the child to the

country of habitual residence is to be found in Article 13 of the Convention.

‘‘The judicial or administrative authority of the requested State is not bound to order

the return of the child if’’

Article 13a: * * *.

Article 13b: ‘‘there is a grave risk that the childs return would expose him/her to

physical or psychological harm or otherwise place the child in an intolerable situation.’’

Alinea 2: ‘‘The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has obtained

an age and degree of maturity at which it is appropriate to take account of its views’’.

Grave risk: The Hague Convention provides limited defences based on welfare

considerations—a court has the discretion not to return an abducted child if returning it would place the child at ‘‘grave risk of psychological or physical harm’’ or put it in an ‘‘intolerable situation’’. These are strong terms and they are

meant to apply in extreme circumstances only. The precedent case of Friedrich v. Friedrich (U.S. Appeal’s Court—6th District, 1996) established that ‘‘grave

risk of psychological or physical harm’’ could only apply to a situation where a

child would be returned to a zone of famine or war or to a situation of serious

abuse or neglect.

Childs objection: The Hague Convention also provides a limited opportunity

for the child to be heard provided it has obtained an ‘‘age and degree of maturity’’ at which it is appropriate to take its views into account. But a main intention of this article was to draw a clear distinction between a child’s objections,

as defined in the article, and a child’s wishes as commonly expressed in a custody case. This is logical, given that the Convention is not intended as an instrument to resolve custody disputes per se. It follows, therefore, that the notion

of ‘‘objections’’ under Article 13b is far stronger and more restrictive than that

of ‘‘wishes’’ in a custody case.

In the United States a restrictive judicial definition to Article 13b has been given

in the Friedrich v. Friedrich precedent case. In England, the Consultation paper on

Child Abduction published in the February 1997 issue of the British Family Law

Journal reported that the High Court has taken a policy decision to approach Article 13b with great caution (in particular against the risk of indoctrination by the

abducting parent) and, even if a child were found to object to a return, to refuse

a return only in an exceptional case. (See also the precedent Court of Appeal case

C (a Minor) 23 April 1999 FAFMF 1999/0306/2).

But whereas the intent of the Convention is not to allow this objection except in

the most narrowly defined circumstances, in some countries—notably in Germany—

it has become virtually the rule. The Lowe Report of 1996 found that every time the

child’s ‘‘objections’’ was raised as a defence, a return order was refused by the GerVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
33

2 It should be noted that the precedent setting case, Friedrich v. Friedrich, Federal Dist. of

Ohio (Remand Division), 1994 ruled that this objection could not apply since the mother could

return with her child to its country of habitual residence and thus settle the problem of separation from her child.

man courts (even when children as young as 3 and 5 apparently stated an ‘‘objection’’ to their return).

In 1996, the Lord Chancellor’s Department (English Central Authority) issued a

report naming Germany as the worst offender with regard to the Hague Convention.

The report said that in the previous year, 17 cases (from the jurisdiction of England

& Wales only) led to formal requests to Germany, yet none resulted in a judicial

return. The Lord Chancellor’s Department accused the German courts of hiding behind legal technicalities to override their obligation to repatriate abducted children.

In France, where the problem is substantially larger than in England (France and

Germany, having a common border), President Chirac has on several occasions

raised his concern over Germany’s failure to return children abducted from France.

In December 1998, the President talked about ‘‘the law of the jungle’’ following the

violent abduction of two children from French territory by men hired by a German

father. (There could be no more compelling example of the dangerous consequences

of allowing possession to become 9/10th of the law in cases of international child

abduction). The French Minister of Justice, Madame Elisabeth Guigou, declared in

March 1999 that there were ‘‘cultural problems’’ with Germany that needed to be

overcome.

Similarly, in the 34 cases of American parents (involving 42 children) that I am

presenting today, the notions of ‘‘psychological harm and/or the child’s objection’’

have been consistently used to stop the return of abducted children and then to deny

access to them. In all our cases there is a striking uniformity in the arguments used

by German courts and authorities. For example:

• The child is better off with the German parent (by implication, the better parent) and the victim parent is in no position to take care of the child. Therefore

returning the child to the U.S. would cause it ‘‘psychological harm’’.

• The child does not want to leave Germany and it ‘‘objects’’ to returning to the

USA (in the cases of Joseph Cooke, Jeffrey Cook, Joseph Howard and Edwin

Troxel, the children were less than six years old).

It is interesting to note that the arguments used by German courts to justify not

returning a child are often contradictory: for example ‘‘the mother works and can

therefore support the child’’ when a German mother is the abductor (case of James

Rinaman) but ‘‘the mother works and therefore has no time for the child’’ when the

mother is the foreign victim parent requesting a return (cases of Ildiko Gerbhash

and Catherine Meyer). Similarly, when a German mother is the abductor the German courts argue that it would cause the child ‘‘severe psychological damage’’ to be

separated from its mother, but when the mother is the foreign victim parent this

argument no longer applies. Instead, it is argued that it would cause the child ‘‘severe psychological damage’’ to be separated from its new environment.2

Used in this manner, Article 13b delivers children into precisely the danger from

which the Hague Convention is supposed to protect them.

Indeed, a common thread in all too many cases is the sustained, vengeful effort

of the abductor to deprive the other parent of contact with the child to the maximum degree possible. The aim in fleeing one judicial system to another is to reverse

permanently previous custody decisions and destroy the other parent’s relationship

with the child.

When parents abduct children, they are obviously not going to speak well of the

other parent, saying that he/she still loves them and wants to see them. On the contrary, as in my case, the children are told that their other parent is a bad mother

or father, who has abandoned them and could see them at any time if only he or

she wanted to.

Children who are abducted will often have already suffered from their parents’

separation. But in addition they will experience the trauma of being suddenly

snatched from the security of a familiar environment, friends, school, grand parents—usually at an age when the breakdown of a family relationship is hard to understand. They do not know what is happening or why. Situations are worse if the

abducting parent is hiding from the police or taking precautions against re-abduction—when the child realises there is a state of war between its parents. The child

becomes confused and angry. It is traumatised by the loss of one parent. Its greatest

fear becomes not to lose the remaining parent.

This is similar to the ‘‘Stockholm Syndrome’’ when hostages identify with their

captors. But in child abduction cases, the syndrome is even more severe because of

34

3The Lowe Report, 1996.

the age of the child-hostage, its relationship with the captor, and the latter’s ruthless psychological exploitation of the relationship.

Many studies have been done in the USA about what is known as ‘‘Parental

Alienation Syndrome’’—when one parent systematically denigrates the other—and

its devastating effect on children. The child soon replaces the positive memories of

the absent parent with hurt and anger at what it sees, and is encouraged to see,

as abandonment and betrayal. In its craving to keep the love of the only remaining

parent, the child ends up asserting vehemently that it does not want contact with

the victim parent.

This is not just psychologists’ theorising. It is my actual experience and that of

the many parents who have contacted me.

What greater psychological harm, what more intolerable situation could there be

for a child, than to be exposed to systematic indoctrination by one parent against

the other; and, worse, to carry the main burden of responsibility in adult court proceedings for deciding between mother and father?

Apart from perverting the original intent of the Hague Convention, asking a child

in effect to choose between parents is a form of child abuse.

In addition, the systematic use of Article 13b to legitimise abductions and refuse

a return further extends the meaning of the Hague Convention to encompass in

practice an unwarranted jurisdiction in custody matters—exactly the opposite of the

Convention’s aim. Certain consequences flow from this, all of them prejudicial to the

victim parent.

When a child is not returned, the abducting parent has the additional advantage

of having subsequent proceedings dealt with in the country of retention rather than

the country of the child’s habitual residence. Case studies show that such court decisions, dealing with custody and access rights, can favour the abducting parent. This,

combined with the fact that in some countries (for example Austria and Germany)

judges are reluctant to enforce access orders, results in a situation where a parent

is often deprived of all contact with the child. On this interpretation of Article 13,

the Hague Convention becomes in effect the instrument of alienation between child

and victim-parent—the very opposite of what was intended.

Professor Elisa Perez-Vera provided the primary source of interpretation of the

Convention in her Report of 1980: ‘‘The Convention as a whole rests upon the unanimous rejection of the phenomenon of illegal child removals and upon the conviction

that the best way to combat them at an international level is to refuse to grant them

legal recognition * * * the systematic invocation of the said exceptions, substituting

the forum chosen by the abductor for that of the child’s residence, would lead to a

collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration’’.

2. The delay factor—possession is 9/10th of the law

The merit of the Convention is supposed to lie in the speed of its proceedings. The

unusually rigorous limits on defences cannot otherwise be justified as being in the

best interest of the abducted child. Lengthy proceedings would also give abductors

a further advantage by allowing them to indoctrinate the child against the left-behind parent (for the purpose of Article 13b) and by generating a new argument,

namely that the child is now settled in its new environment and should not be

moved again.

Since Article 13b is an exception to the requirement for the ‘‘immediate return’’

of the child, it stands to reason that an abductor will usually use it as a defence.

The abducting parent will usually try to slow down the process, and introduce

issues and evidence which would expand and lengthen what should be summary

proceedings. It is quite contrary to the purpose of the Hague Convention for states

to permit such an expansion to impede the speedy resolution of the request for return. (See Article 11: ‘‘The judicial or administrative authorities Of Contracting

States shall act expeditiously in proceedings for the return of children’’. It stipulates

that if an application is not determined within 6 weeks, an explanation may be required of the court of the requesting state).

But, some countries are markedly slower in dealing with Hague applications than

others. For example, judicial returns take on average 51⁄2 weeks in England versus

26 weeks in Germany, while judicial refusals take 11 weeks versus 36 weeks (during

which contact with the children is difficult, if not impossible).3

The length of proceedings is clearly a major problem, where complaints are commonly made about Germany. There seem to be two basic reasons for the delay: the

first is that Hague applications are not accorded top priority and the second is that

35

4 In England and Wales, Convention cases are exclusively heard centrally by a small number

of specialist judges—17 at present. Conversely and until very recently, all lower courts (over 800

of them) had jurisdiction to hear Convention cases in Germany. Cases were therefore heard in

the locality chosen by the abductors (usually their hometown). 5Stanley Clawar, PhD., C.C.S. and Brynne Rivlin, M.S.S. book ‘‘Children held Hostage: Dealing with Programmed and Brainwashed Children’’ Published by the American Bar Association

is probably the best research made to date on how easy it is to programme children.

Hague Convention hearings are heard by inexperienced judges and start at the

Amtsgericht (lower court) level.

In countries where Convention cases are heard centrally—at the high court level,

as in England & Wales—by a small number of specialist judges, the system works

well. Cases are dealt with expeditiously, based on paper evidence and without the

child’s view being usually heard (i.e. approaching article 13b—‘‘the child’s objections’’—with great caution). Judges usually make a decision to return the child, relying on the court of habitual residence to make a fair decision at any subsequent custody hearing.4

In countries were Convention cases are first heard at tile lower level, they tend

to be slow and dealt by judges who are inexperienced and/or unwilling to uphold

the difference between proceedings under the Hague Convention and normal custody cases. As a result, children are usually not returned.

Since an abducting parent will usually, within the framework of Article 13b, level

allegations against the other parent and request that oral evidence be heard, it is

important that courts do not treat these Article 13b objections as ‘‘a merit of custody’’ argument. Such considerations are meant to be reserved to the court of the

child’s habitual residence. But in Germany, courts have shown themselves ignorant

or careless of their obligations under the Convention. Underlying this is a distrust

of foreign courts.

Amtsgericht (lower court) decisions can then be appealed in the Oberlandesgericht

(high regional court) which causes further delay in the proceedings. Appeals can

take several months to decide and judges are usually not more experienced. Hague

applications are again treated no differently to normal custody proceedings. But

even an appeal ruling that the child should be returned does not end the proceedings, as the appellate courts have no power of enforcement.

Under German Family law, children’s views are required to be taken into account

and it is normal for children, even quite young, to appear in court. The child’s attendance at the court lies at the judge’s discretion but it is not unknown for children

as young as 3 years old to participate in court proceedings. Court procedures nearly

always involve the Jugendamt Youth Authority) who are asked to interview the children and report to the court. This causes further delay in the proceedings and gives

an additional advantage to the abductor, by providing him with a new argument,

namely that the child has ‘‘adjusted to its new environment’’ and that it would be

‘‘unsettling’’ to return it to its country of habitual residence. In the case of Joseph

Cooke, these arguments have been taken to such extremes that a German court has

committed his two children (who were 3 and 5 at the time) to the care of German

foster parents rather than return them to their natural father in the USA.

In most cases, the Jugendamt does not make inquiries pertaining to the child’s

habitual residence and it is the abductor, not the victim parent, who is interviewed.

But, more importantly, the involvement of the Jugendamt fundamentally violates

the spirit of the Hague Convention. The Convention is clear: ‘‘In considering the circumstances referred to in article 13b, the judicial and administrative authorities

shall take into account the information relating to the background of the child provided by the Central Authority or other competent authority of the child’s habitual

residence’’—not as is the practice in Germany, of the child’s country of retention.

Although listening to children is by no means the same as considering their objection under Article 13b of the Convention, the child’s presence is likely not only to

lengthen the proceedings, allow judges to treat the objection under Article 13b as

a ‘‘merit of custody’’ but also put the child at risk of being indoctrinated by the abducting parent.

Indeed, when children are interviewed, it becomes of paramount importance to abductor-parents that their children say ‘‘the right thing’’ to the judges and the Youth

Authority. This puts an even higher premium on placing psychological pressure on

abducted children.5 But, the German courts refuse to take into account the abductor’s opportunity to programme the children’s emotions and are unwilling to admit

independent expert opinion to examine children and the degree to which they have

been indoctrinated (Parental Alienation Syndrome).

36

6The Famous Nusair cast (with England) and Tom Silvester’s case (with the USA).

3. Non-enforcement

Without effective enforcement, the object of the Hague Convention cannot be

realised. The most critical aspect of enforcement is that when the summary process

has taken place and a return has been ordered, the power exists to carry out and

enforce that order.

In Germany (and I believe in Austria) Under S. 33 of the German law of NonContentious Matters enforcement powers are vested exclusively in the court of first

instance. This means that the high court decision to return the child can only be

enforced by the Amtsgericht judge who originally heard the case. This enforcement

process can take several months and does not always end in a return being made.

There have been several notable examples when an Oberlandesgericht ordered a return and the lower court in effect refused to enforce it.6

But even at the lower level, the system does not work well as it is customary for

judges to make decisions without ensuring that their orders are actually enforced.

This in turn allows the abductor to abscond with the child (e.g. cases of Sanjas Das,

Catherine Meyer, James Rinnaman, Kenneth Roche where the Amtsgericht return

orders were never enforced).

The next problem is that in several Convention countries, abduction is not considered a criminal act—again in Austria and Germany.

In England there is a criminal statute which covers child abduction. It is the

Child Abduction Act of 1984. The penalty on conviction can be a substantial term

of imprisonment. The act probably has a deterrent effect in itself but it also allows

the full resources of the police to be employed to look for a missing child and the

abducting parent. The police do not need to wait for court orders and can seek the

help of Interpol. It also allows the UK to seek extradition of abductors where there

is an appropriate extradition treaty. When abductors flee to a weak Hague country,

with slow or irresolute courts and a poor enforcement system, it is often speedier

and more effective for a UK citizen to use the criminal offence and seek an extradition warrant for the parent to be arrested and then lawfully to recover the child.

In England, there is almost always a desire at every level to search with utter

and unrelenting vigour for a missing child, but there can be a reluctance to prosecute a parent for abducting, once the child has been recovered. The reason is that

the imprisonment of the parent is probably a further punishment of the innocent

abducted child, who probably loves both parents. That is why prosecutions need special authority, and are comparatively rare. The real use of the criminal statute is

that it allows the full range of powers for the pursuit of a wanted criminal to be

used to find the abductor, and more importantly, the child. Once that has been

achieved, and once the family court has decided what should happen in the child’s

best interest, it may be unnecessary or inappropriate to prosecute.

The Lord Chancellor (as the Central Authority) tends to delegate in individual abduction cases to the lawyers appointed by him. They will certainly seek to liaise

with police.

Specialist police groups, such as those concerned with extradition have highly developed expertise, which can be quickly employed. Special Branch in particular can

track the international movement of abductors, and monitor and control movements

at UK airports, with a high degree of effectiveness.

Finally, the Tipstaff, the enforcement arm of the High Court, will routinely act

through the police, over which it has authority, and when an order is made by a

High Court judge to search for a missing child (a ‘SEEK AND LOCATE’ order), that

order can instantly be faxed to every police station in the country.

But this system does not apply in Germany since first of all it has no extradition

treaties and secondly, abduction is not a criminal act—unless a child is taken out

of Germany.

4. Additional problems with the Germany legal system

The German authorities tend to be inefficient in locating abducted children. As

a result, some victim parents cannot initiate Hague proceedings (cases of John

Dukesherer, Joseph Howard). Furthermore, under German law it is possible to

change a child’s surname without the approval of the father or for a child to be

adopted without the consent of both parents.

Many victim parents complain that the Berlin Central Authority offer them little,

or no help. Victim parents are also required to pay DM 2,000 by the Berlin Central

Authority to allow them to initiate court proceedings. Some parents cannot afford

this to begin with (Robert James, Taylor Tali). German courts also tend to charge

for the hearings themselves. This, combined with the costs of lawyers, the translatVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
37

7 It should be noted that the precedent setting case of Friederich v. Friederich established that

habitual residence is not the same as legal residence; that is to say the court must examine

past experience and not future expectation.

ing and travel expenses, makes it impossible for most parents to continue with

lengthy proceedings which may last years.

Under German law it is possible to make ‘‘ex-parte’’ emergency custody orders,

that is to say, without the knowledge or presence of the opposing party (cases of

Rebecca Collins, Joseph Cook, James Filmer, Joseph Howard, George Uhl, Donald

Youmans).

The notion of German domicile can also be established in matter of months (cases

of Mark Wayson, George Uhl). As a result, German courts are able to claim jurisdiction over that of the country of habitual residence and some Hague 7 applications

have been rejected (case of Joseph Howard).7

Since German courts consider a child German if one of its parents is German, decisions tend to favour the German nationality over others. Germany still operates

the ‘‘blood law’’, based on the 1913 Imperial Naturalisation Act which grants citizenship from parent to child on the basis of bloodline rather than birthplace or residence. This also allows German authorities to argue that the Vienna Convention

governing consular access to U.S. citizens does not apply.

Access is made as difficult as possible and often denied altogether, drawing on arguments based either on the ‘‘fear of re-abduction’’ or/and ‘‘the child’s will’’. Victim

parents are then told that it would be ‘‘emotionally unbearable’’ and ‘‘against the

child’s interest’’ to have contact with them. In my own case, the German court has

refused to implement access agreements made in the court itself which my ex-husband has with impunity refused to honour. Similarly, grandparents are denied all

access. My 87-year-old father may never live to see Alexander and Constantin again.

The main complaints however remain, that, under German law, access rights are

not enforceable; and the custodial parent has all the rights—the other parent has

none.

V. INTERNATIONAL CHILD ABDUCTION—WHAT NEEDS TO BE DONE:

In an ideal world, a consistent, uniform and rigorous approach to enforcing the

Hague Convention would solve the problem of international child abduction. But we

have to be realistic. That will not happen any time soon. So, we need another remedy in the meantime.

It is not for me as a non-American to say what should be done in this country.

But from my experience of the last five and a half years, I am clear that certain

things are necessary if these terrible miscarriages of justice are to be rectified.

It has to be understood by the authorities of the country of the victim parent that

child abduction is not a private legal matter in which they have no role to play. To

deny a parent access to his/her children is to deny a human right. To refuse to return a child promptly to its place of habitual residence is in the overwhelming number of cases to violate the Hague Convention. To steal a child across frontiers must

be seen as a felony.

All this gives ample grounds for the government of the victim-parent to intervene

forcefully with the government of the abductor, where the courts in that country are

unwilling or unable to deliver justice.

As Senator DeWine said in an interview with Reader’s Digest in September 1999:

‘‘We go after countries that steal our products or violate patent and copyright laws,

but not when they are supporting the theft of American children.’’ And as Hillary

Rodham Clinton said at the launch of ICMEC in April 1999: ‘‘Ultimately these matters are not just about individual children and the pain of victim parents, but they

really are a question of human rights.’’

In today’s world it is no longer acceptable for a Government to hide behind the

independence of courts when human rights abuses or gross miscarriages of justices.

What should we be saying to governments, such as the German?

First, that the miscarriages of justice the past must be reviewed and set right.

In almost all cases that means, at the very least, enforceable rights of access in conditions which are not dictated by the abducting parent.

Second, that procedures and mechanisms are put in place that ensure these miscarriages of justice do not recur.

We have to remember that in virtually all these cases the problem is not so much

the behaviour of ex-spouses and ex-partners, but the failure of the courts to deliver

justice. The courts are the problem. It is they who are responsible for the miscarriages of justice. Governments can no longer wash their hands over them.

38

In the cases I am presenting today, German courts and authorities have consistently shown themselves heavily biased towards the German parent; either ignorant

or careless of their obligations under the Hague Convention; repeatedly reliant on

arguments based on ‘‘fear of re-abduction’’ or the ‘‘children’s will’’ severely to constrain access to children; slow to call hearings and to give judgements; ready to

make ‘‘ex-parte’’ decisions, without informing, or hearing the witnesses from, the

non-German side; unwilling to admit independent expert opinion to examine children and the degree to which they have been indoctrinated (Parental Alienation

Syndrome); and unwilling to enforce access agreements made in court.

As a result, Rebecca Collins has not seen her children since 1994; Glen Gebhard

since 1994; Joe Howard since 1994; James Rinaman since 1996; Kenneth Roche

since 1991; Edwin Troxel since 1997; Mark Wayson since 1998; Anne Winslow since

1996; Donald Youmans since 1994; Joseph Cooke’s two children have been placed

in foster care and he has not seen them since 1994 and John Dukheshere and

George Uhl do not even know the whereabouts of their children * * * to name but

a few. None of us have received any information on our childrens welfare. And to

top it all, the German courts often demand child maintenance payments from the

victim parents!

VI. MY CASE

In 1984, I married a German medical doctor, Hans-Peter Volkmann, in London

and our first son, Alexander, was born a year later. We then moved to Germany

for the sake of my then-husband’s career and I gave up my own in the City of London. Our second son, Constantin, was born in 1987. Our marriage subsequently

broke up and in 1992 we agreed to a legal separation. I was awarded custody of

the children (who were to live with me in London) and Volkmann was granted generous access rights.

At first, all worked well. The children continued their schooling at the French

Lycee in London (Constantin coming first in his class) and they spent vacations with

their father in Germany. I rebuilt my career in the City of London so that I could

support my children. By 1994 I had managed to obtain a senior position in a bank

and to buy a comfortable apartment for the three of us.

In July 1994, the children left as usual for their summer vacations with their father in Germany. Without warning, four days before they were due to return to London, their father informed me that he was not sending them back. He then disappeared with the boys. For the next four weeks, I had no idea of their whereabouts, despite police searches.

In August 1994, the High Court of England & Wales ordered the children’s ‘‘immediate return’’ to Britain under the terms of the Hague Convention. The children

were made ‘‘Wards of Court’’. In September 1994 the appellate court of Verden

(Lower Saxony) upheld the English decision and also ordered the ‘‘immediate return’’

of the children. But in defiance of the court order, Volkmann bundled the boys into

a car and vanished. The local police and the Court bailiffs were unwilling to help.

The following day, Volkmann lodged an appeal in the higher court of Celle, a

nearby town. To my dismay and astonishment the judges made a provisional ruling

that the children should remain in Germany until the appeal was heard because

‘‘otherwise the mother could hide them in, England’’. Still worse, the ruling was

made ‘‘ex-parte’’; that is, without informing me or my lawyers so that I was left unrepresented at the hearing.

In October 1994, the Celle court reversed the earlier English and German decisions on the grounds that it was the ‘‘children’s wishes’’ to remain in Germany, so

exploiting the so-called loophole clause of the Hague Convention (Article 13b). The

judges expressed the view that the children were German and that they had been

suffering in a ‘‘foreign environment * * * especially since German is not spoken at

home or at school; that they were taunted as Nazis.’’ The judges also ruled that the

children had attained an age at which it was appropriate to take their views into

account ‘‘since a 7 year old child faced with the decision to play judo or football, generally knows which decision to make’’.

The Jugendamt (Youth Authority) testified at both hearings that a return to the

UK would cause the children ‘‘severe psychological harm’’, again taking advantage

of the Convention loophole clause. The children had, they said, adapted to their new

environment, Alexander felt himself German and the mother had no time for them

because she worked. The Jugendamt took evidence only from the German side. Neither I nor anyone from the children’s habitual environment in London was interviewed.

39

At the time of the hearing, I had not seen or spoken to my children in over four

months, during which they had been under the sole influence and control of their

father and his family.

The Celle court decision meant that in German law all further legal proceedings

on custody and access had to take place on the abductor’s home territory. The consequence of this has been that since 1994, I have never been able to gain normal

access to my children.

Between November and mid-December 1994, five applications to see my children

were rejected on the grounds that I could ‘‘re-abduct’’ the boys and that in any case

they no longer ‘‘wished’’ to see me. This went as far as to deny me access to the

boys over the Christmas holidays. In January 1995, following my desperate attempt

to see my boys in Verden, my ex-husband asked the court to transfer their place

of residence to Germany on the false allegation that I had sought to re-abduct them.

Despite a police report confirming that this was untrue, in my absence and without

allowing me to file my defence, the court accepted my ex-husband’s request. This

was followed in March 1995 by a decision of the Verden court, giving temporary custody of the children to my ex-husband, despite their being ‘‘Wards of Court’’ in England. The decision gave me only three hours access to my children, once a month,

to be followed after 6 months by one day a month. The access visits had to take

place either in my ex-husbands house or in the office of the Jugendamt.

My ex-husband reneged on even these highly limited access arrangements. The

court, far from enforcing them, cut back my visitation hours in yet another ‘‘exparte’’ decision in October 1995. Thus, a pattern was set which exists to this day:

of the Court promulgating access arrangements, my ex-husband refusing to abide

by them, and the Court refusing to enforce them.

Despite every guarantee on my part, including the support of the British Consul

General in Hamburg, the fear of abduction was consistently used, over the next few

years, to deny me and my parents normal access rights. Between the summer of

1994 and December 1998 I managed to see my sons for only 12 hours under the

most harrowing conditions: either, locked in my ex-husband’s secluded house, under

the supervision of a third party; or in the offices of the Jugendamt. All visits were

broken off after less than two hours.

In September 1997, Volkmann divorced me. My German lawyer strongly advised

me not to fight for custody, saying that to facilitate access, it was in my best interest to move quickly to grant Volkmann a divorce and acquiesce in his getting custody. So, in exchange for giving him custody, it was agreed in court that I should

have access to my children on ‘‘neutral territory’’, that is in Hamburg.

But when, six long months later, the moment finally came for me to see my sons,

Volkmann backed out at the last moment, stating that it was the ‘‘wishes’’ of the

children not to see me and that they feared I would ‘‘abduct’’ them. The Verden

judge refused to enforce the access agreement. It was only then that I discovered

that while the custody arrangement was legally enforceable, the access agreement

was not. It is extraordinary that a court can rule on divorce and custody while neglecting to protect a parents rights of access to his/her children.

Further applications for access were rejected and the Verden judge ruled that she

would not decide on future access rights without first holding yet another hearing.

This would entail, she said, her seeing the children and once more requesting a report from the Jugendamt.

The Jugendamt took two months to file the report. I was not interviewed. Their

recommendation was that I should see my children once every two months for five

hours in a priest’s house in Bremen. This was as inhumane as it was impractical,

since by now I was living in the USA. By strange coincidence the recommendation

was almost identical to a proposal Volkmann had made me the previous year.

It took until December 1998 to secure the promised hearing; i.e. 15 months after

the divorce hearing which should have given me enforceable access rights. The

Verden court ruled that the children should get accustomed to me ‘‘little by little’’

and that it would be too ‘‘stressful’’ for them to see their mother who after a four

year separation was practically a stranger to them. The judge once again rejected

my argument that the children had been deliberately programmed against me and

that for us to re-establish a relationship, what was needed from the start was continuous contact over several days.

The judge established a programme of visits, each of which would be longer than

the last and winch would culminate in the children visiting me in Washington in

August of this year. My husband and I, travelling from the U.S., saw the boys in

December (3 hours), January (one day) and February (2 days). Each visit was

marked by increased tension on the part of the boys. My husband, Christopher, who

had never before met his step-sons, was shocked to see how in only two months they

40

changed from being children increasingly excited to see their mother to becoming

sullen zombies monotonously repeating the same ‘‘talking points’’ against me.

Predictably, a week before the April visit (the first which would involve the children being in continuous contact with me, including overnight), Volkmann sent a

fax to say that he would not bring Alexander and Constantin to Hamburg because

this was against the boys’ ‘‘wishes’’ and that it could not be in their ‘‘best interest’’

to be forced.

The judge, once again, refused to enforce her decision, stating that a new hearing

would have to be held. And before then, she needed to see the children and get another report from the Jugendamt!

We were then informed that the judge had left on indefinite maternity leave and

that months would pass before a new judge would be competent to hear my case.

Meanwhile, a temporary judge rejected a further application requesting the enforcement of the May and subsequent visits. He claimed to be satisfied that Volkmann

was acting in good faith.

As of today, I have no access rights whatsoever since the schedule of visits established in the December 1998 decision is at an end. The German Minister of Justice

recently wrote to our Ambassador in Bonn saying that the courts were independent

and that she could not intervene. Since it is the courts, not my ex-husband, which

are the final arbiter over whether I can see my children, I find myself in an impossible catch-22 situation.

The German courts and the German authorities have rejected all my requests to

have my children examined by an independent psychologist specialising in Parental

Alienation. In, five years, I have received one letter and one school report. I have

no information on my children’s life, well being, schooling, or any other aspects of

their existence. Under German law, I have no rights as a non custodial parent so

confirming a letter I received from the Bundeskanzerlei’s office (German

Chancellor’s office) in 1995 stating that: ‘‘Under German law, it is impossible to go

against the wish of the parent who has custody’’. I have no rights as a mother. In

51⁄2 years I have seen my sons 24 hours.

So the months pass, the years pass, and my children are growing up without a

mother. Before my ex-husband abducted our children, they were allowed to see and

love both their parents. Now, they are not.

Has anyone proved that I am an unfit mother? No. Has anyone proved that I do

not love my children? No. But, I am nonetheless denied the rights that even women

in prison are allowed. My parents have been denied all access as well. My 87-year

old father may never live to see to see Alexander and Constantin again.

My children will be scarred for life and they may never recover from this experience. They have become confused and angry with me, because they have been told

from the start that I have abandoned them. On two occasions, in 1994 and 1998,

when I saw my sons and told them how happy I was to see them, Alexander replied:

‘‘you lie. Daddy told us that you could come and see us whenever you wanted—but

you never did’’.

ATTACHMENTS TO STATEMENT OF CATHERINE I. MEYER

COOKE JOSEPH—NEW YORK/STUTTGART

Number of Children: 2 children

Age(s) at Abduction: 1 and 21⁄2

Current Age(s): 8 and 91⁄2

Hague Convention case: Yes

History

Parties married in the USA in 1989. Father was stationed in Stuttgart (from 1985

to 1989) while serving in the U.S. Army. In July 1992 mother took the two children

to Germany to visit her family. Informed father that she was not coming back and

that he would never see his children again. Father tried in vain to find the whereabouts of his children.

Two months after her arrival in Germany mother was admitted to a clinic and

asked the Jugendamt (Youth Authority) to place the two children in foster care. Neither the mother, nor the Jugendamt informed the children’s father. In January 1993

mother returned to the U.S. leaving the children behind. Father was told different

stories (including that the children were with the mother in California) and only

found out in September 1993 that his children had been given by the Jugendamt

to a foster family (who have other children in care and receive money from the

state). Father immediately notified the foster parents that he wanted to take his

41

children back to the USA. Foster parents obtained an ‘‘ex-parte’’ order prohibiting

him to do so. Father had no alternative but to go to court.

Divorce pronounced by the Supreme Court of Queens County, New York in January 1994. Father awarded full custody (with mother’s consent). In April 1994, Supreme Court of the State of New York ordered immediate return of the children to

the U.S., under the terms of the Hague Convention. Return denied in March 1995

(a year later!) by the lower court of Singen. Judge ruled that it would cause the children ‘‘severe psychological damage’’ to be separated from the foster parents and be

returned to the U.S. Court also told father that he first needed to get reacquainted

with his children. The father stayed in Germany but only able to visit his children

at the foster parents’ house who obstructed the visits.

Appeal rejected in June 1995 by the county court of Konstanz. (The mother had

now also requested that the children be returned to their father in the U.S.). Court

ruled ‘‘ex-parte’’ that the children ‘‘objected to a return’’ (they were 4 and 5 at the

time) and that it would cause them ‘‘severe psychological damage to be returned to

the U.S.’’. Children were deemed to be adapted to their new environment and ‘‘to

subject the children to a language shock’’ (since they don’t speak English anymore)

* * * ‘‘contradicts the children’s welfare most strikingly’’. No specific access rights

given to father.

Appeal rejected by the Karlsruhe Court (last appeal possible) in October 1995.

Judges ruled that the foster parents have equal rights to the natural father and

that it would cause ‘‘severe psychological harm’’ for the children to be separated from

them, especially ‘‘since they have now been in their care for the last two and half

years’’.

Father fought further through the German courts but to no avail.

Current status

Father has not seen his children since 1994.

GEBHARD GLENN—CALIFORNIA/HOECHST (NEAR FRANKFURT)

Number of Children: 2 children

Age(s) at Abduction: 2 years old (twins)

Current Age(s): 7 years old

Hague Convention case: No

History

Father is American and the mother is a Mexican national. Parties married in the

U.S. in 1992. The children were born in Germany, moved to the U.S., and then back

to Germany. In 1994 parties separated. Divorce pronounced in Germany in July

1995. The German court took jurisdiction over the case, and then gave custody to

the mother. Access rights were granted to the father. The father was never able to

exercise his access rights because the mother refused to present the children.

Amtsgericht (local court) Hoechst refused to enforce access rights of father.

In view of his ex-wife’s continual refusal to allow him court ordered visitations,

and the court’s unwillingness to enforce their own visitation orders, Gebhard decided to lodge an appeal at the Oberlandesgericht (High court) Frankfurt seeking

a custody transfer in June 1997. His demand was rejected in September 1998 (over

a year later). The judge’s opinion was that father’s presence would upset the children, and that he should regain contact with them ‘‘little by little’’ not ‘‘overwhelm

them’’.

Current status

The father has not seen his children since August 1994 and has completely lost

contact with them. He has travelled to Germany over 20 times in the hope of seeing

his twins but to no avail. Father has applied for and received a Fulbright Senior

Scholarship to teach at a university in the Berlin area during the 1999–2000 academic year (he is an Assistant Professor in Loyola Marymount University in Los Angeles, California) in order to be closer to his children. He refuses to give up hope.

GERBATCH ILDIKO—CALIFORNIA/OYTEN, LOWER SAXONY

Number of Children: 2 children

Age(s) at Abduction: 10 and 7

Current Age(s): 12 and 9

Hague Convention case: Yes

42

History

Parties married in the USA, then moved to Germany. Husband had an affair and

told wife to leave. She returned to the U.S. with the children. Divorce hearing in

the USA in June 1994 (father present). Mother obtained custody; father granted access rights (7 weeks per annum). In the summer of 1997 children went to Germany

to visit their father. Father illegally retained them. August 1997, the Superior Court

of Vista, San Diego issued a warrant and ordered ‘‘immediate return’’ of the children

under the terms of the Hague Convention.

Return denied by Amtsgericht (lower court) Achim on basis of Article 13b in September 1997. Court ruled that the children ‘‘objected’’ to their return to the USA;

that Naomi (10) was old enough to decide; and that younger sister should not be

separated from her.

Jugendamt (Youth Authority) Verden stated that the children ‘‘objected’’ to a return to the U.S. (mother not interviewed); that they felt more free in Germany; that

the mother had no time for them since she worked and that the children had adapted to their new environment (after 7 weeks holiday and notwithstanding that they

had lived 3 years in USA).

Appeal rejected by Oberlandesgericht Celle on the basis of Article 13b in December 1997. The judges considered that the children were old enough to decide because, ‘‘after all a 7 year old can already decide whether it wants to spend its holiday

at the sea-side or the country side’’. Jugendamt Verden reported the same and that

it would cause them ‘‘severe psychological harm’’ to be returned to their mother in

the USA.

Mother granted some visitation rights but managed to see her children only 8

hours in 1997 and 7 days in 1998. Following an access visit in Germany in August

1998, mother returned to the USA with the younger daughter.

Current status

Eldest daughter still in Germany. Father applied for sole custody in German

courts (awaiting decision) and made an application under the Hague Convention for

the return of Isabella. Hague application has just been rejected by the U.S. courts

(on the basis that father illegally retained both children initially). Mother has not

seen Naomi since August 1998.

HOWARD JOSEPH—ARIZONA/WORMS (NEAR KOBLENZ)

Number of Children: 1 child

Ages(s) at Abduction: 5 years old

Current Age(s): 10 years old

Hague Convention case: NO—Hague Convention application not possible because

whereabouts of child was unknown.

History

Parties married in Germany in 1989 and moved to the USA a year later. On

March 5, 1994 wife absconded from the family home with the child and all the furniture while father at work. Police, FBI and Missing Person’s Bureau informed.

Whereabouts of mother and child could not be traced.

Mother applied for custody as soon as she reached Germany. April 1994,

Amtsgericht (lower court) Worms made an emergency order transferring temporary

custody to the mother on an ‘ex-parte’ basis ‘‘in the interest of the child’’. The court

ruled that ‘‘in order to avoid the father’s bringing the child to the USA and creating

a fait accompli situation before legal proceedings had come to end, it is essential to

legalise the stay of the child through the transfer of Parental Custody to the mother’’.

Father only advised of this decision one month later. Jugendamt (Youth Authority)

wrote to father refusing to disclose the whereabouts of his child.

November 1994 Amtsgericht Worms confirmed temporary custody to mother on an

‘ex-parte’ basis ‘‘because the father is so far away, his presence must be omitted for

this hearing’’. ‘‘This decision is in the best interest of the child. The father lives in

the USA and is therefore no longer in a position to exercise his custody rights’’. No

access provisions made but a demand for child maintenance served on father a

month later.

Jugendamt (Youth Authority) reported that the child ‘‘objected’’ (5 year old) to a

return to the USA and that it would cause it ‘‘severe psychological harm’’ to be returned. (Father not interviewed).

December 1994 divorce pronounced in the USA on an ‘‘ex-parte’’ basis. Custody

given to father and access rights granted to mother (every two week-ends and holidays).

