January 23 , 2015
“In international parental child abduction, an ounce of prevention is worth a pound of cure.” So states the Department of State’s International Parental Child Abduction booklet, and for good reason. The Federal Government has limited power to respond to international abductions once the abductor and child reach a foreign country.
Preventing the abduction of a child from this country is largely accomplished at the local level at the initiative of a parent. A local law enforcement officer or prosecutor, at the request of a concerned parent, may be able to deter an abduction by contacting and advising a potential abductor of the criminal consequences of parental kidnapping. State court judges can be instrumental in safeguarding against abductions through specific provisions they include in custody orders.
The Federal Government is involved in many aspects of prevention of international parental child abduction, including education of family court judges, attorneys, and parents; and interdiction at the border and elsewhere. The Department of State may also deny issuance of a child’s U.S. passport and revoke previously issued U.S. passports of abductors who are the subjects of Federal criminal warrants.
It is important to note, however, that U.S. passport controls may not deter an abductor. The vast majority of abductors are citizens of the country to which they are returning and therefore their children—although they may be U.S. citizens—may also be citizens of that other country. If dual nationals, these children are eligible for passports of both the United States and the other country of nationality. The Office of Children’s Issues at the Department of State provides extensive prevention materials for parents, which underscore the importance of preventing abduction given the difficulties posed by dual nationality and foreign sovereignty once the child is abroad.
If abduction threats have been made or can be inferred from the other parent’s conduct (for example, quitting a job, selling property, closing bank accounts, requesting a child’s school records or birth certificate, or contacting relatives in another country with unusual frequency), a concerned parent may ask a local law enforcement officer or prosecutor to contact a likely abductor to explain that parental kidnapping is a crime. This may put a stop to an abduction in the planning stages.
Court-Ordered Prevention Measures
Judges should include prevention provisions in custody orders when there is a risk of international abduction. Strict measures are needed if there is a strong likelihood of abduction, if the child is likely to suffer serious harm, or if the left-behind parent would face many obstacles in seeking to recover the child from abroad. Provisions should be tailored to identified objectives.
A variety of provisions, alone or in combination, may limit the risk of removal from the United States. These include prohibitions on visitation beyond a specified geographical area, restrictions on the removal of a child from the United States, supervised visitation, surrender of passports and other travel documents prior to visits, a substantial bond, and notification to the foreign embassy. If an order allows for visitation in another country, it may condition such visits on a substantial bond, purchase of roundtrip airline tickets, entry of an order in the foreign court containing custody and visitation provisions identical to those in the U.S. order (a “mirror image order”), and the provision of names and addresses of all relatives living abroad.
The Office of Children’s Issues offers comprehensive prevention packets to parents who fear that their children may be abducted abroad. OCI has Hague and non-Hague prevention packets. Both packets contain extensive information, including the OCI booklet, “International Parental Child Abduction”; a prevention flyer; a list of countries party to the Hague Convention; texts of the Hague Convention, the International Child Abduction Remedies Act, and the International Parental Kidnapping Crime Act; materials written by the American Bar Association; and various articles by private practitioners and judges.
These packets are also supplemented with additional country-specific information as appropriate, including 19 country-specific child custody flyers; a flyer on Islamic family law; and a flyer on passport issuance in child custody cases. Also available for parents are 25 country-specific flyers on judicial assistance abroad; flyers explaining how to obtain evidence abroad, the service of process abroad, enforcement of judgments abroad, authentication of documents for use abroad, and dual nationality; and Consular Information Sheets and attorney lists for every country of the world. These flyers are also available at the Department of State Web site, www.travel.state.gov.
This information is often helpful to parents in supporting requests for preventive measures in custody orders. These flyers educate attorneys, parents, and judges about child abduction and the obstacles parents face in recovering children from abroad, particularly when the child is a dual national or when the country to which the child is taken is not party to the Hague Convention. OCI also drafts case-specific letters to parents addressing particular issues of concern.
NCMEC is also involved in prevention efforts, fielding prevention calls through its toll-free telephone number and providing requesting parents and attorneys with a prevention packet containing relevant information.
Flagging applications for U.S. passports. As a general rule, either parent may request U.S. passport information about his or her minor child from the Department of State. If a parent fears that a child might be taken abroad by the other parent without the mutual consent of both parents, that parent ordinarily can request that the child’s name be put in the U.S. passport namecheck system. Then, if an application is received, the requesting parent will be informed before issuance of the passport.
Denying issuance of a child’s U.S. passport. The U.S. Department of State may deny a child a U.S. passport if the concerned parent has provided the Passport Office with an order from a court of competent jurisdiction, which either grants that parent sole custody or which, in effect, forbids the child’s travel without the consent of both parents or the court.
This process does not apply to the issuance of passports by other countries. A child who has or may have citizenship in another country (which could happen if one parent is a foreign national) may be eligible to hold or be included in a foreign passport, in addition to a U.S. passport. The concerned parent may contact the embassy of the other country for information and assistance.
Revoking a child’s passport. Current practice does not include revocation of minors’ passports on the basis of a custody dispute or court order, and current regulations do not provide for such revocation in all cases of concern. Courts can reduce the likelihood of flight by ordering a parent to surrender a child’s passport for safekeeping.
Denying or revoking an abductor’s passport. The Department of State can take revocation action against the abductor. A request to deny or revoke a passport may be a useful tool in limiting the movement of a fugitive who is a U.S. citizen only. However, revocation or denial of a passport does not guarantee the return of the abductor or the child.
Requests for denial or revocation of a U.S. citizen’s passport must come from Federal law enforcement authorities, i.e., the FBI, U.S. Attorney, or the Department of Justice. The Department of State will not accept such requests from private individuals or attorneys. Denial and revocation actions against U.S. citizens are protected by the Privacy Act. The State Department can discuss such actions with law enforcement authorities only, not with left-behind parents.
Limitations. Revocation or denial of a passport to a parent is not a foolproof method to prevent an abduction. In the case of a dual national parent, revocation or denial of a U.S. passport does not affect the ability of that parent to obtain or retain travel documents from his or her other country of nationality. As in the case of the dual national child, a request can be made to the foreign embassy or consulate for reciprocity, but there is no international law obligation to cooperate, and there may be limitations under the foreign domestic law.
Entry controls: Denying visas. If a consular officer abroad has reason to believe that an alien may be proceeding to the United States in order to abduct a child or cause harm to a family member, that officer may deny a visa to the alien or revoke any existing visa under section 212(a)(3)(A)(ii) of the Immigration and Nationality Act. The law makes inadmissible any alien whom the consular officer has reason to believe is seeking to enter the United States for the purpose of engaging in unlawful activity.
Departure controls. Section 215 of the Immigration and Nationality Act (8 U.S.C. 1185) could conceivably be used to prevent an abductor who is an alien from leaving the United States with a child, although it is not presently used for this purpose. The law and implementing regulations (8 CFR Part 215 and 22 CFR Part 46) authorize departure-control officers to prevent an alien’s departure from the United States if the alien’s departure would be prejudicial to the interests of the United States. These regulations should be amended if a decision is made to attempt to use section 215 to prevent child abductions.
