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-Dova. 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. 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 rarethough 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. 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. ICMEČ 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 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 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. |