43

Amtsgericht Worms recognised U.S. divorce but ruled that it must decide on the

final custody provisions: ‘‘Since the marriage has been dissolved in the U.S., no decision regarding custody was passed’’. July 1997 Amtsgericht Worms ruled that ‘‘in

the childs best interest’’ sole custody should be given to the mother ‘‘since it is feared

that the Plaintiff will take the child against its will to the USA’’. No access rights

granted to father but a demand for child maintenance was served on him a month

later.

5 Appeal rejected in December 1997 by Oberlandesgericht (High Court) Koblenz.

Full and final custody confirmed to mother while access rights were to be discussed

at a further hearing!

April 1998 father finally granted access rights—but only in Worms, at the office

of the Jugendamt, if he surrenders his passport ‘‘otherwise the father could take the

child back to the U.S.’’.

Current status

Father has not seen his child since 5 March 1994. Father does not know the

whereabouts of his child in Germany.

MEYER CATHERINE—ENGLAND/VERDEN, LOWER SAXONY

Number of Children: 2 children

Age(s) at Abduction: 7 and 9

Current Age(s): 12 and 14

Hague Convention case: Yes

History

Parties married in England in 1984 and moved to Germany a year and a half

later. Parties separated in 1992. Mother obtained custody father granted access

rights (minimum 8 weeks per annum). July 1994, children went to Germany to visit

their father. Father illegally retained them. August 1994 the High Court of England

& Wales ordered the ‘‘immediate return’’ of the children under the terms of the

Hague Convention and made the children ‘‘Wards of Court’’.

Amtsgericht (lower court) Verden ordered ‘‘immediate return of the children’’ in

September 1994. But in defiance of the court order, father absconded with the children. No help from local police. Bailiffs unreachable. The following day, father

lodged an ‘‘ex-parte’’ appeal at the High Court of Celle. Return order stayed (i.e.

children ordered to remain in Germany) until the appeal is heard ‘‘otherwise the

mother could hide the children in England’’.

Return order reversed by the Oberlandesgericht (High Court) Celle on the basis

of Article 13b in October 1994. Court ruled that the children ‘‘objected’’ to their return; the children were old enough because, ‘‘after all a 7 year old can already decide whether it wants to play judo or football’’, Alexander was suffering in England

‘‘because German was not spoken at home or at school’’ and his younger brother

should not be separated from him.

Jugendamt Verden stated (for both hearings) that a return to the UK would cause

‘‘severe psychological harm’’ (mother not interviewed). Alexander felt German; the

mother had no time for them since she worked and the children had adapted to

their new environment (after 7 weeks holiday and notwithstanding that they had

lived 2 years in the UK).

Five demands for access rejected by Amtsgericht Verden because ‘‘the children objected’’ and the ‘‘mother could use the opportunity of a visit to re-abduct the children’’. January 1995 ‘ex-parte’ decision changed the children’s residence to Germany. March 1995 temporary custody transferred to father although the children

were still ‘‘Wards of the English court’’. Minimal access granted to mother (3 hours

per month under supervision in father’s house). Because of the children’s long separation from their mother, it would be too ‘‘overwhelming’’ for them to see her for

‘‘too lengthy a period or in surroundings to which they are not accustomed’’. Visits

blocked by father.

Appeal (Hague proceedings) rejected by the Karlsruhe Constitutional Court (last

appeal possible) in April 1995.

September 1997 final sole custody given to father, minimal access rights granted

to mother. Access blocked by father. Judge refused to enforce access rights and

called for a new hearing. December 1998 court grants mother minimal access rights

starting ‘‘little by little’’ not to ‘‘overwhelm the childen’’. Father reneged on the third

visit (the very first which would have included an overnight contact). Again, court

refused to enforce access, stating that a new hearing should be held. In May 1999

judge left on indefinite maternity leave.

44

Current status

Mother only managed to see her children 11 hours between 1994 and 1998 (under

supervision) and twice in 1999. Currently, mother has no access rights whatsoever.

The German Minister of Justice said that she cannot help because local courts are

independent. There is thus no remedy left within the German system.

RINAMAN JAMES—WASHINGTON DC/DUESSELDORF

Number of Children: 1 child

Ages(s) at Abduction: 15 months old

Current Age(s): 4 years old

Hague Convention case: Yes

History

Parties married in Germany in September 1993 and moved to the USA in August

1995. (father was an officer in the U.S. army until 1996. He is now an attorneyat-law based in Florida). In June 1996 mother took the baby to Germany to visit

her family for two weeks. To the father’s total surprise mother informed him (by

fax) that she was not coming back to the USA and that she wanted a divorce. Father applied for the ‘‘immediate return’’ of the child under the terms of The Hague

Convention.

Amtsgericht (lower court) Duesseldorf-ordered the ‘‘immediate return of the child’’

in August 1996. Mother and child were not present at the hearing and the court

decision was not enforced. Mother immediately lodged an ‘‘ex-parte’’ appeal at the

Oberlandesgericht (High Court). Return order stayed (i.e. the children ordered to remain in Germany until appeal is heard).

Return order reversed by the Oberlandesgericht (High Court) Duesseldorf in October 1996. An isolated statement (based on hearsay) was used to block the return

of the child to the USA. The abductor’s mother claimed that she had overheard a

conversation between her daughter and her son-in-law in which he had supposedly

agreed that the child could remain in Germany. (In Germany, it is possible to

present new evidence on appeal). Ignoring the mother’s original fax of intent (see

first paragraph), the judges ruled that the child was not taken to Germany illegally

after all.

Jugendamt (Youth Authority) Duesseldorf recommended that sole custody be

given to the mother, adding that ‘‘the mother works and can therefore support the

child’’ and that ‘‘the child is adapted to its new environment and is learning German’’. Limited or no access rights should be granted to the father ‘‘because it would

be against the child’s interest to spend time with him’’. Indeed, it would be ‘‘emotionally unbearable’’ in view of the child’s ‘‘age, the long distances and because its father

is now a stranger to her due to their long separation.’’

October 1997, Amstgericht Duesseldorf granted father limited access rights and

only if he surrendered his passport to the Jugendamt. Mother did not comply and

appealed against the decision. In the meantime, court did not enforce access order.

August 1998, the Oberlandesgericht Duesseldorf affirmed the Amstegricht’s order

of limited access to the father. Again, the mother did not comply. She then switched

to another jurisdiction and the father was told that he needed to start new proceedings in Bonn to secure his access rights. In January 1999 he filed a new application

at the Amstgericht Bonn. As of July 1999, father had not received a reply.

Current status

Father has not seen his daughter since 1996. As in other cases, the German

courts and the German authorities have repeatedly refused to allow an independent

health and welfare check on the child. The first request was made by the U.S. State

Department in June 1996. Instead, father was asked to pay child maintenance.

TROXEL EDWIN—ARKANSAS/MANNHEIM

Number of Children: 2 children

Age(s) at Abduction: 4 and 2 years old

Current Age(s): 6 and 4 years old

Hague Convention case: Yes

History

Parties married in Germany in 1991 and moved to USA a year later. They separated in 1994. Divorced pronounced in the USA in November 1995. Mother obtained

custody and father was granted generous access rights. At first father able to exerVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
45

cise his access rights. On 6 March 1997, father went to pick up his children for his

regular access visit but found that everything had been removed from the house and

that the mother had absconded with the children. Father informed the police and

filed a petition in the Chancery Court of Benton County, Arkansas for Contempt of

Court which is still pending. Whereabouts of the mother and the children could not

be traced for one month.

August 1997, the court of Benton County transferred primary legal and physical

custody to the father and ordered the ‘‘immediate return’’ to the children to the

USA.

Return denied on the basis of article 13b by Amtsgericht (Lower Court) Mannheim in October 1997. Court ruled that the children ‘‘objected’’ to their return to the

USA (they were 3 and 6) and that a return would cause them ‘‘severe psychological

harm’’ and bring them simultaneously into an uncertain condition. ‘‘The father

works and therefore has no time for them; the mother does not wish to return to the

USA; the children should not be separated from their mother; torn from their environment, and be transferred to persons who are strangers to them * * * The personal

situation of the children is favourable in Germany and they have adapted to their

new environment * * * The illegally produced situation must therefore be accepted’’.

The Jugendamt stated that the conditions were better in Germany: the mother

has found her own apartment and a work permit; the children have been placed in

a German school; they are adjusted to their ‘‘new environment’’; it would cause them

severe psychological harm to be returned to the USA. (Father not interviewed).

Appeal rejected by the Oberlandesgericht Karlsruhe on the basis of article 13b in

May 1999. Judges considered that a return would cause ‘‘severe psychological harm’’.

The children should not be separated from mother. The mother did not wish to return to America. The father had not seen the children for a long time. He worked

and therefore could not take care of the children. The children had adapted to their

new environment.

Current status

The father has not seen his children since March 1997. The last time he was able

to speak to them on the telephone was in August 1997.

WAYSON, MARK—ALASKA/RIO DE JANEIRO/GUMMERSBACH

Number of Children: 1 child

Age(s) at Abduction: 2 years old

Current Age(s): 4 years old

Hague Convention case: No—Brazil/Germany

History

Parties were never married but a child was born from the union in Brazil (child

is U.S., Brazilian and German citizen). Father is a U.S. citizen (formerly a policeman) who was living in Brazil at the time, mother a German citizen. In December

1996, the parties separated and in April 1997, the Brazil court granted the parents

joint custody. Care and control given to mother and extensive visitation rights

granted to father. But mother repeatedly blocked access and in December 1997 she

absconded with the child.

Father contacted the German Consulate in Rio who advised him against filing a

Hague petition. Father now suspects that the Consulate ‘‘interfered’’ to help the

mother. He later tried to complain but was told that only a German citizen can

lodge a complaint against a German official.

February 1998, mother contacted the father and between March 1998 and August

1998 they sought mediation. During that period, the father saw his daughter regularly and paid an allowance to his ex-partner.

Beginning August 1998 mother blocked access. The father flew to Germany 6

times to try and see his child but to no avail.

October 1998 court of Rio de Janiero confirmed its jurisdiction on the matter of

access. ‘‘The fact that the mother moved to Germany after the court decision does not

withdraw the jurisdiction of the Brazilian court’’. Brazilian court reconfirmed father’s access rights.

February 1999 the father filed an application to enforce the Brazilian access

order. Amtsgericht (lower court) Gummersbach rejected the father’s demand and refused to establish new access rights. Father then lodged an appeal in the

Oberlandesgericht Koeln (Cologne) in April 1999.

Appeal rejected July 13, 1999 on the grounds ‘‘that although the Brazilian court

had jurisdiction at the time of the separation, the fact that the mother and the child

46

are now domiciled in Germany, gives the court of Gummersbach international jurisdiction’’.

Current status

Father has not seen his child since August 13, 1998.

DUDAKIAN JOHN

Number of Children: 1 child

Age(s) at Abduction: 2 years old

Current Age(s): 3 years old

Hague Convention: Yes—new case

History

In 1998, the mother absconded with the child to Germany. The father had custody

at the time. The U.S. court ordered the ‘‘immediate return’’ of the child to the USA.

Return denied by the German court on the basis of article 13b. The court ruled

that a return to the USA would cause ‘‘severe psychological harm’’ for the child to

be separated from its mother. Father was not informed of the hearing.

Current status

Father re-abducted the child back to the USA. Mother has now applied for the

return of the child to Germany under The Hague Convention.

CARLSEN KENNETH—FLORIDA/BARMBERG

Number of Children: 1 child

Age(s) at Abduction: 8 years old

Current Age(s): 15 years old

Hague Convention case: Yes

History

Parties married in Barmberg, Germany then returned to the USA where their

child was born. The parties separated. Custody awarded to father visitation rights

granted to mother. On September 10, 1993 the mother and her boy-friend picked

up the child at her Florida school and absconded to Germany.

In December 1993 the Florida court ordered the ‘‘immediate return’’ of the child

to the USA. Father was asked by the Berlin Central Authorities to pay DM 2,000

to initiate court proceedings in Germany. But it took fourteen months before the

case was finally heard.

Return denied by Amtsgericht (lower court) Barmberg on the basis of article 13b.

The court ruled that the child ‘‘objected’’ to a return to the USA and that she was

old enough to decide.

The Jugendamt testified that the child was settled in its new environment and

that she objected to a return to the USA. Father was not interviewed.

Current status

Since 1993 the father was only able to see his daughter twice at the Jugendamt

offices and under their supervision. However, recently his daughter, who is now fifteen, has started communicating with her father through the internet.

CARR JON—COLORADO/WHERE IN GERMANY

Number of Children: 1 child

Age(s) at Abduction: 2 years old

Current Age(s): 13 years old

Hague Convention case: NO. Convention not signed between U.S. and Germany at

the time.

History

In 1988, mother abducted child from the United States to Germany the day before

custody hearings were to take place in Colorado.

Father received little help from agencies and police.

Current status

NCMEC is attempting to get into contact with the father for an update on the

matter. However, the father’s former attorney believes that Jon has had no contact

with his child since the time, of abduction.

47

COLLINS REBECCA—NORTH CAROLINA/CLAW (NEAR KRISRUHE)

Number of Children: 1 child

Age(s) at Abduction: 7 months old

Current Age(s): 8 years old

Hague Convention case: Yes

History

Parties married in the USA in October 1989. Mother awarded temporary custody

until the final divorce decree was decided. In July 1991 the father absconded with

the child to Germany during a scheduled visitation. Police filed charges.

In August 1991 the White Country Court awarded mother custody and ordered ‘‘the immediate return’’ of the child to the USA.

As soon as father reached Germany, he filed for custody. Amtsgericht (lower

court) Claw transferred temporary custody to the father despite the U.S. previous

decision. Mother obtained access rights but father refused to abide by them.

Amtsgericht Claw did not enforce her access rights.

Hague application filed too late (mother unaware of Convention) and the German

court rejected her application stating that a year had gone by.

Mother was enable to pursue litigation in Germany as she was no longer entitled

to legal aid.

Current status

The mother has not seen her son since 1991. Last time she was able to speak to

him on the telephone was in 1997. Child was led to believe that the father’s new partner is his natural mother.

COOK JEFFREY—FLORIDA

Number of Children: 1 child

Age(s) at Abduction: 4 years old

Current Age(s): 6 years old

Hague Convention case: Yes

History

In April 1997, mother abducted child to Germany in the middle of U.S. custody

proceedings. Father was granted custody after the abduction and the U.S. court ordered the ‘‘immediate return’’ of the child to the USA.

Return denied on the basis of article 13b by the Amtsgericht (lower court). Court

ruled that the child ‘‘objected’’ to a return and that it would cause ‘‘severe psychological harm’’ for her to be separated from her half-brother and half-sister

Currenty status

NCMEC is attempting to get into contact with the father for an update on the

matter.

COX FRED—OKLAHOMA/POBLEDORF

Number of Children: 1 child

Age(s) at Abduction: 11 months old

Current Age(s): 8 years old

Hague Convention: No

History

In October 1993, mother was served with divorce papers and immediately abducted the child to Germany. Father was granted custody after the abduction.

Father attempted to apply under the Hague Convention, but he withdrew his application citing that it was too stressful a process.

Current status

NCMEC spoke with Fred Cox who informed them that while he has spoken to

his son, he is still being denied access. No papers were ever filed in the German

courts, as all the lawyers who were referred to the father in Germany informed him

that nothing could be done.

DAS SANJAY—FLORIDA/MUNICH

Number of Children: 1 child

48

Age(s) at Abduction: 1 year old

Current Age(s): 3 years old

Hague Convention case: Yes

History

In 1997, the mother absconded with the child to Germany. Father applied for the ‘‘immediate return’’ of the child under the terms of the Hague Convention.

Return ordered by the Amstgericht (lower court) but it was not enforced. Mother

immediately appealed at the Oberlandesgericht (high court). Returned order overturned on the basis of article 13b of the Hague Convention.

Current status

NCMEC is attempting to contact the left-behind father for an update.

DUKESHERER JOHN—HAWAII/SCHWAEBISCH GMUEND (NEAR STUTTGART)

Number of Children: 1 child

Age(s) at Abduction: 2 years old

Current Age(s): 31⁄2 years old

Hague Convention case: Yes—new case

History

Parties never married but a child was born from their union. Custody order made

in the USA in March 1997. Custody given to father and access rights granted to

mother ‘‘so long as she continued in therapy’’ Mother not allowed to take child out

of the country without prior approval of the Court, or notification of no less than

48 hours to the opposing party. August 1998, mother picked up the child for her

regular visit and absconded to Germany. Arrest Warrant issued. Whereabouts of

mother and child not traced.

July 1999 U.S. court confirmed sole legal and physical custody of father and ordered for the ‘‘immediate return’’ of the child to the USA.

Current status

Hague Convention hearing has not yet taken place in Germany as mother and

child have not been located.

Father has not seen his child since August 1993 and he does not know its whereabouts.

FILMER JAMES—CALIFORNIA/TOSTEDT

Number of Children: 1 child

Age(s) at Abduction: 9 months old

Current Age(s): 1 year old

Hague Convention case: Yes—new case

History

Parties married in the USA. Parties separated and mother obtained temporary

custody and father was awarded visitation rights. In October 1998, mother absconded to Germany with the baby whilst the divorce proceedings were ongoing.

U.S. court granted father custody and ordered the ‘‘immediate return’’ of the child.

Return denied by the Amtsgericht (lower court) Tostedt on the grounds that the

U.S. temporary custody order was unclear and the mother rightfully believed that

she was allowed to leave the U.S. with the child.

Current status

Father has had no contact with the baby since the abduction.

FLEASCHMANN BERTHA—TEXAS

Number of Children: 1 child

Age(s) at Abduction: 6 years old

Current Age(s): 7 years old

Hague Convention: Yes—new case

History

In January 1999, father abducted child from school and took him to his parents

in Germany. The father then returned to work in Texas, leaving the child behind

with his relatives.

49

A warrant for the father has been issued in Texas for sexual battery again the

mother, but the father has since returned to Germany. Mother has applied under

the Hague Convention for the return of the child.

Current status

NCMEC is attempting to get into contact with the mother for an update on the

matter.

GERLITZ SIDNEY

Number of Children: 1 child

Age(s) at Abduction: 5 years old

Current Age(s): 8 years old

Hague Convention: Yes

History

In 1996 mother absconded with the child to Germany. U.S. court ordered the ‘‘immediate return of the child’’, but the Berlin Central Authorities rejected the Hague

application on the basis that the father was not able to get an Article 15 declaration; i.e. a document proving that he had custody before the time of the abduction.

Current status

NCMEC is attempting to get into contact with the father for an update on the

matter.

OUTGOING GERMAN CASE

Left Behind Parent: Mark Gilgen

Children: Angela Gilgen, DOB 01/14/1990

Age(s) at Abduction: 5 years old

Current Age(s): 9 years old

History

On August 1, 1995, Claudia Bettina Svetlana White (a German citizen) abducted

her child from Minnesota to Georgia. While in Georgia, the mother applied for divorce claiming she did not know where the father was living. Georgia court gave

her custody, the father was informed, and he appealed the matter in the Georgia

courts.

Before the appeal came to trial, the mother re-married a U.S. Army employee and

moved to Germany. The father re-established jurisdiction in Minnesota and was

granted sole custody from Minnesota courts.

Father applied under the Hague convention and was told by the German Central

Authority that there was no hope for return because Angela was a German citizen

and needed to be with her mother. The Central Authority did help arrange stringent, brief supervised access in 1999.

Current status

Father has telephone access at the mother’s will, but is not allowed to visit the

child in Germany without supervision, despite the Minnesota court order being the

only order in existence.

HILL ASTRID—TEXAS/BREMEN

Number of Children: 1 child

Age(s) at Abduction: 3 years old

Current Age(s): 5 years old

Hague Convention case: No—access/visitation

History

Astrid Hill is the maternal grandmother. She has contacted me several months

ago to report: Parties married in the USA (Mother German citizen, father British

citizen). Their child was born in the USA in 1994. Parties divorced a year later. The

U.S. court awarded custody to the mother and granted the father generous access

rights (three months per annum). But he was unable to exercise his right and in

1997 the mother absconded with the child and her new husband to Germany without informing the child’s father or her own mother.

50

No Hague Convention applications were made as the U.S. decision allowed the

mother to go to Germany. Father was unable to obtain any access rights.

Current status

Neither the father nor the grandmother has seen the child since 1997. The grandmother (who is a German citizen) has never heard from her daughter since. She is

very eloquent about the failure of the German system to protect children and enforce foreign court decisions. She feels that she has let her grandchild down.

JAMES ROBERT—MARYLAND

Number of Children: 2 children

Age(s) at Abduction: 10 months old and 21⁄2 years old

Current Age(s): 6 and 8 years old

Hague Convention case: Yes

History

In April 1994, while the father was at work, the mother absconded with the two

children to Germany.

U.S. court granted father sole custody and ordered the ‘‘immediate return’’ of the

children.

Father was asked to pay DM 2,000 by the Berlin Central Authorities to initiate

proceedings in Germany. Father was unable to come up with the money, so the case

was closed.

Mother obtained a divorce in Germany. She was awarded sole custody on an ‘‘ex- parte’’ basis and no access rights were granted to the father. The father was never

served notice of the hearing but found out several months later when he was ordered by the German courts to pay child support.

Current status

Father has only seen his children once when the mother allowed him a brief supervised visit several years ago because one of the children was seriously ill.

MARQUETTE N. ROBERT—TEXAS/SCHAEBISCH GMUEND (NEAR STUTTGARDT)

Number of Children: 2 children

Age(s) at Abduction: 4 and 13 years old

Current Age(s): 6 and 15 years old

Hague Convention: Yes

History

Parties married in Dallas, Texas in 1998 and separated in 1993. Parents were

awarded temporary custody. The children had primary residency with the mother

and the father was granted generous access rights. In 1995, father filed for divorce.

Mother applied to reduce father’s access rights on the grounds that the eldest child

‘‘objected’’ to seeing him. She also threatened to leave the country. A further decision ordered for the mother ‘‘not to change the domicile of the children from Dallas

County, Texas’’ without prior approval of the court. U.S. court appointed psychologist testified in court to the presence of Parental Alienation Syndrome. Divorce proceedings lasted over two years but in June 1997 mother absconded to Germany with

the children before the final decree.

In July 1997 Dallas County Court transferred custody to the father, giving restricted access rights to the mother and ordered the ‘‘immediate return of the children’’.

Return denied by Amtsgericht (lower court) Schaebisch Gmuend on the basis of

article 13b in March 1998. The court ruled that the eldest child ‘‘objected’’ to its return and that it would cause the second child ‘‘severe psychological harm’’ to be separated from its elder brother.

Father’s appeal rejected by the Oberlandesgericht (high court) Stuttgardt on the

basis of article 13b in May 1998.

Father immediately retained an attorney in Germany (who was appointed to him

by the German Central Authority) to file an appeal with the Constitutional Court.

But the attorney failed to file the appeal within the prescribed one year time limit.

Current status

Father has not seen or been able to speak to his children since 1997. He presumes

that the German courts transferred custody to the mother, but he was never notified

of any hearings.

51

MASKALICK LINDA—MICHIGAN/LANGGONS

Number of Children: 1 child

Age(s) at Abduction: 2 years old

Current Age(s): 7 years old

Hague Convention: Yes

History

On July 19, 1993, the grandmother who had been granted custody of the child

in September 1992, was having major surgery when the natural mother abducted

the child to Germany.

Police filed charges and grandmother, with help from the natural father, filed

under the Hague Convention. However, the child was not returned to the United

States.

Current status

NCMEC is attempting to get into contact with the grandmother for an update on

the matter.

PENDARVIS, LARRY—FLORIDA/DORTMUND

Number of Children: 1 child

Age(s) at Abduction: 4 months

Current Age(s): 11 years old

Hague Convention case: No—before Germany signed the Convention in 1990

History

Parties married in Tampa, Florida in August 1986. While still married, mother

absconds with the baby in August 1988 to Dortmund, Germany.

On 2 February 1989, father awarded sole custody of the child by the U.S. courts.

He assumes the mother has obtained a custody order in Germany. He has not

been granted any visitation rights in Germany as far as he is aware. He has never

received any correspondence from the German courts, although he wrote to them

on several occasions.

Current status

Father has not seen or received any communication from his child since 1988.

PETERSON JAMES—TENNESSEE/BAD KREUZNACH

Number of Chi1dren: 1 child

Age(s) at Abduction: 6 years old

Current Age(s): 6 years old

Hague Convention case: Not yet filed (new case)

History

Parties divorced in the USA in 1996. Primary custody granted to mother with extensive access rights to father. But mother continuously obstructed access. In 1999,

custody reversed to father. Decision based on the mother’s refusal to allow him to

exercise his visitation rights and on other welfare issues. The decision, however, allowed the mother to keep the child in her care until the end of the school year. In

May 1999, mother absconded to Germany with the child. Father did not know its

whereabouts.

In July 1999, father received a copy of a custody transfer petition which the mother filed as soon as she returned to Germany. The wording of the petition includes

statements such as ‘‘the child speaks German fluently’’ whereas the child has been

living in Germany for only two months and spoke no German beforehand; that ‘‘the

child has already settled in her environment’’, ‘‘made friends’’ and ‘‘is enrolled in a

German school’’.

These are all very familiar arguments preparing for an Article 13b defence.

Father has not been able to file a Hague petition as until last month as he did

not know where his daughter has been abducted to until he received the custody

transfer petition.

Current status

Father has not seen his child since May 1999. Father also feels very depressed

and is hesitant about filing a Hague Convention application because of the bad performance of Germany in returning children. He is not a wealthy man.

52

ROCHE KENNETH—MASSACHUSETTS/DARMSTADT

Number of Children: 1 child

Age(s) at Abduction: 4 years old

Current Age(s): 10 years old

Hague Convention case: Yes

History

Parties married in Denmark in 1986 and moved to the USA. Parties separated

in 1990. Divorce pronounced in the USA in July 1991 granting both parties joint

legal custody. Physical custody given to mother and generous access rights granted

to father. In addition, a specific clause stated that the removal of the child from

Massachusetts was not authorised unless both parties agreed or a court order was

obtained. In 1992 mother remarried in the USA. During that time, father regularly

saw his child. Mother divorced second husband and in March 1993, she absconded

with the child to Germany. Arrest Warrant issued.

April 1993 U.S. court transferred temporary custody to the father and ordered the

‘‘immediate return’’ of the child.

Amtsgericht (lower court) Darmstadt ordered the ‘‘immediate return’’ of the child

to the USA but mother absconded with the child and immediately lodged an appeal

at the Oberlandesgericht (high court) Frankfurt.

Oberlandesgericht Frankfurt confirmed the return order but it was not enforced.

Police did not help. Father never managed to locate his child. FBI got involved in

1994 and issued a second Warrant. But, in April 1994 the Central authorities in

Berlin confirmed that the investigation had been without any positive results. No

further efforts were made to find mother and child.

Current status

Child living with mother in Germany. No further action has been taken by the

German courts against the mother. Father has not seen his child since 1991 and

does not know his whereabouts.

TALI TAYLOR—CALIFORNIA/BERLIN

Number of Children: 1 child

Age(s) at Abduction: 2 years old

Current Age(s): 3 years old

Hague Convention case: Yes—new case

History

In September 1998, mother absconded with the child while divorce proceedings

were pending in the California court.

U.S. court granted father temporary sole custody and ordered for the child’s ‘‘immediate return’’. Father was asked to pay DM 2,000 by the Berlin Central Authorities to initiate proceedings in Germany.

Current status

Father is currently in Germany for the court hearings. Until then he has had no

contact with his child since the abduction. NCMEC will find out upon his return

if he was able to see his child and secure his return to the USA.

UHL GEORGE—MARYLAND/MUNICH

Number of Children: 1 child

Age(s) at Abduction: 1 year old

Current Age(s): 21⁄2 years old

Hague Convention case: Yes

History

Parties married in the USA. Divorced pronounced in the USA in July 1997. Baltimore County Court, Maryland awarded both parties joint custody: the child would

reside 60 percent of the time with the mother and 40 percent of the time with the

father. In April 1998, the mother went with the child to Germany but she never

returned to Baltimore for the father’s scheduled visit in June 1998.

In June 1998, the Baltimore County Circuit Court transferred sole custody to the

father and ordered the child’s ‘‘immediate return’’ to USA. (Final sole custody given

to father in March 1999).

53

Return denied by the Amtsgericht (lower court) Munich in October 1998. The

court ruled that the custody arrangements made in the USA had allowed the mother to go back to Germany with the child and that she therefore had the right to

change jurisdiction. The court further ruled that the child’s habitual residence had

now been established in Germany since the mother lived there and did not intend

not to return to the U.S.

The father lodged an appeal at the Oberlandesgericht (higher court) Munich. Appeal denied (without a hearing) and the Amtsgericbt’s decision was upheld. No access rights were granted to the father.

Current status

The father has not seen his child since April 1998. The father has no contact with

his child and does not know its whereabouts. The father believes that the German

courts have transferred custody to the mother, but he was never informed.

URBAN KURT—TEXAS/BUTZPAT

Number of Children: 1 child

Age(s) at Abduction: 6 years old

Current Age(s): 12 years old

Hague Convention case: No

History

In April 1993, the mother (a U.S. citizen) absconded with the child to Germany.

The parties were never married, but the father had been awarded custody of the

child.

Father was told that since they were not married, he could not file under the

Hague Convention for a return. Police attempted to locate the child without success.

Current status

Father has had no contact with the child since 1993.

WINSLOW ANNE—MARYLAND/FIRTH (NEAR NUERENBURG)

Number of Children: 4 children (Mary Elizabeth, Angelina, Charles, Sarah)

Age(s) at Abduction: 4, 9, 11, 12 years old

Current Age(s): 7, 12, 14, 15 years old

Hague Convention case: Hague application rejected under the terms of Article 15

History

Parties married in the U.S. On June 19, 1996 the father (an American citizen)

abducted the four children to Germany. A divorce was pending so no custody determination had been made and the children were temporarily living with their father

at the time.

In March 1997, the court of Maryland awarded temporary sole custody to the

mother.

Mother was then told that under Article 15 of the Hague Convention, the U.S.

Department of State needed a decision or other determination that the removal was

wrongful within the meaning of Article 3 (i.e. a proof that the removal was in breach

of her custody rights). The Maryland court refused to grant her this order on the

basis that there had been no custody agreement prior to the abduction. (N.B. it

seems that the mother must have been badly represented or advised of the terms

of the Convention since the abduction was in breach of custodial rights—custody is

shared when the parties are married).

The Hague application was withdrawn. The police dropped charges against the father as well, claiming that extradition costs would be too high.

Current status

Mother has not seen her children at all since 1996. In November 1998, father

called mother to reiterate his intention of keeping the children in Germany. Mother

does not know their whereabouts.

WELCH SASHA

February 11, 1998, NCMEC intaked case via the hotline. Mother apparently took

child to Germany around January 15, 1999. Father was working with the DOS on

a Hague Application for return of the child.

54

August 15, 1998, according to NCMEC report, father received notice by DOS 7

days after German Hague hearing occurred. Father’s appointed German attorney attended, but had never spoken with the applicant father. Second hearing occurred

August 4, 1998, father lost the case partially because psychiatrist stated child would

suffer harm if separated from the mother and mother does not wish to return to

Germany.

November 5, 1998, received fax from Bill Fleming at DOS. Contained the application from German mother because child was taken from Germany to U.S. on October 29, 1998. Bill informed NCMEC that this was a reabduction and that the father

had lost a Hague application made to Germany during the summer. Meredith Morrison, case manager at NCMEC, was informed that the child was back with the father

in Colorado. The Hague application that NCMEC received included a ruling from

Germany stating that the removal from Germany was wrongful. They provided no

details or documents regarding the father’s Hague petition.

December 4, 1998, I requested a copy of the original German Hague decision from

DOS, which was faxed to NCMEC. This fax contained a Hague decision from a German court dated August 7, 1998 denying the applicant father’s petition for return.

Abducting mother apparently had temporary custody of the child in Colorado, but

was not allowed to leave the United States until the custody hearings were completed. Mother left with the child. Subsequently, father was given custody by the

Colorado court. Germany Court seems to have denied the father’s application based

on the fact that the mother had temporary custody at the time of the abduction and

was allowed to live in Germany.

Senator DEWINE. Ms. Hong.

STATEMENT OF LAURA KINGSLEY HONG

Ms. HONG. Thank you, Senator DeWine. Mei Mei will be 6 years

old on November 4. There will be no gifts. There will be no cake.

She will mark the occasion in Guangzhou, China, with her abductor, a woman whose mental illness will likely preclude her from

even being aware of the child’s birthday.

Mei Mei was born in Cleveland in 1993 and is an American citizen of Chinese descent. Mei Mei was abducted by her birth mother,

Sue Chen, a convicted felon and chronic unmedicated schizophrenic. My rights to custody of Mei Mei have continued uninterrupted from long before the abduction to the present day. Initially,

I was Mei Mei’s foster parent. Now, I am her legal guardian and

her legal custodian. The Ohio Eighth District Court of Appeals and

the Ohio Supreme Court has upheld my custodial status and the

termination of Chen’s parental right.

Despite repeated requests from not only me but from you and

your colleagues, the Cleveland U.S. attorney has refused to indict

Mei Mei’s abductor, who, unlike many parental abductors, is in the

eyes of the law a stranger to the child. There is no acceptable explanation for the lack of indictment in Mei Mei’s case.

The refusal of the Justice Department to enforce the Act is by

now well documented. We just heard it today. In response to concerns raised in this regard, we also heard that the Justice Department claims to need resources, training, social workers, support

groups, computer programs, et cetera, et cetera. None of that is required. What is required is enforcement of the International Parental Kidnaping Act as enacted by Congress, and that requires not

money, but simple resolve on the part of the Justice Department

to uphold the law.

Since the abduction, we have been caught in a vicious bureaucratic cycle in trying to bring Mei Mei home. The President will not

help us and little Mei Mei because the National Security Council

will not help us. The National Security Council will not help us beVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 OCT27.TXT SJUD2 PsN: SJUD2
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cause the State Department will not help us. The State Department will not help us because the Justice Department will not help

us. And the Justice Department will not help us because the Cleveland U.S. attorney’s office has declined to prosecute, and so it goes.

The conventional wisdom as conveyed to us by, among others,

the State Department was that a Federal indictment is necessary

to secure Mei Mei’s return, and so immediately upon Mei Mei’s abduction, we inquired of the local U.S. attorney’s office. In response

to our repeated inquiries as to when an indictment would be

issued, we were told that the case was being carefully considered

and they would let us know. We waited and waited.

In the interim, Congresswoman Mink received a telegram from

the U.S. embassy in Beijing advising her that, on October 24, 1996,

just days after Mei Mei’s abduction, the Cleveland U.S. attorney

had told the embassy not to pursue the case because it was not

going to prosecute Chen. The embassy told Congresswoman Mink

that without the requisite request from Cleveland to work on the

case, the U.S. Government has no authority to pursue Mei Mei’s

case in China.

The Cleveland U.S. attorney finally responded to our inquiries on

October 23, 1997, more than 1 year after Mei Mei’s abduction. In

a lengthy letter, she told us that she was declining to prosecute

Chen because her office, ‘‘was not satisfied that an unbiased trier

of fact will find Sue Chen guilty.’’ She did not explain the basis for

this assertion, nor did she explain why she employed a ‘‘will find

the defendant guilty’’ standard when, pursuant to the U.S. Attorneys’ Manual, the appropriate standard is one of probable cause.

What she did say, though, in so many words, was that she was

not about to enforce a law that she did not personally buy into. In

particular, she stated that an indictment of Chen for the purpose

of aiding in Mei Mei’s return would be an abuse of the Federal

grand jury process, and that there is no reason to believe that an

indictment of Chen would affect either her return or the return of

the child.

In short, the U.S. attorney declined to indict under the Act because she personally did not credit the Congressional assumptions

underlying its enactment, i.e., the indictments would enhance the

force of U.S. diplomatic representation seeking the assistance of

foreign governments in returning abducted children. Apparently, a

law is a law only to the extent the local U.S. attorney wishes it to

be.

In closing, we ask you and the subcommittee to do what it can

to bring home Mei Mei and others similarly situated by demanding

enforcement of the Act. As things now stand, the existence of the

Act, coupled with the Justice Department’s habitual refusal to enforce it, is having the precise opposite effect to what Congress intended by the enactment. This is so because the State Department

uses the lack of an indictment under the Act as a free pass to

refuse to lend assistance to international abduction cases, and

quite logically, foreign governments and courts view suspiciously a

private citizen’s request for assistance in an abduction case when

the private citizen’s own government has not efficiently deemed the

abductor’s conduct criminal. We beg you to do what you can to

break this vicious cycle. Thank you.

56

1The Congress, in enacting the Hague Convention (which the IPKA is intended, in part, to

supplement), explicitly stated that the return of abducted children to their home state is of paramount importance, and that ‘‘Persons should not be permitted to obtain custody of children by

virtue of their wrongful removal or retention.’’ 42 U.S.C § 1161. The rights protected by the

Hague Convention include the situation when a child is in the care of foster parents. ‘‘If custody

rights exercised by the foster parents are breached, for instance, by abduction of the child by

its biological parent, the foster parents could invoke the Convention to secure the child’s return.’’ (51 Fed. Reg. No. 58, p. 1505.)

Senator DEWINE. Thank you very much.

[The prepared statement of Ms. Hong follows:]

PREPARED STATEMENT OF LAURA KINGSLEY HONG

Mr. Chairman, Members of the Committee: My name is Laura Hong. I am a partner at the law firm of Squire, Sanders & Dempsey, resident in Cleveland, Ohio, and

am the legal guardian and legal custodian of Rhonda ‘‘Mei Mei’’ Lan Zhang (‘‘Mei

Mei’’).

At the invitation of Senator Thurmond, I provide this statement because Mei Mei

was abducted by her non-custodial birth mother, Sue Ping Chen, on October 15,

1996, and taken to the People’s Republic of China. And yet, despite the clear terms

of the International Parental Kidnaping Act, the Department of Justice refused and

continues to refuse to issue an indictment.

First, on behalf of myself, Tom Kovach and five year old Mei Mei, we thank you

for giving us this opportunity to submit this statement on a matter of grave import.

We also express our gratitude to Subcommittee Members DeWine, Ashcroft, Abraham, Sessions, Torricelli and Leahy who, along with twenty-eight other Senators

and six Representatives, have made requests to President Clinton, The National Security Council, the Departments of State and Justice, and the Chinese government

to facilitate Mei Mei’s return home.

As the Subcommittee is aware, in 1993, President Clinton signed into law the

International Parental Kidnaping Act, 18 USC § 1204 (‘‘IPKA’’). The statute makes

it a crime for a non-custodial parent to remove a child from the United States with

the intent to obstruct the lawful exercise of parental rights. The statute defines parental rights as the ‘‘right to physical custody of the child.’’