Entry-exit control system. The Illegal Immigration Reform and Immigration Responsibility Act of 1996 (section 110, Public Law 104–208; 8 U.S.C. 1221 note) requires the development of an automated entry-exit control system for aliens entering and departing the United States at airports in the United States not later than October 15, 1998 (this deadline has since been extended), and at land and sea ports of entry not later than March 31, 2001. This system will collect a record of departure for every alien leaving the United States and match it with records of the alien’s arrival in the United States. Tracking the inbound and outbound travel of aliens may help to identify and stop abductors as they attempt to enter or leave the United States.
- Prevention measures are effective only if they are used. A concerted effort must be made to alert parents, lawyers, judges, and law enforcement about the steps that can be taken to safeguard against international abductions. See gap 7, recommendation 7.2.1; gap 8, recommendations 8.2 and 8.3.
- Currently, a concerned parent seeking to prevent the abduction of his or her dual national child bears the burden of informing the relevant foreign government about measures taken by the U.S. Passport Office, in the Department of State, either denying issuance of a passport for the child or flagging any passport application for the child. The Department of State should notify the appropriate foreign government when it denies a passport for a dual national child or places such a child in its namecheck system. See gap 7, recommendation 7.2.2.
- A child’s passport is not subject to revocation on the basis of a custody dispute or court order under current practice. The ability to revoke a child’s passport may be helpful in securing return to this country of a U.S. citizen child who is abducted to a non-Hague country. Upon revocation of the passport, such a child might be undocumented and therefore subject to return by the foreign government. See gap 7, recommendation 7.2.3.
Locating Abducted Children and Their Abductors
Both non-law enforcement and criminal justice authorities may assist those left behind in locating a child. The location of an abducted or wrongfully retained child often is known by those left behind. In some cases, however, those left behind may need assistance in locating or confirming the location of a child. In Hague cases, the relevant central authority must make efforts to locate or to confirm the location of a child. In addition, abducted children may be found during the course of a criminal investigation focused on the abductor; certain search tools are available only within the context of a criminal investigation of the abductor. What follows is a description of Federal agencies and tools that may be involved in a search for a child, an abductor, or both.
- Child recovery services: ABP World Group USA Child Recovery Services
- ABP World Group Europe Office
National Crime Information Center
Local, State, and Federal criminal justice agencies throughout the United States can use the Federal Bureau of Investigation’s vast National Crime Information Center (NCIC) database of records (including missing persons, wanted persons, and vehicles) to help locate the abductor and child.
Immediate Entry of a Child into the Missing Person File
The Missing Children Act and the National Child Search Assistance Act, enacted in 1982 and 1990 respectively (28 U.S.C. 534; 42 U.S.C. 5779 and 5780), together require Federal, State, and local law enforcement agencies to enter descriptions of missing children into the NCIC Missing Person File (MPF) without any waiting period and without regard to whether a crime has been committed. If local law enforcement fails to enter a valid case into NCIC as required by law, the left-behind parent may request assistance from the FBI. The FBI has a concurrent mandate to make the entry, provided NCIC entry criteria are met. NCMEC can confirm entries into NCIC–MPF, but it does not have the authority to make entries.
NCIC Entries on the Abductor: Wanted Person File and Vehicle File
Law enforcement should enter an abductor into the NCIC Wanted Person File if the abductor is charged with parental kidnapping under State or Federal law. The abductor’s vehicle should be entered in the NCIC Vehicle File.
Practical problem: Law enforcement needs training to ensure the timely, complete, and correct entry of all appropriate NCIC records when international abductions occur. See gap 6 and accompanying recommendations.
Department of State, Office of Children’s Issues
OCI, located in the Office of Overseas Citizens Services, Bureau of Consular Affairs of the U.S. Department of State, can assist, both directly and indirectly, in locating a U.S. citizen child and checking on the child’s welfare.
If a child is believed to be in a Hague Convention country, OCI, as the U.S. Central Authority for the Convention, can request its foreign counterpart to “discover the whereabouts of a child who has been wrongfully removed or retained.” (Art. 7(a), Hague Convention) The Convention requires the foreign central authority to take steps to locate the child. There need be neither a criminal warrant as to the abductor nor a custody order. A left-behind parent or the U.S. Central Authority can also ask the foreign central authority to report on the child’s condition.
Welfare and Whereabouts Visits for U.S. Citizens Abroad
In Hague and non-Hague countries, OCI or a left-behind parent may request a consular officer in the U.S. Embassy or consulate to conduct a welfare and whereabouts check on a U.S. citizen child (including a dual national). The Embassy works with local authorities to locate the child. A consular officer then attempts to visit the child and report back on his or her condition. If an abducted child is a national only of the country to which she or he has been taken (and not also a U.S. citizen), the embassy of that country should be contacted for assistance.
The abductor may refuse to allow U.S. authorities to visit the child and/or to disclose the child’s foreign address to the left-behind parent. If the abductor will not permit the consular officer to see the child, the U.S. Embassy or consulate can request the assistance of local authorities, either to arrange for such a visit or to have the appropriate local official make a visit and provide a report on the child’s health and welfare.
Department of State, Diplomatic Security Service
The Diplomatic Security Service (DSS) Criminal Investigative Liaison Branch serves as the primary contact for law enforcement seeking assistance from Regional Security Officers (DSS–RSO). In many countries, the DSS–RSO is the sole representative of U.S. law enforcement physically located in the country. In conjunction with efforts by OCI, the DSS–RSO at the U.S. Embassy abroad may request that foreign police contacts ascertain the child’s location, whether or not there is a warrant for the abductor, and the location of the abductor when there is a criminal investigation.
INTERPOL–U.S. National Central Bureau
INTERPOL is a 178-nation police communications network that enables police forces around the world to coordinate international criminal investigations and to exchange humanitarian information, such as missing persons inquiries. Each of INTERPOL’s member countries maintains a national central bureau (NCB) to serve as the country’s point of contact with the international law enforcement community. In this country, the INTERPOL–U.S. National Central Bureau (INTERPOL–USNCB, or USNCB) is an office within the Department of Justice.
The USNCB serves Federal, State, and local law enforcement, as well as its foreign police counterparts. The USNCB and almost all INTERPOL national central bureaus operate 24 hours per day, 7 days per week, 365 days per year. They communicate with one another only at the request of law enforcement, using a dedicated telecommunications system or, in some instances, telefax. INTERPOL national central bureaus may also communicate by telephone in urgent circumstances, such as attempts to stop an abduction in progress.
Specifically, the USNCB can at any time transmit immediate, text-only messages, called “diffusions,” to one or any number of other national central bureaus, asking police authorities of each recipient country (1) to search for a fugitive charged with a crime carrying more than 1 year’s imprisonment, whom the prosecutor is willing to extradite; (2) to trace and locate an abductor, whether or not charged with a crime; and/or (3) to locate and ascertain the safety and welfare of a missing or abducted child. Diffusions may also inform foreign authorities of any medical conditions that a child may have or any particular danger to the child and/or ask that an abducted child be placed into protective custody.
