STATE DEPARTMENT REPORTS ON SUCCESS OF HAGUE CHILD-ABDUCTION CONVENTION IN THE U.S.

Since July 1 of 1988 the United States has been a participating signatory to the Hague Convention on International Child Abduction. On November 27, shortly after FLN's last issue went to press, Peter H. Pfund, the State Department's Assistant Legal Advisor for Private International Law, reported on the effectiveness of the Hague Convention remedies in securing the return of children unilaterally taken by a parent to or from countries overseas.

This international treaty requires participating governments to find and return children who have been taken by one parent from their country of "habitual residence," whether before or after a custody order. "Wrongful removal" (i.e., without the other parent's consent) is the triggering event. It does not get into matters of substantive or procedural custody law, or custody jurisdiction, and it allows very few defenses to the requirement of forthwith return. See 10/1 FLN 21 (1989). A federal statute, the International Child Abduction Remedies Act, 42 USC §116 01 et seq., details the procedure in federal and state courts, and designates the State Department as the managing agency ("central authority") responsible for fulfilling this country's obligations under the Convention. Mr. Pfund noted that in 1991 the list of participating countries increased from 16 to 23, and he predicted that it may exceed 30 by the end of 1992.

The State Department's report concerns itself with two major classes of cases: those seeking return of children from the United States ("incoming cases"), and those seeking return to the United State ("outgoing cases"). As of October 15, 1991, the State Department had received just over 700 requests in all, with the numbers of incoming and outgoing cases about equal.

Of 153 incoming cases that have gone to final disposition, Mr. Pfund explained, 147 resulted in either voluntary or court-ordered returns, so that there were only six cases in which courts denied the petition for return. As for outgoing cases, out of 142 petitions now final, there were 122 voluntary or court-ordered returns by overseas countries and 20 cases in which the foreign court refused to return the U.S. child. Of the cases that had come in, in only 20 have the children not been located at all.

The important thing about these 96% and 86% "success rates," Mr. Pfund explained, is that they should serve to convince would-be abducting parents that the unilateral removal will ultimately do little good because in all likelihood the child will be ordered returned. This should serve to discourage parental child-snatching as a perceived solution to custody disputes. Mr. Pfund speculated, however, that in the coming year the caseload of both incoming and outgoing cases is likely to increase dramatically. It is important that the courts familiarize themselves with the Hague Convention and be ready to deal intelligently with the Convention cases that are going to start appearing on their dockets throughout the United States.

The U.S. Central Authority welcomes comments from attorneys and judges about the workings of the Convention and ways of improving performance and spreading information as to its availability and proper use. The Central Authority Office in the State Department can be reached by writing the Child Custody Unit, CA/OCS/CCS, Room 4817, Department of State, Washington, D.C. 20520, telephone (202) 647-3666.

The State Department's statistical report reveals that of the "incoming" Hague Convention petitions, or applications, which totaled 335, the Convention was held inapplicable to 30 cases, attorneys were assigned in 29 cases, voluntary return was effected in 61 cases, court proceedings were still pending in 21 cases by year's end (November, 1991), and there were 86 court-ordered returns, 10 court visitation orders, 3 reabductions, and 25 applications withdrawn. Of these incoming requests by far the largest number came from the United Kingdom (147) and the next largest number came from Canada (59), followed by 24 from France, 19 from Australia, 17 from Germany, 15 from Hungary and 13 from Spain.

Of the outgoing requests, in which children were taken from the United States and their return sought from abroad, the U.K. still topped the list with 117 applications, followed by 53 to Canada, 40 to Germany, and 36 to France. Thirty-six United States petitions went to Australia during the reporting year. Of these 348 outgoing U.S. applications, the Convention was held inapplicable to 25, location was still under investigation in 54, attorneys had been assigned in only two such cases, 11 children were declared definitively non-located, and there were 32 returns and 6 voluntary allowances of access. Court proceedings were still pending in 41 cases, there were 90 court-ordered returns and 16 court visitation orders, 20 denials, 3 reabductions and 31 applications withdrawn. The low number of attorney assignments is particularly ironic, since for several years the supposed readiness of European governments to appoint free counsel and the supposed reluctance of courts in the United States to do so was a major roadblock to U.S. approval of the Convention.

During the entire period from July 1, 1988 to September 30, 1991, new "incoming" cases came in at a rate of 45 in 1988, 82 in 1989, 106 in 1990, and 102 in 1991. The outgoing cases went from 21 in 1988 to 63 in 1989, 106 in 1990 and 160 in 1991. A state-by-state analysis shows that the largest number of incoming petitions, 63, went to New York. California accounted for 61, Florida 42, Illinois 13, Texas 16 and New Jersey 10. Virginia saw 3 cases.

Virginia outgoing cases, by contrast (i.e., seeking to remedy abductions from Virginia) totaled 9. This compares with 61 from California, 51 from Florida, 42 from New York, 13 each from Illinois and Pennsylvania, 16 from Texas, 10 each from New Jersey and New Mexico, and a mere 8 from Maryland, 9 from North Carolina, 4 from Tennessee and from West Virginia, and 1 from the District of Columbia. Petitions regarding abductions to the District of Columbia were 2 in number, with 6 petitions going to Maryland, 7 to North Carolina, and 1 to Tennessee. There are no known cases of abductions to West Virginia.