Mei Mei was born in Cleveland, Ohio on November 4, 1993. As a result of Ms.

Chen’s repeated neglect of Mei Mei, by court order dated March 8, 1995, more than

a year and a half before Mei Mei’s abduction, I was granted physical custody of Mei

Mei. That right has continued uninterrupted through the date of the abduction and

to the present day. In addition to the court order granting me physical custody of

Mei Mei, after Mei Mei’s abduction on October 15, 1996, the Juvenile Court for Cuyahoga County issued several orders commanding the return of Mei Mei, terminated

Ms. Chen’s parental rights and awarded me legal custody. Initially, I was Mei Mei’s

foster parent; I am now Mei Mei’s legal guardian and custodian.1 Since Mei Mei’s

abduction, the Ohio Eighth District Court of Appeals has upheld my custodial status

and the termination of Ms. Chen’s parental rights and issued a writ of habeas corpus commanding Ms. Chen to bring Mei Mei before it. The Ohio Supreme Court

upheld the issuance of the writ and the order granting me legal custody of Mei Mei.

Yet despite these court orders, and overwhelming congressional and citizen support, the Department of Justice refuses to issue an indictment under the IPKA; and

the State Department, citing the inaction of the Department of Justice, similarly refuses to help.

The Act clearly applies here by its terms, and the fact that the Cleveland U.S.

Attorney has not enforced it sends a message that a law is a law only to the extent

the local U.S. attorney wishes it to be.

A few days ago, on October 14, 1999, Jess T. Ford, Associate Director, International Relations and Trade Issues, National Security and International Affairs Division, United States General Accounting Office, testified concerning the Division’s

preliminary observations on the federal government’s response to international child

abduction. Director Ford reported that the State Department estimates that every

year 1,000 children are abducted by their parents. Yet, since the enactment of the

IPKA, the Justice Department has issued only 62 indictments under the IPKA.

In November 1998, the Attorney General created The Policy Group on International Parental Kidnaping which produced an April 1999 publication entitled A

Report to the Attorney General on International Parental Kidnaping. In reference to

that report, Director Ford highlighted four key problems cited by the State and Justice Departments relating to the federal government’s response to international

57

2 Cuyahoga County Prosecutor’s Office will not issue an indictment. The head of the Cuyahoga

County Prosecutor’s Office’s Criminal Division will not issue an indictment because, in his

words, Mei Mei ‘‘looks Chinese’’ and ‘‘belongs in China.’’

child abduction. Not surprisingly, one of the problems cited is the Justice Department’s limited use of the IPKA.

In response to problems relating to international child abductions, the Departments of Justice and State repeatedly appear before Congressional committees requesting funding for social workers, support groups, computer programs for case

tracking, study groups, and policy groups designed to ‘‘deal with’’ international parental kidnaping. All of this smacks of being a smokescreen. It is our opinion—based

on firsthand experience—that the paramount issue in dealing with international parental kidnaping is enforcement of the law as it is written and as it was intended

to be enforced by Congress.

The official responses to our efforts to bring Mei Mei home underscore this. The

State Department consistently called this a ‘‘private custody dispute,’’ as there were

no criminal charges against the abductor. But there is no ‘‘dispute’’ here; under Ohio

law, Mei Mei’s abductor has and had no rights whatsoever with respect to Mei Mei.

Moreover, this case is susceptible to being called a ‘‘private custody dispute’’ only

because the Cleveland U.S. Attorney declined to indict under the IPKA. If an indictment issued, then, afortiori, this would be a federal criminal matter, and not a ‘‘private custody dispute.’’

It is all part of a vicious circle. We are told the President has looked into the matter, but will not help little Mei Mei and us because the National Security Council

will not help us. The National Security Council is ‘‘unable’’ to help us because the

Department of State will not help us. The Department of State will not help us because the Department of Justice will not help us. The Department of Justice will

not help us because the Cleveland U.S. Attorneys’ Office has declined to prosecute.

The Cleveland U.S. Attorneys’ Office will not issue an indictment (purportedly) because the Department of State will not guarantee that an indictment will lead to

the conviction of the abductor.2

Though our efforts to seek enforcement of the laws of this country, and in particular the IPKA, are detailed more fully in the attachments which I submit with my

written statement into the record, I summarize for the Subcommittee our protracted

and thus far unsuccessful efforts directed to the Cleveland U.S. Attorney’s Office

and the Department of Justice to obtain an indictment under the IPKA.

The day after Mei Mei’s abduction, on October 16, 1996, I provided a statement

to Cleveland FBI agents. On that same day, Cleveland Police confirmed that Ms.

Chen and Mei Mei had flown from Cleveland to Chicago, Chicago to San Francisco,

and San Francisco to Hong Kong. Ms. Chen was travelling on her Chinese passport,

and Mei Mei was traveling on her U.S. Passport. With the assistance of the Department of Commerce, we immediately electronically transmitted photographs of Mei

Mei and Ms. Chen to Hong Kong FBI agent James Wong. Unfortunately, we were

too late. Ms. Chen and Mei Mei had already entered the People’s Republic of China.

We were immediately advised that the Chinese authorities would assist in Mei

Mei’s return if we obtained a federal indictment. We were also advised that a federal indictment would facilitate an Interpol warrant, and that that, too, would facilitate Mei Mei’s return. Having been so advised, we began a process that resulted

in hundreds, if not thousands, of requests for an indictment.

On October 21, 1996, six days after Mei Mei’s abduction, Tom Kovach, also an

attorney at Squire, Sanders & Dempsey, and the only father Mei Mei has ever

known, met with Cleveland First Assistant U.S. Attorney, Gary D. Arbeznik. Mr.

Arbeznik requested that we prepare a memorandum of law and analysis of the

IPKA in response to Mr. Arbeznik’s erroneous statement to me over the telephone

that the IPKA requires an underlying state indictment. Despite the incredible pressure and strain under which we were functioning, and despite the fact that we are

civil, and not criminal, litigators, we provided Mr. Arbeznik with the memorandum;

we did not, at the time, question why it was our obligation to explain the law to

an Assistant U.S. Attorney. Nor did we question why First Assistant Arbeznik had

personally taken the case when Cleveland Assistant U.S. Attorney Krista Bruntz

previously had handled and issued an indictment on an international parental kidnaping case pursuant to the IKPA for that office.

During the next few days, we received incredible support and assistance from

other law enforcement, particularly Hong Kong FBI, the U.S. Embassy in Beijing

and the Consulate office in Guangzhou, where we had located Ms. Chen and Mei

Mei. Unfortunately, with lightning speed—just nine days after Mei Mei’s abduction—Mr. Arbeznik, on October 24, 1996, without any discussions with me, notified

58

the U.S. Embassy in Beijing that the Cleveland U.S. Attorney’s office had declined

to prosecute the case.

Though I continually called Mr. Arbeznik for a status, this information did not

become known to us until more than one month later when Congresswoman Patsy

Mink forwarded to me a Department of State telegram from the U.S. Embassy in

Beijing advising her of Mr. Arbeznik’s October 24, 1996 notification and also advising that ‘‘without the requisite request from FBI Cleveland to work the case, the

U.S. Government has no legal authority to pursue [Mei Mei’s] case in China.’’ We

contacted Agent John Jacobs of Cleveland FBI, who advised us that, because Mr.

Arbeznik had affirmatively stated that he was not going to prosecute, Cleveland FBI

could do nothing further.

Thereafter, over the next fifteen months, we were left highly insulting messages

by a now-former Department of Justice Attorney allegedly responsible for ‘‘children’s affairs.’’ We were threatened with local indictments for posting a website about Mei

Mei’s situation, and were flatly ignored by Cleveland U.S. Attorney Emily Sweeney,

with whom we left unreturned messages on at least a weekly basis.

In early 1997, in response to the hundreds of letters from us, citizens, members

of the Congress, the immediate past presidents of the American Bar Association,

Federal Bar Association and the National Asian Pacific Legal Consortium, we received our first response from the Department of Justice. That response was a form

letter that did nothing but offer ‘‘assurances’’ that the Cleveland U.S. Attorney’s Office (‘‘USAO’’) was ‘‘thoroughly looking into the matter.’’ Of course, this was false,

because on October 24, 1996, First Assistant U.S. Attorney Gary Arbeznik had

closed the matter.

The Cleveland U.S. Attorney herself did not respond to any inquiries until October 23, 1997, more than one year after Mei Mei’s abduction, when she wrote me

a lengthy letter advising me that the Cleveland USAO was declining to prosecute

Ms. Chen. A copy of that letter is appended to my written statement. I bring to the

attention of the Subcommittee, however, some highlights of the letter in which, for

the first time, the USAO purported to articulate for us the basis for her refusal to

pursue an indictment of Sue Ping Chen for the kidnaping of Mei Mei.

Though it would appear on its face that the letter was intended to explain her

decision, we were amazed to see that, in all its 4-page length, there was not one

mention of the IPKA, 18 U.S.C. § 1204 (the ‘‘IPKA’’), or any other criminal statute.

She stated that her ‘‘office [was] not satisfied that an unbiased trier of fact will find

Sue Ping Chen guilty,’’ but her statement was made in a vacuum, with no reference

to the particular criminal statute against which the Cleveland USAO claimed to

have assessed the probability of Chen being found guilty. This was quite telling.

Moreover, the Cleveland U.S. Attorney did not provide any legal authority for employing the standard she claimed to have employed—i.e., the standard that an ‘‘un- biased trier of fact will find the accused guilty.’’ At the same time, though, she cited

Section 9–27.220 of the U.S. Attorney’s Manual, which indicates that the ‘‘threshold

determination’’ should be whether probable cause exists to believe that a federal offense has been committed, and ‘‘that admissible evidence probably will be sufficient

to obtain and sustain a conviction.’’ Apparently, the Cleveland U.S. Attorney chose

to apply a more exacting standard than that set forth in the ‘‘Manual’’ when it came

to enforcing Mei Mei’s rights.

Crimes, as we all know, have elements, and the decision as to whether to prosecute for the commission of a particular crime ought to hinge on whether the elements of that crime are met. Each element of the IPKA is clearly met in Mei Mei’s

case, and none of the affirmative defenses set forth in that statute are available—

even arguably—to Ms. Chen. Yet, while the Cleveland U.S. Attorney spent three

pages discussing collateral issues of little relevance to the issue of whether Chen

violated the IPKA, she offered not one shred of information as to why she was not

‘‘satisfied that an unbiased trier of fact will find Sue Ping Chen guilty.’’ In particular, she did not share with us which elements of the crime she found lacking. Her

unwillingness to discuss the critical issue—i.e., why the Office felt Chen would not

be found guilty under the IPKA for kidnaping Mei Mei—spoke volumes.

The Cleveland U.S. Attorney went on to state that the ‘‘seeking [of] an indictment

against an individual in order to facilitate enforcement of a civil court order is not

a proper use of the grand jury,’’ that ‘‘an indictment of Sue Ping Chen for [the] purpose [of aiding in Mei Mei’s return] would be an abuse of the Federal Grand Jury

process,’’ and that ‘‘[t]here is no reason to believe that an indictment of Sue Ping

Chen would effect either her return or the return of the child.’’ All of these bases,

of course, put the U.S. Attorney squarely in opposition to Congress on the issue of

the international abduction of American children. As the Congress made clear in

passing the IPKA, one of the express purposes of the Act was ‘‘to provide the basis

for Federal warrants, which will in turn enhance the force of U.S. diplomatic repVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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3We note that the Cleveland USAO has ignored Section 9–27.230 of the ‘‘United States Attorney’s Manual,’’ which instructs the office to consider as a matter of primary importance the actual or potential impact of the offense on Mei Mei and me.

resentations seeking the assistance of foreign governments in returning abducted

children.’’ H.R. No. 103–390, Cong. Rec. P. 2421 (emphasis added). Thus, Congress

believed it eminently appropriate and advisable to use an indictment under the

IPKA for the purpose of facilitating the return home of internationally abducted

American children, and legislated accordingly. It was always our understanding that

the American people elect the Congress to make such legislative determinations,

and that U.S. Attorneys are appointed merely to enforce them. The Cleveland U.S.

Attorney, however, clearly believes—with the apparent acquiescence of the Justice

Department—that it is her prerogative to override the Congress.

The Cleveland U.S. Attorney then went on to note that ‘‘the state [of Ohio] has

plainly indicated that it will not enforce’’ the order terminating Chen’s parental

rights and granting permanent custody of Mei Mei to me, Laura Hong, and that

this, in turn, ‘‘raises a serious question regarding federal enforcement.’’ But it was

unclear which ‘‘state’’ she was referencing. Apparently, it was the position of the

Cleveland USAO that the Cuyahoga County Court of Common Pleas, which terminated Chen’s parental rights and awarded custody to me, is not ‘‘the state’’; nor is

the Ohio State Legislature, which enacted the laws by which Chen’s parental rights

were terminated and legal custody of Mei Mei was awarded to me; nor is the Ohio

Court of Appeals, which upheld the order of the trial court and also issued a writ

of habeas corpus directing Chen to bring Mei Mei home; nor is the Supreme Court

of Ohio, which declined to vacate the writ of habeas corpus directing Chen to bring

Mei Mei home; nor is the Cuyahoga County Board of Commissioners, the government entity charged with oversight of Children Services, which has publicly expressed support for the efforts to bring Mei Mei home; nor are Senator DeWine and

then-Senator Glenn, who, along with more than one-third of the U.S. Senate, have,

in a number of ways, manifested their support for bringing Mei Mei home.

Instead, ‘‘the state,’’ as far as the Cleveland USAO appears to be concerned, consists of one misguided individual in the Cuyahoga County Prosecutor’s Office who

the Cleveland Plain Dealer labeled a ‘‘Chen proponent,’’ and who publicly stated

that he would not enforce Ohio’s laws in this case, publicly condoned the abduction

of children from the child welfare system, and caused the quashing of a City of

Cleveland felony kidnaping warrant for Chen’s arrest that had been issued upon a

showing of probable cause by the Cleveland Police Department. It is troubling that,

notwithstanding all of the ‘‘state’’ entities that spoke out in favor of bringing Mei

Mei home in accordance with the laws of the ‘‘state,’’ the Cleveland U.S. Attorney

took its cue from the one public official who had, in this matter, consistently maintained a position contrary to law. It is even more troubling when one considers that

another motivating factor in enacting the IPKA was to save parents of abducted

children from having to rely on state law enforcement authorities who, for budgetary reasons, had traditionally been disinclined to prosecute an offender who would

have to be extradited at considerable cost to the local authorities.

The remainder of the U.S. Attorney’s letter was clearly geared towards convincing

someone other than us—perhaps her Justice Department superiors—that the equities in this case supported her decision not to prosecute.3 In the interests of fairness, though, the U.S. Attorney could also have shared with her extended audience

the fact that the ‘‘evidence’’ she recited in her letter—i.e., a staged welfare visit conducted by the Guangzhou Consulate, and the representations of Chen’s father as reported to to her by Children Services as to his purported willingness and ability to

care for the child—was heard by Judge Patrick F. Corrigan of the Cuyahoga County

Court of Common Pleas, and rejected outright. In the interests of fairness, the

Cleveland USAO could have cited the evidence—which was, in the Judge’s words, ‘‘clear and convincing’’—that led the Judge to find that Mei Mei is not in a suitable

environment, that Chen is incapable of parenting, and that neither Chen nor Chen’s father (who kicked Chen and Mei Mei out of his apartment in Guangzhou on two

occasions, documented in the court files, because he ‘‘could not handle’’ Chen’s psychotic behavior) is capable of providing a suitable, stable home for Mei Mei.

In that letter, the Cleveland U.S. Attorney also stated that Children Services had

the ‘‘parental rights’’ to Mei Mei at the time of the abduction, apparently to suggest

that Children Services, and Children Services alone, had the right to prosecute on

Mei Mei’s behalf. The IPKA, however, focuses by its terms on ‘‘physical custody’’ of

the child, and Mei Mei was, by order of the juvenile court, physically placed in my

home at that time. Incredibly, the Cleveland U.S. Attorney adopted the very same

position regarding Mei Mei’s physical custody that was taken by Ms. Chen in our

writ of habeas action—a position the Ohio Eighth District Court of Appeals flatly

60

4 In his December 2, 1993 Statement upon signing the IPKA, President Clinton made clear

that, while the civil remedies of the Hague Convention should be utilized where available, where

they are not available (as here), a criminal indictment under the IPKA is appropriate.

rejected. As I mentioned, the Ohio Court of Appeals found in the habeas action that

physical custody of Mei Mei was vested in me, and that, under Ohio law, I was an

appropriate entity to seek her return. The Ohio Supreme Court refused to vacate

the Court of Appeals’ decision to that effect. In any event, the IPKA makes it a

crime to ‘‘remov[e] a child’’ and to ‘‘retain[] a child’’ outside the U.S. See 18 U.S.C.

§ 1204(a). Assuming arguendo that I was not wronged by the removal of Mei Mei

by Chen, I clearly was wronged under the Act, and continue to be wronged, by Ms.

Chen’s continued unlawful retention of Mei Mei. As stated by the Court of Appeals

for the Eighth District, the experts agreed that Mei Mei ‘‘was primarily bonded to

[me], and the longer she remained captive in China, the more likely it would be that

the child would suffer emotional harm from the separation.’’

Finally, the Cleveland USAO ignored the fact that Mei Mei, too, is a victim here,

with her own right to have the laws enforced on her behalf, and that I, as legal

custodian of Mei Mei, have the legal right to seek enforcement of the laws on Mei

Mei’s behalf. As the Eighth District Court of Appeals stated, ‘‘The best that can be

said in this case is that the child welfare system failed miserably to protect the best

interests of the child. [Laura Hong’s] understandable bond with the child placed her

in the position of being an advocate for the child when those who had the responsibility failed to execute that responsibility.’’

Along these same lines, the Cleveland USAO made repeated references in the letter to Mei Mei as Chen’s ‘‘own child’’ and ‘‘her child’’ that are deeply disturbing.

Under Ohio law—and the Cleveland USAO acknowledges that ‘‘[m]atters of family

law are historically the province of state and local governments’’—Chen has (and

at the time of the abduction had) no parental rights whatsoever to Mei Mei, and

Mei Mei is not ‘‘her child.’’ Under Ohio law, the accident of birth should no more

subject Mei Mei to abduction by a birth parent than it would any of the tens of

thousands of adopted children in Ohio. The Cleveland USAO’s refusal to accept this

was, in essence, a refusal to recognize the authority of Ohio’s legislature to legislate,

and its courts to adjudicate, that those who repeatedly manifest a lack of fitness

to parent will forfeit their parental rights.

Finally, contrary to the Cleveland U.S. Attorney’s suggestion, Mei Mei is not a

‘‘dual citizen of the PRC and the United States.’’ Under Chinese law, because Mei

Mei was born in the U.S. to a U.S. Permanent Resident, Mei Mei, notwithstanding

Chen’s Chinese nationality, is barred from obtaining Chinese citizenship.

The Cleveland U.S. Attorney was correct, though, in one respect. There are no

guarantees that an indictment of Chen under the IPKA will bring Mei Mei home.

But Congress made a determination—with which President Clinton agreed 4—that

an indictment under the IPKA is an appropriate and useful tool in the efforts to

bring internationally abducted American children home. And while the Cleveland

USAO played word games with what the State Department told her office, she did

not deny in her letter that she was informed of the State Department’s opinion that

an indictment of Chen would be helpful in the effort to bring Mei Mei home.

Whether the Cleveland U.S. Attorney and the Department of Justice acknowledge

it or not, they knowingly erected a barrier to the return home of Mei Mei, a young

American citizen, by their refusal to enforce the laws of Ohio and the United States

on Mei Mei’s behalf, and therefore inflicted on Mei Mei a grave injustice that continues to this day. As stated by the Eighth District Court of Appeals, ‘‘With that

thought, the court could reasonably look to [Laura Hong] as the only remaining defender of the child’s bests interests.’’

We ask the Subcommittee to do what it can to help Mei Mei, to champion her

interests as well, and to ensure that no other children suffer Mei Mei’s fate because

of a U.S. Attorney’s unwillingness to enforce the laws as written.

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Senator DEWINE. Mr. Lebeau.

STATEMENT OF JOHN J. LEBEAU, JR.

Mr. LEBEAU. I would like to thank Senator Thurmond and Senator DeWine and distinguished members of the committee for allowing me to testify here today. I commend your commitment to exploring the devastating problems we are here to address, and I

humbly request that you not let go of that commitment until we

all achieve not just the necessary level of activity, but more importantly, fully acceptable level of accomplishment. So far, we have a

long way to go.

Forgive me, gentlemen, if my testimony sounds somewhat emotional. However, I am sure you agree this is a very emotional issue

for thousands of American families.

The record of the Justice Department’s response to international

parental kidnaping speaks for itself. Estimates show there were

10,000 cases of international parental child abduction at the time

the International Parental Kidnaping Crime Act was passed on December 2, 1993. The record shows arrest warrants have been issued

in less than 1 percent of those cases and all cases since then.

According to the National Center for Missing and Exploited Children, my case is perhaps the only one with both an arrest and U.S.

extradition upheld. To achieve this virtually unheard of outcome,

Senator, it took my own Herculean efforts, the noble and unceasing

fight of a sympathetic Congressional aide, a miraculous stroke of

luck or two, lots of prayers, and lots of family support, every dollar

I had and could borrow, and the threat of legal action against the

U.S. Government. This testimony is about why more than 9,999

other left-behind parents have not been able to do the same. It is

on their behalf that I appear before you today.

Mr. Chairman and members of the committee, I worked obsessively for 21⁄2 years, traveled 5,000 miles to Northern Europe 6

times, and spent over $160,000 in order to protect the endangered

well-being of my very young children. I entered for 21⁄2 years a virtual netherworld of multinational foreign bureaucracies where the

law changes at every border and often years of legal proceedings

produce nothing but frustration.

However, in all that experience, never did I encounter more hostility, ignorance, incompetence, deceit, and blatant unwillingness to

protect our youngest American citizens as I did with my experience

with the Department of Justice. Characteristic of their unwillingness to respond to the crime of international parental kidnaping at

the demand of the U.S. Attorney’s Office, I placed false trust in a

foreign civil process called the Hague Convention on the civil aspects of international child abduction that by design alone does not

and will not work efficiently to protect American citizens. Though

they demanded I follow it, never was I informed by the U.S. Attorney’s Office that this foreign civil process since its creation had

been successful in returning less than 30 percent of internationally

abducted children. Even to this day, DOJ has failed to reveal the

facts, as evidenced by the blue ribbon April 1999 report to the Attorney General. With typical bureaucratic flair and wasted resources, this report is a pre-package with no real substance, and

that is to the direct detriment of countless lost American children.

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For me, the convention-mandated 6-week Hague process took 14

grueling months, precious time that could have been more productively spent by pursuing additional remedies for the return of my

children. After 14 months, not only were my children not returned,

worse yet, I lost all traces of them completely due to the unenforceability, thus worthlessness, of a Danish high court order of return.

Following that order, it took the U.S. Attorney’s Office 6 months

to take action, and then only as a result of my threats of legal action against them for blatant violations of the National Child

Search Assistance Act of 1990.

The U.S. Attorney’s Office’s demand that I initially pursue only

civil remedies was not only very poor advice, but more importantly,

it directly endangered the well-being of my children. The U.S. Attorney’s Office’s reason for not taking my case subsequent to my

award of custody was based on the false statement, ‘‘By law, we are

not able to pursue criminal remedies against your wife until you

have completely exhausted your civil remedies, both in the United

States and abroad.’’ What they were undoubtedly referring to, I

would later learn, is the sense of Congress resolution included in

the President’s signed statement of the International Parental Kidnaping Crime Act, and in no way can this resolution be considered

law.

Even overlooking their inability to give——

Senator DEWINE. So they were incorrect?

Mr. LEBEAU. I am sorry, sir.

Senator DEWINE. They were incorrect?

Mr. LEBEAU. Yes, sir. Even overlooking their inability to give

proper advice in this critical situation, I find it absolutely inexcusable that in doing so, the U.S. Attorney’s Office conveniently designed their own law to accommodate their disinterest. To me, that

comment above and the theory behind it is akin to advising someone not to walk and chew gum at the same time. Certainly, it

might be nice to sit down and chew, but not while you are waiting

years for your children to come home.

Now, in the interest of time, ladies and gentlemen, I not only invite you but I beseech you to read this testimony that I have prepared. As I do, may I leave you with this. Even apart from my own

horrific experience, the facts speak miserably for themselves and

the harsh reality is that the U.S. Government is successful in securing the return of less than 30 percent of internationally kidnaped children. It is only on that basis alone that I need make my

appeal.

We must, for the sake of our most precious resource, take the

sheer facts and statistics as a clear signal that we, as Americans,

are not doing enough to protect our youngest citizens. Clearly, we

must become more proactive.

Personally, though, it has taken me many years to learn so well

a very important lesson. There is a big difference between activity

and accomplishment. So, yes, this is a call for action, but more importantly, there is a call for results. Thank you, Senator DeWine,

for allowing me to appear before the subcommittee.

Senator DEWINE. Thank you very much.

[The prepared statement of Mr. Lebeau follows:]

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Senator DEWINE. Mr. Stein.

STATEMENT OF CRAIG E. STEIN

Mr. STEIN. Thank you, Senator DeWine. It is a privilege and an

honor to be asked to speak to you and your committee today concerning some of my experiences with the implementation of the

Hague Convention on international child abductions. I understand

that your committee is especially interested in the interface between the Justice Department and the individuals most affected by

these unfortunate cases, the left-behind parent. I believe this is a

very important matter that needs immediate attention and I am

pleased that the Oversight Subcommittee is reviewing this issue.

So that you will understand my perspective, unlike Mr. Lebeau

and Ms. Hong and Lady Meyer, I have my children at home. Of

course, Mr. Lebeau has his back now, too, but I am an attorney in

private practice. I have a background in international law and have

taken on a number of these child abduction cases, both incoming

and outgoing, usually on a pro bono basis, over the past few years.

No two cases are alike. The main difference is depending largely

upon the country to which the child has abducted from or to and

the attitude of the absconding parent.

Although the laws implementing this aspect of the Hague Convention have now been on the books for several years, you should

understand that this treaty is still a work in progress, on the civil

side, at least. Judges in the United States and the private bar are

continually getting experience with this treaty. However, its acceptance as a tool to affect the speedy return of a kidnaped child can

no longer be denied. It may be imperfect, but it is helping.

Nevertheless, those of us who take on these cases can state with

certainty that while the civil aspects of this law are being refined

and utilized on an increasing basis, the criminal side of the enabling legislation has not been used to its fullest potential. Indeed,

I can state with absolute certainty that it is the feeling among attorneys familiar with these cases that it is not even worth the effort to bring these cases to the attention of the Federal law enforcement agencies as no useful action will be undertaken. I am sorry

to see that the first panel has already left the hearing room. Obviously, the testimony preceding me in this sort of contradicts some

of the perceptions, or the gap in perceptions that we have here in

dealing with these issues.

Frankly, this is unfortunate. As you have heard through Mr.

Lebeau’s testimony, one of the most helpful tools he had in his effort—or in his written statement—to have his children returned

was the pending indictment he successfully obtained against the

absconding mother, but not without great difficulty. Indeed, from

my experience, it is my opinion that having an indictment pending

in the United States tends at a minimum to catch the attention of

those authorities overseas who are charged with enforcing the

Hague Convention in their respective countries.

I do not want to belabor problems individuals have faced in getting the appropriate Federal authorities to institute criminal proceedings in these matters. Rather, I would like to spend the few

minutes I have in a constructive manner. In short, here are what

I perceive to be the problems.

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Number one, there does not seem to be a designated person, either in Washington or in those U.S. attorneys’ offices which appear

to experience a greater proportion of these cases, who is specifically

charged with enforcing IPKA and other Hague Convention issues.

If there is a person in charge, those of us who need to know who

that person is are in the dark.

Senator DEWINE. You have not found him yet, then, or her?

Mr. STEIN. We are still looking.

Senator DEWINE. You are still looking?

Mr. STEIN. We are still looking, Senator. I am glad to hear the

Justice Department is beginning some training programs. As far as

we know, there has been little or no training either within Justice

or the respective U.S. attorneys’ offices about the procedures that

should be implemented in these matters.

Three, as far as we can ascertain, or my colleagues can ascertain,

we are unaware of any written guidelines in the Justice Department or various U.S. attorneys’ offices to handle these types of

matters.

Number four, the review and handling of these cases appears to

be accomplished on an ad hoc manner. I think Ms. Hong’s testimony really points that out. There is no discernable procedure or

philosophy in carrying out the relevant statutes.

Now, why do these problems persist? In my opinion, there are a

variety of factors that come into play, Senator. First, there is a natural reluctance of a prosecutor to take cases from the public rather

than a law enforcement agency. Unlike other crimes, however, the

most valuable resource in parental kidnaping cases is the victim,

the left-behind parent. Therefore, this natural hesitancy must be

addressed and overcome.

Second, because there is no one individual either at Justice or at

specific U.S. attorneys’ offices responsible for these matters, or accountable, for that matter, there is no coordinating effort, no one

person to look for for assistance, and no centralized training program.

Third, and I think this is underscored by the testimony this

morning in panel number one and on page 35 of the report that has

been referred to quite often today, there is a perception that the

criminal enforcement mechanisms do not assist in bringing back

children. However, there is really no empirical evidence to substantiate this theory because, thus far, the criminal laws have just not

been enforced.

I would argue that indictments should be brought in most instances. It should be the rule, not the exception, and here I agree

with you, Senator DeWine. Bring the indictments and let us see

what happens. Depending on the circumstances, after the indictment is brought, then we will see how we will handle the criminal

charges.

Finally, what should be done to address these problems? I believe

the answers are quite simple. First, the Department of Justice

should designate an individual to oversee these cases and name

that individual. Because the number of cases is on the rise, I believe it should be a full-time position.

238

Second, persons should establish a training program for assistant

U.S. attorneys in those districts that are experiencing more than

a random case of international parental kidnaping.

Third, in each such district, U.S. attorneys should be required to

designate on AUSA in his or her office to handle these applications.

It should be clearly understood, however, and I must emphasize,

that the policy of the Justice Department should be that the efficacy of bringing criminal proceedings in these matters is not a matter for debate that would sideline these cases. Rather, we should

explore the efficacy issue after several years of experience that we

gain in bringing these indictments.

Thank you for your time and attention, Senator. I would welcome

any questions you might have concerning these matters.

Senator DEWINE. Thank you very much.

[The prepared statement of Mr. Stein follows:]

PREPARED STATEMENT OF CRAIG STEIN

Mr. Chairman, it is a privilege and an honor to be asked to speak to you and your

committee today concerning some of my experiences with the implementation of the

Hague Convention on International Child Abductions. I understand that your Committee is especially interested in the interface between the Justice Department and

the individuals most effected by these unfortunate cases, the left behind parent. I

believe this is a very important matter that needs immediate attention and I am

pleased that your Oversight Committee is reviewing this issue.

So that you will understand my perspective on these matters, I am an attorney

in private practice. I have a background in international law and have taken on a

number of these child abduction cases, both incoming and outgoing, usually on a pro

bono basis, over the past few years. No two cases are alike. The main differences

depend largely upon the country to which the child has been abducted from or to,

and the attitude of the absconding parent. Although the laws implementing this aspect of the Hague Convention have now been on the books for several years, you

should understand that this Treaty is still a work in progress. Judges in the United

States and the private bar are continually gaining experience with this Treaty.

However, its acceptance, as a tool to effect a speedy return of a kidnaped child can

no longer be denied.

Nevertheless, those of us who take on these cases can state with certainty that

while the civil aspects of this law are being refined and utilized on an increasing

basis, the criminal side of the enabling legislation has not been used to its fullest

potential. Indeed, I can state with certainty that it is the feeling among attorneys

familiar with these cases that it is not worth the effort to even bring these cases

to the attention of the federal law enforcement agencies as no useful action will be

undertaken.

Frankly, this is unfortunate. As you have heard through Mr. LeBeau’s testimony,

one of the most helpful tools he had in his effort to have his children returned was

the pending indictment against the absconding mother. Indeed, from my experience,

it is my opinion that having an indictment pending in the United States tends, at

a minimum, to catch the attention of those authorities overseas who are charged

with enforcing the Hague Convention in their respective countries.

I do not want to belabor the problems individuals have faced in getting the appropriate federal authorities to institute criminal proceedings in these matters. Rather,

I would like to spend the few minutes I have in a constructive manner. In short,

here are what I perceive to be the problems. (1) There is no one designated either

in Washington or in those U.S. Attorney’s offices which appear to experience a

greater proportion of these cases who is specifically charged with enforcing Hague

Child Abduction proceedings. If there is a person in charge, those of us who need

to know who that person might be are in the dark. (2) There has been little or no

training within Justice or the respective U.S. Attorneys’ offices about the procedures

that should be implemented in these matters. (3) There are no written guidelines

in the Justice Department or the various U.S. Attorney’s offices to handle these

matters. (4) The review and handling of these cases appears to be accomplished in

an ad hoc manner. There is no discernable procedure or philosophy in carrying out

the relevant statue.

239

Why do these problems persist? In my opinion, there are a variety of factors that

come into play. First, there is a natural reluctance of a prosecutor to take cases from

‘‘the public’’ rather than a law enforcement agency. Unlike other crimes, however,

the most valuable resource in parental kidnaping cases is the left behind parent.

Therefore, this hesitancy must be addressed and overcome. Second, because no one

individual at Justice is responsible for these matters (or accountable for that matter) there is no coordinating effort, no one person to look to for assistance and no

centralized training program. Third, there is a perception that the criminal enforcement mechanisms do not assist in bringing back children. However, there is no empirical evidence to substantiate this theory because, thus far, the criminal laws have

not been enforced. I would argue that indictments should be brought in most instances. Then, depending on the circumstances, how that indictment is eventually

handled or resolved will depend upon the cooperation of the absconding parent in

returning and the sanctuary country in cooperating with our efforts to have children

returned.

Finally, what should be done to address these problems? I believe the answers are

quite simple. Indeed, I came here today not to criticize any individual or agency,

but rather to help fix what can be an important tool in the efforts to return missing

children. First, The Department of Justice should designate an individual to oversee

these cases. Because the number of cases is on the rise, I believe this should be a

full time position. Second, this person should also establish a training program for

Assistant United States Attorneys in those Districts that are experiencing more

than a random case of international parental kidnaping. Third, in each such District, the United States Attorney should be required to designate an AUSA in his

or her office to handle these applications. It should clearly be understood, however,

and therefore the policy of the Justice Department that the efficacy of bringing

criminal proceedings in these matters is not a matter for debate that would sideline

these cases. Rather, we should explore the efficacy issue after a year or two of experience is gained in bringing indictments and prosecutions.

I have not even addressed the follow-through, or lack thereof, in prosecuting these

matters. Perhaps that is a subject for another day. For now, it is enough if, through

your committee and these hearings, we can work together with the Department of

Justice to insure that the criminal aspects of the law implementing the Hague Convention on International Child Abduction are vigorously enforced.

Thank you for your time and attention. I would welcome any questions you might

have concerning these matters.

Senator DEWINE. Mr. Allen.

STATEMENT OF ERNIE ALLEN

Mr. ALLEN. Thank you, Senator. I remember vividly almost a

decade ago having the opportunity to testify before the counterpart

committee in the House in support of your efforts to make international parental kidnaping a crime. In fact, I stood with you at

a press conference shortly thereafter in which you advocated that

that step be taken. I think it was the right step then and I think

it is the right law now. Yet many of the same obstacles that we

talked about a decade ago are still with us today.

Perhaps first and foremost, we still face the attitude among policy makers and many others that this is a private legal matter.

This belittles the fact that it is a crime in every State, as well as

a Federal crime. We believe that central to this problem is the convergence of civil and criminal law, and it is our view that we

should use all existing legal remedies in the most creative and effective way possible to serve that dual purpose.

Warrants should be issued when the facts support issuance.

Then every effort should be made to use those warrants in conjunction with other efforts—diplomatic, family negotiations, and the

use of intermediaries. We think it is appropriate to issue far more

Federal warrants in these cases. A Federal warrant speaks for the

Nation in a way that a State warrant never can, and it says that

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the country cares that this law has been broken and that we want

to exercise our lawful right to protect child victims.

In addition, we believe that it strengthens the hand of diplomatic

personnel when negotiating for the return of these children. We

now have Federal prosecution for flight to avoid payment of child

support, an implicit recognition of the Federal Government’s appropriate role in issues of child protection.

At that hearing 9 years ago, the Justice Department testified

that without meaningful prosecutive activity, the deterrent value of

such legislation would be minimal. We agree. And while we applaud the intensified attention to this problem among the key Federal agencies and we work with the State Department and the Justice Department in partnership on this effort, in our judgment, we

have not yet reached the point of meaningful prosecutive activity.

Thirteen convictions in 5 years is not meaningful prosecutive activity.

We believe that the International Parental Kidnaping Crime Act

is a necessary tool, and we believe that we cannot rely solely on

UFAP warrants for three basic reasons.

First of all, as has been noted earlier, some States simply do not

issue warrants because they cannot afford extradition.

Second, the International Parental Kidnaping Crime Act is written far more expansively than many State statutes, allowing many

more cases to fall within its framework.

And third, it provides a strong statement from the U.S. Government that can be used as a negotiating tool.

In my written testimony, I have cited a number of cases. I would

just like to briefly mention two that I think illustrate the fact that

the threat of criminal sanctions and criminal warrants work in

these cases, if utilized.

Just Monday of this week, a 6-year-old child was recovered from

the Philippines. Abducted by a court order, she had traveled to the

Philippines for visitation with her father, who decided then to resist, that he would not honor the court order and refused to return

the little girl and her 12-year-old brother. About a month ago, the

FBI obtained a felony warrant for the father. We at the center

worked with the FBI and the State Department, which resulted in

the return of the child to the United States, the arrest of the father, and criminal actions against him are still being pursued.

In addition, another case involving Taiwan, a non-custodial father who had abducted his 1-year-old daughter after an altercation

with the mother. The father took the child first to another State

and eventually left the country and took the child to Taiwan. The

father was named in a Federal warrant. His passport was revoked.

He was arrested by Taiwanese law enforcement and returned to

the United States by the U.S. Marshal. The use of law enforcement

resources and criminal sanctions in these cases works, but it has

to be used.

Let me say just a word about the civil side. Lady Meyer and others have talked about the Hague Convention. Let me say that we

support the Hague Convention as an effort to create a more uniform, consistent international process. In 1995, the State Department and the Justice Department asked the center to take a lead

role in handling incoming cases, children abducted to the United

241

States under the Hague. That was done because of the concern of

foreign governments that we do more in ensuring comity and cooperation.