Any national central bureau may in addition apply to INTERPOL headquarters in Lyons, France, for color-coded notices. Each notice includes the subject’s identification, photograph, and (if available) fingerprints, in addition to case information. INTERPOL headquarters translates notices into four languages and sends them to all 178 INTERPOL members. The process takes at least several months.
Red (fugitive) notices seek persons wanted for extradition. A red notice requires a State or Federal arrest warrant for at least one crime that carries more than 1 year’s imprisonment, plus the prosecutor’s written agreement to extradite the fugitive (generally, from any country that can extradite the fugitive to the United States for the crime in question). A red notice asks police in all INTERPOL member countries to locate the fugitive and, if permissible under the law of the country in question, to detain or even arrest the fugitive for a limited period so that the seeking country can make a formal request for extradition through the prescribed channel.
Blue (trace and locate) notices seek persons, including abductors, whether or not they have been charged with any crime. Yellow (missing person) notices seek missing persons, including abducted children. It is possible to request a yellow notice on an abducted child and a red or blue notice on the abductor. Whether to request a diffusion and/or notice in any given case is a decision for law enforcement and the prosecutor.
Each foreign law enforcement authority handles all INTERPOL diffusions and INTERPOL notices that it receives according to its country’s law and practice. The USNCB has no authority whatsoever over how a foreign country handles INTERPOL communications. The USNCB, however, promptly conveys any response it receives to the relevant U.S. authorities. This includes responses received by telephone during abductions in progress.
- INTERPOL is underutilized by law enforcement in international parental kidnapping cases. Federal, State, and local law enforcement could make significantly greater use of INTERPOL as to abductions in progress and completed abductions. INTERPOL’s communica-tions network may facilitate the interception of an urgent matter or the resolution of a longstanding one. Law enforcement needs training on immediate responses following an abduction, as well as on completed abductions, including contacting INTERPOL for appropriate assistance. See gap 6 and accompanying recommendations.
- The USNCB needs additional resources to support its efforts in halting and in locating fugitives and abducted children.
Federal Bureau of Investigation
The FBI is the law enforcement agency tasked with investigating international parental kidnapping cases under Federal law. The FBI may discover the whereabouts of an abducted child when assisting State authorities in locating a fugitive or when conducting its own criminal investigation of an international kidnapping matter. If an abductor is in another country, the FBI Legal Attache (Legat) stationed at the U.S. Embassy abroad may request assistance from local law enforcement in that country either to locate or to confirm a location as to the abductor and child. Although the FBI will not divulge criminal investigative information to the left-behind parent, the case agent may notify the parent if the child is found so that the parent can pursue appropriate civil remedies to secure the child’s lawful return.
- Practical problems: When international parental kidnappings occur, prompt law enforcement response may result in intercepting an abduction in progress and/or may incidentally help to locate an abducted child. FBI agents should continue to receive training on the agency’s responsibilities in international parental kidnapping to ensure effective responses in these cases. See gap 8 and recommendation 8.2.1.
- Resources are needed to support FBI efforts in locating abducted children.
The U.S. Postal Inspection Service can provide change-of-address information upon the request of local, State, or Federal law enforcement officers investigating an international child abduction case.
Federal Inspection Services Personnel at U.S. Ports of Entry: U.S. Customs Service and Immigration and Naturalization Service
Federal inspectors from the U.S. Customs Service (Customs), the Immigration and Naturalization Service (INS), and other Federal agencies comprise the Federal Inspection Service (FIS). Customs and INS inspectors are cross-designated to carry out their respective responsibilities at land borders. They are referred to collectively as “Federal inspection services” (FIS) personnel.
Customs inspectors have legal authority to check persons entering and leaving the United States for merchandise and contraband. They may stop vehicles at the border and board vessels and aircraft without a warrant in order to perform inspections. They work side-by-side with INS inspectors, who play a gate-keeper role at designated air, land, and sea ports of entry to guard against the illegal entry of aliens. INS inspectors may question any person coming into the United States to determine his or her admissibility.
FIS personnel use the Interagency Border Inspection System (IBIS) to check the status of those entering and sometimes of those leaving the country. IBIS is an online system that links various Federal agency databases—including NCIC, the INS National Alien Lookout System (NAILS), and the Department of State Consular Lookout and Support System (CLASS)—to streamline inquiries as to critical information checked at U.S. ports of entry.
IBIS is critical to stopping an abduction at a U.S. border or international airport, as an IBIS query will reveal NCIC records and lookouts placed in IBIS by the FBI, INTERPOL, or other Federal law enforcement agencies, any of which may result in locating an abductor and child as they attempt to leave or reenter the country.
Practical problem: Heightened awareness on the part of border personnel could potentially result in stopping more incoming and outgoing abductions. Training for FIS personnel on how to recognize and respond to international abduction cases should be provided. See gap 7 and recommendations 7.1 and 8.2.1.
Defense Department Legal Assistance Offices and Worldwide Military Locator Services
When children are abducted from the United States by a member of the armed services or family member accompanying the service member, the Legal Assistance Office for the particular branch of the service can help find the child by providing information on the service member’s location. Location information on service members can also be obtained by family members and by State and Federal agencies from the Military Worldwide Locator Services for each service branch.
Federal Parent Locator Service
Pursuant to the Parental Kidnapping Prevention Act of 1980 (42 U.S.C. 663), “authorized persons” may request address information on abductors and abducted children from the Federal Parent Locator Service (FPLS), for purposes of making or enforcing child custody determinations and for enforcing State or Federal criminal parental kidnapping law. Authorized persons are the U.S. Central Authority and OJJDP for Hague cases; any agent or attorney of any State with the duty or authority under State law to enforce child custody determinations; courts (or their agents) with jurisdiction to make or enforce a child custody determination; and Federal and State attorneys authorized to investigate, enforce, or prosecute the unlawful taking or restraint of a child. Federal prosecutors and FBI agents may submit location requests directly to FPLS. Authorized State and local authorities may submit requests to the relevant State Parent Locator Service, which forwards them to FPLS.
National Center for Missing and Exploited Children
The Missing Children’s Assistance Act (42 U.S.C. 5771 et seq.) directs OJJDP to address the problem of missing and exploited children by, among other things, establishing a toll-free telephone line to receive reports of missing children; establishing and operating a national clearinghouse of information about missing and exploited children; and providing technical assistance to law enforcement agencies, nonprofit agencies, and families to help locate and recover missing children. OJJDP provides funding to NCMEC to fulfill the Act’s requirements. NCMEC is not a Federal agency or instrumentality. It is an independent nonprofit organization.