We are pleased that since 1995, our resolution rate in incoming

cases has now climbed to 89 percent, and as a result of the report

that has been mentioned, we have been asked to expand our role

on outgoing cases.

However, there are some troubling problems with the Hague. It

is slow. It is cumbersome. In many cases, it is hindered by parochial application and national prejudices. There is a lack of uniformity from country to country. There are too many courts hearing

cases, too few judges that really understand the Hague. And Lady

Meyer mentioned the exceptions under article 13. The reality is, in

some countries, the exceptions have become the rule. Access for

left-behind parents has become a nightmare for enforcement.

It is expensive. If you do not have the ability to generate the

kinds of resources that John Lebeau talked about, the reality is you

are probably not going to see your child again. There is inadequate

research and limited involvement of international law enforcement.

We believe it is imperative that we work to create greater consistency in the application of the Hague and that, not just for

Hague countries but particularly for those many countries that are

not signatories to the Hague, that we use the law enforcement resources and the ability to use the International Parental Kidnaping

Crime Act as leverage and as a tool to bring children home. There

needs to be a strong policy statement by all affected agencies and

departments that this is a priority, that we are going to use the

resources available to help these searching families. Thank you,

Mr. Chairman.

[The prepared statement of Mr. Allen follows:]

PREPARED STATEMENT OF ERNIE ALLEN

Mr. Chairman and Members of the Committee, as President of the National Center for Missing and Exploited Children, I appreciate the opportunity to appear before you today on an issue of great importance to children and parents across the

nation. Nearly a decade ago I had the pleasure to testify before the Subcommittee

on Criminal Justice of the House Judiciary Committee in support of making international child abduction a federal crime. I still remember vividly standing with

then-Congressman Mike DeWine at a press conference shortly thereafter in support

of that step.

That bill, the International Parental Kidnapping Crime Act became law and has

produced positive change. Yet, there is much more to do. And, unfortunately, many

of the obstacles to the return of internationally abducted children identified at that

hearing a decade ago are still with us today.

By way of background, I would like to explain the role of the National Center for

Missing and Exploited Children (NCMEC) in this issue. As you know, NCMEC is

a private, non-profit organization, working in partnership with the U.S. Department

of Justice to find and recover missing children and prevent child victimization.

NCMEC is a public-private partnership, receiving half of its operating budget from

Congress and half from the private sector. We are granted access to unique tools

and resources, including online access to the FBI’s National Crime Information Center (NCIC) and the National Law Enforcement Telecommunications System

(NLETS). Our public funding through the Office of Juvenile Justice and Delinquency Prevention supports the operation of a national toll-free hotline and our core

functions and services as the national resource center and clearinghouse on missing

and exploited children.

Since we opened our doors in 1984, NCMEC has worked cases of international

child abduction. Nothing in our Congressional mandate said that we were to cease

efforts to locate missing U.S. children when they crossed a national border. Thus,

while lacking the kind of direct mandate and support we have had on domestic

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cases, we have tried nonetheless to assist searching U.S. parents wherever their

child might have been taken.

In 1995 that role expanded. At the request of the State Department and the Justice Department, we entered into a formal partnership to handle cases under the

Hague Convention on the Civil Aspects of International Child Abduction (Hague

Convention) when children are abducted into the United States, The underlying

premise for that request was that in order to ensure full comity and cooperation

from foreign governments in our search for U.S. children, we needed to do more to

locate and return their children brought to the United States.

We were willing to undertake this new task, and are proud to report that since

1995 our resolution rate in those cases has climbed to 89 percent. NCMEC has received thanks and commendations from governments around the world. Nonetheless, this unique role of acting as the agent of the State Department on ‘‘incoming’’ Hague cases has presented a challenge and dilemma for NCMEC. While the underlying premise was to build stronger international cooperation on all missing child

cases, it could appear that, acting on behalf of the U.S. government, NCMEC is

doing more for foreign families than for U.S. families.

Thus, recently, as a result of the Attorney General’s Task Force on this issue,

NCMEC, as part of its current agreement with the State Department, has been

asked to expand its role in ‘‘outgoing’’ cases as well. Specifically, the expanded role

we have been asked to play centers around support services to both parents and the

State Department. NCMEC will continue to provide technical assistance and support from our individual case managers, but have also hired a clinical social worker

to identify existing counseling resources in the field and help develop protocols for

providing assistance to parents. In addition to emotional support, NCMEC has

agreed to assist in identifying legal resources for U.S. parents faced with fighting

legal battles both here and abroad. We will also assist parents to collect the information and prepare the paperwork necessary to submit their Hague applications to

the State Department.

Thus, NCMEC is doing more and there is greater attention on this problem than

ever before. However, a primary challenge in responding effectively is the focus by

so many policy makers and officials on the civil element of the problem, frequently

characterizing international child abduction as a ‘‘private legal matter.’’ This perception belittles the fact that international family abduction is a crime in every state

as well as a federal crime.

It also fails to fully acknowledge the harmful effects of abduction on children.

Family abductions are a result of high-conflict situations. A look at the newspaper

in any major city reveals cases that have resulted in suicide and/or homicide. Even

at its most benign, Professor Geoff Grief’s research has shown that ‘‘some children

who were recovered were described by the recovering parents as having been physically abused (23 percent), sexually abused (7 percent), and both physically and sexually abused (5 percent) * * * Overall functioning was believed to have declined in

more than half of the children between the time they were taken and the time they

were returned to the searching parent * * * With time, a majority (approximately

66 percent) of the children had been seen for psychological counseling’’ (Grief, Impact on Children of International Abduction, p. 3–4).

Assisting with abductions into and out of the U.S. has put NCMEC in a unique

and often frustrating position of seeing firsthand how useful U.S. laws and procedures have been to foreign nationals while being frustrated in our attempts to help

U.S. parents in their struggle to find resources to return their children from abroad.

At the time of the 1989 hearing, I expressed NCMEC’s support for the creation

of a new tool to resolve cases of international child abduction, the International Parental Kidnapping Crime Act. Today, I am here to express not only NCMEC’s continued support of that tool, but to urge that existing federal laws and resources be

utilized to the greatest extent possible to bring more abducted children home.

NCMEC is currently working on 697 active cases of children abducted internationally. Yet, recent testimony before the House Committee of Foreign Relations

from the General Accounting Office indicated that just 13 persons have been convicted of international parental kidnaping since 1993. From this, it is clear that we

are utilizing the force and sanctions of the International Parental Kidnapping Crime

Act on only a small percentage of the total number of international abduction cases.

Many changes that have occurred since the 1989 hearing and the 1993 enactment

of the International Parental Kidnapping Crime act reinforce this necessity. The

first, and perhaps most important change is the increase in the number of cases.

NCMEC began keeping track of international abductions separate from domestic abductions in 1995. The number of international cases worked by NCMEC since 1996

(the first year for which we have complete data) has increased 120 percent. We have

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ductions reported to NCMEC has increased each year since 1994 and show a 30.4

percent increase over an eight-year period from 1990–1998. Given that, according

to a study of family abduction cases by Grief and Hegar, as many as one-fifth of

family abduction cases go international, these caseloads increase in tandem.

With increases in the number of international marriages, divorces, we have every

reason to believe that these cases will continue to increase. Better research is needed, not only to quantify the problem, but to determine the practical outcomes of

cases. Law enforcement and the public need better guidance on the best ways to

solve these cases. NCMEC is currently undertaking, with the assistance of the State

Department, a study of the outcomes of abduction cases to select Hague Convention

countries. Our goal is to look not only at the court decisions in these Hague hearings, but also to identify the practical outcomes of these cases—was the child ever

returned?, does the left-behind parent currently have any visitation with the child?

Similar information needs to be collected and analyzed for all cases—including those

with a primarily criminal focus.

When the State Department requested that NCMEC process cases in which children are abducted into the United States under the Hague Convention, the theory

was that if the United States improved its track record of returning children under

the Convention, other countries would follow suit and return children abducted from

the U.S., Indeed, the transcript of the 1989 House hearing is filled with references

to the success of the Hague Convention, then in its infancy. In the years since, we

have realized that the Hague Convention has not turned out to be the panacea we

all hoped. Interestingly, the House hearing was held prior to the ratification of the

Convention by Germany and Mexico—two countries regarding which there has been

most concern about inadequate implementation of the treaty.

We support the purpose and intent of the Hague Convention, and it is a positive,

compelling resource in theory. Yet, there are troubling problems in practice:

• While speed is essential in these cases, in most countries, the processes are

slow, cumbersome, complex, and bureaucratic.

• In many cases successful implementation is hindered by parochial applications

of the treaty and national prejudices.

• There is significant lack of uniformity from country to country.

• There are too many courts hearing cases, and in most instances, few cases per

court. Thus, many judges lack knowledge and experience on Hague cases.

• There is a lack of adequate training for judges.

• Key exceptions provided with the Hague Convention have become the rule, and

are frequently used as justifications for the non-return of the child. Perhaps the

best example is Article 13, ‘‘Risk of harm to the Child’’ and the ability of judges

to take into account the wished of very young children.

• It is virtually impossible to enforce access rights for parents under Article 21

of the Convention.

• Parents need significant personal financial resources in order to obtain legal

representation and proceed under the Convention. Yet, there is little help for

parents who lack financial resources.

• There is limited involvement of international law enforcement due to the civil

nature of the process.

• There is inadequate research on the psychological impacts of international child

abduction on children, and inadequate data on the Hague process.

When the treaty is not working, and certainly in the many cases involving children abducted to non-Hague signatory countries, IPKCA must fill in the blanks by

providing law enforcement involvement and international warrants to recover children through the criminal process. Our support of the federal recognition of child

abduction as a criminal offense comes out of our 15 years of experience working on

domestic family abduction cases.

In this country’s own history of family abduction, the trend has been toward the

recognition of parental kidnaping as a crime. Every state in the U.S. considers family abduction a crime. We continue to encourage individual states to amend their

laws to ensure that pre-decree abductions fall within their statutes as well as interference with visitation. The Missing Children Act of 1982 required, for the first

time, that law enforcement enter missing children into the National Crime Information Center (NCIC) even if the abductor has not been charged with a crime—recognizing law enforcement’s obligation to assist in the location of a missing child

prior to the issuance of warrants. Best practices indicate that criminal warrants

should be used—criminal warrants are extremely useful and may be necessary

when there is a need to locate the abductor and, therefore, the child.

NCMEC administers a grant from the Office of Victims of Crime that provides

financial assistance to reunite internationally-abducted children with their searchVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00247 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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ing parent. In many of these cases, the successful resolution has depended upon a

Federal warrant and the active intervention of Federal law enforcement.

The following cases are examples of the positive effects of criminal warrants:

• Phillipines: A six-year-old child, ‘Jennifer’ was recovered this Monday (10/25/99)

from the Philippines and returned to her custodial mother in the United States.

In this case ‘Jennifer’ and her twelve-year-old brother, ‘Michael’ were allowed

per court order to travel to the Philippines for visitation with their father. The

court ordered that ‘Jennifer’ be returned to her mother in July, whereas ‘Michael’ was to remain with his father until mid-August. As the time for ‘Jennifer’s’ return approached, the father decided he would not honor the court

order. ‘Jennifer’ was reported missing and entered into NCIC. No warrants were

issued at the time because the various law enforcement agencies believed the

father would return her along with her brother in August. When ‘Michael’ was told he would not be, allowed to return to the U.S., he objected. His defiance

ultimately lead to his voluntary return to the U.S. in mid-August. One month

later, in mid-September, the FBI obtained a felony warrant for the father.

NCMEC coordinated with the FBI and the State Department to pick up the

child at the same time as the planned arrest of the abducting father on federal

charges. The child was picked up from school and returned to the United States.

Criminal action against the abducting father is still being pursued. • Lebanon: ‘Joseph’ was abducted by his non-custodial father on November 13,

1992 from Massachusetts at the age of six. The child was later located in Lebanon. In 1993, the abducting father returned to the United States without the

child. The father was named in a felony warrant and ordered by the probate

court of Massachusetts to return the child to the United States. After refusing,

the father was held in contempt and incarcerated. In May of 1997, the father

and his family agreed to return the child to the mother on the condition of the

father’s release. The child was reunited with the mother in February 1998. The

father was released from jail and deported to Lebanon. • Scotland: The father was awarded full custody of the child by the State of Pennsylvania. The mother abducted the children taking them to Scotland. She was

named in a State Parental Kidnapping and UFAP warrant. Upon being located,

the mother was apprehended and transported to London for criminal proceedings and to await extradition. The father was reunited with the children on September 3, 1998. • Taiwan: The non-custodial father abducted one-year-old ‘Nina’ after a physical

altercation with the mother. Due to the husband’s abusive and intimidating behavior the mother was unable to stop the father from taking the child first to

another state in the U.S. and eventually Taiwan. The father was named in a

federal Warrant. The father’s passport was revoked and he was arrested by Taiwanese Law Enforcement and turned over to U.S. Marshals who proceeded to

extradite him to the United States. He is currently awaiting trial on both federal and state charges.

We are unable to provide a fuller picture of the uses of IPKCA because of the

small number of indictments. Indeed, it is hard to draw conclusions from the two

prosecutions under the law—one did not result in the return of the children, but

has provided excellent case law for future prosecutions and the second is still ongoing. We believe that IPKCA is a necessary tool—we cannot rely solely on Federal

involvement through an Unlawful Flight to Avoid Prosecution warrant or UFAP for

three reasons:

(1) Some states do not issue warrants because they cannot afford extradition.

(2) IPKCA is written more expansively than many state statutes—allowing

more cases to fall within its framework.

(3) It provides a strong statement from the U.S. government that can be used

as a negotiating tool.

It is abundantly clear that these cases involve a convergence of civil and criminal

law We should use our existing legal remedies in the most creative and effective

way possible to serve that dual purpose. Warrants should be issued when the facts

support issuance. Then every effort should be made to use these warrants in conjunction with other efforts—diplomatic efforts, family negotiations, and the use of

intermediaries are among some of the most useful. A federal warrant speaks for the

nation in a way that a state warrant never can. It says the U.S. cares that this law

has been broken and we want to exercise our lawful right to protect the child victim.

While much has changed in the past 10 years, one fact, unfortunately, has not—

international parental abductions remain among the most difficult, frustrating, and

damaging cases and deserve the full attention of this committee and others who

have taken up this issue over the past several months. The issue before us is ensurVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00248 Fmt 6633 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
245

ing that we are using all of the resources of this great nation to protect our children

against the wrongdoing of adults—including their parents.

At the time of IPKCA’s enactment, the concern existed that other countries discounted the U.S. government’s commitment to this issue when we did not consider

it serious enough to warrant inclusion in our Federal Code. I believe that this perception validly remains if we do not aggressively pursue these warrants as contemplated by Congress, and strengthen the hand of our diplomatic personnel when

negotiating the return of these children. We now have federal prosecution for flight

to avoid payment of child support—implicit recognition of the federal government’s appropriate role in issues of child protection.

At the hearing nine years ago, the Justice Department testified that without

meaningful prosecutive activity, the deterrent value of such legislation would be

minimal. We agree. While I applaud the intensified attention to this problem among

key federal agencies, in our judgment we have not reached the point of ‘‘meaningful

prosecutive activity.’’ I wholeheartedly encourage the committee to help make our

existing statute as strong as it can be.

In conclusion, I submit the following recommendations to the Committee for your

consideration:

(1) That research be undertaken on the methods used in successful resolution

of international abduction cases.

(2) That there be a strong policy statement to all affected agencies and departments that the U.S. government should utilize all available remedies, civil

and criminal, to resolve cases of international child abduction.

(3) That the Justice Department encourage the expeditious issuance of IPKCA

warrants and extradition requests.

(4) That the State Department encourage prompt and active diplomatic efforts

on individual cases, in addition to addressing broad policy issues.

(5) That reports be prepared on the legal systems of other countries including

a realistic, practical assessment of how they have responded to Hague applications and criminal warrants seeking the return of U.S. children.

(6) That we pursue greater uniformity in our state child abduction statutes

to ensure that legal recourse is available before a custody decree has been

issued and when visitation rights are violated.

(7) That we increase efforts to develop a model for federal reaction in International Child Abduction cases. The Uniform Law Commissioners have developed a model (UCCJEA) for civil/criminal interaction in domestic family abduction cases. The same needs to be done for international cases.

We are making progress as a nation on this complex, difficult problem. However,

much more needs to be done. A key step is to make sure that we are making full

use of the tools presently available.

Senator DEWINE. Let me thank all the panel members very

much. I think you have brought a human face to the tragedy that

we have heard about, and I think you have had some very good

specific suggestions and comments.

Let me maybe start with Mr. Lebeau. What suggestions would

you make for parents who find themselves in the position you

found yourself?

Mr. LEBEAU. An excellent question, Senator. I thank you for asking it, and I do have some explicit suggestions in my written testimony. To answer your question here today, the number one thing

that absolutely helped me more than any other was networking

with other left-behind parents. Unfortunately, that is very hard to

do because you do not know who they are. If we had some formal

system of putting left-behind parents in touch with each other so

that they may share their ongoing experiences, I think that would

be invaluable. That would save a lot of time that these parents

waste and, consequently, a lot of money, in helping return their

children.

Second, I think, as Mr. Stein, my attorney who was instrumental

in the return of my children from England approximately a year

ago today, I think that there is an absolute desperate need to have

at least one individual, if not a team of individuals, within Justice

246

that is specifically trained and on a daily basis works to actively

reduce the numbers of children that are being not only abducted

by illegally retained.

I think, almost above all of those, is the need for education

among U.S. attorneys and Justice Department officials on all levels. I was absolutely astonished to find that in handling my case,

red notices were not applied for when they should have been. Requests for provisional arrest applications were not made in a timely

manner, if at all. I do not feel that this was any one person’s animosity against me or even lack of interest in the issue itself, I just

think that due to the sheer fact that they are not educated and

aware of the absolute atrocities and the level that this problem has

risen to.

So I think those three things, as an outset, would be an excellent

start, and where we go from there, hopefully, would be somewhere

quite far away from where we are today, Senator.

Senator DEWINE. Your testimony and the testimony of several of

the other witnesses I think clearly points out that the use of criminal sanctions can be an effective tool. It is absurd, I think, and

again, I share your comments, Mr. Stein, I wish the Justice Department officials were still here, but I just find it absolutely absurd, the thought that this really does not help. They did not say

it in so many words, but the attitude was we are really not sure

how effective it is, and I guess we are not going to know for sure

until we start doing it. If you do it at such a low rate that we are

doing it today, you certainly cannot tell whether it is going to have

any effect at all.

Mr. Lebeau, how did you find Mr. Stein?

Mr. LEBEAU. That is an excellent question.

Senator DEWINE. That is a serious question. One of the problems

is, how do you know where to go to for help?

Mr. LEBEAU. I spent 21⁄2 years searching for the right attorney,

and after that 21⁄2 years——

Senator DEWINE. I guess you found him.

Mr. LEBEAU. Well, I absolutely had the wrong attorney before I

found Mr. Stein. In my desperate attempt to find the right person,

I was in London at the time, last October, appearing before the

Royal High Court of Justice and I realized that I needed an attorney that could help me far beyond what I was already receiving

from my local attorney in Florida, a general practice attorney with

absolutely no experience in these types of cases.

Mr. Stein, thank God, was referred to me by the National Center

for Missing and Exploited Children as being the best and the absolutely most experienced attorney that they knew handling these

issues, and coincidentally, he was in Florida, as well, so it has been

a boon for me. It has been very, very helpful.

May I add also, Senator, that we do in this courtroom today have

proof that the prosection, or at least the threat of prosecution of the

International Parental Kidnaping Act does work, and they are sitting there with my father and his wife and their names are Ruth

and Luke Lebeau.

Senator DEWINE. Ms. Hong, in your testimony, you state that

you were advised that the Chinese authorities would assist in Mei

247

Mei’s return if you obtained a Federal indictment. Were you ever

told that by the State Department?

Ms. HONG. We were told by the U.S. embassy in Beijing—oh,

sorry, in Guangzhou—that the Chinese authorities would assist,

and we were also told that from several other sources, as well.

Senator DEWINE. What assistance has the State Department

provided you as you seek the return of Mei Mei?

Ms. HONG. Absolutely none. The State Department has consistently maintained that this is a private custody dispute. I have seen

that language in other statements by other individuals. What I did

not understand earlier today, Senator, was if—obviously, it is a private custody dispute because there is no criminal indictment. If

there was a Federal criminal indictment, then it would be a public

dispute, if you will.

And yet the woman from the State Department did not seem to

have the opinion that a Federal indictment would work. So, therefore, she was really washing her hands from my perspective by saying we do not need a Federal indictment. Therefore, it will not be

a State Department problem. It will be a private custody matter.

So, therefore, I do not have to go to work.

Senator DEWINE. And in your case, as well, the issue has been

litigated even on the civil side, though. I mean, this is not a pending matter. You have testified that you today technically have, or

you do have by the courts in Ohio, custody of this little girl, right?

Ms. HONG. Absolutely, Senator. That has gone through the trial

court, through the court of appeals, and the Supreme Court, as

well, both on a habeas corpus action and on a regular custody action.

Senator DEWINE. Mr. Stein, I think your suggestion that there

has to be someone in the Justice Department who is focused on

this, I think is absolutely correct. You have to have someone who

wakes up every day and says, this is what I do. You have to have

someone in every U.S. attorney’s office—it may not be something

that comes in every day, but you have to have someone who is designated as the person who is going to deal with that, just as U.S.

attorneys do it for other areas, as well. It makes the whole area

of training, it seems to me, a lot simpler. You have one person for

every U.S. attorney’s office. They get the training. We do not have

to have everybody understand it, but somebody has to understand

it. So these are things, it seems to me—I mean, if I look at your

written testimony, these are very practical things that could be

done and it would not be done with very great expense.

Mr. STEIN. Senator DeWine, like you said, it does not take a

rocket scientist. I do not even think that the legal issues under the

Hague, as we have been working them in the United States, or the

criminal issues, are that complex. It is pretty straightforward stuff.

I mean, they took the kid or they did not take the kid. Did they

do it illegally? Getting an indictment is not that difficult to do in

those situations. You have the facts in front of you and what prosecutorial discretion is being weighed. We need the tool. Go get the

indictment, and as we proceed forward with this case, if we determine it is going to be a detriment, the indictment, we will deal

with that. We can do that. That happened in the Lebeau case.

248

Senator DEWINE. We run into cultural problems in law enforcement, and I saw it when I was a prosecutor, and we change over

the years. There are certain cases that, culturally, we think, well,

gee, it is a technical violation, but is that really——

Mr. STEIN. Like DUI and a child——

Senator DEWINE. Absolutely. We went through a whole change

in DUI in my career. I am old enough to have seen a huge change

in the DUI culture in the law enforcement community. It seems to

me that it is a cultural problem that we have or an attitudinal

problem. And just as we changed our attitude about DUI, just as

we changed our attitude about domestic abuse, domestic crimes,

that police 30 years ago when I first started, or 20 years ago, they

just really did not want to deal with them. Someone could be beaten up. Someone could be in clear violation, a clear assault. Well,

if it occurred within the home, we do not know if we want to get

involved. This is a cultural problem.

What we need to be saying is, U.S. attorneys, Justice Department, from the top down, this is important. These are kids. These

are kids who are yanked out illegally from their parent and taken

away and some never to be seen again. I think we have to talk

about it. One of the reasons I wanted to have this hearing is because I want to try to keep hammering away at this.

Quite frankly, I am going to bring the Justice Department in

here every 6 months, every 12 months, and they are going to have

to tell me what their statistics are and they are going to have to

explain to me why in the world they are not doing more in this

area.

Mr. STEIN. I think your comment about the cultural issue may

be very true, and I am glad to hear that you are going to be staying

on top of this because that is exactly what we need. Each of us can

do a little bit here, and hopefully, Congress will continue to oversee

this and encourage the Justice Department to make this a priority.

Senator DEWINE. I do have some questions that Senator Thurmond would like to have asked, and I will go through these. Mr.

Stein, do you believe that many cases of international parental kidnaping are never reported to the Federal authorities, and if so,

why?

Mr. STEIN. Absolutely. Why? Because either attorneys who do not

know the procedures do not understand that they can bring criminal actions or initiate the proceedings to start criminal actions, and

those of us who do are reluctant to do it because we do not think

we are going to get the cooperation in any event.

Senator DEWINE. It is circular, then.

Mr. STEIN. Yes. It is a non-starter.

Senator DEWINE. Mr. Allen, as you know, a task force report to

the Attorney General on international parental kidnaping was

issued in April. Do you have any concerns about whether the report

is sufficiently detailed and specific in its recommendations on exactly how the government can better address this problem?

Mr. ALLEN. I think, in all candor, Senator, we would have liked

to have seen greater detail. I do think it is an important first step.

It represents a convergence of a lot of agencies and a lot of interest.

As a result of that, there is going to be some action taken. As I

249

mentioned, we at the center have been asked to play a more substantial role in outgoing cases.

I think it was Mr. Lebeau who said it best. I think the test of

the task force is going to be the action that flows from the report.

I would hope that this committee would call us back and say, what

have you done as a result of those actions, and we are certainly

willing to be evaluated on that basis.

Senator DEWINE. This is back to my questions now. Mr. Lebeau,

just let me conclude, you and Mr. Stein. What finally broke this

through? How were you finally able to get the return of your children?

Mr. LEBEAU. Through the threat of prosecution of the Act, Senator. It was as simple as that. In fact, up until the time the U.S.

attorney’s office asserted to the British Royal High Court of Justice

in London that they would, in fact, seek extradition if the problem

was not resolved civilly or through the voluntary return of the children, it was up until that moment that I did not know whether I

was going to even lose them for a third time.

Senator DEWINE. I want to thank all of you very much. You have

been patient and I appreciate your testimony very much today. It

has been very helpful. This is something that we are going to continue, the subcommittee, this committee is going to continue to look

at, we are going to continue to examine. It is a problem that, frankly, is only going to grow in this country as we have more international marriages, as we live in a more open world and people

traveling more. This problem is not going to go away. These are

horrible, horrible human tragedies and I think that we have to say

as a government, this is a priority. Yes, there are a lot of things

that are important, but this is important and we need to be focused

more on it.

The record will be kept open for 1 week for any questions members may wish to submit for the record.

Again, you have shed a lot of light on this. I appreciate it and

look forward to working with all of you in the future. Thank you

very much.

Lady Meyer. Thank you.

Ms. HONG. Thank you.

Mr. LEBEAU. Thank you, Senator.

Mr. STEIN. Thank you.

Mr. ALLEN. Thank you.

Senator DEWINE. The subcommittee is adjourned. [Whereupon,

at 3:40 p.m., the subcommittee was adjourned.]

(251)

A P P E N D I X

QUESTIONS AND ANSWERS

RESPONSES OF JAMES K. ROBINSON TO QUESTIONS FROM SENATOR THURMOND

Question 1. The Federal Agency Task Force on Missing and Exploited Children’s

April 1999 Report to the Attorney General on International Parental Kidnaping

(‘‘Task Force Report’’) does not recognize the use of the criminal process, such as

the International Parental Kidnaping Crime Act (‘‘IPKCA’’), as a gap in how the

government currently addresses this issue. Why was the IPKCA’s lack of enforcement not cited as such a gap?

Answer. United States policy, as expressed in the IPKCA, is that where the procedures of the Hague Convention are available, they should be the option of first

choice for a parent who seeks the return of a child removed from that parent. The

Task Force Report focused first on the return of the child, then the use of the criminal process, such as the IPKCA, in an international parental kidnaping was examined. Because the IPKCA was a relatively new statute at the time the report was

drafted, and state and local criminal proceedings were used in many of these cases

when applicable, the consensus was that use of the criminal process was not a gap.

Rather, it was determined that these situations needed to be handled on a case-bycase basis consistent with the facts of the matter. When a state or local authority

has issued its own warrant, there may be no need to overtake a valid state warrant

with federal charges. Unlawful Flight to Avoid Prosecution (UFAP) procedures bring

the FBI into state and local cases to assist in the apprehension of fugitives overseas.

Successful cases intercepting abductions in progress, based upon a joint state and

federal law enforcement partnership, speak to the efficacy of such an arrangement.

Question 2. The Justice Department has traditionally been reluctant to use the

criminal process to prosecute parental kidnaping, and it has been especially reluctant to prosecute abductors under IPKCA. How will we know that the criminal process, especially IPKCA prosecutions, will not help deter future international child abductions as well as facilitate the return of abducted children unless we adopt a policy of aggressive enforcement?

Answer. The Department of Justice looks at each case individually in determining

whether to prosecute in accordance with the guidelines set forth in the Principles

of Federal Prosecution. Deterrence is but one consideration. Other considerations include whether the state has filed charges, whether the country is a Hague signatory,

or whether filing a UFAP would produce the desired results.

Filing charges routinely may not deter abducting parents, but may defeat any possibility of return of the child. By looking at each abduction on a case-by-case basis,

the determination can be made how best to proceed to get the child back. Ultimately, it may be decided that filing Federal criminal charges may be appropriate.

Question 3. How does the Department’s Office of International Affairs (‘‘OIA’’) currently provide information to Federal prosecutors? If such information is transmitted over the phone, couldn’t OIA more efficiently communicate it by maintaining a

secure Internet web site?

Answer. The Office of International Affairs is able to communicate with the

United States Attorney Offices (USAO) in a variety of ways. Via e-mail they can

send messages through the Justice communications system. They may use telephone

and facsimile. In addition, a National/International Security coordinator has been

designated in each USAO with whom OIA regularly communicates on extradition,

mutual legal assistance treaty and other international issues.

252

Question 4. You stress in your testimony that one obstacle in using criminal

charges is the difficulty of obtaining extradition. Even if extradition is not available,

issuing criminal warrants will mean that any attempt by the abductor parent to return to the United States will result in his or her arrest. Doesn’t this restriction

on re-entry into the United States constitute a punishment of sorts, and do you

agree that vigorous prosecution of IPKCA will deter future violations?

Answer. The United States makes extradition requests based on both state and

federal criminal charges. Thus, while the federal parental kidnaping statute may be

the basis for a request, state charges are no less effective for that purpose. Although

procedures associated with extradition are complex and the issues that arise in parental kidnaping cases are particularly troublesome, extradition remains a viable alternative in appropriate cases where the prosecutor, whether state or federal, makes

a decision to make such a request.

The passage of federal legislation to interpret older list treaties so as to include

parental abductions within the definition of the extraditable offense of ‘‘kidnaping’’

has helped to alleviate one of the obstacles to extradition. The State Department

is making every effort to obtain the agreement of treaty partners to afford the same

recognition of parental kidnaping in their interpretations of the treaties.

An outstanding arrest warrant, when coupled with an Interpol Red Notice, is likely to inhibit travel to any country where that notice might trigger an arrest. Prosecution under IPKCA may have some deterrent effect. However, many of the abductors do not intend to return to the United States, may not be extraditable, and

therefore are unlikely to ever be prosecuted.

Question 5. How is the Department encouraging States to allow victims of parental kidnaping—both left-behind parents and children—access to crime victim assistance funds?

Answer. The Vanished Children’s Alliance (VCA) in San Jose, California received

VOCA victim assistance grant funds from 1993–1998 to provide counseling to families whose children have been abducted, as well as counseling to abducted children

once found. In addition, they assist families with filing for victim compensation, and

information and referral regarding local resources. VCA has shared information

with other agencies on use of OVC funds to recover and assist kidnaped children.

Other nonprofit organizations, such as the National Center for Missing and Exploited Children, also assist families in providing information and referral services.

Question 6. The Task Force Report noted that there are some cases where abducted children are entered into the National Crime Information Center (‘‘NCIC’’)

database and then promptly removed the moment they are located, even though

they have not yet been returned to the place from which they were abducted. This

can cause law enforcement authorities to lose track of future movements of children

who have been technically located but, in reality, still remain abducted. How are

you addressing this problem?

Answer. The issue will be discussed by the NCIC Working Group that meets in

March, 2000. It will then be on the agenda for the Advisory Policy Board (APB) subcommittee meeting in May. The recommendations from the subcommittee will then

be put on the agenda for the APB to change the process so that the child is not

removed until there is a resolution of the matter. Final action is anticipated at the

summer 2000 meeting of the APB.

INTERPOL has frequent contact with state and local police regarding U.S. missing/abducted children. It encourages those agencies to leave the NCIC entry in the

system until the custody issues is settled.

Question 7. I understand that U.S. Attorneys generally will not indict a parent

until civil remedies are exhausted under the Hague Convention. However, there appears to be a need to determine a realistic point of exhaustion in practice. For example, if, as routinely happens, Hague proceedings last many months (far in excess of

the six-week time frame explicitly stated in the treaty itself) before they are technically exhausted, abducting parents are then effectively able to argue that the child

has become settled in the new environment and that returning the child will be

harmful. In view of this reality, how long should the Hague process be allowed to

drag on before the criminal process is invoked? And in cases of countries that routinely fail to comply with our treaty or whose legal systems have no mechanisms

for enforcing civil court orders or any kind of visitation rights, why should invocation of criminal proceedings depend on the Hague process at all?

Answer. We cannot set an arbitrary time frame in Hague cases when criminal

proceedings should begin. As previously stated, these matters need to be considered

on a case-by-case basis based on the particular facts of the case. Setting a time limit

will not necessarily achieve the desired result.

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Question 8. The NCIC system is an important tool in finding abducted children.

As the system is being upgraded pursuant to the NCIC 2000 program, some have

argued that the abductor parents as well as abducted children should be designated

in the system as missing, even if an arrest warrant is not outstanding, because such

action would help authorities locate the abductor if he or she attempts to reenter

the United States. Do you believe we should consider entering abductors into the

NCIC system?

Answer. Currently, no category exists to permit the entry of adults as missing unless there is reason to believe that they are in danger. In most of these cases, the

whereabouts of the abductor is quickly identified so they are technically not ‘‘missing.’’ The name of the abductor should be included in the text information of the

child’s NCIC entry. As to whether the abductor should be entered into the NCIC

even when there is no warrant, the subject needs to be explored further. Any proposed change would be subject to the review process of the NCIC Advisory Board

as discussed in the response to Question 6.

Question 9. During an October 1, 1998, hearing on United States Responses to

International Parental Abduction before the Senate Foreign Relations Committee,

Attorney General Reno testified that ‘‘United States law enforcement officials located overseas, particularly our FBI legal attaches, can help to emphasize to their

foreign colleagues the seriousness with which the United States takes these cases

and the need for effective responses to locating the children and the abducting parents.’’ How is this suggestion being implemented?

Answer. United States law enforcement resident in foreign countries do not directly exercise law enforcement powers abroad. The influence of these law enforcement personnel, however, can be great. They may be able to assist Department of

State personnel in inquiries regarding the welfare and whereabouts of the abducted

child, through their relationship. with law enforcement contacts in the host country.

In several countries, the FBI legal attaches have provided substantial assistance in

these cases. The FBI Legal Attaches met in Washington in June, 1999. International parental kidnaping was one of the topics on the agenda at that training

meeting. We hope this topic will continue to be discussed at future meetings.

Question 10. As you know, some foreign states provide unlimited payment of legal

fees for their nationals who have abducted American children, thus enabling them

to pursue appeals to the highest courts of their country and of the United States.

How are the Crime Victims Assistance Fund or other Federal victim assistance resources being used to pay for costs associated with returning stolen children?

Answer. As you are aware, Crime Victims Assistance and other victim assistance

resources are not used to pay legal fees in any kind of case. Title 18, United States

Code, Section 10602(b)(1) specifies expenses to be covered, including medical expenses, mental health counseling, loss wages, and funeral expenses. Most of the victim assistance funds are passed on to the states in grants. Currently, no state programs cover legal fees. However, the Office of Victims of Crime has designated a

fund to assist parents cover the costs of travel to return children to the United

States. The selection of families that may qualify for this assistance is made

through consultation between the National Center for Missing and Exploited Children and the Office of Children’s Issues. Since the program began in 1996 through

fiscal year 2000, OVC has provided $225,000 to the National Center for Missing and

Exploited Children to fund travel requests.

Question 11. What specific efforts is the Department making to educate and train

Federal prosecutors regarding international parental kidnaping?

Answer. Information on the topic was included in the last revision of the United

States Attorney’s Manual (USAM) which is available in every United States Attorney’s Office. The topic was included the National/International Security Coordinators conference held at the National Advocacy Center in December, 1999. It is anticipated that a presentation on the topic is to be included in the joint Office of

Legal Education (OLE) training with National District Attorneys Association

(NDAA) on international issues scheduled for April 18–20, 2000, at the National Advocacy Center. The Child Exploitation and Obscenity Section (CEOS) includes the

topic in training it provides on the issues under the supervision of the Section, and

provides assistance to prosecutors who call the Section regarding international parental kidnaping cases. Additionally, material on the topic of parental kidnaping

will be included in the forthcoming manual for federal prosecutors on child support

enforcement matters. And finally, the topic is regularly included in training for the

FBI Crimes Against Children coordinators.

Question 12. In United States v. Amer, 110 F.3d 873 (2d Cir.), cert denied 522 U.S.

904 (1997), the Court of Appeals upheld the trial court’s imposition of a special condition of supervised release as part of its sentencing the defendant to two years imVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00257 Fmt 6601 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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prisonment and one year of supervised release for violating the IPKCA. The special

condition was that ‘‘[t]he defendant [must] effect the return of the children to the

United States to Mona Amer [the left-behind, victim parent].’’ Id. at 882. As the

court explained, ‘‘The ‘return’ condition is obviously closely related to ‘the nature

and circumstances of the offense’ of child abduction and ‘the history and characteristics’ of [defendant Amer]. Indeed, it is difficult to imagine a condition more closely

tailored to the crime and the criminal in question than this one. Moreover, the requirement that [Amer] return the children serves the goal of general deterrence.

* * * The condition also serves the function of specific deterrence. It deters [Amer]

both from committing the offense of the unlawful retention of the children in Egypt

after his release from prison, and from attempting to kidnap his children again after

they have been returned to the United States.’’ Id. at 883. Although Amer ended

up violating the special condition of his supervised release, which was promptly revoked after a hearing, see United States v. Amer, No. 97–1442, 1998 WL 639262 (2d

Cir. Mar. 26, 1998) (unpublished disposition), do you agree that the technique of imposing such a condition as part of a pattern of aggressive enforcement of the IPKCA

would have a deterrent effect and prove helpful in effecting the actual return of abducted children in at least some cases?

Answer. Using special conditions, such as those used in the Amer case, probably

have little deterrent effect. However, such conditions might be helpful in effecting

return in at least some cases.

For example, in a case currently pending in the Eastern District of Washington,

the magistrate judge set return of the children from Germany as a condition of

bond. Unfortunately, the district court judge reversed this special condition and permitted the abductor’s release on bond. The abductor, however, remains incarcerated

because the state court judge subsequent to the bond hearing found the father in

contempt for refusing to return the children in violation of the parenting plan (custody order).