Since its establishment in 1984, NCMEC has had a significant impact on how the criminal justice community responds to stranger abductions and interstate and international parental kidnapping cases. NCMEC has been successful in locating missing children around the world. NCMEC’s Web site, www.missingkids.com, posts pictures of missing children that may be accessed anywhere in the world. NCMEC is currently partnering with police agencies around the world to place their photos of missing children on the NCMEC site.
Practical problem: NCMEC’s role in international parental kidnapping cases in relation to the various Federal agencies is neither fully developed nor clearly delineated. Federal agencies have an interest in defining an expanded role for NCMEC in outgoing cases, particularly on behalf of left-behind parents and other interested parties. See gap 1, recommendations 1.1, 1.4, 1.5, 8.4, and 9.6; and Issues for Further Study, 5.
Missing and Exploited Children’s Program Web Site
OJJDP’s Missing and Exploited Children’s Program (MECP) Web site, www.ncjrs.org/ojjdp/missing/, offers practical information to parents and law enforcement in connection with parental kidnapping and missing children cases.
Practical problem: Many different Federal agencies are potentially involved in international parental kidnapping situations. However, although a network exists among Federal officials who regularly work these cases, there are no designated Federal points of contact for left-behind parents or law enforcement to refer them to appropriate agencies for help. See gap 1 and accompanying recommendations.
Civil Remedies to Recover the Abducted Child
The Hague Convention on the Civil Aspects of International Child Abduction provides the legal basis to seek the prompt return of children wrongfully removed to or retained in countries that are party to the Convention. The Convention took effect in the United States in 1988 following enactment of the International Child Abduction Remedies Act (ICARA) (42 U.S.C. 11601 et seq.), which establishes procedures for its implementation in this country. The Department of State, Office of Children’s Issues is the U.S. Central Authority for the Hague Convention.
Fifty-four countries have become party to the Convention, with the expectation that others will join in the future. As of March 1999, the Convention is in force between the United States and 47 countries: Argentina, Australia, Austria, Bahamas, Belize, Bosnia and Herzegovina, Burkina Faso, Canada, China (Hong Kong Special Administrative Region only), Chile, Colombia, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands and Greenland), Ecuador, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Luxembourg, Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama, Poland, Portugal, Romania, Saint Kitts and Nevis, Slovenia, South Africa, Spain, Sweden, Switzerland, United Kingdom of Great Britain and Northern Ireland, Venezuela, and Zimbabwe.
When a child is removed from the United States and wrongfully taken to or kept in another Hague Convention country, the left-behind parent can use the Convention’s administrative and legal remedies to seek the return of and access to the child. The Convention provides an immediate right of action to seek a child’s prompt return to the country where he or she was habitually resident prior to the abduction. The premise of the Hague Convention is that the abducted child’s custody should be determined by a court in the child’s country of habitual residence and not by the unilateral actions of one parent. The goal is to restore the child to his or her home country for further custody proceedings in the courts there. A return order does not represent a decision regarding the merits of custody. By denying abductors the opportunity to litigate custody in their country of choice and promptly restoring the child to his or her habitual residence, the Convention is intended to deter abductions from occurring in the first place. A key feature of the Convention is that a parent does not need a custody order to seek a child’s return. This is very important because so many abductions occur before a custody order has been issued.
Each country party to the Convention must establish a central authority to perform a variety of functions, including locating abducted children; facilitating the voluntary return of abducted children; assisting, either directly or indirectly, in the institution of legal proceedings for the child’s return; and in some countries, arranging legal assistance for the left-behind parent.
Help is available from the U.S. Central Authority and from the central authority in the country in which the child is located or believed to be located. The U.S. Central Authority is the primary source of information on the Hague Convention in the Federal Government. The U.S. Central Authority provides left-behind parents with a copy of the application used to seek return of the child (or enjoyment of access rights) under the Convention. Although the foreign central authority has primary responsibility for operation of the Convention in that country, the U.S. Central Authority serves as liaison to the foreign central authority until the case is resolved. The U.S. Central Authority does not act as an attorney or agent on behalf of the applicant parent.
The person seeking the child’s return may file an application for return either with the U.S. Central Authority, which forwards the application to the foreign central authority, or directly with the foreign central authority. After filing the application, the applicant, usually through his or her attorney in the other country, may need to bring a civil legal action for return in a court in the foreign country. (Left-behind parents are not required to contact central authorities to invoke the Convention. They may bypass both central authorities and file directly in a foreign court for return of the child under the Convention.)
The Convention requires the court to order the child’s return forthwith if it finds the removal or retention to be wrongful and less than 1 year has elapsed from the date of the wrongful removal or retention to the date the proceedings commenced. The Convention provides limited exceptions to the return obligation, as follows: (1) more than a year has elapsed and the child is now settled in the new environment; (2) the person seeking return did not actually exercise custody rights or consented to or subsequently acquiesced in the removal or retention; (3) there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; (4) a sufficiently mature child objects to being returned; and (5) return would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. However, a court retains discretion to order the child returned even if one of these exceptions is proved.
The return process is meant to be expeditious. The Convention requires countries party to it to use the “most expeditious” procedures available to implement it and requires judicial or administrative authorities to act “expeditiously” in proceedings for the return of children. If a decision is not made within 6 weeks, the applicant parent or the central authority of the requested country has the right to request a statement of the reasons for the delay. The U.S. Central Authority can initiate such inquiry through the central authority in the country in which return proceedings are pending.
- Implementation problems with respect to the Hague Convention, which have arisen in some countries, need to be addressed. See gap 4 and accompanying recommendations.
- Although the Convention purports to ensure that rights of access (visitation) may be exercised across international borders, in reality parents continue to face great difficulties gaining access to their children who are in other countries. See gap 5 and accompanying recommendations.Although it is probably the best remedy in international parental kidnapping cases, the Convention is not the exclusive remedy in countries party to it. Left-behind parents also may seek a child’s return under foreign domestic law, as discussed below.
Non-Hague Convention Country Recovery
If a child is abducted from the United States to a country that is not party to the Hague Convention, the parent can petition a court in that country to enforce a custody order made by a U.S. court. However, Federal and State laws of this country that govern State court jurisdiction to make, modify, and enforce custody determinations—the Uniform Child Custody Jurisdiction Act (UCCJA) (9 U.L.A.123 (1988)) and the Parental Kidnapping Prevention Act (PKPA) (28 U.S.C. 1738A)—do not apply in other countries. Courts in other sovereign countries apply their own family law. They are not legally bound to enforce custody orders made in the United States, although some may do so voluntarily as a matter of comity (i.e., the principle of reciprocity among sovereigns).
If the foreign court refuses to honor the U.S. custody order, it may be necessary to file for custody in the foreign court under the laws and customs of that country. In some countries the parent may encounter religious laws and customs or biases based on gender or nationality that preclude an award of custody.
Recovery by Department of Defense Mechanisms
It is Department of Defense (DoD) policy, with due regard for mission requirements, international agreements, and ongoing DoD investigations and courts-martial, to cooperate with courts and Federal, State, and local officials who request assistance in enforcing court orders relating to active-duty members of the Armed Forces (DoD members) and civilian employees (DoD employees) stationed outside the United States, and family members who accompany them, who have been charged with or convicted of a felony in a court, have been held in contempt by a court for failure to obey the court’s order, or have been ordered to show cause why they should not be held in contempt for failing to obey the court’s order.