Question 13. What is the status of the Office of Juvenile Justice and Delinquency

Prevention’s grant to the American Bar Association’s Center on Children and the

Law for the preparation of a report, now if a draft form entitled ‘‘Issues in Resolving

Cases of International Child Abduction?’’

Answer. As a standard practice prior to releasing any report or publication, the

Office of Juvenile Justice and Delinquency Prevention (OJJDP) conducted a product

review by experts in the field of the report Issues in Resolving Cases of International

Child Abduction, which was prepared by the American Bar Association’s Center on

Children and the Law. Revisions were made to the text based upon this peer review

process, the document was approved for publication, and the final copy is now being

prepared for publication and distribution.

RESPONSES OF JAMES K. ROBINSON TO QUESTIONS FROM SENATOR DEWINE

Question 1. What is the reason for not filing International Parental Kidnapping

Act charges routinely in an abduction to a non-Hague country?

Answer. Decisions to file federal charges in international parental kidnaping matters must be made on a case-by-case basis in accordance with guidelines set forth

in the Principles of Federal Prosecution. The facts of each case differ and must be

considered before charging. Additionally, when a state or local authority has issued

its own warrant, there may be no need to overtake a valid state warrant with federal charges. The Federal government can support state and local governments by

charging the abductor with Unlawful Flight to Avoid Prosecution (UFAP) to bring

in the FBI to assist in the apprehension of fugitives overseas. Successful cases intercepting abductions in progress, based upon a joint state and federal law enforcement

partnership, speak to the efficacy of such an arrangement. Further, depending on

the facts of the case, a state statute may be more suitable or offer more rigorous

penalties.

There may be an insufficient factual basis to merit the issuance of a criminal warrant at either the state or Federal level. For example, there may have been a finding under state law that the left-behind parent lacked ‘‘custody rights.’’ Because the

Federal law rests upon this determination under state law, there may be no basis

to file charges.

A prosecutor may also have a well founded basis to believe that the prosecution

is sought merely to achieve a civil result, that is, the return of the child. Automatically filing criminal charges may compromise any efforts to secure the return of the

child. If the ultimate goal is the return of the child, measures other than prosecution may be more effective.

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Question 2. It’s my understanding that in the case of Mexico, a country that has

been identified by the State Department as not in compliance with its obligations

under the Hague Convention, that law enforcement has been able to obtain the return of children, while parents have been largely unsuccessful in obtaining return

of their children under the Hague Convention. In cases where the Hague signatory

country is found to be routinely noncompliant with its obligations under the convention, does it make sense to wait for resolution under the Hague Convention before

pursuing criminal charges? Should that be a consideration for parents and prosecutors, or do you think that the Sense of Congress that Hague procedures should be

followed in every case, including where the State Department has found the country

to be noncompliant?

Answer. Since this obligation to report noncompliance under the Hague Convention on the Civil Aspects of International Child Abduction first began in fiscal year

1999, only one report has been filed. Prosecutors are urged to work together with

the Office of Children’s Issues (OCI) on international parental kidnaping cases,

which can keep the prosecutor informed about OCI’s experience with a particular

country. Again, the decision process must be made on a case-by-case basis consistent

with the individual facts of the case.

Question 3. In many Hague countries, the Ministry of Justice is the central authority for the Hague Convention on the Civil Aspects of International Child Abduction. Should the full responsibilities of the U.S. Central Authority be transferred to

the Department of Justice?

Answer. No. The responsibilities of the Central Authority can be overwhelming.

Rather than looking at alternatives to the current Central Authority, an examination of the resources allocated to the Office of Children’s Issues (OCI) should be

made to determine if they are adequate to carry out the duties of the office. OCI

is in the process of expanding its staff to handle these cases more effectively. Further, State Department is already charged with handling issues concerning the welfare of American citizens overseas and thus have a network available through the

embassies and consulates worldwide to work on international parental kidnaping

cases.

The Department of Justice stands ready to assist the Department of State in

whatever way it can to carry out its duties as Central Authority. For example, an

agreement between the Office of Juvenile Justice and Delinquency Prevention

(OJJDP) and OCI was extended last year to have the National Center for Missing

and Exploited Children (NCMEC), an OJJDP grantee, handle incoming Hague petitions on behalf of OCI and to expand identifying services available for left behind

families in the United States.

RESPONSES OF JAMISON BOREK TO QUESTIONS FROM SENATOR THURMOND

Question 1. Does the United States keep records on (a) how many formal extradition requests are made to foreign states pursuant to the International Parental

Kidnapping Crime Act (‘‘IPKCA!’’) and (b) how many extradition requests are received by the United States pursuant to foreign criminal laws prohibiting international child abduction? If so, will you provide this information to the Subcommittee?

Answer. State Department records reflect that the United States has made twelve

formal international extradition requests since the beginning of 1998 citing violations of the International Parental Kidnapping Crime Act (18 U.S.C. § 1204), and

many more such international extradition requests citing violations of state and

local criminal law on parental kidnaping. In the same two-year time period, our

records reflect that the United States has received eleven international extradition

requests for parental kidnaping from other countries.

Question 2. The Federal Agency Task Force on Missing and Exploited Children’s

April 1999 Report to the Attorney General on International Parental Kidnapping

(‘‘Task Force Report’’) states that the United States should expand and intensify

diplomatic efforts to better resolve parental kidnaping. What specific diplomatic actions has the State Department taken since the Report was issued regarding countries that do not comply with their obligations under the Hague Convention?

Answer. The Office of Children’s Issues, as the United States Central Authority

for the Hague Convention on the Civil Aspects of International Child Abduction (the

Convention), has called in Embassy officials from each of the five countries that we

found non-compliant (Sweden, Austria, Mexico, Honduras and Mauritius). We provided each country with copies of the report and discussed in detail the reasons for

finding them non-compliant.

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The Director of the United States Central Authority, Mary Marshall, and a representative of the Department’s Office of the Legal Adviser traveled in March 1999

to meet with their counterparts in the Swedish, German, Swiss, and Austrian Central Authorities. They discussed the need for fuller compliance with the Convention

and improving implementation of the treaty. They also met with a representative

of the Permanent Bureau of the Hague Conference an Private International Law in

The Hague to discuss enhancing treaty implementation for all party countries.

Assistant Secretary for Consular Affairs Mary Ryan raised child abduction in discussions at the June 1999 Mexican Binational Commission Meeting, citing six specific cases as examples in which significant delays had occurred. She raised the

issue and the six cases again at the September 1999 follow-up meetings to the Binational Commission. State Department officials have also met with the Director of

the Mexican Central Authority and supervisors of that office twice since July 1999.

Officials from the Mexican and U.S. Central Authorities have given joint presentations at conferences in California and Texas to U.S. and Mexican judicial and governmental authorities involved in child abduction issues.

Our Ambassador in Stockholm, Lyndon Olson, met with Swedish Prosecutor General Klas Bergenstrand regarding two child abduction cases on June 18, 1999. (Prosecutor General is just under ‘‘Cabinet-level’’ rank). In October 1999, Ambassador

Olson was interviewed on the Swedish TV program ‘‘Efterlyst’’, the equivalent of ‘‘America’s Most Wanted.’’ The interview dealt mainly with the abduction to Sweden

of Gabriel Marinkovich, which was also one of the featured cases.

Question 3. The Task Force Report (page 14) states: ‘‘Preventing the issuance of

a passport to a child may deter some abductions. A parent with a valid custody

order may put a hold on the issuance of a passport to his or her child(ren) by contacting the Department of State.’’ I have been informed that in certain cases, the

State Department refused to put such a hold on the issuance of an abducted child’s

passport in the absence of a court order requiring it to do so. How in fact does the

State Department handle requests by parents to put a hold on the issuance of passports to their child(ren), and if the abduction has already taken place before such

action can be taken, will the Department, at the left-behind parent’s request, revoke

the child’s passport? Which official would make such a decision?

Answer. The Department has an effective program to provide requesting parents

with information about their children’s United States passports and to deny

issuance in appropriate situations. At the request of a parent, an attorney or an appropriate court, the Department will place a child’s name in the passport name

check system so that when an application is received, the parent will be notified before approval of the application. Moreover, the passport will be denied based on an

appropriate court order. The governing regulation was amended in 1996 to provide

for denial based on joint as well as sole custody and to permit worldwide action

based an orders of competent courts of any nation.

At this time, there is no provision in our regulations for revoking a child’s passport once an abduction occurs. However, we plan to pursue regulatory changes in

the near future to allow passport revocation for minors who are the subject of a parental abduction where this would assist in the return of the child.

Question 4. The Task Force Report (page 14) states: ‘‘At present there is no requirement for the Passport Office to notify a foreign government when it denies a

passport for a dual national child. Nor is there a formal mechanism to inform foreign governments about lookouts placed in the system for passport applications for

these children.’’ Will the State Department impose such a requirement and create

such a formal mechanism?

Answer. The Department plans to institute procedures whereby a foreign government’s embassy will be notified when the Department enters a child’s name into the

passport lookout system based on a request by the custodial parent. We will notify

the foreign government’s embassy only with permission of the custodial parent.

Question 5. Many observers, including the General Accounting Office, have recognized that the State Department needs a comprehensive, computerized database

and case-tracking system that can accurately list the number of abduction cases and

how the Government responds to each one. What is the status of developing such

a system, and is it a top priority?

Answer. The case management tracking system was designated top priority by the

Bureau of Consular Affairs.

The Bureau of Consular Affairs is working with a contractor on the development

of a computerized case management tracking system that will collect data more accurately and provide improved case management capabilities. We have seen an initial prototype of the system and will begin testing a pilot version in May–June. We

expect the system to be ready for operations in July–August. The system will also

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include a Web-interface that will allow interagency data sharing; this component

will follow the final installation of the internal Department of State system by several months.

Question 6. I understand that the State Department opposes a provision in the

Senate-passed fiscal year 2000 State Department Authorization Bill (S. 886, § 203)

urging that each signatory’s record of compliance with the Hague Convention be included in the State Department’s annual country reports on human rights. Why

does the State Department oppose bringing attention to a country’s record of compliance with the Hague Convention as a human rights issue?

Answer:

• The State Department shares Congressional concern about the treatment of

children who are removed from the U.S. by a parent. We will work with Congress to help victimized parents and children. • The Department of State does not oppose bringing attention to a country’s record of compliance with the Hague Convention. In fact, the Office of Children’s Issues in the Bureau of Consular Affairs already provides, Congress with

reports on Hague Convention compliance. The Hague Convention is not, however, a human rights treaty. • The Country Reports is a snapshot in time of human rights conditions in all

countries around the globe. It is not a report on treaty compliance. It is not in

the best interest of the United States Government’s human rights mission to

shift the focus of the report from truth telling on human rights country conditions to treaty compliance. This new potential mandate for reporting on treaty

compliance would create new complications for the Bureau of Democracy,

Human Rights and Labor (DRL) and the human rights report. An example of

the type of complications that would result is the fact that since many countries

are not party to the Hague Convention, for the first time DRL would be reporting on some countries but not others. The countries reported on might well be

relatively ‘‘good’’ countries with regard to international child abduction and respect for the rights of children, in relation to those countries that are not parties to the Convention. DRL has always maintained the same standards for all

countries, and has parallel coverage for all countries. Further, we believe that

this new mandate could deflect attention from objective reporting on country

conditions and lead to arguments over technical compliance with the treaty. Deflecting attention from a country’s poor human rights record would not be helpful to our democratization and human rights mission.

• In sum, we fear that the annual Country Reports would badly suffer from this

mandate. Reporting on an area for which DRL has no expertise will have serious repercussions not only for the quality of the report, but also for DRL and

the larger human rights mission. For clarity’s sake, and to best address the

needs of abducted children while raising the visibility of the issue, we strongly

recommend that this issue be handled through reporting procedures already established by Congress, and by the report that is submitted by the Bureau of

Consular Affairs on behalf of the Department.

Question 7. In deciding whether to negotiate child support arrangements with a

country, does the State Department consider that country’s record of compliance

with the Hague Convention, particularly those cases in which the government of the

country to which the American children have been abducted or in which they have

been wrongfully retained demands child support from the left-behind parent?

Answer. Reciprocal child support arrangements are being negotiated under the

authority of 42 U.S.C. § 659a. That section authorizes the Secretary of State, with

the concurrence of the Secretary of Health and Human Services, to declare any foreign country to be a foreign reciprocating country (in the enforcement of child support orders or obligations) if that country meets certain specified standards for foreign support enforcement procedures. These reciprocal arrangements do not impose

any obligation on courts or authorities in the United States to enforce support orders or obligations where a child was abducted to or is being wrongfully retained

in a foreign country in violation of custody decrees issued by a U.S. court.

A variety of factors are considered in determining whether reciprocal arrangements should be sought with a particular country under 42 U.S.C. § 659a. These factors include whether there have been issues regarding child support enforcement in

connection with child abduction cases.

Question 8. You noted in your testimony that some countries may be more reluctant to return a child to the United States if our government seeks extradition of

the parent on criminal parental abduction charges. However, a draft report by the

American Bar Association’s Center on Children and the Law entitled ‘‘Issues in Resolving Cases of International Child Abduction’’ listed only four countries that are

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less likely to cooperate in returning abducted children when criminal charges

against the abductor are pending. The draft report also stated that one-third of

countries responding to its survey slated that criminal charges are sometimes helpful in effecting a favorable resolution of Hague Convention proceedings. Do you disagree with these findings Please explain.

Answer. As you mention, this report is a draft that has never been finalized or

published. Therefore, we prefer to hold comment on any of this draft report’s findings until the report is finalized. However, a number of Hague party countries have

indicated that in certain circumstances criminal charges against an abducting parent may provide an obstacle to return of the child. Courts in Australia, Germany,

Mexico, the United Kingdom, Israel and the United States have indicated that

criminal proceedings against the abductor would complicate a child’s return pursuant to the Hague Convention. Our primary concern is for the welfare and return

of the abducted child. We also note that the International Parental Kidnapping

Crime Act of 1993 (18 U.S.C. § 1204) includes the sense of the Congress that the

Hague Convention should be the option of first choice for a parent who seeks return

of a child who has been removed from, or retained outside of, the United States.

Question 9. I understand that one obstacle to efforts to extradite an abductor is

that some countries to which abductors flee do not recognize parental kidnaping as

an extraditable offense. What specific diplomatic efforts is the State Department

taking to encourage countries that are parties with the United States to list-type

extradition treaties to interpret such agreements as including parental kidnaping as

an extraditable offense?

Answer. Following the enactment of the Extradition Treaties Interpretation Act

of 1998 (Title II of Public Law 105–323), the United states approached the approximately 70 countries with which we have extradition list treaties that include the

word ‘‘kidnaping’’ to inform those countries of the U.S. Government’s updated interpretation of the word ‘‘kidnaping’’ and to ask if they shared our interpretation. We

have posed the question twice through our Embassies abroad, once to all concerned

countries in January 1999, and then again in January 2000 to those countries that

not yet responded.

As of February 25, 2000, the United States has received positive replies, from

twenty of these countries indicating that they shared the U.S. Government’s interpretation. (A few of these were still confirming the interpretation with others within

their governments.) Some of the countries we consulted replied that they have not

criminalized parental child abduction and do not share our interpretation. Some

countries have indicated that they are still studying the issue and have not yet provided a substantive reply.

Question 10. The General Accounting Office recently noted that the Office of Children’s Issues and the FBI sometimes make unnecessarily duplicative inquiries on

the same case. Do you anticipate that the new case-tracking system will allow the

State and Justice Departments to know about each other’s parallel efforts regarding

ongoing child abduction case?

Answer. The new interagency database for international parental abduction cases

being developed by the Office of Children’s Issues in the Bureau of Consular Affairs

at the Department of State will greatly increase coordination among the various

agencies, including the Justice Department, involved in these cases. This increased

coordination will not only reduce duplication of effort and improve our efficiency on

individual cases, it will also provide us with the comprehensive statistical reporting

necessary to target specific problems with implementation of the Hague Abduction

Convention.

Question 11. The Department of Justice generally appears to prefer that prosecutions be undertaken pursuant to an Unlawful Flight to Avoid Prosecution (‘‘UFAP’’)

Warrant, pursuant to the Fugitive Felon Act (18 U.S.C. § 1073), rather than the

IPKCA. However, I understand that many foreign states do not recognize mere

flight to avoid prosecution by a State of the United States for a State crime to be

extraditable offense. Are there countries that find U.S. Federal crimes more persuasive regarding extradition than State crimes?

Answer. We have consulted with the Department of Justice regarding this question. The Justice Department disagrees with an assertion that it ‘‘prefers’’ Unlawful

Flight to Avoid Prosecution charges to IPKCA charges in child abduction cases. It

notes that if the United States or a state or local jurisdiction intends to try a fugitive located abroad on parental kidnaping charges, the United States will seek extradition for such charges. Absent the consent of the country that has extradited the

fugitive, we will not try the fugitive on other charges such as unlawful flight to

avoid prosecution, in light of the rule of specialty obligations in our extradition treaties.

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In this connection, the Federal Bureau of Investigation often encourages the filing

of the federal charge of Unlawful Flight to Avoid Prosecution (UFAP) in order to

assist in the investigation of charges under state and local laws. It is our experience

that a person extradited to the United States on either state or federal parental kidnaping charges would be unlikely to be prosecuted on UFAP charges. With regard

to the final issue raised in the question, it has not been the Executive Branch’s ex- perience that countries find U.S. federal crimes more persuasive regarding extradition than state crimes.

Question 12. Some have raised concerns that the State Department withholds too

much information from American parents relating to what their government is

doing or failing to do to gain the return of their abducted children. Are you fully

cooperative with parents in this regard?

Answer. The Department is fully cooperative with parents who seek information

relating to our efforts to gain return of or access to their abducted children. That

said, as a federal agency, we must ensure that our efforts to inform are consistent

with the requirements of the Privacy Act when the information concerned relates

to an individual other than the requesting parent. Additionally, in order to ensure

that a country with whom we have exchanged diplomatic correspondence regarding

an abduction case will be free with information and assistance in the future (both

with regard to that case and any other), the Department will obtain that country’s concurrence before releasing diplomatic correspondence generated by that country.

Question 3. What is the official policy of the United States Government regarding

whether to extradite a left-behind American parent who rescues his or her child

from a country that (a) will not return the child under the Hague Convention; (b)

otherwise refuses to extradite or prosecute the abductor; or (c) will not or cannot

guarantee enforceable visitation rights in the U.S. or anywhere else?

Answer: The State and Justice Departments consult on the facts and circumstances surrounding each extradition request. We regret we are not in a position

to speculate on the outcome of hypothetical extradition requests.

Question 14. What is the official policy of the United States Government regarding whether to enter into new law enforcement treaties with countries that are already violating their treaty obligations to the U.S. under the Hague Convention and

that directly or indirectly facilitate or support criminal conduct against American

children and their left-behind parents, in some cases through their police or prosecutors?

Answer. As a preliminary matter, we note that the Hague Convention creates a

mechanism for the return of children and has resulted in the return of thousands

of children to their parents—many more are returned each year than before the

Convention entered into force. In some cases, children are not returned because the

Central Authority or the courts of the country where the child is located determine

that the Convention does not govern the situation or one of the Convention’s exceptions apply (such as a grave risk of harm to the child). In this connection, the fact

that a Hague Convention party denies a return application does riot necessarily

mean that the requested country has violated the Hague Convention.

More generally, however, we would assess the benefits of law enforcement treaties

on the merits on a case-by-case basis, in order to determine what is in the best interests of the United States. Treaty compliance in one area is not necessarily a predictor of compliance in other areas, and bilateral law enforcement treaties frequently are of greater benefit to the United States than to the other country. The

allegations of ‘‘direct or indirect facilitation or support of criminal conduct’’ must

also be carefully considered. Some of the allegations that have been made in that

regard are extremely tenuous and do not concern intentional conduct such as would

entail any culpability on the part of the foreign government.

Question 15. I understand that the German Minister of Justice recently wrote to

the U.S. Ambassador to Germany, John C. Kornblum, that ‘‘German-American cases

[other than Lady Catherine Meyer’s case] or problems with familial alienation due

to conflict over visiting schedule [sic] are unknown to me.’’ I also understand that

the State Department has in its possession details of 34 U.S.-German cases of child

abduction or illegal retention, some of which involve unresolved Hague Convention

proceedings and others of which involve German courts that sought to resolve the

cases under the Hague Convention by not returning the children and denying victim

parents normal access rights to them. Are you concerned about the sufficiency of

the German Minister’s answer?

Answer. In July 1999, the U.S. Ambassador to Germany wrote to the German

Minister of Justice about problems that have arisen with regard to German implementation of the Hague Convention on the Civil Aspects of International Child Abduction, specifically referring to the case of Lady Catherine Meyer. In her response,

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the German Minister noted that the decisions in Lady Meyer’s case were made by

independent courts. The Minister added that she was unaware of German-American

cases under the Hague Convention on access rights. The Department of State has

summaries of 33 U.S.-German cases, both Hague and non-Hague, that were submitted by Lady Meyer at the time of her testimony before the Senate Judiciary Subcommittee on Criminal Justice and Oversight on October 27, 1999.

The Department of State believes that the response of the Minister of Justice is

insufficient because it reflects an incomplete understanding of the dimensions of the

problems regarding access that arise in cases of international parental child abduction. In a number of cases there have been difficulties in enforcement of German

court orders of access in Germany. The Department will continue to raise Hague

Convention implementation in general, and with respect to access in particular,

with German officials in hopes of finding practical solutions.

RESPONSES OF JAMISON BOREK TO QUESTIONS FROM SENATOR DEWINE

Question 1. The report to the Attorney General suggests that denying visas to parents who keep a child outside the U.S. in violation of a U.S. custody order may be

another way to encourage the return of children. How often has the U.S. made use

of visa denials under these circumstances?

Answer. Figures for the last two fiscal years show that there were thirteen refusals in 1999 (of non-immigrant visas), and a total of seven refusals in 1998 (two of

immigrant visas and five of non-immigrant visas) pursuant to section 212(a)(10)(c)

INA.

Question 2. At the hearing on October 27, 1999, I asked you how many times has

an Ambassador met with the leader of another country on individual cases of international parental kidnaping. Could you tell me how many times that has happened

in the past year?

Answer. International parental child abduction is an issue of very great concern

to the Department of State, and staff at our Embassies and Consulates raise this

issue often with their host country counterparts in general and in specific cases as

most appropriate. We have included a number of examples of our efforts over the

past year. While this is not a comprehensive list, we hope that it demonstrates the

seriousness with which we take this issue.

• Our Ambassador in Stockholm met with the Swedish Prosecutor regarding two

cases of international parental child abduction on June 18, 1999. (Prosecutor

General is just under ‘‘Cabinet’’ level rank.)

• Our Ambassador in Tokyo is personally engaged in the issue of international

parental child abduction. Within the past few months, he has met with the Minister of Justice and the Vice Foreign Minister to urge that Japan accede to the

Hague Abduction Convention.

• In San Jose, Costa Rica, our Deputy Chief of Mission called on the Foreign Minister the week of February 14, 2000, to discuss a case of international parental

child abduction and the effect its handling will have on whether or not the

United States might accept Costa Rica as a Hague Convention partner. Furthermore, on February 17, 2000, the Ambassador discussed the same case with

the Costa Rican Minister of Justice.

• In Switzerland our Chief of Mission spoke with the Direktor des Bundesamtes

fur Justiz in October 1999 concerning international parental child abduction

cases between our two countries. The Direktor’s rank is equivalent to an American undersecretary, and he is a senior career official in the cabinet department

for justice and police matters.

• Our Ambassador to the Bahamas has met with the Foreign Minister and former

the Attorney General on the Hague Abduction Convention.

• Our Ambassador to Mauritius has met with their Minister of Justice on two

cases where the courts in Mauritius have incorrectly refused to apply the Hague

Convention.

• Most recently our Ambassador to Madrid met on February 18 with a senior official in the Ministry of the Interior to urge continued efforts to locate and return

an abducted child.

RESPONSES OF LADY MEYER TO QUESTIONS FROM SENATOR THURMOND

Question 1. Based on your experience, do you believe that the international community is increasingly seeing parental abduction as an illegal act and a human

rights violation rather than as merely a private family matter? Please explain.

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Answer. I believe that until very recently, most people were totally unaware of

international parental child abduction and that as a result, no one had focused on

the issue or any of its consequences. Betty Mahmoudy’s case (U.S./Iran) was probably the first time that the problems associated with international marriages came

to public notice. But Betty Mahmoudy’s case was not, in itself, parental child abduction. It also concerned a country where laws and customs are very different from

ours. The publication of her book ‘‘Not Without My Daughter’’ brought other stories

to the fore. But, again they concerned Muslim countries. It was not until a few years

ago that people began to be aware that child abduction within western society was

becoming an increasingly common problem.

Because international child abduction cases are complex and difficult to resolve,

the typical reaction of many governments has been to absolve themselves of the responsibility for intervening. They have done this either by deeming these cases a

private legal matter (‘‘tug of love’’) or by claiming that they cannot interfere with

the independence of the courts. But it is becoming increasingly difficult for governments to assert that they have no role to play. This is the result of recent publicity

given to the most egregious cases and the realisation that several signatory countries—where the rule of law is supposed to prevail—are in breach of their Hague

Convention obligations. This has led in turn to the notion that the illegal removal

or retention of minors abroad is not only a criminal act but also a human rights

violation.

At the launch of ICMEC at the British Embassy in Washington on April 1999 Hillary Rodham Clinton clearly reinforced this view when she said: ‘‘These matters are

not just about individual children and the pain of victim parents, but they are really

a question of human rights’’. A landmark in this regard was the precedent set by

the very recent European Court of Human Rights’ decision of January 25, 2000 (see

attached press release). The ECHR ruled that a state’s failure to enforce a court

order to return a child to its country of origin under the Hague Convention is a violation of the ECHR. ‘‘Specifically, the Court found that respect for family life guaranteed by Article 8 of the ECHR includes a right for parents to have effective measures

taken to return children to the country from which they have been abducted.’’ Many governments are now more sensitive to the issue of international child abduction—for example, the British Foreign Office has just created an international

child abduction desk. But they have yet to acknowledge formally that basic human

rights are at stake. This is why we need your help. Things will not change until

the human rights dimension is recognised at the political level, so taking control of

the issue out of the hands of bureaucracies guided by ultra cautious legal advice.

This recognition is also indispensable to the correction of miscarriages of justice that

take shelter behind the argument that there can be no interference with the independence of local courts. This for example is the routine reaction of the German authorities to complaints about the bias and incompetence of their decentralised judicial system.

Question 2. As you know, many Hague Convention signatories have designated

their justice ministries as the Central Authority, while the United States’ Central

Authority is the State Department. What, in your opinion, are the relative advantages of placing responsibility for this treaty’s compliance in a government department that handles legal and justice issues as opposed to a department that handles

foreign policy issues?

Answer. In reality it should not matter. What is more important is that the Central Authority is efficient, speedy, resolute and dedicated to the Hague process. One

must also remember that victim parents can be extremely emotional, in need of special help and support—which government institutions are not equipped to provide.

Most of the American victim parents I have dealt with feel that the NCMEC is in

fact the best-equipped organisation to take over abduction cases. They are specialists in children’s issues and have the necessary support network for left-behind parents.

If I were to examine the pros and cons of each Ministry, I would come to some

obvious conclusions. A justice department should have a close relationship with domestic courts; it should be familiar with litigation and geared up to the prosecution

of criminal offences. Therefore it ought to act faster and more efficiently. Unfortunately, most European Central Authorities which are based in the justice Ministries

are legalistic and bureaucratic. They are often inflexible and impenetrable in their

dealings with other Central Authorities. My personal experience, and that of most

victim parents I have had dealings with in Europe, is that justice Ministries are unsympathetic and difficult to deal with. These problems are compounded when parents in one state have to deal with the Central Authority of another.

Foreign Ministries are usually more receptive and accessible to victim parents.

They are also better geared up to speedy international communication, including

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with left behind parents and other Central Authorities. They are better able to

make the right approaches to resolve problems on immigration, passports, international travel and other matters that may need urgent attention. They have readymade links with diplomatic and consular services abroad—but they are far less

equipped and knowledgeable in matters of litigation than a Justice Department. I

should also add that, according to Henry Setright (one of England’s most prominent

specialist in Hague Convention cases) English lawyers have had fewer problems

with the U.S. Central Authority than with most.

In principle, it should not matter where the central authority is located so long

as these two Ministries work closely together. My experience is that victim parents

need the expertise of both departments. My strong recommendation is that in every

Hague Convention signatory state, there should be a joint unit or bureau staffed by

officials from both the justice and Foreign Ministries. Their role among other things

should be to work closely with the relevant NGO’s.

Question 3. In your experience with analyzing international child abduction cases

under the Hague Convention, to what extent do you believe the criminal justice system should intervene to prosecute the abductor? Could such timely intervention

sometimes help expedite the return of the abducted child?

Answer. Unless child abduction is considered a criminal act and unless the criminal justice system intervenes to prosecute the abductor, more and more people will

be willing to take the law into their own hands. There is no doubt that there can

be no better deterrent to child abduction than a criminal statute. But the real advantage of the criminal statute is that it allows the full range of powers to be employed to locate the abductor and more importantly the missing child through the

mobilisation of the police and the assistance of INTERPOL. It also allows the extradition of abductors.

If the use of the criminal statute is a useful deterrent and extremely helpful in

bringing the child back, the question then arises that if this leads to the successful

prosecution of the abductor, how severe should the penalty be? If one has the childs

best interest to the fore there is a strong prima facie argument against a custodial

sentence which will only add to the trauma of the situation. Indeed, the imprisonment of the parent is probably a further punishment for the innocent abducted

child, who needs both its parents and probably feels guilty at what has happened

(as children always do in cases of conflict). So, judges will have to decide case by

case on what is appropriate: prison, a fine, community service etc * * * This is a

further argument for ensuring that these cases are tried by specialist judges.

But, there is one serious drawback to the criminalisation of international child abduction. This arises when the country to which the child is taken, or in which it

is retained, does not consider child abduction a criminal act and/or has no extradition treaty with the country of origin. For example Germany has no extradition

treaty with France or the UK. There have been cases where the German courts have

refused a return on the grounds that the abducting parent, who is not regarded by

them as a criminal, could be imprisoned when accompanying the child back to its

country of habitual residence, or visiting it there.

Hopefully the recent decision by the ECHR might encourage ‘‘all’’ signatory countries to put in place effective measures to return the child. But, again we need your

help to ensure that some countries’ practice of retaining abducted children and refusing to grant enforceable access rights is rightfully challenged.

NEWS RELEASE THE AIRE CENTRE—ADVICE ON INDIVIDUAL RIGHTS IN EUROPE

[January 25, 2000]

European Court of Human Rights Strengthens Enforcement of International Child

Abduction Treaty

STRASBOURG, 25 JANUARY 2000—Today, for the first time, the European Court

of Human Rights ruled that a state’s failure to enforce a court order under the

Hague Convention on the Civil Aspect of International Child Abduction is a violation of the European Convention on Human Rights.

In the United Kingdom, it is estimated that an average of four children a week

are wrongfully taken or kept in other Hague Convention countries, In the last three

years alone, the UK has seen a 58 percent increase in the number of international

child abductions.

The Hague Convention was created in 1980. It is a multilateral treaty which

seeks to protect children from the harmful effects of abduction across international

boundaries by providing a uniform procedure to bring about a prompt return of

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1This summary the registry does not bind the Court.

these children to their country of origin but not necessarily to the left behind parent. Custody of the child is for the courts to decide. Fifty-seven nations are now signatories to the Hague Convention. But the responses to these abduction cases have

been uneven.

The European Court ruled today in Ignaccolo–Zenide v. Romania that a state’s

failure to enforce a court order to return a child to its country of origin under the

Hague Convention is a violation of the European Convention of Human Rights. Specifically, the Court found that respect for family life guaranteed by Article 8 of the

European Convention includes a right for parents to have effective measures taken

to return children to the country from which they have been abducted. Since children can easily form new attachments, the Court emphasized the necessity for

states to act quickly so that the abducting parent cannot claim that returning the

child would be harmful.

This decision has significant global implications as from now on, European states

will be responsible ordering the return of children to the country from which they

have been abducted and enforcing those judgments.

JUDGMENT IN THE CASE OF IGNACCOLO-XENIDE V. ROMANIA

In a judgment delivered at Strasbourg on 25 January 2000 in the case of

Ignaccolo-Zenide v. Romania, the European Court of Human Rights held by six

votes to one that there had been a violation of Article 8 (right to respect for family

life) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 186,000 French francs

(FRF) for non-pecuniary damage and for legal costs and expenses.

1. Principal facts

The applicant, Rita Ignaccolo-Zenide, a French national, was born in 1953 and

lives at Metz (France).

Following her divorce a French court ruled, in a judgment that had become final,

that the two children of the marriage were to live with her. In 1990, during the

summer holidays, the children went to stay with her former husband; he held dual

French and Romanian nationality and lived in the United States. However, at the

end of the holidays, he refused to return them to the applicant. After changing addresses several times in order to elude the American authorities, to whom the case

had been referred under the Hague Convention of 25 October 1980 on International

Child Abduction, he managed to flee to Romania in March 1994, where he has lived

ever since. On 14 December 1994 the Bucharest Court of First Instance issued an

injunction requiring the children to be returned to the applicant. However, her efforts to have the injunction enforced proved unsuccessful. Since 1990 the applicant

has seen her children only once, at a meeting organised by the Romanian authorities on 29 January 1997.

2. Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on

22 January 1996. Having declared the application admissible, the Commission

adopted a report on 9 September 1998 in which it expressed the unanimous opinion

that there had been a violation of Article 8 of the Convention. The case was brought

before the Court by the Romanian Government on 27 January 1999.

In accordance with the transitional provisions of Protocol No. 11 to the Convention, a panel of the Grand Chamber of the Court decided on 31 March 1999 that

the case should be examined by a Chamber constituted within the first Section of

the Court. On 14 September 1999 the Chamber held a hearing in public.

Judgment was given by that Chamber, composed as follows:

Elisabeth Palm (Swedish), President, Gaukur Jo ̈rundsson (Icelandic), Riza

Tu ̈ rmen (Turkish), Josep Casadevall (Andorran), Wilhelmina Thomassen

(Dutch), Rait Maruste (Estonian), Judges, Ana Diculescu-bova, ad hoc Judge,

and also Michael O’Boyle, Section Registrar.

3. Summary of the judgment1

Complaint

The applicant complained that the failure of the Romanian authorities to enforce

the injunction issued by the Bucharest Court of First Instance on 14 December 1994

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constituted a breach of her right to respect for her family life, as guaranteed under

Article 8 of the Convention.

Decision of the Court

Article 8 of the Convention

The Court reiterated that although the essential object of Article 8 was to protect

the individual against arbitrary action by the public authorities, it also imposed

positive obligations inherent in an effective ‘‘respect’’ for family life. Article 8 included a right for parents to have measures taken with a view to their being reunited with their children and an obligation for the national authorities to take such

measures. That obligation was not absolute, since some preparation might be needed prior to the reunion of a parent with a child who has been living for any length

of time with the other parent. The nature and extent of the preparation depended

on the circumstances of each case and any obligation the authorities had to apply

coercion in this area was limited, since the interests and rights and freedoms of all

concerned, and in particular the paramount interests of the child and his rights

under Article 8 of the Convention, had to be taken into account. Where contact with

the parent might threaten those interests or interfere with those rights, it was for

the national authorities to strike a fair balance between them.

The Court considered that the positive obligations which Article 8 of the Convention imposed on the Contracting States to help reunite parents with their children

had to be construed in the light of the Hague Convention of 25 October 1980 on

the Civil Aspects of International Child Abduction. That approach was particularly

relevant to the case before the Court, since the respondent State was a party to that

instrument.

The decisive factor for the Court was therefore to determine whether the national

authorities had taken all reasonable steps to facilitate the enforcement of the order

of 14 December 1994.

Although first attempts at enforcement of the injunction were made promptly, in

December 1994, the Court noted that as from January 1995 the bailiffs made only

two further attempts: in May and December 1995. It noted, too, that the authorities

took no action between December 1995 and January 1997 and that no satisfactory

explanation for that inactivity had been forthcoming from the Government.

Moreover, the authorities had not done the groundwork necessary for the enforcement of the order, as they had failed to take coercive measures against D.Z. or to

prepare for the children’s return by, for example, arranging meetings of child psychiatrists and psychologists. No social workers or psychologists took part in the

preparation of the meeting on 29 January 1997. The Court noted, lastly, that the

authorities had not implemented the measures set out in Article 7 of the Hague

Convention to secure the children’s return to the applicant.

The Court found that the Romanian authorities had failed to take adequate and

sufficient steps to comply with the applicant’s right to the return of her children

and had thus infringed her right to respect for her family life, as guaranteed by Article 8. The Court therefore concluded that there had been a violation of Article 8.

Article 41 of the Convention

The Court held that the applicant must have sustained non-pecuniary damage as

she alleged. Ruling on an equitable basis, it awarded her FRF 100,000 under that

head.

It awarded the applicant FRF 86,000 for costs and expenses.

Judges Maruste and Diculescu-bova. expressed dissenting opinions and these are

annexed to the judgment.

The Court’s judgments are accessible on its Internet site http://www.echr.coe.int).

The European Court of Human Rights was set up in Strasbourg in 1959 to deal

with alleged violations of the 1950 European Convention on Human Rights. On 1

November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.

RESPONSES OF LADY MEYER TO QUESTIONS FROM SENATOR DEWINE

Question 1. In your written testimony, you discussed the British criminal statute,

the Child Abduction Act of 1984. You stated that where abductors flee to a weak

Hague country that it is often speedier and more effective for a UK citizen to use

the criminal offence than follow the Hague process. Is there a reluctance on the part

of the British law enforcement to go forward under the criminal statute when the

child has been abducted to a Hague country?

Answer. In England there is a reluctance to resort to criminal prosecution.

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The Child Abduction Act of 1984 criminalises child abduction, including some

classes of parental child abduction. Cases can be tried summarily before magistrates

or on indictment before a jury, depending on their seriousness. But because of the

sensitivity of cases of this kind, a high level of authority has to be given for any

prosecution, and prosecutions are relatively rare.

The Crown Prosecution Service (Director of Public Prosecutions) scrutinise prosecution’s under the 1984 Act with great care before action is authorised, and the

fact that there is prima facie evidence that an offence has been committed is not

the only factor they consider when deciding whether or not to pursue a charge of

parental child abduction.

The three main factors for this reluctance are:

(a) There is a culture among lawyers—criminal and civil—that to introduce

criminal proceedings into a family (and especially a child-related) situation is

counter-productive, except where a very serious crime (murder, serious physical

or sexual abuse) has been committed. Imprisoning a parent (especially if that

parent is a primary carer) is not usually seen to be in the child’s best interest.

As a result, English lawyers will usually advise left-behind parents that the

bringing of criminal proceedings, especially where there is an effective Hague

remedy, is likely to be counter-productive. (Protection, for example by civil injunctions, is another matter entirely and is often applied).

(b) This culture reflects the approach of most ordinary people. Most left-behind parents are far more interested in the return of the child than in the punishment of the abducting parent. In turn, they usually follow the advice of their

lawyers.

(c) English judges hate returning children abducted by primary carers, if they

think that there is a risk of criminal prosecution (and possible imprisonment)

which may deprive the child of that parent as a potential carer.

Therefore, because starting the criminal process requires a vertical referral to the

Crown Prosecution Service, and because there is consultation with the left-behind

parent, who almost certainly has a lawyer acting for him or her, there has been a

consensus in most Hague cases that a prosecution is best avoided. This, you will

appreciate, is anecdotal. What is not is that prosecutions so far have been rare—

though this may be changing.

However, from the inquiries I have made, I do not think there has been any case

where the CPS has refused to prosecute where a left-behind parent has a good case

in law, and is anxious to prosecute.

Question 2. In your written testimony you also stated that the ‘‘real use of the

criminal statute is that it allows the full range of powers for the pursuit of a wanted

criminal to be used to find the abductor, and more importantly, the child’’. Are you

familiar with the case with which criminal proceedings are instituted in the UK and

if there are delays in proceeding with the criminal cases? Do you know how many

children have been returned as a result of the enforcement of the Child Abduction

Act?

Answer. Criminal proceedings are relatively easy to institute in the UK and the

process should be a speedy one. But it is not always the case. Furthermore, the police are not always properly trained in these matters and are often reluctant to get

involved.

To start a criminal prosecution, the left-behind parent must first convince the police that an offence has been committed. Then following whatever police investigation is appropriate, the matter goes to the Crown Prosecution Service (Director of

Public Prosecutions) for a decision as to whether to prosecute or not. The question

of the viability of extradition will be a further consideration. The decision is taken

(criminal child abduction being one of a particular class of offences where this is

required) at a high level. In some cases, the decision can take a very long time, but

most decisions are taken with appropriate speed to allow the criminal process to be

of real use (assistance by the UK police, special branch, INTERPOL etc) in locating

a missing child.

For the left-behind parent, the process is not particularly complicated because it

does not require much action by him or her once the original complaint has been

lodged.

In the past few years, the Home Office has worked to provide assistance to the

police at various levels. It has provided information on both the problem of international child abduction and which tools are available to them to deal with it. Special police groups, such as those concerned with extradition, and Special Branch,

have specialist and highly developed expertise, which can be quickly employed. Special Branch in particular can track the international movement of abductors and

monitor and control movements at UK airports with a high degree of effectiveness.

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But, bear in mind that the UK, like most EU states, has dismantled exit controls

and passport checks for ordinary travellers.

Unfortunately, I do not think that there are any reliable statistics on the number

of children who have been returned as a result of prosecutions being instituted

under the 1984 Act.

Question 3. What is the role of the International Centre for Missing and Exploited

Children in international child abduction cases?

Answer. The National Center for Missing and Exploited Children, as the first

organisation of its kind, has increasingly been called upon to assist other countries

struggling with issues of child abduction and dislocation. It is clear that national

boundaries are no barrier to the transportation and victimisation of children. The

International Centre for Missing and Exploited Children (ICMEC) addresses the

need for a more comprehensive, international approach to issues of child abduction

and exploitation and provides a model that other countries can adapt to their own

needs.

ICMEC is initially focusing on three primary areas:

1. Expanding our existing international website project to all countries of the

world. This project enables appropriate entities in other countries to share images of missing children with the public for the purpose of generating leads and

in order to recover missing children;

2. Implementing our agenda to improve outcomes for families whose cases are

brought under the Hague Convention on the Civil Aspects of International

Child Abduction. ICMEC has created an international steering committee to implement an eight-point action agenda designed to increase knowledge and uniformity in the implementation of the treaty. Our strategy includes working with

government entities and the Hague Permanent Bureau to help reach our objectives;

3. Providing training to law enforcement, the judiciary, lawyers, prosecutors

and others involved with issues of child abduction. A key area of training is the

promotion of best practices for cases arising under the Hague Convention.

ICMEC also anticipates offering training on responding to cases of missing children, the use of international treaties and laws to promote the return of children, as well as training in the evolving area of exploitation of children through

the Internet.

RESPONSES OF ERNIE ALLEN TO QUESTIONS FROM SENATOR THURMOND

Question 1. The Federal Agency Task Force on Missing and Exploited Children’s April 1999 Report to the Attorney General on International Parental Kidnapping

(‘‘Task Force Report’’) does not recognize the use of the criminal process, such as

the International Parental Kidnaping Crime Act (‘‘IEPKCA’’), as a gap in how the

government currently addresses this issue. Do you think the Justice Department

should make a greater effort to use the criminal process, such as more aggressive

enforcement of the IPKCA, as a tool to help address international parental kidnaping?

Answer. Yes. In both domestic abduction cases and international abductions,

criminal charges can be of great assistance in locating the child. In addition, these

charges are often used successfully as a bargaining chip in negotiations for return

of the child. We have seen cases in which the threat of charges convinced an abductor to return to the United States with the child. The reality is that these cases are

not just ‘‘private legal matters.’’ Research suggests that in as many as 80 percent

of these cases, the motive for taking the child is not love, it is anger or revenge.

These children are at risk, and suffer harm in many ways. We believe that the

criminal process is a vital and important tool that should be used far more extensively.

Question 2. You note in your testimony that the Amer case in the Second Circuit

provided excellent case law for future prosecutions. Do you think that conditioning

an abductor’s release on return of the child could help solve some cases?

Answer. Yes. The Amer case is a good example of the recognition of the dual civil

and criminal aspects of international parental kidnaping and willingness to fully

utilize the legal tools available. Although the children were not successfully returned in Amer, conditioning release on the return of the child may be effective in

another case.

Question 3. The Department of Justice generally appears to prefer that prosecutions be undertaken pursuant to an Unlawful Flight to Avoid Prosecution (‘‘UFAP’’)

Warrant, pursuant to the Fugitive Felon Act (18 U.S.C. 1073), rather than the

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IPKCA. However, the Subcommittee has found that many foreign states do not recognize mere flight to avoid prosecution by a State of the United States to be an extraditable offense. Also, many States decline to pursue UFAP’s because they cannot

afford the costs of extradition. Do you agree that proceeding under an IPKCA warrant would be more effective in persuading foreign states to extradite parental abductors to the United States because such a warrant reflects how seriously the

United States, as a nation, views this conduct?

Answer. While some countries may extradite based on a federal IPKCA warrant or a state warrant attached to a federal UFAP, the free-standing federal IPKCA

charge sends a message from the Federal government in a way a UFAP does not.

The primary purpose of an IPKCA warrant is to arrest, extradite and prosecute the

abductor. Congress understood when passing IPKCA that the domestic laws of other

countries and the limitations of extradition treaties may be obstacles to extradition.

As the legislative history of IPKCA shows, however, Congress felt an important purpose of an IPKCA warrant was to send a message to the governments of other countries that addressing international child abduction is a priority of the U.S. government. Congress fully intended these warrants, carrying the full weight and authority of U.S. federal law, to be used by U.S. Ambassadors and diplomatic personnel

in negotiating the return of individual children.

Question 4. Do you think that aggressive enforcement of the criminal process, including more charges under the IPKCA, could deter some international child abductors?

Answer. Yes. For a criminal law to act as a deterrent, it must be used. Without

aggressive pursuit and prosecution, the act loses its deterrent effect.

Question 5. What has been the rate of increase in international parental abductions in recent years, and do you expect this trend to continue in the foreseeable

future?

Answer. NCMEC’s family abduction caseload (both domestic and international)

has increased over the past several years. We believe that the increase in the number of cases reported to NCMEC reflects an increase in cases nationwide. The actual

number of international family abductions occurring in the U.S. has not been studied, therefore the rate of increase cannot be stated with accuracy. There is no indication that family abductions are leveling off—the divorce rate remains approximately 50 percent. International family abduction, as a subset of family abduction

will certainly follow suit especially with our increasingly mobile and multicultural

society.

Question 6. Deputy Legal Advisor Borek testified that the return rate to the

United States is approximately 60 percent under the Hague Convention. Do you

think the actual return rate may be lower than this figure? Does the inconsistency

regarding estimates of the true return rate illustrate the need for a comprehensive

case-tracking system?

Answer. There has been some disagreement regarding return rates and the appropriate way to define and measure success in Hague Convention cases. A comprehensive case tracking system will certainly help keep track of the number of children

affected by international abduction. To better measure the problem, however, we

must carefully define what the United States considers a successful resolution of a

case and make sure we are tracking success, not just numbers. For example, we

have seen cases in which a foreign court orders the child’s return, but somehow the

child never gets returned. If the court order is the measure of compliance, it obviously falls well short of what the intended purpose is. To address this gap, the National Center for Missing and Exploited Children is undertaking a study of the outcomes of cases between the United States and several key Hague signatory countries. This study is the first of its kind and will tell us how cases are actually resolved and whether the treaty is applied in a reciprocal fashion.

RESPONSES OF ERNIE ALLEN TO QUESTIONS FROM SENATOR DEWINE

Question 1. Assistant Attorney General James Robinson, in his written testimony,

stated that efforts are underway to develop an enhanced role for the National Center for Missing and Exploited Children in international parental kidnaping cases.

As part of this enhanced role, do you think it would be helpful for the National Center for Missing and Exploited Children to be officially sanctioned by the Federal government to contact foreign entities.’’

Answer. NCMEC is not legally restricted from contacting foreign entities, the

greater the official sanction held by NCMEC, the greater our ability would be to

reach the right people, advocate effectively on behalf of searching U.S. parents, and

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return children. Our current contacts are not made with an ‘‘official sanction’’ by

the U.S. government. We work to establish relationships with foreign entities and

organizations when it may help foster cooperation on cases of international child abduction. We probe. We seek allies and resources to aid or assist a searching U.S.

parent. We seek to be a credible, aggressive but responsible advocate, and to utilize

every possible resource to bring a child home.

NCMEC has also launched an International Centre for Missing and Exploited

Children to address the issues NCMEC addresses on a world-wide scale. It is our

view that in many ways, the world faces the same sort of global challenge regarding

the problem of child abduction that we faced in this country two decades ago. We

believe there is a significant need to building networks, sharing information, utilizing every resource to build a comprehensive, coordinated, meaningful response to

this serious problem.

We welcome U.S. government collaboration on these efforts, and seek to work in

tandem with all appropriate agencies.

Question 2. At this time, what services does the National Center for Missing and

Exploited Children provide for left-behind parents and what services would you like

to be able to provide?

NCMEC’s basic services are not limited by national boundaries. Our mandate

from Congress is to assist in the search for U.S. missing children, and we do that

whether a child is taken across town or around the world. Our case managers work

with law enforcement and searching families to attempt to locate missing children.

Our photo distribution network includes worldwide distribution of posters, and our

hotline receives leads and sightings on children globally. We are building a global

network via the worldwide web, so that missing children’s images can be searched

and seen in many countries. Today, NCMEC’s website receives 3 million ‘‘hits’’ per

day, and we have built companion sites in Canada, the United Kingdom, Belgium,

the Netherlands, Italy, Argentina, Brazil and Chile, with many other countries preparing to join the network.

We provide technical assistance to parents, their attorneys and law enforcement

personnel working the case. We also provide referral services to identify counseling

and legal advice for parents and referrals to parent-mentors who have cases in the

same country. We also network with law enforcement officers who are inexperienced

working cases of international abduction together with law enforcement who have

handled cases in a particular country. We publicize cases in partnership with Voice

of America and through international poster distribution. In addition, we administer

the Victim Reunification Travel Program, funded through the DoJ’s Office of Victims

of Crime and pay the travel costs for U.S. children returning after being abducted

overseas. The program funds also enable U.S. parents to travel abroad to attend

custody-related court proceedings or proceedings under the Hague Convention.

We need and want to do more. NCMEC seeks to continue and enhance existing

services and to expand direct services to parents in the areas of legal assistance

both in the U.S. and abroad and counseling services in order to help families defray

the costs associated with international family abduction.

In 1995 we were asked by the State and Justice Departments to assume a lead

role on the cases of foreign children abducted to the United States under the Hague

Convention. While we had some trepidation about appearing to do more for foreign

parents than U.S. parents, we agreed to take on the challenge based on the concept

of comity. Other governments were suggesting that if U.S. agencies and officials

didn’t do more to locate and return children abducted to the United States, foreign

governments would be far less willing to assist in cases of U.S. children abducted

to their countries.

We undertook the task because we thought it was the right thing to do, and because we felt it was essential if we were to ensure that every possible resource

would be used to help U.S. families. We are pleased with the progress, but are committed to working with the State and Justice Departments to continually enhance

NCMEC’s role on behalf of left-behind U.S. parents. It is not our aim to either duplicate or supplant the important services delivered by government agencies, but it is

our commitment to continually seek ways to provide better, more timely and effective assistance to every searching U.S. parent.

We appreciate your interest in this issue and stand ready to assist the federal

government and others to improve the outcomes for U.S. families facing international abduction.

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ADDITIONAL SUBMISSIONS FOR THE RECORD

PREPARED STATEMENT OF THOMAS A. JOHNSON, PARENT OF

WRONGFULLY RETAINED CHILD

Thank you for giving me the opportunity to submit this written statement as the

parent of an American child wrongfully retained in Sweden. I understand that it

will be published in the record of the Subcommittee’s hearing of October 27, 1999

concerning international parental kidnaping. Although I am an attorney with the

Department of State, this statement is submitted solely in my personal capacity as

an American citizen and as the father of Amanda Kristina Johnson, an American

child literally held hostage in Sweden for nearly five years.

I greatly appreciate the hard work of your staff on this subject and your willingness to schedule a hearing to learn how and why the Executive Branch has failed

so many abducted American children and their left-behind parents. Specific Congressional actions of the kind suggested below are the only hope for these American

citizens because the Justice and State Departments are determined to maintain the

status quo to keep foreign governments happy, and have consequently opposed, obstructed, or ignored all Congressional initiatives to date, including the International

Parental Kidnaping Crime Act of 1993 (IPKCA), 18 USC 1204. Unsuccessful with

their disinformation campaign that these are ‘‘private custody disputes,’’ the latest

party line from Justice and State is that a lack of resources is the problem. Nothing

could be further from the truth. The problem at both Justice and State is a lack

of interest in assisting and protecting American citizens, even our youngest ones,

As indicated by the attached example, of my correspondence with the U.S. Attorney’s Office for the Eastern District of Virginia in Alexandria. Virginia (I never received a written response to my various written communications) and by the discussion of the IPKCA below, the Justice Department showed extraordinary creativity

in its excuses for refusing to enforce the Act. Not impressed either by evidence of

direct foreign government support for the commission of Federal felonies against

American citizens or by the attempts of foreign governments to use the mere existence of the IPKCA against American citizens in litigation (adding insult to injury

in view of the Justice Department’s refusal to enforce the Act in most cases), the

Justice Department intentionally misinterprets the Act, as noted below, and refuses

to expend the minimal resources required to secure an indictment and make provisional arrest and extradition requests. (See Pages 10–11)

Thanks to the refusal of the Justice and State Departments to take meaningful

(and generally cost-free) preventive and remedial actions, the norm for American

parents in the vast majority of these cases is no return of the child under the Hague

Convention on the Civil Aspects of International Child Abduction or otherwise, no

possibility of gaining extradition and prosecution of the abductor because the Executive Branch has negotiated one-way extradition treaties and the Justice Department

ignores the will of Congress by failing to enforce the IPKCA, no possibility of enforceable access to or visitation with the child because most foreign legal systems

have nothing comparable to contempt of court, and no effective assistance from the

U.S. Government, which in fact stands ready to assist the abductor and his/her supporting government through enforcement of foreign child support orders and extradition of American parents who rescue their children.

A summary of my daughter’s individual case and far more extensive remarks on

this subject are contained in my testimony and written statement (71 pages including attachments) submitted to the House International Relations Committee and

published in the record of its hearing on October 14, 1999. This statement concentrates on systemic problems and remedial actions concerning all Americans, although attachments address my negative experience with the Justice Department

and some details of Amanda’s case. Nevertheless, it is important at the outset to

note the human impact of these cases and the truly barbaric conduct of governments

such as Austria, Germany, and Sweden that facilitate, directly support, and ensure

the success of their citizens who abduct and wrongfully retain American children

with impunity. Amanda has not seen her American family, friends, school, church,

and home environment for more than five years. She has several grandparents here,

but none in Sweden. She has two baby sisters here whom she has never met, with

another due next month, but no brothers or sisters in Sweden. Amanda’s abductor

could not have succeeded without the Swedish Government’s comprehensive financial support and other forms of assistance. And governments such as Sweden that

virtually encourage child abduction and retention by their citizens could not succeed

without Justice and State Department dereliction of duty, refusal to make them pay

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any price for their treaty violations and human rights abuses, and failure to protect

American citizens.

This Subcommittee and Congress as a whole can do a great service to American

citizens by directing the Justice Department to transform its contract with the National Center for Missing and Exploited Children (NCMEC) so that it concerns only

assistance to American citizens in ‘‘outgoing’’ cases and mandating that NCMEC

shift from helping foreign parents in ‘‘incoming’’ cases to helping Americans in ‘‘outgoing’’ cases (as NCMEC prefers), hold the case files instead of the Department of

State, and play an assertive advocacy role on behalf of American children and their

parents. Today, left-behind American parents must deal with hostile bureaucrats at

Justice and State while foreign parents benefit from NCMEC’s superb capabilities

at U.S. taxpayer expense.

This Subcommittee can also do much to reject the ‘‘private custody dispute’’

disinformation campaign, eliminate the two-front war presented to left-behind

American parents by the Executive Branch (the threats of extradition and child support enforcement), and halt the effective abandonment or ‘‘writing off’’ of American

children through State Department closure of their cases. In addition, the Subcommittee can insist on Executive Branch preparation of items such as the attached

Summary of the Swedish Government System of Abduction and Wrongful Retention

of Children (as an example of what the U.S. Government should be drafting and

disseminating to all U.S. courts, law enforcement authorities, family law specialists,

and the public on each Hague and non-Hague country that facilitates or supports

international child abduction and wrongful retention).

The past year has been a very good one for the abductors of American children.

With all too few exceptions, they have enjoyed great success, thanks to the foreign

governments that support them in a variety of ways and the U.S. Government that

fails to provide effective assistance to its citizens who are the victims of these crimes

and human rights abuses. At the same time, the U.S. Government and courts keep

foreign governments happy by generally returning children to foreign parents, thus

helping to maintain the status quo. Abductors of American children will continue

to succeed, unless Congress takes specific actions detailed later in this statement

to:

• establish accountability (e.g., annual abduction and human rights reporting to

Congress as proposed in the State Department Authorization Bill)

• require effective preventive measures (e.g., dissemination of reports and

advisories on foreign legal systems via the Internet and all other possible means

to U.S. courts, family law specialists, law enforcement authorities, and the public)

• promote full compliance by foreign governments with the Hague Convention

and other relevant international instruments, and

• ensure remedial measures in response to treaty violations.

Today, there is no accountability within the Executive Branch, few preventive

measures to educate American courts and law enforcement authorities (let alone the

public), no strategy to achieve full compliance with the Hague Convention and other

applicable treaties, and no political will in the Executive Branch to take effective

remedial measures. The reality is that foreign governments provide far more financial, law enforcement, and other assistance to their citizens and others who abduct

or retain American children abroad than does the U.S. Government to the left-behind American parents. Worse still, the U.S. Government provides far more assistance to foreign citizens whose children are in the United States, often with good reason as discussed below, than it does to Americans whose children have been abducted or wrongfully retained abroad. U.S. tax dollars permit NCMEC to assist foreign parents in a variety of ways, while the American parents in those cases generally face extreme gender and/or national bias in the foreign courts concerned, and

will not be able to obtain enforceable access or visitation with their children except

perhaps in a few common law countries. It appears that the Executive Branch cares

only about U.S. compliance with its treaty obligations and is unwilling to take any

effective measures to ensure that there are negative consequences for foreign governments that consistently fail to comply with their treaty obligations to the United

States and that support, in a variety of ways discussed in this statement, the commission by their citizens of Federal and state felonies against American children

and their parents.

The situation for foreign left-behind parents is very different. According to statistics supplied to the General Accounting Office (GAO) by the National Center for

Missing and Exploited Children (NCMEC), the combined efforts of the State Department, the Justice Department, U.S. courts, and U.S. law enforcement have ensured

that more than 90 percent of children abducted to or retained in the United States

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in recent years have been sent back to foreign countries. In some cases, U.S. law

enforcement agencies have wrongfully assisted foreign parents and simply taken

children from American citizens without a hearing or any other form of due process

of law. Ironically, the U.S. returns virtually 100 percent to some of the worst offending. countries, such as Sweden and Austria. Moreover, as explained below, many of

these children were brought to or retained in the United States for valid reasons,

such as the impossibility of their American parents receiving fair treatment or even

enforceable visitation of any kind from the foreign courts concerned. These children

should not be sent away from the United States. But they are, because the Executive Branch has failed to educate American courts and family law practitioners

about the grave risks (within the meaning of Article 13b of the Hague Convention)

of sending them to countries where they will be denied any contact with their American parents unless the foreign parent decides otherwise.

As described below, foreign government support for abduction and wrongful retention of American and other children continues unabated. Because American lawyers

and U.S. Government officials continue to have great difficulty in comprehending or

even believing the point, it cannot be repeated too often that parents in our position

cannot gain legally enforceable access to or visitation with our children in the countries where they are held hostage, let alone the United States, unless the abductor

permits it.

In other words, the reality that would be helpful for this Subcommittee and Congress in general to address is that the problem goes well beyond the fact that foreign governments are violating their treaty obligations to the United States with impunity, refusing to return American children under the Hague Convention, stealing

custody jurisdiction from American courts, and awarding sole custody to their citizens who have committed Federal and state felonies. Even at that point, one might

reasonably assume, as I did, that the worst case scenario is being a noncustodial

parent with only 4 to 6 weeks of visitation in the United States each year. Regrettably, the fact is that most American children are completely and permanently lost

to their American parents, families, friends, and home environments.

Accordingly, American parents of abducted children are, in most cases, faced with

a clear choice: abandon their children or conduct a rescue operation. For those who

make the latter choice, it is hoped that Congress will ensure that they are fully supported by the U.S. Government and that the current practice of subjecting them to

a two-front war (e.g., by means of extradition) is, terminated.

Immediate Remedies

This intolerable and indefensible situation would begin to improve literally overnight, if the Executive Branch took several actions that cost nothing. The first such

action is simply to begin publicly telling the truth about these cases. If nothing else,

however, the conduct of the State and Justice Departments during the past year has

conclusively demonstrated that they will not take such actions voluntarily. Among

other things, the Hague Convention Compliance Report submitted to Congress by

the State Department violates both the letter and spirit of the statutory reporting

requirement in P.L. 105–277, the Task Force Report to the Attorney General is an

attempted fraud on Congress that has nothing to do with reality, all pending legislation (Section 203 of H.R. 2415 and Sections 201–203 of S. 886) has been subjected

to unprincipled opposition without any constructive alternatives suggested, NCMEC

has been successfully pressured by the State and Justice Departments into continuing to assist primarily foreign parents at U.S. taxpayer expense with only limited

help and information provided to American parents, and the senior State Department official responsible for this area (Assistant Secretary Mary Ryan) has declared

in an appalling letter to Insight Magazine that these cases are essentially mere private child custody disputes and that we should be encouraged by a return rate for

American children of well under 50 percent. In her April 1999 letter, which is an

insult to the memory of all abducted American children, Ryan claimed that there

were returns, some form of visitation, or consular access in 52 percent of the cases.

Since the latter two categories are unenforceable, that means the actual return rate

is way below 50 percent. More recently, in her October 14 testimony to the House

International Relations Committee on this subject, Ryan suddenly claimed a return

rate of 72 percent, which is false. The only real hope for American children and

their parents is that Congress will enact legislative directives that:

• require the Justice Department to report every 6 months on its enforcement of

the IPKCA (indictments, convictions, extradition requests, countries involved,

etc.)

• require the State Department to address family rights and parental child abduction in each country report of the annual human rights reports, in accordVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00275 Fmt 6601 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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ance with Section 203 of S. 886 as supplemented by subjects covered in the

original version of Section 203 of H.R. 2415 (e.g., whether a country can and

will enforce a child’s right to have access to both parents even if they reside

in different countries, whether a country provides financial support to its abductors, whether a country recognizes the principle of comity and respects the laws

and court orders of other countries on custody and visitation, whether a country

has criminal legislation that effectively shields its abductors and targets foreign

parents attempting to exercise their custody rights, whether statistics show that

a country’s legal system demonstrates gender or national bias in child custody

cases) • require the State Department to disseminate an interpretation of Article 13b of

the Hague Convention to all U.S. courts (with notice to all Hague Convention

Parties and announcement at the next Hague Convention Review Conference)

that ‘‘grave risk’’ to the child as a basis for nor-return includes situations where

the child(ren) would be returned to a country with a legal system that has no

effective means of enforcing visitation in the United States (or anywhere else)

for the American parent or enforcing any other aspect of its civil court orders

(i.e. a legal system that has nothing comparable to contempt of court) • require the State Department to conclude bilateral agreements with the worst

offending countries concerning access and visitation • prohibit the State and Justice Departments from assisting foreign parents in

domestic litigation until they uniformly assist American parents in Federal or

state court litigation financed by foreign governments and brought to challenge

or subvert U.S. court orders • require the State and Justice Departments to inform all extradition treaty partners that the United States will not extradite its citizens for the offense of parental child abduction to any country that does not extradite or effectively prosecute its nationals for that offense and does not consistently return requested

children under the Hague Convention • require the Executive Branch to transform its contract with NCMEC to process

‘‘incoming’’ of cases into a contract for NCMEC to assist only with ‘‘outgoing’’

cases, to transfer all ‘‘outgoing’’ case files from the State Department to

NCMEC, and to inform all Hague Parties that NCMEC will no longer assist

with ‘‘incoming’’ cases

• mandate that NCMEC take an assertive advocacy role on behalf of American

children and parents with BOTH foreign governments and the U.S. Government

• terminate the State Department’s authority under P.L. 104–193 (Section 459A)

to conclude reciprocal child support enforcement agreements and require the

State Department to inform the states that foreign child support orders should

not be enforced in cases where the American parent has no enforceable visitation in the United States or there has been a violation of U.S. law or court orders, Federal or state felonies, failure to return a child under the Hague Convention, and so on.

Recent Executive Branch Performance—Report to the Attorney General

‘‘We cannot push too hard in the Johnson case because that might jeopardize

the return of children in other cases.’’

(Assistant Secretary Mary Ryan)

‘‘I don’t work for the American people, I work for the Secretary of State.’’

(Assistant Legal Adviser Catherine Brown)

‘‘Why are you calling about the Johnson case? That case is closed.’’

(Response to NCMEC by Ellen Conway of the Office of Children’s Issues)

These are actual statements concerning my daughter’s case or child abduction

generally made to me or others by State Department officials who are supposed to

be responsible for obtaining the return of abducted American children. They will

give you some idea of what American parents experience when they deal with the

State Department, and why this function needs to be shifted elsewhere, with the

Department placed in receivership in this area by Congress in the interim. The first

statement is a classic expression of appeasement. The second may confirm many

suspicions about the State Department, but was also both honest and sincere, which

is precisely the problem. And the third raises the issue of the State Department

writing off American children by closing their cases as soon as the foreign government makes a final denial of the U.S. request for return. You know about this matter because the State Department told you that there were only 56 ‘‘unresolved’’

Hague cases in its Hague Convention Compliance Report to you last spring. As a

Marine who was trained from Day 1 never to leave anyone behind and as a citizen

who admires and supports the MIA effort, I find the bureaucratic closing of our chilVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00276 Fmt 6601 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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dren’s cases particularly offensive. My understanding is that no one, from the President on down, has the authority to write off American citizens, especially our youngest ones.

Rather than alleging dereliction or incompetence at the State and Justice Departments, it is really only necessary to look at Executive Branch actions and inaction

during the past year. particularly with regard to three matters: the State Department’s Report to Congress on Hague Convention Compliance, the so-called Task

Force Report to the Attorney General, and State Department opposition to proposed

legislation. All three are addressed in my October 14 testimony to the House International Relations Committee. This statement concentrates on the Report to the Attorney General because the Justice and State Departments are attempting to portray it as something other than just a repackaging of the status quo.

The Attorney General promised this report to the Senate Foreign Relations Committee last fall in order to gain the release of 38 law enforcement treaties being held

up because of the poor performance of the Executive Branch in the child abduction

area. The Report submitted to Congress has virtually nothing to do with the realities facing American parents and is a blatant attempt to perpetrate a fraud on Congress by giving the impression that the Executive Branch intends to do something

other than maintain the status quo. The Report is an example of the oldest game

in Washington: production of a ‘‘blue ribbon’’ report by bureaucrats under fire to get

Congress, the media, and the public off their backs WHILE CHANGING NOTHING.

This Report is noteworthy only for what it omits and conceals. NCMEC recognized

this early in the drafting process and withdrew from the project in a hard-hitting

written dissent available to the Committee, but the fails to make clear that NCMEC

is NOT one of the drafters. Any credible GAO Report would have to evaluate this

Report in detail and should discuss the facts that the Report does not explain the

discrepancies between the Report’s rhetoric and actual Executive Branch conduct

(opposition to legislation, thorough reporting, release of documents to parents) and

the innumerable gaps, ambiguities, and cover-ups in the Report, including:

• no game plan for diplomatic and other responses to foreign government Hague

violations or other forms of support for abduction/retention of American children • no mention of the central importance of the absence of anything comparable to

contempt of court in most Hague countries, thus ensuring total loss of children

not returned under the Convention • no indication that anything other than the status quo will be maintained with

business as usual even with the worst violators of the Hague Convention and

worst non-Hague countries • no revelation of the largely successful effort to freeze NCMEC out of ‘‘outgoing’’ cases • no clear recognition that these are not ‘‘private custody disputes’’ • no disclosure of how bad the numbers are (see NCMEC memorandum to GAO) • no recognition that a ‘‘grave risk’’ within the meaning of Article 13 of the Hague

Convention exists from countries that cannot effectively enforce access or visitation • no recognition of the consequences of failing to educate U.S. courts about the

nature of foreign government support of child abduction and retention • no hint of DOJ refusal to enforce the 1993 International Parental Kidnapping

Crime Act • no hint of general DOJ refusal to request extradition • no acknowledgment of the human rights standards that are being violated and

the differing approaches of the First Lady (who is legally and morally right) and

the State Department • no mention of foreign government threats and demands against American parents concerning reimbursement of child support and legal fees paid to abductors • no mention that the Executive Branch fails to monitor domestic litigation

against American parents financed by foreign governments • no strategy for dealing with extortionate demands by even the best Hague countries (e.g., the UK) for costly ‘‘undertakings’’ by the American parent, as in the

Lebeau case • no acknowledgment that foreign governments claim ‘‘private custody disputes’’ while hiding behind their sovereign immunity in hiring and paying American

lawyers to represent abductors in abusive litigation in U.S. courts intended to

exhaust American parents financially

• no hint of State’s negotiation of child support enforcement agreements with foreign governments without safeguards or exclusions to protect left-behind American parents

• no revelation of State’s policy of closing cases and compartmentalizing them at

the lowest level to avoid any impact on bilateral relations.

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GAO REPORT: Senator DeWine of this Subcommittee is among those who have

requested a GAO report on the performance of the Executive Branch in this area.

As indicated above, a credible GAO report must thoroughly evaluate the Task Force

to the Attorney General along the lines suggested and address those issues wholly

apart from the context of the Report to the Attorney General. GAO has been supplied with the names and addresses of dozens of American parents, attorneys, and

others familiar with the performance of the Executive Branch concerning international child abduction and retention. GAO needs to interview these people and

form its own conclusions. Among other things, a GAO report should include:

• Scope of the problem with complete statistics

• Adequacy of existing legislation

• Adequacy of cooperation with NCMEC and American parents

• Refusal of State to include the subject in the Human Rights reports

• Adequacy of the Hague Convention Report to Congress

• Adequacy of Executive Branch cooperation

• Disparity between return rates from the U.S. versus to the U.S.

• Review of case files to ascertain adequacy of State services to parents

• State’s criteria for closing cases

• Executive Branch strategy for dealing with violator countries

• Treatment of American parents (access to documents, protection from foreign

child support demands, frequency of contact)

• Cooperation and support from embassies and the State Department overall.

Foreign Government Support for International Parental Child Abduction and

Wrongful Retention of Children

The principal purpose of this statement, as indicated above, is not only to discuss

individual cases or countries, but rather to provide a general description of foreign

government support for the abduction and retention of American children, the response of the United States Government, and proposed Congressional actions to assist American children and parents affected by the crime of international parental

child abduction and retention. Accordingly, information on my daughter Amanda’s

case and my experience with the Swedish legal and social welfare systems is only

provided as an example of what often confronts left-behind American parents.

SIX PILLARS OF GOVERNMENTAL CHILD ABDUCTION OR WRONGFUL RETENTION

While the present overall Swedish legal and social welfare system may well be

one of the worst adversaries that a left-behind American parent can face, at least

some elements of that system exist in many other countries, especially in European

civil law countries. The Swedish system includes all of what could be called the Six

Pillars of governmental child abduction and retention:

(1) undeniable bias against foreign parents by the courts (compared to the

very high rate of returns of abducted children from the U.S. ordered and enforced by U.S. courts);

(2) no enforceable visitation or other parental rights for foreign parents

(owing to the absence of anything comparable to our contempt of court mechanism);

(3) no concept of comity (reciprocal enforcement of foreign court orders, including custody orders agreed to by their nationals);

(4) payment of unlimited legal fees for their nationals who abduct or retain

children in all litigation at home and in the U.S. (in both Hague Convention

and regular custody proceedings);

(5) aggressive action by police and prosecutors against foreign parents in enforcing criminal legislation specifically drafted and intended to protect their

child abductors/retainers;

(6) ‘‘address protection’’ programs that enable abductors/retainers and the

children involved to disappear even from U.S. consular officers, with the aid of

the police and social welfare agencies.

In short, these are NOT ‘‘private child custody disputes,’’ as Germany and Sweden

try to claim in these cases, and as Executive Branch officials who may wish to write

off the children concerned and do business as usual with such countries would like

to believe. The following are not ‘‘private’’: treaty violations, Federal and state felonies, human rights abuses, government payment of legal fees and other financial

support, foreign government failure to provide civil or criminal remedies to left-behind American parents, foreign government refusal to respect U.S. laws and court

orders.

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American parents in such cases are often essentially alone against the power and

wealth of the governments concerned. Of course, individual parents capable of internationally abducting or wrongfully retaining children are to be found in every country. The question, therefore, is whether their governments will control their conduct

and protect the parental rights of foreign parents, especially in light of the international legal obligations of all countries under either (or both) the Hague Convention and human rights treaties that guarantee the role of both parents and the right

of children with parents of different nationalities to spend time in both countries.

Because it has proven nearly impossible for Executive Branch officials and other

Americans (especially judges and lawyers) to believe, it must be repeated that, as

a practical matter, the exercise of jurisdiction over an abducted or wrongfully retained American child in a regular child custody proceeding by a German or Swedish or Austrian or Danish court (with the inevitable grant of effective sole custody

to the non-American abducting parent whether or not it is called ‘‘joint’’ custody)

is equivalent to termination of the parental relationship between the child and the

American parent. Even if some form of access or visitation is awarded on paper,

American parents have no legally enforceable rights of any kind in such countries.

INTERNATIONAL PARENTAL KIDNAPING CRIME ACT OF 1993

This Act should either be revised (if that will result in greater willingness of U.S.

Attorney’s offices to utilize it) or be enforced as it stands when Hague Convention

remedies are exhausted or inapplicable, or the left-behind parent so requests. At

present, despite the best intentions of Congress, the 1993 Act is not only a failure

in helping Americans (there have been few indictments, and fewer still convictions

and provisional arrest requests under the Act), but it has become an effective tool

for foreign child abductors and retainers. Under some extradition treaties, it actually creates dual criminality where none existed before, so that American parents

who rescue their abducted children can be extradited to countries that refuse to extradite their nationals for parental child abduction or any other offense and also

refuse to return children consistently (or at all) under the Hague Convention.

Moreover, to add insult to injury for the victims of child abduction or wrongful

retention who know that the Department of Justice will generally not implement

the 1993 Act, its mere existence (and the purely theoretical possibility of prosecution

of foreign abductors or retainers) is being used against American parents in Hague

Convention and regular custody litigation in the U.S. and abroad. Attorneys for

child abductors/retainers, including those hired and instructed by foreign governments that are U.S. treaty ‘‘partners,’’ have argued that the fear of prosecution

under the 1993 Act justifies the denial of applications for return of children under

the Hague Convention, as well as refusal of abductors/retainers to appear in U.S.

custody proceedings. This latter argument concludes with a demand that U.S. courts

defer to the jurisdiction of the foreign court.

That was precisely the argument made in Virginia to the trial court and the Court

of Appeals in my daughter’s case by the attorney hired by the Swedish Government.

Fortunately, the Virginia judge cut through the argument by asking whether the

abductor would immediately return to Virginia with the child if given immunity

from prosecution. This bad faith argument fared no better in the Court of Appeals.

But the argument that the children should not be sent back to the U.S. under the

Hague Convention if the local parent faces criminal charges will almost certainly

succeed in many foreign courts.

With regard to implementation of the 1993 Act, the approach being taken by some

U.S. Attorney’s offices concerning the Act cannot possibly be consistent with the intent of Congress. Although the Act places both wrongful removal (or abduction) of

a child from the United States and wrongful retention abroad on the same level,

as does the Hague Convention, wrongful retention abroad is effectively being read

out of the Act by some prosecutors as not serious enough to merit indictment.

Moreover, some prosecutors have unilaterally added as an affirmative defense

that a child abductor or retainer is attempting to obtain a local custody order abroad

and would already have succeeded so but for Hague Convention proceedings freezing

the local custody process. In like manner, some prosecutors are incorrectly asserting

that a foreign court order denying return of the child(ren) under the Hague Convention constitutes a defense under the Act. Disregarding the entire object and purpose

of the Hague Convention in Article 1 (respect for the custody laws of other Parties

to the Convention), such prosecutors apparently have no difficulty with individuals

who clearly violate U.S. court orders and custody rights, as long as they are also

attempting to persuade a foreign court to ignore the orders and unilaterally take

jurisdiction over the case. In essence, this approach gives immunity from prosecuVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00279 Fmt 6601 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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tion, so long as abductors are using the legal process in their home country, no matter how corrupt, incompetent, or biased against foreign parents it may be.