The policy and applicable procedures are set forth in Department of Defense Directive 5525.9, Compliance of DoD Members, Employees, and Family Members Outside the United States With Court Orders. The directive requires the head of the DoD component concerned or a designee to attempt to resolve the matter to the satisfaction of the court without the return of or other action affecting the member, employee, or family member (the subject). When that is not possible, the directive specifies procedures the DoD component head or designee must follow with respect to the subject, unless an exception is granted. If a request pertains to a felony or to contempt involving the unlawful or contemptuous removal of a child from the jurisdiction of a court or the custody of a parent or other person awarded custody, the DoD component head or designee is required to order the DoD member to return expeditiously to the United States. DoD employees and family members accompanying DoD members and employees are to be strongly encouraged to comply with the court order. Adverse consequences may result for those who do not comply, including withdrawal of command sponsorship and possible removal from Federal service.
Although the child is not the subject of a return order or other adverse action, the practical effect may be the same. The child may return to the United States with the service member who is ordered back to the United States. Or the child may return with or be returned by a DoD member, employee, or accompanying family member who stands to lose a job, sacrifice benefits, or face other adverse consequences for noncompliance.
Practical problem: Participants in an international parental abduction focus group cited problems enforcing custody orders and recovering their children from parents connected with the U.S. military overseas. See Issues for Further Study, 4.
Encouraging Returns Through Visa Denials
Section 212(a)(10)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(10)(C)), providing for the denial of visas to certain international child abductors, is another statutory tool that may bring about the return of an abducted child to the lawful custodian under U.S. law. This ground of denial provides that any alien who detains, retains, or withholds a child of U.S. citizenship outside the United States in violation of a U.S. custody order is inadmissible until the child is surrendered to the person granted custody by that order. The exclusion does not apply if the child is located in a country that is party to the Hague Convention. Thus, U.S. border inspectors have authority to deny entry and U.S. consular officials abroad have authority to deny a visa to any alien parent who has abducted a child from the United States to a non-Hague country in violation of a U.S. custody order until the alien surrenders the child to the left-behind parent.
Effective October 21, 1998, section 212(a)(10)(C) also in certain circumstances makes an alien who intentionally assists or provides support to an alien abductor ineligible to enter the United States until the child is surrendered to the person granted custody of the child. This section also does not apply when children are in Hague countries.
Federal Role in Civil Child Recovery
Recovering a child who has been abducted from the United States or wrongfully retained in another country is a daunting challenge for a left-behind parent. The Federal Government may facilitate the process in a number of ways, including helping to locate the child, reporting on the child’s welfare, facilitating negotiations for voluntary return, helping to find attorneys, providing country-specific information, facilitating legal proceedings abroad, intervening diplomatically, and facilitating travel back to this country.
Finding the child is the first priority when the child’s whereabouts are unknown. Federal resources for locating abducted children and checking on their welfare are described in Locating Abducted Children and Their Abductors, above.
The Hague Convention charges central authorities to take appropriate measures, directly or indirectly, “to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” OCI and NCMEC, in both Hague and non-Hague cases, may facilitate negotiations between the disputants and make arrangements for the child’s return if negotiations succeed, but they may not represent either party. Family members, other nongovernmental organizations such as Child Find, and sometimes law enforcement also may negotiate with an abductor or between the disputants in order to effect a return without litigation. A successful voluntary return is the best possible result, because it provides the best opportunity for the custody contestants to resolve their differences amicably.
Practical problem: Voluntary return of children is often elusive because few mechanisms exist to promote nonlitigated solutions to international abduction and retention cases. See recommendation 9.5.
Left-behind parents ordinarily seek the services of an attorney to bring legal proceedings to recover the child if efforts to secure voluntary return have been or would be unproductive. This normally requires finding and retaining a lawyer in the foreign country who speaks English, is versed in family law, and has affordable fees. The Federal Government cannot act as a private lawyer for the left-behind parent seeking the return of an abducted child from another country. However, the State Department, through OCI, can help parents find lawyers abroad.
If a left-behind parent plans to bring legal proceedings under the Hague Convention to secure return of the child, the foreign central authority may be responsible to provide or to help the parent find counsel. Unless the Hague country in which the child is located has taken a reservation to the Convention regarding legal counsel, the applicant may be eligible for free legal counsel provided by the foreign country, if he or she meets the foreign country’s eligibility standards. The U.S. Central Authority can query the foreign central authority as to the availability of counsel in that country for the applicant parent in the United States.
In non-Hague cases (and in Hague cases in which the foreign government does not provide a lawyer), OCI can provide the left-behind parent with information on retaining a foreign attorney and a list, prepared by U.S. Embassies and consulates abroad, of attorneys in the foreign country who speak English and have expressed a willingness to represent U.S. citizens abroad. However, the attorneys on the list do not necessarily have family law expertise. Nongovernmental sources of lawyer referrals (e.g., the International Academy of Matrimonial Lawyers) are also available. The Legal Assistance Office for each branch of the military also provides legal assistance to members of the U.S. armed services whose children are abducted.
Practical problem: Left-behind parents in this country often need help in finding affordable, knowledgeable counsel in other countries and in paying for their services. See recommendations 4.4, 4.4.1, 4.4.2, and 4.4.3; gap 9 and recommendations 9.1 and 9.4.
Facilitating Legal Proceedings Abroad
Civil proceedings before courts in foreign countries for return of a child, whether pursuant to the Hague Convention or other law, are private international law matters. As such, the Federal Government’s role is limited to providing assistance to facilitate the private right of action. In Hague cases, the U.S. Central Authority assists in processing return applications and reports on the status of return proceedings. Embassy consular officers assist when there are communication problems with a foreign attorney, and they provide updates on cases pending in the foreign country. OCI and consular officers also provide general information on the customs and legal practices in the country in which the child is located and on procedures for serving process, obtaining evidence, and authenticating documents for use in that country.
Practical problem: Left-behind parents and their lawyers would benefit from other services, including mentoring programs (parent-to-parent and lawyer-to-lawyer), mediation programs, and other efforts to resolve abduction and retention disputes short of litigation. See recommendation 8.4; gap 9 and recommendations 9.5 and 9.6.
Part of the Department of State’s role as the chief U.S. foreign affairs agency is protecting the welfare of all U.S. citizens abroad (including abducted children) and seeking the fair and equal treatment of U.S. citizens abroad (including parents seeking return of their abducted children). The Department of State uses a variety of diplomatic initiatives to pursue U.S. interests abroad. These initiatives range from the negotiation of international conventions and treaties to direct actions in specific cases. These direct actions may include diplomatic intervention at the highest levels, formal written diplomatic communications such as diplomatic notes, or less formal communications such as an exchange of letters. As noted above, in Hague Convention cases, the established mechanism for return is a private civil action. Various forms of diplomatic action, however, can be important to promote and improve implementation of the Convention in order to foster the return of and access to children.