Even when Hague Convention remedies are inapplicable or have been exhausted,

and thus utilization of law enforcement mechanisms will not jeopardize return of

the child(ren), left-behind parents hear a litany of excuses for failure to implement

the Act or to use it in any way to pressure abductors into returning the child(ren).

The latter approach does not constitute misuse of the criminal process to achieve

a civil law objective, as some might argue. Rather, it would constitute use of a criminal law to bring a halt to criminal conduct, which is presumably what Congress intended. At the moment, the point is moot because the 1993 Act is being used far

more by foreign governments against Americans than by the U.S. Department of

Justice.

In litigation financed by foreign governments, as noted above, its mere existence

is cited as a reason not to return children to the United States in European courts

and as a reason to defer to European jurisdiction in U.S. courts. Adding to the irony

of the general refusal by U.S. law enforcement authorities to implement the 1993

Act is the very aggressive enforcement by some European law enforcement authorities of laws or policies that protect local child abductors and target foreign parents

who attempt to exercise their sole or joint custody rights. An example of such a

criminal law from the Swedish penal code is attached to this statement. It has been

used as a justification for aggressive Swedish police action against several American

fathers, including me.

Especially in Scandinavia, mothers also increasingly have the option of going ‘‘underground’’ or otherwise stalling long enough to have the case reopened, with the

best interests of the child(ren) then being found to require remaining in place because they are fully resettled. Of course, in social welfare States where the governments continue to pay legal fees, child maintenance, and other allowances to child

abductors, the authorities can easily find those who go ‘‘underground’’ if they want

to.

While a few countries that provide legal aid to both parties in Hague cases without regard to need (e.g., the United Kingdom) may have a valid complaint about the

failure of the United State’s to provide legal aid to anyone, the situation is far worse

where a government pays unlimited legal fees at home and abroad for its child abductors, so that left-behind American parents are confronted by the deep pocket of

a foreign government not only in foreign courts but also in U.S. courts. The point

is that foreign parents are not in any way up against the U.S. Government in abduction cases here.

United States Government Response (or lack thereof) To Foreign Government Support of International Parental Child Abduction and Wrongful Retention of Children Abroad

Today, when an American parent faces the nightmare of international child abduction or wrongful retention abroad, he or she does so alone in most respects. Legal

fees and other expenses can quickly mount to tens of thousands of dollars. A decade

after U.S. ratification of the Hague Convention on the Civil Aspects of International

Child Abduction, there is still no central repository of reliable information and expertise in the Executive Branch that can quickly and effectively supply accurate

basic data on the legal system, child custody institutions, law enforcement system,

social welfare system, legal aid program, and Hague Convention performance of the

abductor’s country. The left-behind American parent thus has little basis for evaluating the options available.

Some of the information supplied by the Executive Branch last year to the Senate

Foreign Relations Committee in order to obtain the release of 38 law enforcement

treaties was inaccurate, incomplete, and misleading, particularly the implication

that ‘‘everybody does it’’ and that the United States is no better than most other

countries. That implication is false, and the Executive Branch knows it. Moreover,

the frequent claim by the Executive Branch that elementary but essential information on a variety of matters concerning foreign legal systems in connection with

child abduction or child custody is ‘‘not available’’ to the Executive Branch is untrue.

This information is readily available and could be obtained without difficulty or expense from American embassies, experts in the field, local attorneys, and American

parents who have learned the hard way. The Executive Branch simply does not

want Congress to have this information because of the likely Congressional reaction.

Although all concerned would presumably agree that prevention and deterrence

of child abduction or wrongful retention are the ultimate goals, little is being done

in this area. Dissemination of information on the key institutions, laws, and child

custody practices of other countries is the key to eliminating much of the secrecy

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and ignorance that leads to successful child abductions and retentions. Countries

whose legal systems and child custody institutions guarantee frequent non-compliance with the Hague Convention or no visitation or other rights for American parents need to be publicly identified and analyzed in depth.

There is no monitoring by the Executive Branch of U.S. litigation financed by foreign governments against left-behind American parents (or responsiveness to reports of such litigation), so that U.S. Government statements of interest or amicus

curiae briefs can be filed in landmark cases. Instead, the Executive Branch participates in Hague Convention and perhaps other litigation on behalf of foreign parents

while failing to help Americans up against the deep pocket of foreign governments

trying to reverse or undermine U.S. court orders. Assisting Americans would not require a significant increase in resources. In two recent cases, statements of interest

from the U.S. Government of only a page or two would have been invaluable. In

my own case, I prevailed in upholding the U.S. custody order in the highest courts

of Virginia, but only at a personal cost of more than $20,000 while the Swedish Government financed this bad faith litigation to exhaust my financial resources while

having no intention of respecting any result adverse to the Swedish abductor. In the

other case, Mark Larson of Utah lost in the 10th Circuit for acting precisely in accordance with U.S. Government policy and advice in Hague Convention cases. In

view of the strong dissenting opinion, literally a few sentences in a U.S. Government

statement of interest might have made a difference.

In contrast, foreign Central Authorities often work just as hard to assist their nationals who abduct or wrongfully retain children as they do for their nationals who

are victims of these offenses. In the case of the Swedish Central Authority, its support of child abduction and wrongful retention include such means as coordination

of litigation strategy in both Sweden and the U.S. against American parents. This

has included creative attempts to:

(a) use the Uniform Child Custody Jurisdiction Act in U.S. courts to obtain

for Sweden the status of an American state for purposes of jurisdiction and enforcement of Swedish custody orders, and,

(b) use the mere existence of the 1993 International Parental Kidnapping

Crime Act in both Swedish and U.S. courts as a justification for not returning

children to the U.S. on the pretext that the Swedish abductor might be prosecuted (which adds insult to injury in view of the fact that the Justice Department will only rarely enforce the Act).

Other activities of the Swedish Central Authority have included automatic distribution of Swedish and U.S. Government documents and information to Swedish

abductors and their attorneys (while the State Department tells Americans to file

Freedom of Information Act requests), informing the Swedish police and prosecutors

that American child custody orders have no validity in Sweden in contravention of

the whole object and purpose of the Hague Convention set out in Article 1, translation only of court decisions and other documents favorable to the Swedish abductor, and so on. Such conduct by a foreign government, especially its Central Authority for an international convention against child abduction and wrongful retention,

should receive the widest possible exposure and censure.

Litigation in the United States financed by foreign governments against Americans who are already the victims of crimes committed by nationals of those governments should at least raise some serious questions about possible abuse of sovereign

immunity. For example, the Swedish Government attempts to put a legal gloss on

the abductions and wrongful retentions committed by its citizens by pursuing frivolous appeals of U.S. custody orders all the way to the supreme court of the states

concerned even when the children have been held hostage in Sweden for years.

Roughly five years ago, Julia Larson was abducted to Sweden from Utah for the

third time and my daughter Amanda was wrongfully retained in Sweden. Neither

child has been in the United States nor been allowed normal contact with their

American families, but the Swedish Government has considered it necessary to try

to make everything look ‘‘legal’’ by attacking the Utah and Virginia custody orders

in extremely expensive and time-consuming litigation. An effort in Virginia to satisfy a money judgment against the abducting mother by garnishing the retainer

paid to her attorney was blocked by an affidavit (attached) declaring that all funds

held by the law firm are directly from ‘‘the Kingdom of Sweden’s legal aid agency.’’

Several additional preventive and remedial actions by Congress are needed to

‘‘level the playing field’’ for American parents facing off against foreign governments. Congress is confronted daily with many competing demands that have serious resource implications. This request does not. It seeks only the requisite political

will to accomplish the objectives of better protecting American children from interVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00281 Fmt 6601 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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national parental kidnaping, especially when such conduct is directly supported by

foreign governments.

Proposed Congressional Actions Against International Child Abduction

In view of the overall poor performance of the State and Justice Departments for

many years, receivership is necessary. Accordingly, the following proposals do not

constitute micro-management.

(1) U.S. Central Authority

PROPOSALS: (A) Amend ICARA if necessary or otherwise direct that the U.S.

Central Authority for the Hague Convention be shifted immediately from the State

Department to the Civil Division of the Justice Department (with the State Department directed to provide all support and assistance requested), taking into account

the need to improve such areas as:

• training and expertise of personnel • continuity and institutional memory of personnel • number of personnel available • caseload of personnel • quality, quantity, and nature of legal support available • the balance between child abduction/retention cases and ‘‘good relations’’ in bilateral relations • the role of regional bureaus and American embassies • general openness and a willingness to provide left-behind American parents

with all available information and documentation.

(B) Direct that NCMEC cease handling incoming cases and play the same role for ‘‘outgoing’’ cases (i.e., abductions from the U.S. and retentions of American children

abroad) that it has been playing for ‘‘incoming’’ cases, with a mandate for assertive

advocacy on behalf of American parents on all fronts.

(2) Human Rights and Prevention, Publicity, and Accountability (See also pages 43– 53)

PROPOSALS: (A) Human Rights: In the ‘‘children’s rights’’ section of the annual

human rights report on each country, direct that the child custody system be summarized, including gender bias or bias against foreigners based on statistical evidence, enforceability of visitation/access for noncustodial parents (i.e., is there anything comparable to contempt of court?), payment of legal fees for host country nationals in custody or abduction cases, criminal legislation that protects abductors/

withholders, compliance (or not) with the relevant provisions in the Convention on

the Rights of Child on the role of both parents, the right of children in international

cases to spend time in both countries, etc. The U.S. is not a Party but has signed

and complies with the relevant provisions to a far greater extent than most States

Parties.

• Each year, the annual human rights report is eagerly awaited, widely disseminated, and, unlike most government reports, widely read throughout the world.

One important function that the annual human rights reports should perform

is prevention, as ‘‘human rights advisories’’ comparable to travel advisories; i.e.,

to alert potential victims of current and/or ongoing, systemic human rights

abuses. If just one child from ANY country is saved from being lost because a

judge, attorney, parent, or family friend reads or hears about government-supported child abduction/retention in a given country, then an accurate and complete report will have accomplished something both worthwhile and right. An

accurate and complete report on countries such as Sweden would constitute a

great service to American and other parents who might be warned in time to

avoid losing their children.

• This subject belongs in the Human Rights Reports on its merits based on the

numerous provisions in international human rights instruments that are violated by foreign governments in these cases. The First Lady has been right morally and legally in repeatedly declaring that international child abduction and

retention are a human rights matter. State Department opposition is ludicrous,

especially in view of what IS covered in the reports already and the fact that

this is a systematic human rights abuse against Americans, whereas the current reports are devoted almost exclusively to what foreign governments do to

their citizens.

(B) Enact a permanent annual reporting requirement on Hague Convention Compliance to cover retention cases and any case where the child is not returned to the

United States not resolved within 6 months, and to include lists of countries that

do not have anything comparable to contempt of court and cannot enforce their own

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civil court orders, that pay the legal fees of their abductors/retainers, that have

criminal legislation which effectively protects their abductors/retainers, etc.

(3) Bilateral Relationships

PROPOSAL: Review what type of relationship the United States should have with

governments that engage in the following conduct and attach consequences such as

no new law enforcement treaties or child support enforcement agreements if they:

• are directly engaged in facilitating, financing, otherwise supporting, and rewarding criminal conduct against American citizens

• have in place any elements of a governmental child abduction system

• have refused return of American children abducted/retained in violation of U.S.

law or court orders

• have unresolved cases of abduction/retention of American children with no

meaningful or enforceable access for the American parent

• use their law enforcement authorities aggressively against American parents

whose children have been abducted/retained and rarely if ever use them to assist American parents

• have failed to compensate American parents of abducted/retained children for

their legal and other expenses

• abuse their sovereign immunity by financing litigation in U.S. courts against

American parents while claiming that the cases are private custody disputes

and refusing to respect/enforce results adverse to their citizens.

(4) Extradition

PROPOSAL: Direct that the United States inform all extradition treaty partners

that the U.S. will not extradite its nationals for the offense of parental child abduction or related offenses to any country that will not extradite or effectively prosecute

its nationals and will not fully comply with its obligations under the Hague Convention.

(5) Mutual Legal Assistance Treaties (MLAT’s)

PROPOSALS: (A) Consider whether the United States should provide assistance

against a left-behind American parent in any case where there has been a child abduction/retention in violation of U.S. law or court orders AND whether the United

States should provide assistance under any foreign law that criminalizes the attempts of custodial parents (sole or joint) to exercise their parental rights in response to abduction/retention of their child(ren). (e.g., See attached Swedish penal

law that has been used against several American parents of abducted/retained children).

(B) Refuse to sign or ratify an MLAT with any country that consistently supports

international child abduction such as Sweden, in view of participation by Swedish

police and prosecutors in the commission of Federal and state felonies against

American citizens, Sweden’s blatant and continuing violations of its obligations

under related treaties, the unacceptable elements of Sweden’s legal and social welfare system (summarized above), and the current and past cases of criminal conduct

and human rights violations against American children and their parents directly

facilitated, financed, rewarded, and supported in every conceivable way by the Government of Sweden.

(C) Deliver a message comparable to the following one that should be delivered

to Sweden to any country that engages in similar conduct; i.e., that no further consideration will be given to moving forward on a mutual legal assistance treaty

(MLAT) until the Government of Sweden:

• terminates its comprehensive participation in ongoing Federal and state crimes

against American citizens, in particular the International Parental Kidnapping

Act of 1993 (18 USC 1204) and the comparable laws of each state

• acknowledges that American children over whom Swedish courts exercise custody jurisdiction are completely lost to their American parents unless the Swedish parent decides otherwise, and takes effective remedial actions

• eliminates the Swedish Government Child Abduction System (see above), starting with acknowledgment and elimination of the 5 pillars of the System (no

principle of international comity in the Swedish legal system, undeniable bias

by Swedish courts against non-Swedish fathers in regular custody proceedings

and guaranteed sole custody awards for Swedish child abductors, nothing comparable to contempt of court to enforce access/visitation, unlimited government

financing of legal fees and other expenses of Swedish abductors, and aggressive

Swedish law enforcement use of a criminal statute that targets non-Swedish fathers)

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• resolves satisfactorily all pending cases of child abduction/retention by Swedish

citizens through return of the children to the United States and putting in place

immediately enforceable criminal remedies against the Swedish citizens involved to prevent any recurrences

• implements and demonstrates the effectiveness of reforms of its legal and social

welfare system to deter or quickly resolve in an acceptable manner all future

cases, including in particular unsupervised and immediately enforceable access

to the children concerned guaranteed by something comparable to criminal contempt, termination of legal aid for child abductors in civil proceedings, and

streamlining its legal system to prevent endless appeals and delays

• repeals its criminal law directed against non-Swedish fathers attempting to exercise sole or joint custody rights over children abducted or withheld by Swedish

mothers

• directs its police and prosecutors to cease harassing and attempting to intimidate American and other parents of abducted/retained children who attempt to

exercise their custody rights

• compensates American parents of abducted/retained children for all expenses of

litigation financed by the Swedish Government in both Sweden and the U.S.,

as well as all other costs and damages resulting from Sweden’s failure to comply with its treaty obligations under the Hague Convention on the Civil Aspects

of International Child Abduction and the family/parent provisions of the Convention on the Rights of the Child

• halts its abuse of sovereign immunity in aggressively litigating against American parents in U.S. courts with no intention of respecting or enforcing results

adverse to the Swedish citizen

• demonstrates that it will extradite or effectively prosecute Swedish parents who

engage in child abduction/retention.

(6) Child Support Enforcement

PROPOSAL: Terminate the State Department authority in P.L. 104–193 (Section

459A) or at least amend it to:

(a) prohibit any child support enforcement arrangement with a country that

does not have a legal system providing prompt, adequate and effective enforceable, unsupervised access/visitation IN THE UNITED STATES by means of

something comparable to contempt of court

(b) prohibit any child support enforcement arrangement unless it contains

ironclad guarantees that no American parent of an abducted/retained child will

be affected, harassed, or penalized in any way AND it expressly excludes any

case where there is or has been at any time:

• a violation of a U.S. custody order or U.S. custody law

• a violation of a Federal or state criminal law

• a denial of a request for return of the child(ren) under the Hague Convention

or a failure of the foreign Central Authority to comply with other Convention

obligations

• termination or reduction of any support obligation by a U.S. court

• an unpaid judgment or fine imposed by a U.S. court on the foreign parent

• a failure by the foreign government or its courts to provide rapidly enforceable,

unsupervised, and generous visitation in the United States with police assistance and with no legal aid provided to the foreign parent violating a foreign or

U.S. custody order

• an inability or refusal by the foreign government/courts to control the conduct

of the foreign parent through contempt of court or other effective means

• an inability or refusal by the foreign government/courts to protect and promote

the exercise of parental rights by the American parent

(7) Implementation of the International Parental Kidnaping Act of 1993, 18 US 1204

PROPOSAL: Either mandate Justice Department enforcement of the Act or repeal

it, in view of the foreign government efforts to use the Act against Americans noted

above. At present, the law is primarily used against Americans and rarely enforced

by the Justice Department.

• If not repealed, require an annual DOJ report on the number of requests from

parents or their counsel for indictments, number of indictments, number of extradition requests, number of actual prosecutions, etc.

(8) Privacy Act

PROPOSAL: Require that left-behind parents be provided with the option (in

writing) to waive all Privacy Act rights so that their names can be given to parents

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involved with the same country and to organizations (such as NCMEC) that can

help.

• Prohibit use of the Act to withhold any information or documents from left-behind American parents

• Prohibit use of the Act on behalf of abducted American children or abductors

(even if U.S. citizens) as a basis for withholding information or documents from

left-behind American parents

(9) Freedom of Information Act (FOIA)

PROPOSAL: Prohibit use of FOIA as a basis for refusing release of ANYTHING

and EVERYTHING to American parents in child abduction/retention cases (information, documents, diplomatic and other government-to-government correspondence,

etc.)

• these are not matters of national security; a left-behind American parent has

an absolute right to know everything that his government has done or failed

to do to obtain the return of the American children concerned

(10) Exception To Foreign Sovereign Immunities Act

PROPOSAL: Create an exception to the FSIA giving American citizens a cause

of action in U.S. district courts against foreign governments (and all their assets in

the United States) that directly engage in, facilitate, or otherwise support criminal

conduct against them and their children.

(11) Bilateral Claims

PROPOSAL: Consider the use of bilateral U.S. Government claims on behalf of

American children and their parents against foreign governments that have permitted their nationals to abduct/retain American children (and perhaps provided assistance and support).

(12) Office of Foreign Missions

PROPOSAL: Require OFM to: (A) regulate and monitor the hiring and payment

by foreign governments of American attorneys in cases of abduction/retention of

American children where U.S. civil/criminal law or U.S. court orders have been violated, and (B) monitor and discourage any harassment of American citizens by foreign government agencies demanding either ‘‘child support’’ for abducted/retained

American children or reimbursement to the foreign government of the legal fees it

has paid for someone who has abducted or retained American children.

(13) Interpretation of the Hague Convention

PROPOSAL: Direct that the Executive Branch inform all U.S. courts and Hague

Convention countries that the term ‘‘grave risk’’ in Article 13 of the Convention (as

a grounds for not returning a child) should be interpreted to include situations

where the country concerned cannot provide enforceable access or visitation owing

to the absence of anything comparable to contempt of court in its legal system.

ATTACHMENTS: As noted

THOMAS A. JOHNSON,

Alexandria, Virginia, April 25, 1997.

Subject: International Parental Kidnaping of Amanda K. Johnson

ROB CHESTNUT, ESQ.,

Chief, General Crime Section,

Office of the U.S. Attorney,

Eastern District of Virginia.

DEAR ROB: Thanks again for returning my call. Sorry I missed you on my way

out of town. I will be back in the office on May 12.

As I indicated in my message on Friday, the intent and language of Congress and

the President in enacting and signing the International Parental Kidnaping Crime

Act of 1993 were clear, and the reasons that you have given thus far for not proceeding are not consistent with the letter and spirit of the Act. Rather than repeating and supplementing previous arguments, I would simply ask at this point that

you and the U.S. Attorney look over the materials I am faxing. Combined with the

items you already have, the contrast could not be greater between the direct support

that Swedish nationals who commit felonies against American citizens receive from

the Swedish government and law enforcement authorities on the one hand, with the

situation of their American victims on the other hand.

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The first item consists of pertinent pages from the appellate brief in Virginia financed and supervised by the Swedish government. Last August, I informed you

that the attorney hired by Sweden, Richard Crouch, tried to make an ‘‘inconvenient

forum’’ argument in the Alexandria Court by asserting that the abducting mother

would be prosecuted under the 1993 Act. When the judge expressed skepticism,

Crouch tried to gain ground by lying to the Court, claiming that one of his clients

was ‘‘being prosecuted under the Act.’’ You told me that no one has been charged

or prosecuted in your district under the 1993 Act and that you had not heard of

any cases nationwide. (There has apparently been at least one conviction under the

Act since last summer.) In any event, you will note from the marked portions of the

brief that Crouch (and the Swedish government) are adding insult to injury by attempting to use the mere existence of the law that your Office refuses to enforce

in order to consolidate the successful commission of a crime covered by the Act.

There is something terribly wrong if you and the U.S. Attorney do not have a problem with a foreign government notorious in the child abduction field making such

a mockery of U.S. law (and the U.S. law enforcement system generally) in a case

involving a child from your district who is literally being held hostage, as the other

items demonstrate.

The second item (circled portion) is the Swedish penal code provision under which

I was arrested in September after picking up my daughter at her school, going to

McDonalds, and returning to our hotel. A Swedish prosecutor authorized my arrest,

and I was held for 48 hours as pure intimidation. Since there was insufficient evidence of any crime even under the Swedish system, I was released and returned

home. But the ‘‘investigation’’ was dragged out for two months, during which I was

not allowed even to speak with Mandy by telephone because she was ‘‘a potential

witness.’’ I trust you agree that the ‘‘law’’ in question would be unconstitutionally

vague and against public policy here. Its only purpose is to protect Swedish child

abductors. Two senior Swedish prosecutors have told me that it is intended for use

against ‘‘fathers from the South’’ (Arabs and Africans), but conceded that it is also

useful against other lesser breeds such as Americans. Suffice it to say that Swedish

prosecutors take care of their own.

The third item is a translation of the police orders for the supervision of my visitation with Amanda just before Christmas. There is no Swedish custody order. The

only custody order in the world gives me sole and exclusive custody. But the Swedish police were willing to devote two officers for guard duty on three different days

in furtherance of criminal conduct. Your office is apparently unwilling to devote relatively minimal time to paperwork in response to criminal conduct. In view of the

Swedish government’s acknowledgment in the appellate brief that the mother has

violated the 1993 Act, this action in December constituted direct participation by the

Swedish police in an ongoing felony. The fourth item is photographic evidence of

that criminal conduct.

The fifth item constitutes mail fraud and attempted extortion, and is probably

covered by RICO. The Swedes determined the monthly amount by taking one provision from the Virginia order that they are otherwise completely violating and extrapolating a weekly amount of child support that was to be paid only about 55 percent of the time until Mandy’s 18th birthday to cover 100 percent of the time. There

has been no Swedish custody hearing, but the Swedes are proud to be able to state

the results in advance and to recognize reality in assuming 100 percent of the time

with the mother, since there is no enforceable visitation under the Swedish ‘‘legal’’

system.

I hope that the sum total of these items will cause you to reconsider. Some cases

do come down to a clear choice between right and wrong. This is one of them.

SUMMARY OF THE SWEDISH GOVERNMENT SYSTEM OF INTERNATIONAL ABDUCTION

AND WRONGFUL RETENTION OF CHILDREN

In both domestic and international situations, cases of abduction and wrongful retention of children by a Swedish parent are not merely ‘‘private custody disputes,’’

in view of the lack of effective remedies provided by the Swedish legal and social

welfare systems to the left-behind parent and the extensive Swedish government financial, law enforcement, social welfare, and other support supplied to Swedish parents who engage in abduction/retention of children.

In international cases where only one parent is Swedish (particularly where the

mother is Swedish), children not returned under the Hague Convention on the Civil

Aspects of International Child Abduction are, as a practical matter, completely lost

to their non-Swedish parents unless the Swedish mother decides otherwise. This is

the result of the Swedish legal system’s inability to effectively control the conduct

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of Swedish parents and protect the rights of non-Swedish parents in the absence

of any judicial power comparable to contempt of court. In regular child custody proceedings, Swedish courts invariably grant sole custody to Swedish mothers and, as

noted, have no power to enforce visitation for non-custodial parents. Although a new

Swedish law entered into force on October 1, 1998 permitting Swedish judges for

the first time to impose joint custody over the objections of one parent, this law will

not be applied with any practical effect when a foreign father is involved. Moreover,

the terms of any such joint custody order will be just as unenforceable in Sweden

as the visitation provisions of a sole custody order. Similarly, although Swedish

legal principles permit sole custody to be shifted from a parent who denies access

to a child on the grounds that such a parent is unfit per se, it is highly unlikely

in such a case that custody would ever be shifted from a Swedish mother to a nonSwedish father when the consequence would be that the child leaves Sweden to reside elsewhere.

Even in cases where a foreign parent has sole or joint custody under a non-Swedish custody order and no Swedish custody order exists, there is no concept of comity

in the Swedish legal system, (despite Sweden’s obligation under Article 1 of the

Hague Convention to ensure respect for the rights of custody and access under the

law of other States Parties). Swedish law enforcement authorities, having been informed by the Ministry of Foreign Affairs that foreign custody orders ‘‘have no validity in Sweden,’’ aggressively interfere with any effort by a foreign parent to exercise

his custody rights in Sweden and may arrest and prosecute him under a unique

Swedish penal law that effectively protects and rewards Swedish child abductors/

retainers.

In both Hague Convention and regular child custody litigation in Sweden and

abroad (including all possible appeals in Sweden, the other country concerned, and

the European system), the Swedish social welfare system provides unlimited payment of legal fees for Swedish citizens, thus significantly reducing the incentive for

the Swedish child abductor/retainer to compromise or otherwise settle the case. This

enables the Swedish citizen to pursue appeals to the highest courts of Sweden and

the other country concerned at no expense, while exhausting the financial resources

of most non-Swedish parents. In any event, Swedish authorities will not enforce or

otherwise respect foreign appellate judgments against Swedish parents.

In non-Hague cases, as demonstrated by the now leading decision of Sweden’s supreme court in the Ascough case during 1997 (children of Australian/British father

and Swedish mother residing in Singapore), the Swedish courts will take jurisdiction and award sole custody to a Swedish mother even in cases where the children

were born outside of Sweden, clearly reside outside Sweden, have never resided in

or even visited Sweden, and were unquestionably abducted to Sweden.

In summary, Sweden’s overall legal and social welfare system concerning child

custody and parental child abduction/retention does not comply with numerous provisions of human rights treaties to which Sweden is a Party, notably the Convention

on the Rights of the Child, the European Convention on Human Rights, and the

International Covenant on Civil and Political Rights as a result of six factors:

(1) the undeniable gender and national bias of Swedish courts, especially in

favor of Swedish mothers

(2) the absence of anything comparable to contempt of court to enforce visitation or other parental rights for fathers (i.e., non-custodial parents)

(3) the unlimited financial support received in Sweden and abroad by Swedish

child abductors

(4) enforcement by Swedish law enforcement authorities of a criminal law intended to protect and reward Swedish child abductors

(5) the lack of comity with respect to non-Swedish court orders, and

(6) the refusal of Sweden to extradite or effectively prosecute Swedish child

abductors.

Most notably, Sweden’s legal and social welfare systems are inconsistent with

both the letter and spirit of Sweden’s obligations under the Convention on the

Rights of the Child to ensure contact with both parents and, in international cases,

with both countries. Thus, Sweden cannot ensure compliance with the provisions of

the Convention most relevant to child custody and child abduction/retention: Articles 9, 10, 11, and 18. The United. States has signed but not ratified the Convention, but complies with these articles in practice to a far greater extent than Sweden.

AMANDA’S CASE

Voluminous documentation concerning Amanda’s wrongful retention in Sweden by

a Swedish diplomat and the Government of Sweden, as well as information on other

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American children abducted to Sweden, has already been supplied to Committee

staff. An updated chronology of the case is attached to this statement, along with:

• the unanimous decision of the Virginia Court of Appeals upholding the Virginia

Custody Order • the Virginia Supreme Court Order dismissing further appeals • Swedish Government demands for reimbursement of legal fees and child support paid to the abductor • a Swedish criminal law intended and used to protect Swedish child abductors

and punish non-Swedish parents who attempt to exercise their custody rights • photographs showing Swedish police participation in the continuing Federal and

state felonies against Amanda and me, and • an outline of the Swedish Government’s System of supporting and financing parental child abduction.

With full support in every conceivable way from the Government of Sweden,

Amanda has literally been held hostage in Sweden since early 1995, in violation of:

• U.S. civil law and court orders to which the mother agreed in open court • U.S. Federal and state criminal law • Sweden’s international legal obligations under several treaties (The Hague Convention on the Civil Aspects of International Child Abduction, the Convention

on the Rights of the Child, the European Convention on Human Rights, and

other human rights instruments) • Sweden’s own civil and criminal laws on joint custody and child abduction

(which are never enforced against Swedish mothers), and • the eligibility requirements for payment of all legal fees in Sweden and abroad

by the Swedish Government (which are apparently conveniently waived for

Swedish abductors).

The facts of the case are clear. Amanda, a U.S. citizen and resident from birth

(November 11, 1987), is also a Swedish citizen. She was a U.S. Government dependent during her first two years while I was posted at the U.S. Mission in Geneva.

Mandy then lived with me in Virginia roughly fifty percent of the time until age

6, attending three years of preschool and kindergarten at Browne Academy in Alexandria, Virginia. She spent the rest of her time in New York with her mother, Anne

Franzen, who was the lawyer at the Swedish Consulate with lead responsibility for

child abduction and custody matters, and who was actually offered the position of

Head of the Swedish Central Authority for the Hague Convention upon leaving New

York. Despite being wrongfully withheld outside the U.S. for nearly five years now,

Amanda has still lived longer in an American diplomatic community or the U.S.

itself than in Sweden. She should have been living again in the U.S. since the

spring of 1995 under the agreed terms of a December 1993 Virginia custody order

and subsequent enforcement orders, which make clear that Amanda’s habitual residence continues to be Virginia, that the Virginia courts have continuing exclusive

jurisdiction over her case, and that the parents are prohibited from seeking custody

modification in any court anywhere in the world without the consent of the Virginia

court.

The case against Anne Franzen (Deputy Assistant Under Secretary for Human

Rights in the Swedish Foreign Ministry at the time) was so strong that four Swedish courts either ordered Amanda’s return under the Hague Convention or held that

Sweden did not have jurisdiction over Amanda because she was only in Sweden

temporarily in accordance with the Virginia Custody Order to which the mother had

agreed. After endless delays, stays of execution, appeals, and litigation financed for

the mother by the Swedish Government in 8 separate proceedings in 6 courts (a

Hague process that lasted 17 months instead of the 6 weeks set forth in the Convention), the final court from which there was no appeal (the Swedish Supreme Administrative Court or Regeringsratten) reversed all the lower court rulings in a May

1996 decision that has been declared by the U.S. Government in diplomatic notes

to be a violation of the Convention and that has been rejected by the highest courts

of Virginia.

On August 9, 1996, with the abducting mother represented by counsel paid by the

Swedish Government, the Virginia Court granted me sole and exclusive custody,

made contempt findings, and issued several other forms of relief. There was never

a Swedish custody order of any kind concerning Amanda until an interim joint custody order was issued by a Swedish court in February 1999. The Virginia Custody

Order has withstood costly challenges in the highest courts of Virginia financed by

the Swedish Government, and remains the only final order in the world. But Amanda continues to be wrongfully withheld from me, the rest of her American family,

her home and familiar environment, and her country by her mother and by the Government of Sweden through a legal and social welfare system that fails to meet even

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minimal standards of due process of law (e.g., no rules of evidence and no prohibitions on ex parte communications with judges).

Between December 1995 and June 1999, Amanda was able to see me on only five

occasions, for a total of 15 hours. On the second occasion (September 16, 1996), after

picking Amanda up at her school as a custodial parent unwilling to subject the two

of us to the continued degradation of supervised visitation that had unlawfully been

imposed for nearly two years at the time, I was wrongfully detained in her presence

four hours later at our hotel (where I had informed the mother we would be) by

four Swedish policemen at the abducting mother’s request. I was held in solitary

confinement for nearly 48 hours, despite (or actually because of) the fact that I have

sole custody under the only final Custody Order in the case and have joint custody

even under Swedish law. Although I was released, never charged with any offense,

and compensated by the Swedish Government for wrongful detention, the incident

has done incalculable harm to Amanda and to my relationship with her.

On the third and fourth occasions, in December 1996, I was only allowed to see

Mandy under police guard at her school, with the police challenging the presence

of the Vice Consul from the American Embassy an one occasion and making a further mockery of my joint custody ‘‘rights’’ in Sweden (see attached photographs of

Swedish police car at Amanda’s school). Amanda and I did not see each other after

that demeaning experience in December 1996 until February 1999 when the abducting mother supervised some brief visitation.

Every element of joint custody has been violated: no school or medical records, no

photographs, no information on activities or general welfare have been provided to

me. There has been no response to any of the countless letters and packages sent

to Amanda. For the summers of 1997 and 1998, creative efforts by my Swedish and

American attorneys to arrange visitation in the United States with guaranteed returns to Sweden (U.S. court orders ARE enforceable) or any type of supervised or

unsupervised access in Sweden were summarily rejected by the mother and her attorney. No assistance was provided by the judge now assigned to the case. The judge

who previously dismissed the mother’s petition for sole custody and upheld the Virginia Order has, not surprisingly, been removed from the case.

In February, an interim joint custody order was issued over the mother’s objection

because joint custody is now the norm in Sweden, although it has no practical enforceable meaning in Sweden. The terms of the order gave the mother de facto sole

custody, with only supervised visitation in Sweden. Even this meaningless ‘‘joint

custody’’ was reversed by the same judge in June 1999 at the mother’s request. Several hours per day of supervised visitation took place for a few days in June 1999.

The good relationship between Amanda and me has survived despite all efforts by

the abductor and the Swedish Government to destroy it, but serious damage has

been done to the child (a nervous tick in both eyes). Amanda lived alone with me

in Virginia and attended three years of school roughly half the time for nearly 4

years, but everything possible has been done to de-Americanize her and eliminate

her relationship, with me.

In September 1999, an appeals court reversed part of the June 1999 interim

order, restoring joint custody-and saying that visitation (still limited to Sweden)

does not need to be supervised. Like everything else in the Swedish system, this

is not enforceable, and an effort for contact between Amanda and me during the October 8–10 weekend therefore collapsed over the issue of supervision.

INTERNATIONAL CHILD ABDUCTION AND WRONGFUL RETENTION IN SWEDEN

Name of Child: Amanda Kristina Johnson

Date and Place of Birth: November 11, 1987, Geneva, Switzerland

Current Location: Radjursstigen 14, 17072 Solna, Sweden

Telephone in Sweden: (8) 851436

ID Number in Sweden: 871111–0547

Wrongfully Retained in Sweden since January 1995

Four Swedish courts either ordered Amanda’s return under the Hague Convention

or denied Swedish jurisdiction

Final denial of return by Supreme Administrative Court (Regeringsrattan) in May

1996

Father: Thomas A. Johnson, 907 Dalebrook Drive, Alexandria, Virginia

• primary custodian since June 1995

• sole and exclusive custody of Amanda since August 1996

Mother: Anne Franzen or Anne Franzen Johnson (address and telephone above)

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• no custody order but given de facto sole custody rights by Swedish law enforcement and social welfare authorities

Mother’s employer: Swedish Ministry of Foreign Affairs

• she is former Deputy Assistant Under Secretary for Human Rights

Proceedings: 14 separate proceedings in 10 different courts in New York, Virginia,

and Sweden with the Swedish Government paying the mother’s legal fees in ALL

Pillars of the Swedish Government Child Abduction System:

• no comity for foreign law or court orders despite Sweden’s obligations under Articles 1 and 2 of the Hague Convention

• extreme gender bias and nationalistic bias in Swedish courts

• payment of all legal fees for Swedish abductors/ retainers in all proceedings in

Sweden and abroad by the Swedish Government

• nothing comparabLe to contempt of court in the Swedish legal system, so that

Swedish courts cannot control the conduct of Swedish parents or protect the parental rights of non-Swedes

• criminal law that targets non-Swedish parents with sole or joint custody rights

who attempt to exercise those rights.

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PREPARED STATEMENT OF PAUL MARINKOVICH, PARENT OF

ILLEGALLY ABDUCTED SON

Dear Chairman Thurmond: I greatly appreciate your invitation for my testimony

before the Subcommittee on Criminal Justice Oversight on October 27, 1999. Having

just returned from my testimony before the House Committee on International Relations on October 14, 1999, I regret that I can’t physically attend. I respectively ask

my testimony be entered into the record for your hearings as I feel that we have

a very serious problem with the United States Justice Department and the way they

have treated America’s illegally abducted children.

To provide you with a brief history, I have been involved in a three and a half

year battle to try and retrieve my illegally abducted son from an act of International

Child Abduction that took place on August 19, 1996. In that time I have worked

with many different agencies including; the courts of Sweden and Denmark, the

Central Authorities of Sweden and Denmark, the local and national police in Sweden and Denmark, the Swedish and Danish social systems, the Swedish Minister

of Justice, the Swedish Tax Authority, the European Parliament, the United States

Embassies in Sweden and Denmark, the courts of California and Texas, police departments in California and Texas, the United States State Department, the Federal Bureau of Investigation, the United States Attorney’s Office and the Office of

International Affairs.

In addition, I have testified before the Senate Foreign Relations Committee along

side of Attorney General Janet Reno and just completed testimony before the House

Committee on International Relations. I have flown to Sweden eight times, to Denmark two times, to Washington four times and to Texas twelve times.

My case has been the subject of a Cbs Special Assignment, I have had 18 newspaper articles in the United States (and am in process of working on the 19th and

20th), 16 newspaper articles in foreign papers (with 4 additional pending articles

due out this week), 10 television news shows in the United States (with 2 additional

shows pending), 8 television news shows (with the 9th airing at the same time as

your Committee hearings today), and have been the subject of an ABC internet article.

Over this time, along with John Lebeau from Florida (who is testifying today), I

have started a non-profit corporation to help in the fight for our nations abducted

children and have worked at every angle, nationally and internationally, to help

change the systems of government that keep American citizens from their abducted

children.