The Department of State attaches high priority to seeking participation in the Hague Convention by countries not yet parties to that agreement and systematically pursues outreach to countries that would make good treaty partners.
Practical problems: 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. In addition, the United States should undertake further bilateral and multilateral efforts to improve operation of the Hague Convention, promote its adoption by select countries, and develop better solutions in non-Hague countries when international custody and visitation disputes occur. See gap 3 and accompanying recommendations; gap 5.
Facilitating a Child’s Return to the United States
The Federal Government can help remove obstacles that stand in the way of returning abducted children to this country.
Travel documents. If the child is a U.S. citizen but lacks a passport, the U.S. Embassy abroad may issue a passport on an urgent basis to prevent delay in returning the child to the United States.
Transportation costs. Transportation expenses may be prohibitive for many left-behind parents who bear the cost of the child’s return. The Hague Convention does not require countries to pay these expenses. Federal victim assistance funds may be available to cover some or all of these expenses in criminal cases. NCMEC, through a grant from the Justice Department’s Office for Victims of Crime, is able to provide parents who meet needs-based criteria financial assistance to attend court hearings in foreign countries or for transportation costs for U.S. citizen children to return to the United States.
Practical problem: In a word, money. Left-behind parents incur expenses, often beyond their means, seeking recovery of their abducted children. See gap 9, recommendations 9.1 and 9.4.
Repatriation loans. The U.S. Embassy abroad can arrange repatriation loans for U.S. citizens meeting needs-based eligibility criteria. Repatriation loans must be repaid. The foreign government may offer similar loan programs to its nationals.
Practical problem: See Transportation costs, above.
Significant public benefit parole. A “parole” within the immigration context permits an alien to enter the United States for a particular purpose when the alien would otherwise be ineligible under U.S. law to enter the country. Either the abductor or the child, if not a U.S. citizen, may require a parole to enter the United States. Courts in some Hague Convention proceedings have been reluctant to order a child returned under the Convention when the abducting parent cannot enter the United States under U.S. immigration laws and is therefore unable to return to this country to participate in custody proceedings.
When these concerns arise (e.g., after the abductor is denied a visa by the U.S. Embassy or consulate), the foreign government may request that a parole be granted for the abductor for purposes of participating in custody or related proceedings in a U.S. court. The Department of State’s Visa Office submits the request for Significant Public Benefit Parole to the Immigration and Naturalization Service, Parole Unit, which adjudicates the parole request.
In addition to the possibility of parole for an ineligible alien, there is also the possibility of a waiver of visa ineligibility pursuant to section 212(d)(3)(A) of the Immigration and Nationality Act (8 U.S.C. 1182 (d)(3)(A)). A waiver would require the recommendation of the consular officer or the Department of State (Bureau of Consular Affairs/Visa Office) and the approval of the Attorney General (INS).
Stopping an Abduction in Progress: Intercepting the Child
It may be possible to recover a child by stopping an abduction in progress at a land border or airport in the United States or as the child enters, leaves, or transits another country. Successful interdiction usually depends upon there being a criminal warrant or investigation in connection with the abductor. Foreign governments may be responsive to a Hague application transmitted on an urgent basis, or they may take other measures as to the welfare of the child. (This is discussed in Criminal Prosecution and Extradition, below.)
Intercepting the child in the United States. In the United States, absent a criminal warrant or facts supporting probable cause to arrest, it is unlikely that an abduction in progress can be stopped and a child intercepted. However, if a child is identified at a land border or at an airport in the United States as a result of an NCIC inquiry, FBI and FIS personnel may detain the child at least temporarily, even if there is no criminal warrant for the abductor, pending questioning of the suspected abductor to determine whether the International Parental Kidnapping Crime Act (IPKCA) or Fugitive Felon Act statute (discussed below) is being violated. If the person accompanying the child is ultimately detained on this basis, agents and inspectors may be able to detain the child temporarily until the relevant State authorities arrive. If, upon further investigation, the facts do not support a violation of IPKCA or the Fugitive Felon Act by the person accompanying the child, there is no basis under Federal criminal law to continue to detain the child.
Intercepting the child abroad. The Department of State, Office of Children’s Issues may request foreign governments (in Hague and non-Hague countries) to exercise any power they may have under their own domestic law to protect an abducted child. Foreign authorities may have discretion to arrest, admit, or deport an abductor and child at a foreign port of entry. Some foreign authorities will use their domestic police powers to act as to the child alone if they find a factual basis to believe the child is endangered without regard to whether the abductor is subject to a criminal arrest warrant.
In very rare instances, certain cooperative Hague countries will intervene to take a child in transit with an abductor into protective custody upon the urgent filing of a Hague application. When pursuing this option, the Office of Children’s Issues at the Department of State takes the lead coordinating with the central authority in the destination country and with law enforcement there as to itinerary and arrival times. Abductions in progress to or through Canada reported to the Royal Canadian Mounted Police Missing Children’s Registry may be stopped and the child intercepted.
Criminal Prosecution and Extradition
All 50 States, the District of Columbia, the territories, the Federal Government, and many foreign governments recognize the abduction of a child by his or her parent as a “serious crime,” subject to penalties in excess of 1 year in prison. A State or Federal criminal prosecution, coupled with international extradition, addresses the perpetrator. In appropriate cases, either State or Federal authorities may prosecute the abductor. The FBI, with its jurisdiction over both interstate flight and the Federal international parental kidnapping statute, may be contacted immediately in any matter involving a parental abduction from the United States. Either a State prosecution facilitated by Federal efforts or a direct Federal prosecution may serve as a basis for the international extradition of the abductor. The facts of the case and any relevant extradition treaty may indicate that State or Federal prosecution is preferable.
When the facts of an international parental abduction warrant criminal process, the left-behind parent still must ensure that civil efforts to locate and recover the child go forward as expeditiously as possible. Criminal prosecution (and the attendant investigation) may incidentally locate the child, but the arrest, extradition, prosecution, and incarceration of the abductor will not necessarily result in the child’s recovery. In some cases, criminal process may frustrate child recovery, particularly in Hague countries.
State Law Prosecution, Assisted by Federal Law
Federal authorities can assist State criminal investigations and prosecutions in locating the fugitive and facilitating international extradition. With this assistance, State law is usually sufficient to address the criminal aspects of an international parental kidnapping and to seek international extradition. State prosecutors are not obliged to seek FBI assistance, but they must contact the Department of Justice, Office of International Affairs (OIA) for assistance regarding international extradition. State and local prosecutors may consult with the American Prosecutors Research Institute for information concerning the investigation and prosecution of parental kidnapping crimes, developed under a grant from OJJDP.
Fugitive Felon Act: Unlawful Flight to Avoid Prosecution Warrants
The Fugitive Felon Act (18 U.S.C. 1073) is a Federal statute in aid of State prosecution. It enhances the ability of States to pursue abductors beyond State and national borders. Because it permits the FBI to investigate an otherwise State case, it also may facilitate investigation internationally. In addition, the Parental Kidnapping Prevention Act (18 U.S.C. 1073 note) clarifies congressional intent that Federal fugitive felony warrants (i.e., unauthorized flight to avoid prosecution, or UFAP warrants) may be issued in parental kidnapping cases when the abductor has fled the State or this country to avoid prosecution under applicable State felony statutes.
The local or State prosecutor requests a UFAP warrant in writing from a Federal prosecutor (United States Attorney) or the FBI. The requirements for obtaining a UFAP warrant in parental kidnapping cases are the same as in other fugitive felony cases: (1) existence of a State or local felony warrant; (2) probable cause to believe the fugitive has fled the jurisdiction of the State in order to avoid prosecution or confinement; and (3) assurance that the State or local prosecutor will extradite the fugitive for prosecution. If satisfied these requirements are met, the United States Attorney may authorize the FBI agent assigned to the case to file a request for a Federal UFAP warrant with the U.S. District (i.e., Federal) court.
The focus in UFAP matters is to locate and apprehend the abductor for a criminal law violation. If agents discover during a UFAP investigation that the abductor has left the country with the child, the FBI may be able to continue its investigation internationally by requesting the assistance of law enforcement authorities in one or more countries. In addition, if FBI agents discover the child’s whereabouts during the course of their efforts to locate and apprehend the abductor, they may be authorized to alert local child welfare authorities and left-behind parents so that they can pursue recovery of the child.
Federal Prosecution Under the International Parental Kidnapping Crime Act
In 1993 Congress enacted the International Parental Kidnapping Crime Act (18 U.S.C. 1204). IPKCA makes it a Federal felony to remove a child under 16 from the United States or to retain a child outside 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 (including visitation rights), whether the right is joint or sole and whether the right arises by operation of law, court order, or legally binding agreement of the parties. IPKCA provides affirmative defenses if the defendant: (1) was acting within the provisions of a valid custody or visitation order; (2) was fleeing an incidence or pattern of domestic violence; or (3) failed to return the child due to circumstances beyond his or her control, notified or made reasonable attempts to notify the other parent within 24 hours, and returned the child as soon as possible. Violation of this statute is punishable by fine, up to 3 years’ imprisonment, or both.
IPKCA clearly establishes international parental kidnapping as a crime. (See H.R. Rep. No. 103–390 (1993).) The House Report articulates that IPKCA is intended to send a strong message to the international community that the United States views parental kidnapping as a serious crime it will not tolerate. With the passage of IPKCA, Congress hoped to deter at least some abductions and enhance the force of U.S. diplomatic representations in seeking the return of children, particularly from countries not party to the Hague Convention.
The IPKCA statute expresses the sense of Congress that the Hague Convention should be the option of first choice for a parent seeking a child’s return in cases in which the Hague Convention applies. Although IPKCA provides a criminal remedy in international abduction cases, it is not intended to detract from the operation of the Hague Convention.
The FBI investigates IPKCA violations, usually following a complaint by the left-behind parent. The U.S. Attorney, usually in the district from which the child was taken, may bring Federal charges after weighing a number of factors. The initial requirement under IPKCA—that Federal prosecutors seek approval before bringing an IPKCA case—has expired. However, Federal prosecutors still may consult with and obtain information concerning the statute from the Department of Justice, Child Exploitation and Obscenity Section. Federal prosecutors must seek assistance regarding international extradition from the Department of Justice, Office of International Affairs. Because State charges assisted by Federal resources may be just as effective as Federal charges in the international arena, pursuit of an IPKCA charge may not be appropriate if State charges are already pending. However, IPKCA may be the only available charging option if an abduction cannot be charged under State law (e.g., abductions occurring before the entry of a custody decree in States requiring violation of such orders for prosecution; abductions interfering with visitation rights not encompassed by a State statute).
Practical problem: Many State and Federal prosecutors have little or no experience with parental kidnapping prosecutions. Detailed guidance should be made available to these attorneys and those who assist them. See gap 8, recommendations 8.2 and 8.2.1.
Charging Considerations in Criminal Cases
The decision to charge a parental kidnapping crime under State or Federal law must be made on a case-by-case basis, depending upon the facts of the case and whether the child has been taken to or kept in a Hague country.
The prosecutor must weigh countervailing considerations before seeking criminal charges in an abduction to a Hague Convention country. First, if criminal charges are being considered, IPKCA expresses the sense of Congress that the Convention, if applicable, is the preferred remedy for child recovery. Second, criminal charges under IPKCA (or any other State or Federal statute) may adversely affect return proceedings under the Hague Convention. An outstanding criminal warrant may deter a voluntary or negotiated return; in other cases the outstanding warrant may be useful to locate and facilitate return of a child. In Hague proceedings, some foreign judges have been reluctant and others have refused to order a child’s return to the United States if the parent’s return would result in his or her arrest and attendant inability to participate in civil custody proceedings.
On the other hand, use of State and Federal criminal remedies may also be appropriate when abductors violate Hague court orders and refuse to return the child.
Abductions to Non-Hague Countries
When a child is abducted to a non-Hague country, filing criminal charges against the abductor may be useful in locating the abductor and child, but the criminal process and extradition address only the alleged offender and do not assure the child’s return. Unfortunately, many countries not party to the Hague Convention also do not recognize this type of abduction or wrongful retention as a crime, making international extradition unavailable. Although extradition from a given country may not be available, INTERPOL alerts of various kinds may facilitate the detection of the abductor’s travel to other countries from which extradition might be possible. As to the child, left-behind parents should pursue efforts specific to child recovery.
Imposition of Sentencing Conditions
When a State or Federal prosecutor secures a conviction against a defendant in a criminal international parental kidnapping case, it may be possible for the prosecutor to seek conditions in the sentence imposed as to the return of the child. The conviction of a father for the abduction of his three children to Egypt (a non-Hague country) under IPKCA, as well as the sentencing court’s imposition of a special condition that the father return the children to the United States, were upheld on appeal. (See United States v. Amer, 110 F.3d 873, 877 (2d Cir. 1997).) The imposition of such conditions has proven ineffective to date; therefore, the imposition of such conditions must be considered on a case-by-case basis.
Federal Victim-Witness Assistance
The Federal Victims of Crime Act (42 U.S.C. 10607; 18 U.S.C. 3509) provides for the rights of and services to victims of Federal crimes, including international parental kidnapping. The Attorney General’s Guidelines on Victim-Witness Assistance provides further direction for investigators, prosecutors, and victim-advocates handling child victims and witnesses. Statutes require the investigating and prosecuting agencies to: (1) identify child victims of an offense and provide the nonoffending parent or guardians with notice of their rights and the services for which they may be eligible, including counseling, support, compensation, and restitution; and (2) notify victims of major events in the conduct of the cases. The use of a multidisciplinary team and appointment of a guardian ad litem are encouraged in appropriate situations. Congress mandates that all Federal agencies dealing with victims of Federal crime maintain and adhere to written guidelines consistent with Federal law on victim-witness assistance. However, the decision as to the release of sensitive case information ultimately rests with the prosecutor in conjunction with the Federal investigator.