With all my experience both here and abroad, I have never encountered an organization so arrogant, so unwilling to help, so untruthful, so unsympathetic, and so

unaccountable for their lack of effort as the United States Justice Department.

I testified on October 1, 1998, before the Senate Foreign Relations Committee, at

the invitation of Senator Jesse Helms. I was awarded sole legal custody of my son

by a Texas State court on October 21, 1996, but my son was abducted by his noncustodial mother to Sweden. An indictment was subsequently issued by the Grand

Jury for the abductor’s arrest on May 28, 1997 for violation of Title 18, United

States Code, Section 1204(a). The case is further identified as criminal no. C–97–

129.

On October 20, 1998, I had a telephone conference with my legal council, Mr.

Howard Fox, Assistant United States Attorney from Corpus Christi, Texas, Mr. Tim

Hammer, Special Agent Abel Pena of the Federal Bureau of Investigation in Corpus

Christi, Texas, and Ms. Terry Schubert of the Office of International Affairs at the

Department of Justice.

It was my and my attorney’s distinct impression that Mr. Hammer and Ms. Schubert were attempting to verbally club me into silence by threatening to open false

sexual abuse allegations against me. They then warned me never to contact Mr.

Hammer or Ms. Schubert about my son’s case. I was then bluntly informed that I

have no right to know anything about the Red Notice that was already supposed

to be in place. It was further implied that the Department of Justice would not issue

a provisional arrest warrant against the abducting parent because of my testimony

before the Senate Foreign Relations Committee.

I have been exonerated of the false sexual abuse charges by courts in both this

country and Sweden, have passed lie detector tests and court ordered psychological

evaluations, as well as having undergone extensive investigation by the Federal Bureau of Investigation, and yet Mr. Hammer and Ms. Schubert attempted to use

these false allegations as leverage to silence me.

Then, to add insult to injury, Mr. Hammer explicitly informed me that he would

no longer approve any deal to facilitate the return of my son in exchange for the

abducting parent being charged with a lesser offense. Just two months prior, Mr.

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Hammer offered to drop all charges if the abducting parent would return my son.

In essence, Mr. Hammer and my Justice Department have informed me that the

prosecution of the abducting parent takes precedence over the return of my son and

the assurance of his health, safety and welfare. This decision was made after I testified before the Senate Foreign Relations Committee and participated in extensive

media coverage.

The message so very clearly conveyed to me is that my punishment for being persistent in my exhaustive attempt to protect my son takes precedence over my Justice Department insuring the health, safety and welfare of nine-year-old American

citizen, Gabriel Marinkovich.

The Justice Department has placed little priority on my case. After three years

they have no clue where my son is. The abductor is not a professional criminal, she

is just an American citizen who decided to take the law into her own hands. Recently, Mr. Dale Mitchell, the supervisor of the Corpus Christi FBI office, decided

it was alright to completely take my agent off the search for my son for over two

months without assigning anyone else to handle it in his absence. Agent Pena was

assigned to Delaware for training and was unreachable by telephone or pager. I was

never informed of this management decision and I called their office in desperation

37 different times before threatening to file another complaint with the Inspector

General and to fly to Texas with a California news crew who was doing a story on

my case.

Prior to this I asked the secretary answering the phone just who was in charge.

She indicated that no one was in charge and that the agents rotated the supervision

of the office. On my 38th phone call after delivering my ultimatum, I was then

transferred to Agent Dale Mitchell who was the Supervisor in charge (he too was

absent from the office for the prior two weeks). Only then was I informed that no

agent was handling my son’s kidnaping case, and only then was I able to deliver

the valuable and timely leads that I had been trying to deliver for two months.

Even as I write this testimony, I find myself distracted because of the five unreturned calls into my FBI agent. I urgently need to give him information from the

sister program of ‘‘America’s Most Wanted’’ in Sweden called ‘‘Efterlyst’’ which aired

my case on Thursday of last week (5 days ago). It took three hard years to convince

the Swedish government with demands from our U.S. Ambassador to Sweden and

several members of Congress to get this show aired. Now there are several good

time sensitive leads that need to be retrieved from the Swedish Police that are being

completely ignored by our Justice Department.

I have been assured by both members of the House of Representatives and Senate

that my case should be of the highest priority because it involves the health, safety,

and welfare of a kidnaped American child. The Congress and Senate’s words have

once again been completely trampled on, as evidenced by the inherit lack of action

exhibited by the Corpus Christi FBI. They have been entrusted by the American

people to put America’s laws into action and they are failing miserably at the expense of our children.

I have tried to understand the attitude behind the actions of the Justice Department. After the last three and a half years I think I have finally understood their

misguided attitude towards international parental kidnaping. I have been repeatedly told by members of the Justice Department ranging from my FBI Agent Able

Pena to high level Justice Department officials that parental abduction is a private

matter and that the Justice Department does not want to get involved in it.

Everyone in America is entitled to their opinions, but when these opinions are

placed into Justice Department policy, we are left with the opinions of our highest

law enforcement officials being converted into actions and lack of results. The problem is that their actions and lack of results are in direct conflict with American law.

Since the International Parental Kidnapping Law of 1993, the Justice Department

has operated as an anarchy at the expense of the over 10,000 abducted American

children and their parents.

Their actions and lack of results directly contradicts laws passed by our Congress

and instructions within their own training manuals. The National Center for Missing and Exploited Children created a federally funded publication to educate and

advise law enforcement officials in their investigation of parental abduction cases

called Missing and Abducted Children, Law Enforcement Guide to Case Investigation and Management. It advises law enforcement officers as follows: ‘‘the emotional

scarring caused by these events requires that officers recognize family abduction not

as a harmless offense where two parents are arguing over who ‘loves the child

more,’ but instead as an insidious form of child abuse.’’ The money appropriated by

Congress for this manual and the research put into it might as well been tossed

to the wind because the Justice Department is unwilling, by their past record, to

lift a finger to stop this ‘‘abuse’’ of American children.

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In 1993, the American people and the United States Congress spoke their will and

passed into law the International Parental Kidnapping Crime Act of 1993. It states,

and I quote, ‘‘Whoever removes a child from the United States or retains a child outside the United States with intent to obstruct the lawful exercise of parental rights

shall be fined under this title or imprisoned not more than 3 years, or both.’’

According to a August 31, 1998 newspaper article in the Ventura County Star

about my case, the National Center for Missing and Exploited Children quoted the

following, ‘‘In 1993, case workers estimated about 10,000 children were abducted in

the United States and taken abroad in parental abductions. While the exact numbers

can not be determined today, experts acknowledge that it is significantly higher.’’

Also since 1993, it appears that only 62 arrest warrants have been filed for these

parents, and less than five have been successfully prosecuted.

I visited Washington D.C. four times, testified before the Senate Foreign Relations

Committee on October 1, 1998, testified before the House Committee on International Relations on October 14, 1999, and have intimately engaged in talks with

several members of the Senate and Congress. I was almost unanimously told that

we are a nation of laws and that our system of laws were created more as a deterrent to crime rather than a punishment for crime. It was also explained to me that

the stricter a law is enforced, the higher percentage of compliance is achieved. So

if strict enforcement of laws are a deterrent to crime, then what type of message

is our Justice Department giving the American people by prosecuting only a fraction

of one percent of those who violate the International Parental Kidnapping Crime

Act of 1993? How effective of a deterrent to the crime of International Parental Kidnapping is the issuance of a warrant for less than one percent of those who violate

the International Parental Kidnapping Crime Act of 1993?

Is it any wonder that the National Center for Missing and Exploited Children report that International Child Abduction out of the United States has tripled since

1986? While some are quick to point that the rise in international marriages in the

United States have fueled this dramatic increase, I am certain that most of this increase could have been avoided if not for the inexcusable disregard for enforcement

of the International Parental Kidnaping Act of 1993 by our Justice Department.

Every child that has been abducted since 1993 has had their inherit birth rights

as American citizens selectively stripped from them. Ironically, the institution that

has stripped their rights is the very organization that has been entrusted by the

American people to faithfully uphold the laws of this nation without prejudice.

The brilliance of our founding principles, the constitutional system, and the birth

rights our Declaration of Independence guarantees for every American to life, liberty

and the pursuit of Happiness has been trashed by a few Justice Department officials

who feel they are above the law. Instead, new principles have been created, the constitutional system has been selectively interpreted, and a new set of laws and priorities have been born in the hallways and cubicles of the Justice Department. They

have selectively chosen to remove the birth rights to life, liberty, and the pursuit

of happiness that every American is guaranteed from those children unlucky enough

to be the victims of parental abduction.

One only has to look at any maternity ward across this great nation to see that

every child born today will be at greater risk of being abducted out of this country

then those born yesterday. This is because of the clear message the Justice Department is sending the American people by not prosecuting this crime aggressively.

In my case after a long emotional and financial drain, I was able to join the ranks

of the far less than one percent of the cases that resulted in a warrant. This was

only achieved after a six month full background check into my affairs, having to fly

my present family out from California to Texas for an FBI interview, drumming up

support from my Congressman and local media and thousands of man hours and

at least one hundred letters. I believe it was my persistence that persevered and

not the willingness of my U.S. Attorney to cooperate.

I talked just today to the Swedish Police officer in charge of my case. I asked him

if he was willing to share the recent leads gathered from the investigative Swedish

television show with the FBI. He indicated that in three years, the FBI has never

inquired about the case. He further stated, that if the United States Justice Department isn’t interested in this case, then why should he. He indicated that he was

glad to live in a country who stood up for their children, and for the first time in

my 38 years of life, I was ashamed of my government. I vowed to help change a

bad system.

The United States is the most powerful nation on earth and with that power

comes tremendous responsibility as well as opportunity. American Democracy delivers awesome power in the hands of its citizens, but sadly today it is not engaged

fully and it is our children who harness the repercussions. Our U.S. Justice DepartVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00310 Fmt 6601 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
307

ment has taught Sweden, by their actions, that we do not care about our illegally

abducted American children.

If we show these other countries that we are serious by our actions and requests,

then they start getting serious about the return of our children. The context very

clearly starts here with our own Justice Department. If we don’t treat the abduction

of our children as a serious matter, than how can we expect those other countries

involved to fight for our children’s return.

The miracle we can create today, is for the Justice Department to start taking

this crime seriously and support the wishes of the American people and this Congress by strictly enforcing the International Parental Kidnapping Crime Act of 1993.

If we are a country who neglects to protect our children, what good is the material

prosperity in which we have been blessed? It is high time that we reclaim the sense

of special destiny and purpose that our founding fathers created in our great country. It is time that we stand as world leaders by first enforcing the laws we have

created to protect our youngest citizens, our children. This precious ideal lives in

the hearts of many and our capacity to give it full expression can only be realized

through the work of your committee in forcing the Justice Department to conform

with a law that they do not wish to enforce. You are America’s last hope. The voices

of America’s abducted children and those children destined to be abducted, are

screaming out for your help. Can we dare pretend we do not hear as the Justice

Department has, or can act boldly as the heroes these children desperately need?

Thank you for your consideration.

FRONT PAGE ARTICLE FROM THE VENTURA COUNTY STAR IN SOUTHERN CALIFORNIA

ACTIVIST SAYS GOVERNMENT IS TRYING TO SILENCE HIM

Speaking Out: Critic Of International Abduction To File Formal Complaint

[By Phillip W. Brown, Staff Writer]

(October 22, 1998)

A Simi Valley man who has criticized the U.S. Department of Justice’s efforts to

recover American children taken overseas illegally said Wednesday the agency has

delayed attempts to regain his son in retaliation.

Paul Marinkovich, founder of Simi Valley’s International Child Rescue League,

and his attorney will file a complaint with the department this week claiming federal officials are trying to ‘‘intimidate and silence.’’ In testimony before the Senate

Foreign Relations Committee this month, Marinkovich was highly critical of the

agency’s assistance during his search for his abducted child.

Marinkovich and his attorney claim that during a Tuesday conference call with

officials from the Justice Department, U.S. Attorney’s Office and the FBI, officials

threatened they would not cooperate with Marinkovich’s investigation because of his

recent criticism of the Department.

‘‘They threatened to re-open false child abuse allegations against me and said

they wouldn’t deal with the Swedish government about my case,’’ Marinkovich said.

‘‘They said I was ruining people’s lives by my testimony before the committee.’’

‘‘I want to get my son back, but I want to change a bad system also,’’ he said.

In 1996, after a divorce and custody battle, Marinkovich’s ex-wife, Sindi Graber,

took their son Gabriel to Sweden. She changed their names, remarried and went

underground.

Since then, Marinkovich has devoted his life to finding his son. His search has

been restrained by bureaucracies in the United States and Sweden, even though he

has court orders granting him full custody.

Graber has been charged with felony parental abduction and child endangerment,

and faces possible charges of passport fraud.

Terry Schubert, with the Justice Department’s Office of International Affairs, was

a part of that telephone conference. She declined to comment Wednesday.

‘‘This is a law enforcement agency that handles sensitive matters, therefore I cannot say anything,’’ she said.

The complaint follows Marinkovich’s Oct. 1 testimony before the Senate Foreign

Relations Committee. He criticized U.S. and foreign officials for ignoring and ‘‘not

taking seriously’’ the problem of international child abduction.

Marinkovich also criticized the Justice Department for its ‘‘ineffectiveness’’ in

issuing provisional arrest warrants in international parental abduction cases. Only

one arrest warrant has ever been issued in more than 10,000 reported cases since

1993, according to the National Center for Missing and Exploited Children.

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In the complaint filed with the Justice Department’s Inspector General,

Marinkovich’s attorney, Howard J. Fox, urges an investigation of ‘‘these government

officials who are deviating from their duties and using their powers to threaten citizens into silence.’’ ‘‘It’s time the department of Justice stopped treating the suffering, left-behind

parents as criminals and instead focus its efforts on retrieving this nation’s missing

children,’’ Fox said.

NOTE: The statement that ‘‘Only one arrest warrant has ever been issued in more

than 10,000 reported cases since 1993, according to the National Center for Missing

and Exploited Children,’’ is inaccurate. Recent reports indicate that approximately

62 warrants have been issued.

INTERNATIONAL CHILD RESCUE LEAGUE,

17068 Chatsworth St.,

Granada Hills, California, October 21, 1998.

RE: Complaint regarding the conduct of the Justice Department in relation to Paul

Marinkovich

Inspector General MICHAEL BROMWICH,

United States Department of Justice,

Office of the Inspector General,

10th and Constitution Avenue, NW,

Washington, DC.

DEAR INSPECTOR GENERAL BROMWICH: I am Paul Marinkovich’s personal attorney

and the Director of Legal Affairs for the International Child Rescue League, Inc. Mr.

Marinkovich has been engaged in a legal battle to liberate his son, Gabriel

Marinkovich, from a life of international parental kidnaping.

Mr. Marinkovich testified on October 1, 1998, before the Senate Foreign Relations

Committee, at the invitation of Senator Jesse Helms, regarding his two-year battle

to get his son back. Mr. Marinkovich was awarded sole legal custody of his son by

a Texas State court on October 21, 1996, but the boy was abducted by his non-custodial mother to Sweden. An indictment was subsequently issued by the Grand Jury

for Ms. Graber’s arrest on May 28, 1997 for violation of Title 18, United States

Code, Section 1204(a). The case is further identified as criminal no. C–97–129.

On October 20, 1998, I was present on a telephone conference with Mr.

Marinkovich, Assistant United States Attorney Tim Hammer, Special Agent Abel

Pena of the Federal Bureau of Investigation, and Ms. Terry Schubert of the Office

of International Affairs at the Department of Justice.

It was my distinct impression that Mr. Hammer and Ms. Schubert were attempting to verbally club my client into silence, threatening to open false sexual abuse

allegations against him and warning him to never contact Mr. Hammer or Ms.

Schubert about his son’s case. Mr. Marinkovich was bluntly informed that he had

no right to know anything about the Red Notice that was already supposed to be

in place. It was further implied that the Department of Justice would not issue a

provisional arrest warrant against the abducting parent due to Mr. Marinkovich’s testimony before the Senate Foreign Relations Committee.

Mr. Marinkovich has been exonerated of the false sexual abuse charges by courts

in both this country and Sweden, has passed lie detector tests and court ordered

psychological evaluations, as well as extensive investigation by the Federal Bureau

of Investigation, and yet Mr. Hammer and Ms. Schubert attempted to use these

false allegations as leverage to silence Mr. Marinkovich.

Ominously, Mr. Hammer explicitly informed Mr. Marinkovich that Mr. Hammer

would no longer approve any deal to facilitate the return of Gabriel by which the

abducting parent would be charged with a lesser offense. Two months ago, Mr.

Hammer offered to drop all charges if the abducting parent would return Gabriel.

Now, Mr. Hammer has informed Mr. Marinkovich that the prosecution of the abducting parent takes precedence over the return of the child. This decision was

made after Mr. Marinkovich testified before the Senate Foreign Relations Committee and participated in extensive media coverage.

Thus, the punishment of Mr. Marinkovich for being persistent in locating his son

takes precedence over the return of the child, a United States citizen.

Please note that we were asked repeatedly at the outset of the conversation

whether we were taping the conversation. By the end of the conversation, we understood the Justice Department’s concern that there be no recording.

Mr. Marinkovich has requested that a provisional arrest warrant be sent to Sweden where the abductor is suspected to be in hiding with the child. He has provided

evidence clearly showing that Ms. Graber would met all the standards required for

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extradition. This would provide the Swedish authorities with the authority they

need to expand their investigation and would further show that the United States

is serious about the return of Gabriel Marinkovich. Ms. Schubert stated that this

request would have to come from Mr. Hammer. Mr. Hammer stated that Mr.

Marinkovich has no right to even inquire about a provisional arrest warrant.

We were told that such an application is already at the Office of International Affairs but it has not, and will not, be sent to Sweden. I again believe that this is

another punishment for Mr. Marinkovich’s Senate Foreign Relations testimony and

the resulting news coverage.

The warrant must be sent immediately because the last appeal in Sweden is set

to be heard in the high courts on November 9, 1998. The Swedish police have very

recently observed furniture being moved out of the abductor’s husband’s house in

preparation of a move following the hearing. They believe that this move will most

likely result in placing the child further underground and exposing him to adverse

conditions. We need this request sent to Sweden before the hearing date so the

Swedish Police have the full authority from the United States Government to trace

the abductor’s husband’s movements immediately after his November 9, 1998 appearance in the high courts.

I have practiced law since 1985. It is my professional opinion that Mr. Hammer

and Ms. Schubert were threatening Mr. Marinkovich with dire consequences if he

continued to pursue looking for his son. It is further my opinion that these malicious

efforts are a direct result of Mr. Marinkovich’s testimony to the Senate Foreign Relations Committee and his ability to obtain publicity for his son’s case in the media.

The problem is that Mr. Marinkovich’s effort to locate his son far outstrip the efforts

made by the Department of Justice, thus causing political embarrassment.

It is imperative for the health, safety and welfare of Gabriel Marinkovich and

other missing children that you thoroughly investigate this matter to document why

these government officials are deviating from their duties and using their governmental powers to attempt to threaten citizens into silence.

Mr. Marinkovich has abided by the letter of the law and has not engaged in any,

self-help measures despite being continually offered such services from many

sources. I do not know that I would have had the same restraint if it were my child,

given the open hostility and lack of effective effort that Mr. Marinkovich has encountered from his Department of Justice.

I pray that you will join Mr. Marinkovich and myself in investigating these offenses and bringing the grievous facts to Congress and the American people. It is

time that the Department of Justice stopped treating the suffering left-behind parents as criminals and instead focused its efforts on the international investigation

and prosecution of those who violate the International Parental Kidnapping Crime

Act of 1993, and to assist in the retrieval of this nation’s missing children.

Very truly yours,

HOWARD J. FOX,

Director of Legal Affairs,

International Child Rescue League, Inc.

PREPARED STATEMENT OF ATTORNEY JAN REWERS MCMILLAN, ON BEHALF OF

THOMAS R. SYLVESTER

Senator Thurmond and Members of the Subcommittee: I am the Michigan attorney representing the left-behind parent, Thomas R. Sylvester, whose only child, Carina, was abducted from Michigan in Austria on October 30, 1995 by her mother,

an Austrian native. Mr. Sylvester and I have experienced first-hand the difficulties

in dealing with the Department of Justice in our quest to obtain a criminal remedy

against Carina’s abductor under the International Parental Kidnaping Act, 18 USC

1204 (‘‘IPKA’’). In the process we have been educated as to the shortfalls of both

the criminal procedure and the underlying criminal remedy of IPKA. It is for these

reasons that I sincerely regret that due to prior commitments I was unable to be

present and participate in your hearings on October 27, 1999 on international parental kidnapping, I commend your interest in this matter and greatly appreciate

your consideration of a problem experienced by many left-behind parents and guardians like Mr. Sylvester. I am also particularly grateful to Senator Mike DeWine for

his outrage at the handling of the Sylvester case and his unflagging efforts to give

Mr. Sylvester and other similarly-situated parents the assistance of the federal government they deserve.

In addition to the compelling testimony of Lady Meyer, you were fortunate to hear

the testimony of two American left-behinds, John LeBeau and Laura Hong. Their

cases represent opposite ends of the spectrum on the effectiveness of a warrant and

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indictment under IPKA. In the LeBeau case, a warrant was ultimately issued and

the abducting parent and children returned to the U.S. in its shadow, In the Hong

case, no indictment or warrant was issued and neither the abductor nor the child

were returned. These cases provide a good example to the Subcommittee of the

value and effectiveness of a warrant and indictment under the IPKA in bringing

back both the abductor and the abducted children even though the remedy intended

is punishment of the criminal alone. However, it is important that the Subcommittee be apprised that an indictment and warrant under IPKA alone is insufficient.

It must be acted upon swiftly and aggressively before it can be turned on the American parent as a basis for the court of the other country to deny the return of a

child.

My experience with the Sylvester warrant is obviously unique. However, there are

similar elements in each and every case which has been brought to my attention

and this Subcommittee’s attention. These are as follows.

1. AN INCONSISTENCY IN THE RESPONSE BY THE U.S. ATTORNEY’S OFFICE TO A REQUEST

FOR AN INDICTMENT AND WARRANT UNDER IPKA

Mr. Sylvester was fortunate in obtaining a warrant under IPKA from the U.S.

District Court for the Eastern District of Michigan when the information was, presented. He had waited to do so until the finalization of the civil proceedings in Austria and after the abductor had refused to voluntarily comply with the order for return of Carina affirmed on appeal. Ms. Hong in her testimony refers to an IPKA

warrant issued from her very district prior to her own request. Ease of obtaining

an IPKA warrant was obviously not the case for Mr. LeBeau and Ms. Hong along

with others such as Paul Marinkovich. Their stories, presented to this Subcommittee and the Senate Foreign Relations Committee last year, tell of a U.S. Attorney’s

Office (USAO) clearly under-informed on IPKA and willfully remaining so. Thus the

availability of a warrant under IPKA varies from Cleveland to California, from Florida to Michigan. The determination of whether a warrant will be issued in any particular case is less a matter of the thoughtful discretion of the USAO than a matter

of dumb luck.

It is important to note to the Subcommittee that the standard for issuance of a

warrant under IPKA should be consistently applied in all 50 states and should be

based on a clear understanding of 1PKA. Mr. LeBeau was incorrectly informed that

a warrant could not issue under IPKA until all civil remedies had been exhausted,

Ms. Hong was given a good deal of misinformation for the refusal of the issuance

of a warrant in her case, most notably that a issuance of a state warrant was a

condition precedent to the issuance of a federal warrant. The Cleveland U.S. Attorney even memorialized USAO ignorance of IPKA by writing that to seek an indictment against an individual in order to facilitate enforcement of a civil court order

would be improper use of the grand jury.

These circumstances suggest a lack of education on IPKA in the USAO and the

absence of protocols in the U.S. Attorney’s Manual on IPKA. These shortcomings

could be remedied by the Department of Justice with an informational program as

to IPKA followed up with the implementation of policy as to the handling of such

cases with their inclusion in the U.S. Attorneys’ Manual. This simple step appears

not to have been covered in either the recent Joint Report to the Attorney General

or in Mr. Robinson’ s statement to this Subcommittee.

2. ONCE OBTAINED IPKA CRIMINAL WARRANTS ARE NOT PURSUED BY THE USAO

For three years after the Sylvester warrant was obtained, nothing was done to

act on it toward the ultimate end of obtaining a conviction. Even obtaining information from the USAO as to the options available and next steps was impossible. It

was subsequently learned that the stumbling block for pursuing the warrant was

Austria’s ban on extraditing its own nationals. Without extradition of the abductor,

no conviction could follow. Bearing this in mind, it seemed reasonable that ‘‘provisional arrest requests’’ could be made by the U.S. to the countries neighboring Austria to which the abductor traveled. After three years of pursuing this avenue, Mr.

Sylvester just recently learned of such a request being made to Italy, which denied

the request. Unfortunate as the response of Italy is, it is incomprehensible why it

took three years for the request to be made. Interestingly, I myself learned of the

availability of a ‘‘provisional arrest request’’ to neighboring countries not in response

to my requests to the USAO for information as to options available but rather

through Mr. Sylvester’s networking with other parents.

As found in the Sylvester case, if an IPKA warrant remains in effect in the States,

but is not vigorously pursued, its existence will be used by the court of the country

into which the child has been abducted to justify that court’s not returning the child.

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1 NCMEC is a private, nonprofit organization mandated by the United States Congress, which

serves as a national resource center and clearinghouse for information on missing children and

child protection issues. Founded in 1984, NCNMC is located in the Washington, DC-area and

works closely with the United States Department of Justice to assist families of missing children

and the law-enforcement and social-service professionals who serve them. Since NCMEC’s inception, it has assisted police in more than 65,000 cases of missing children playing a role in reuniting more than 46,000 children with their families. NCMEC has been referred to as a ‘‘high-tech

search center’’ by the national news media in the U.S. and is routinely visited by world leaders

from around the globe who view it as a model for the creation of similar centers in their own

nations.

The reasoning of those courts is that to return the child with the abductor would

mean the abductor would be tossed in jail, necessarily separating the child and the

abductor for some extended period of time. This, the court concludes, would not be

in the child’s best interests. As a result, the very existence of the IPKA warrant,

the issuance of which is so hard fought by left-behind parents, if unpursued, will

work against the left-behind parent in the courts of the country into which the child

has been abducted. Further, in the Sylvester case, the lifting of the IPKA warrant

is being demanded by the abductor before she will consider granting Mr. Sylvester

any meaningful visitation with his daughter. Therefore, to avoid hindering the return of the child and even jeopardizing visitation with the child, an IPKA warrant

must be acted on swiftly and urgently for the protection of all American citizens involved.

3. THE ABSOLUTE BAN ON THE EXTRADITION OF THE NATIONALS OF MANY COUNTRIES

RENDERS IPKA WARRANTS FOR THE ARREST OF ABDUCTORS RETURNING TO THOSE

COUNTRIES WHOLLY INEFFECTIVE

The success of an IPKA warrant, once issued and pursued, is dependant entirely

on the ability of the abductor to be extradited to face trial here. Since the abductor

is usually a national of the country into which he or she flees, the bilateral extradition treaty with that country controls. These treaties often contain a general bar

against the extradition of the nationals of that country, thwarting entirely the usefulness of the warrant and, more broadly, the underlying criminal remedy. Although

available and the extradition process underway, the warrant under IPKA in the

LeBeau case worked only because of the threat of extradition from England, Had

the abductor not fled from Denmark to England, the warrant would have been less

effective and extradition no threat whatsoever. Because a suit was already underway to re-open the Hague Convention case, it is indeed quite possible that the

LeBeau children never would have been returned had the abductor simply stayed

in Denmark. This is the unfortunate reality of the Sylvester case.

Therefore, the criminal remedy sought by IPKA is impossible to achieve in a large

number of abduction cases. In order to effectuate the intended criminal remedy of

IPKA, the Congress must look to the extradition treaties negotiated between the

U.S. and those countries who refuse to extradite for a means of re-negotiation of

those treaties to provide for some method for the return of these abductors.

On behalf of Mr. Sylvester and all parents left-behind after international parental

abductions, I express my gratitude to the Subcommittee and my hopes that these

hearings will result in positive steps taken to improve the implementation of IPKA.

PREPARED STATEMENT OF THE INTERNATIONAL CENTRE FOR MISSING AND

EXPLOITED CHILDREN

First Lady Hillary Rodham Clinton and Cherie Booth, wife of British Prime Minister Tony Blair, were the principal speakers at the launch of the International Centre for Missing and Exploited Children in Washington DC in April 1999. The purpose of this new organisation is to find and return missing children worldwide and

end international child abduction, an abuse Mrs. Clinton called ‘‘a human rights

issue.’’ The International Centre for Missing and Exploited Children is a subsidiary of

the U.S. based National Center for Missing and Exploited Children1 which has

helped to return thousands of missing or abducted children to their families since

1984. The International Centre will have offices in the U.S. and in Great Britain.

It will provide instantaneous dissemination of pictures and information on missing

children through the Internet, advocate stronger laws to protect children, assist

other non-governmental organisations, and offer training to professionals and law

enforcement agencies around the world.

Another goal of the International Centre is to improve the working of the Hague

Convention on the Civil Aspects of International Parental Abduction. The ConvenVerDate 11-MAY-2000 15:12 May 10, 2001 Jkt 000000 PO 00000 Frm 00315 Fmt 6601 Sfmt 6621 OCT27.TXT SJUD2 PsN: SJUD2
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tion is designed to discourage child abduction and to secure the prompt return of

abducted children who have been removed from, or retained outside, their country

of habitual residence, so that any subsequent custody decision can be made in the

home jurisdiction. In the past few years there has been growing concern that the

effectiveness of the Convention is being undermined by the failure of some signatory

states to fulfil their obligations.

The International Parental Kidnapping Act of 1993 makes it a federal crime to

remove a child from the U.S. or retain a child outside the U.S. with intent to obstruct the lawful exercise of parental rights. Similarly, the Child Abduction Act of

1984 makes it a criminal offence in England. In some signatory countries, however,

parental child abduction is not considered a crime.

International child abduction is a growing problem. The recorded figures, which

almost certainly understate the problem, are alarmingly high. The National Center

for Missing and Exploited Children reports that over 1,000 American children are

illegally transported or retained abroad every year (over 3 children every day). In

Britain, Reunite (the National Council for Abducted Children) has recorded a 58

percent increase since 1995 in the number of children abducted or retained abroad

by an estranged parent.

International child abduction separates children not only from their families but

also from their native countries. Putting an end to this abuse will require the cooperation of govemments and the public at large. The establishment of an international missing children’s organisation is a good first step.

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CHILDREN’S RIGHTS COUNCIL,

Washington, DC, October 27, 1999.

Re: Oversight Hearing on Justice Department’s Response to International Parental

Kidnaping

Senator STROM THURMOND, Chairman,

Criminal Justice Oversight Subcommittee,

U.S. Senate,

Washington, DC.

DEAR CHAIRMAN THURMOND AND MEMBERS OF THE SUBCOMMITTEE: This is a

statement for the record regarding your important hearing on The Justice Department’s Response to International Parental Kidnapping.

Catherine Meyer, the new honorary president of the Children’s, Rights Council,

will testify at the hearing, as well as other witnesses concerned about the International Parental Kidnaping Crime Act of 1993.

The Children’s Rights Council has spoken out spoken out against parental kidnaping of children since our inception in 1985. Abduction often occurs in the context

of custody battles. The sudden move to foreign countries remote from friends and

other family members can have a lifelong negative effect on children.

When Congressman George Gekas was preparing legislation that led to passage

of the 1993 law, CRC was invited to be part of the planning for that legislation.

We were pleased when denial of access (visitation) was included as one of the

grounds for invoking criminal penalties under the statute.

We urge the subcommittee to make certain that the Justice Department and other

authorities charged with enforcing this law are aware that violations of court ordered access are forms of kidnaping and child abuse, and the perpetrators need to

be punished, accordingly.

A parent should not have to travel half way around the world so that the child

can have court-ordered access to that parent. CRC does not favor arrests for minor

infractions, such as a delay of a day or two in returning the child; however, intentional withholding of a child abroad during scheduled visits with the other parent

are serious violations and should be prosecuted.

While America moves to more effectively enforce anti-kidnaping laws, we must

seek ways to PREVENT parental kidnaping from occurring in the first place. These

ways include:

(1) Require the states and foreign countries to create uniform laws against parental kidnaping. At present, all states treat interference by the non-custodial parent

as a crime; but less than half the states (although this number is growing) treat

kidnaping by the custodial parent as a crime;

(2) Require the states and foreign countries to create a presumption for shared

parenting when parents separate or divorce. Parents who seek to be actively involved in a child’s life are less likely to kidnap if they are assured of such active

involvement;

(3) When parents are of two nationalities, require them to have a parenting plan

in place approved by a court stipulating an access (visitation) schedule before allowing one parent to leave the country with that child;

(4) Tighten the loophole in the Hague Convention Against Parental Child Abduction, by making it more difficult for a young child to claim that he or she wants

to stay in the country to which the child has been taken. Having a child of 5 or

6 saying he likes his new country so much he wants to stay there, makes a mockery

of child interviewing techniques;

(5) Publicize the actions of countries like Germany, Sweden, and Arab states

which favor their own nationals—be they mothers or fathers—rather than adhering

to provision of the Hague Convention.

The Children’s Rights Council supports this subcommittee’s efforts and offers to

assist in any way we can. Thank you.

Sincerely your,

DAVID L. LEVY,

President CRC.

CASE OF DANNY AND MICHELLE COOKE

Two American-born children, two innocent and defenseless U.S. citizens, Danny

Cooke, nine years old, a New Yorker, and Michelle Cooke, eight years old, a Bostonian, remain since 1992 held in a remote German village, Benningen, to reach

which one takes a plane to Zurich, a train to Singen, and a bus to Binningen; or

from Zurich, a train to Konstanz, another train to Singen and a bus to Binningen.

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In brief, this is the way that incredible injustice is being perpetuated:

Christiane Koch (a German national) and Joseph Cooke (a U.S. American-born

citizen) married here in Flushing, on September 1, 1989. (They met while Joseph

was in the U.S. Army serving in Germany.) On February 8, 1990, their first child,

Daniel Joseph, was born in North Shore Hospital in Manhasset, NY. On May 23,

1991 Michelle Natalie their second child, was born in Framingham Hospital, Boston,

Massachusetts.

In July of 1992 Christiane took Danny and Michelle to Germany to visit her family. Shortly after she called Joseph and told him that she was not returning to the

United States and that he would never see his children again. In October Chrstiane,

without Joseph’s knowledge or consent, placed their children in foster care in Germany. Joseph), despite his efforts, could not locate his children for over one year.

In February of 1994 Joseph and Christiane finalized their divorce in the New

York State Supreme Court in Queens County. Judge Simeon Golar awarded Joseph

full legal custody of his children.

In April of 1994 Joseph appeared in Court in Singen, Germany, before Judge

Dallinger with an order from the Supreme Court of New York ordering the return

of these American children to their natural father. The German Court admitted that

the German Youth Agency had erred in not contacting Joseph although they knew

where he was through the children’s passport. Judge Dallinger requested Joseph to

stay in Germany for two months to get reacquainted with his children. Joseph complied. At end of the two months Judge Dallinger refused to return the children to

their natural American father as ordered by the Supreme Court of New York.

In July of 1994 Joseph returned to Germany to request Judge Dallinger to hold

a hearing in the case. Successful, in September, Joseph returned to Germany to the

German court. The German judge still refused to reach a decision. The German

Court requested that Joseph be investigated. All reports and investigations found

Joseph a stable citizen capable and willing to raise in the United States his American-born children. In March of 1995 Judge Dallinger rendered his decision: his

order of September 17, 1993 should remain; the children should continue to reside

in Germany. On May 22, 1995, by letter, the children’s mother, Christiane Koch,

petitioned Judge Dallinger to return the children to the care of their natural, American-born father, Joseph Cooke. It was ignored.

In April of 1995 Judge Simeon Solar issued an order for the return of Danny and

Michelle to their custodial parent, Joseph Cooke. Judge Dallinger’s decision was appealed to the court in Konstanz. A hearing was set for May 1995. Judge Dallinger’s decision was upheld. The decision in Konstanz was appealed to the court in Freiburg. The decision in Konstanz was upheld: Joseph was a fit father but too much

time had passed to return the children. The excessive time now argued as a reason

for holding two innocent American citizens in Germany was created by the very

same government now using it as an excuse.

German legal counsel advised against any further appeals and Joseph by now had

run out of money and was not receiving any help from anyone in the U.S. government.

Joseph was asked twice by the German government to send money for the support

of his children. Twice he answered such impudence by refusing and stating that he

was ready, willing and able to support them right here in their own country where

they belong.

For the Christmas of 1997 their paternal grandmother, Patricia Alfaro Cooke,

sent her grandchildren some Christmas gifts. They were returned to her in February of 1998 because $20.00 had to be paid in customs duties. In February of 1997

Patricia sent a birthday present. Unopened, the package was returned in late April.

In June of 1998 Patricia Alfaro Cooke, the children’s grandmother, was allowed

to visit her grandchildren for an hour. She brought back to the children the Christmas gifts that had been returned. In November of 1998, she was permitted to visit

them for two hours on two different days. Mr. Ritter, possibly a social worker,

agreed to allow her son Arthur, the children’s paternal uncle, to accompany her on

the coming 1999 June visit to the children. In March of 1999 Patricia was allowed

to visit her grandchildren for two hours and a half. Mr. Ritter suggested that Patricia should bring something to the other children living in the foster home. In June

of 1999 Patricia and Arthur went to Germany to visit as agreed. Arthur was not

allowed to see the children. Patricia was permitted to visit them for two hours and

a half on two different days. At a meeting of Mr. Ritter, Patricia and Arthur, Mr.

Ritter promised three times to Patricia and Arthur that Arthur could visit the children in November and asked Arthur to write to the children, introduce himself to

them and ask them if they wanted to see him. Arthur did and the children replied

that they wanted him to visit them. Shortly after Mr. Ritter wrote to Patricia that

the foster parents would not allow any other visitors and that another meeting

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should be held in November of 1999 to discussed the concerns of the foster parents,

concerns which were taken very seriously.

In November 1999, Patricia and Arthur went to Germany. A meeting with Mr.

Ritter, Mr. and Mrs. Weh and a German interpreter provided by Mr. Ritter took

place. She was made to sign a promise not to ‘‘kidnap’’ her grandchildren. Arthur

was now denied permission to see the children. One month after that meeting Patricia received from Mr. Ritter a mendacious confirmation of the meeting that she was

requested to sign. In it, it was said, contrary to fact, that she had agreed to leave

her grandchildren to live in Germany. She refused to confirm such a lie in her reply

to him. He wrote to her, in an insolent, threatening undertone, that she should

write German correctly and get herself a female translator to do it.

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