Practical problem: All Federal agencies that deal with international parental kidnapping crime victims must become conversant with their responsibilities under Federal victim-witness guidelines and regulations. See gap 8, recommendation 8.2.
Conduct of International Criminal Investigations
Those left behind, as well as State and local law enforcement, may engage FBI assistance by contacting the local FBI field office. INTERPOL may also facilitate foreign police assistance. The FBI or the State investigator may request that INTERPOL–USNCB send appropriate messages on their behalf.
International Legal Assistance
Although police-to-police contacts may secure investigative information, when the information sought from another country requires a judicial order or other form of compulsion for its production, the State or Federal prosecutor must seek assistance from the foreign government via mutual legal assistance treaty or letters rogatory requests. The prosecutor may seek evidence, records, and testimony in support of substantive charges or to locate the fugitive. These requests, sought through the Department of Justice, Office of International Affairs, although usually productive, may sometimes take a very long time, and in some countries may not be entirely productive. Further, seeking foreign information, e.g., foreign bank records, may result in notice to the fugitive. The lead prosecutor should discuss and pursue these issues and matters with the country specialist from OIA.
International extradition is a means to return the abductor to the United States for prosecution. The Department of Justice, Office of International Affairs assists Federal and State prosecutors in the international extradition of fugitives. Both Federal and State prosecutors must contact OIA at the outset of a case in which they intend to seek extradition. Federal and State prosecutors may seek to immobilize those charged with international extradition by seeking an urgent “provisional arrest with a view towards extradition” (often used in efforts to intercept an abduction). If the requested foreign government provisionally arrests the defendant, the United States (by its prosecutor) must submit the full extradition request (including sufficient evidence) via the Department of State to the foreign government within the deadline provided by the applicable extradition treaty. If an abductor’s further flight appears unlikely, the prosecutors may omit the provisional arrest step and take the time to prepare and submit a full request for extradition with all necessary evidence at the outset. Either a State or Federal felony violation may serve as the basis for an extradition request, provided the potential maximum penalty exceeds 1 year’s imprisonment.
Extradition for both State and Federal prosecutors reflects a commitment to prosecute the abductor. The prosecutor must commit in writing to prepare the extradition request with supporting evidence; to pay the costs of extradition (translation and travel costs for escorts and fugitive); and to prosecute the abductor, if extradition is successful, whether or not the child can be returned.
Practical problem: State prosecutors may forego prosecuting abductors for international child abduction because of the costs associated with international extradition. See gap 9, recommendation 9.2.
Extradition depends upon whether the United States has a bilateral extradition treaty with the country of refuge, whether the treaty partner can extradite for international parental kidnapping, and whether the country of refuge will extradite its own nationals. The United States has more than 100 extradition treaties in effect. The Extradition Treaties Interpretation Act of 1998 (Title II of Public Law 105–323) authorizes the United States to interpret extradition treaties listing “kidnapping” as encompassing the offense of parental kidnapping. It is understood that this interpretation will be adopted only where it is shared by the other country. (See Federal Register, Vol. 64, No. 15, January 15, 1999, pp. 3735–36.) Ultimately, decisions to extradite offenders rest entirely with the foreign state, through its judiciary and other authorities.
The abducted child is not subject to extradition. The prosecutor and law enforcement should consider the effect that any effort to arrest and extradite an abductor may have upon the welfare of the child and his or her recovery. When the whereabouts of the abductor and child are not known, efforts to locate the abductor for purposes of arrest and extradition may indirectly facilitate child recovery. However, particularly in Hague countries, such efforts may hinder civil child recovery under the Convention. Those left behind will not necessarily be informed of any or all efforts to locate and arrest the abductor, for a variety of reasons, including the use of informants and the maintenance of sensitive law enforcement relationships abroad. However, when an abductor is arrested, authorities will inform the left-behind parent so that he or she can take steps to recover the child. The foreign government also may use its own child welfare authority to take the child into protective custody, pending further proceedings.
Stopping an Abduction in Progress: Intercepting the Abductor
When an abduction is in progress and law enforcement is notified immediately, it may be possible to stop the abduction before the abductor leaves the United States, while the abductor is transiting through a second country, or upon arrival but before admission to the foreign destination country.
As a general rule, law enforcement efforts to stop an abduction in progress will be directed at intercepting and detaining the suspected abductor for violating State or Federal criminal law. Once the suspected abductor is located, if there is no criminal warrant pending against him or her and if there is no other basis to detain the abductor further for criminal investigative purposes (such as indications the child is in danger), law enforcement authorities must release the abductor and the child to continue on their journey. The conclusion to draw is that, although a suspected abductor and victim child may be temporarily detained for a variety of reasons, the only effective means of stopping an abduction in progress is through criminal process.
Immediately upon being informed by the left-behind parent of an international abduction in progress, local law enforcement may contact the FBI field office and/or INTERPOL for assistance. Once contacted, the FBI works with the lead prosecutor and local investigator and coordinates with other appropriate agencies (including, depending upon the facts of the case, the Department of State, INTERPOL, OIA, Customs and INS, and local law enforcement authorities such as port authority police) to investigate and, if possible, stop an abduction in progress. Prompt NCIC entries on the child (Missing Person File) and abductor (Wanted Persons File if there is a warrant) improve the chances for detection in the United States. The FBI agent may treat the abduction in progress as a UFAP matter or an IPKCA investigation and open a preliminary or full investigation. The FBI will use the resources and tools that are used to track and arrest any criminal fugitive attempting international flight. The INTERPOL–USNCB immediately contacts all appropriate U.S. and foreign authorities in an effort to halt the abduction and to recover the child.
(In cases relying solely upon the Hague Convention or the exercise of foreign police powers as to the welfare of the child, the Department of State, Office of Children’s Issues will take the lead. See Stopping an Abduction in Progress: Intercepting the Child, above.)
Upon Arrival or Entry at Foreign Country
Interception abroad may be possible through the use of a U.S. criminal arrest warrant coupled with a request pursuant to any applicable extradition treaty for urgent provisional arrest and/or through the expedited revocation of passports or other travel documents. However, all discretion to intercept an abductor and child at a foreign port of entry rests with the foreign law enforcement and immigration authorities. The United States may request but cannot dictate what steps will be taken. Foreign authorities may execute a request from the United States for the urgent provisional arrest of the abductor for purposes of extradition. The foreign government involved may also be able to exercise authority under its domestic law to prevent the entry of the abductor, to expel or deport the abductor, and/or to address the welfare of the child. If the abductor is arrested, foreign authorities generally take steps to protect the child pending efforts by those left behind in the United States to recover the child.
- Read the entire report here: United States Federal Response to International Parental Kidnapping
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