Mexico / U.S – Cross-Border Child Custody, a Legal Tangle


Source: IPS News

MEXICO CITY, Jan 14, 2012 (IPS) – Mexican or foreign-born children being held by one of their parents in this or another country are caught up in a legal tangle marred by red tape and the arbitrary powers of judges, according to experts.

The claim for restitution of an under-age child taken to another country, or to Mexico, is based on the Inter-American Convention on International Restitution of Minors (IACIRM), ratified by Mexico in 1994, and the Hague Convention on Civil Aspects of International Child Abduction, which came into force in 1983.

“Lawmakers are not necessarily familiar with the provisions of the conventions. Most judges do not use them as references in their decisions. And the red tape, when a child is abducted from or brought to Mexico, is a real ordeal for the families,” Martín Pérez, head of the Network for Children’s Rights in Mexico (REDIM), told IPS.

Moreover, the families “have to undertake the search for their children using their own resources,” added Pérez, the executive director of REDIM, a coalition of 63 NGOs that carries out programmes for vulnerable children and adolescents.

In 2008, there were 272 petitions for the return of children to custody, compared to 123 in 2003, according to the Permanent Bureau of the Hague Conference on Private International Law. These figures do not include petitions brought under the IACIRM.

And there were 168 demands for restitution under the IACIRM in 2008, an increase of 522 percent compared with 2003.

Fifteen Latin American and Caribbean nations reported 315 petitions for the return of minors in 2008, equivalent to 16 percent of the world total. In 61 of these cases, both countries involved were within the region.

In 2010, there were 221 such cases in Mexico; 101 of them involved the abduction from this country to others of 141 children or adolescents; and the remaining 120 cases involved 169 irregular transfers of minors from other countries to Mexico, according to the foreign ministry, which is the designated central authority in Mexico tasked with fulfilling the provisions of the Hague Abduction Convention.

Mexico’s free trade treaties, like the 1994 North American Free Trade Agreement (NAFTA) with Canada and the United States and the 2000 Global Agreement with the European Union, brought transnational companies flocking to Mexico, creating opportunities for marriage between Mexican citizens and foreigners as well as increasing the presence of couples from other countries.

“We don’t have national legislation for detecting, warning and following up on these kinds of cases. There is no comprehensive system for the protection of children, paying paramount attention to the best interests of the child, nor of measures to benefit mothers and children,” Nashieli Ramírez, general coordinator of Ririki Intervención Social, an NGO active on behalf of the rights of children, told IPS.

The aim of the Inter-American and the Hague conventions is for minors to be returned to their country of origin when they have been illegally taken away or kept in another, and for a parent’s custody rights, granted by any state, to be respected and monitored.

In 2008 there were 36 cases in Mexico in which children were voluntarily returned, nine of which involved a court decision based on an agreement between the parents and 22 on decisions without an agreement, while in another 34 cases restitution was legally denied because the child did not reside in the petitioning country, or the petitioner did not have custody rights.

Forty-nine percent of the persons who brought the legal complaints were fathers, and 47 percent mothers. In 2008, 270 children were involved in the lawsuits, 51 percent of whom were girls and 49 percent boys. This contrasted with 2003, when the gender balance was markedly skewed, with 64 percent of the children being girls.

Final decisions on the proceedings can take months, comparable to the global average. Voluntary repatriations took an average of 232 days, compared to the world average of 121 days, while restitution by court order took 206 days, and judicial denials 290 days, on average.

Time is regarded as a key factor by the experts, especially in cases where the mother has been a victim of domestic violence and the child is at risk.

In its 2011 response to the questionnaire on fulfilment of the Hague Abduction Convention, Mexico’s foreign ministry acknowledged that while some judges were experts on international abduction of minors, the majority were experts in family law.

It also indicated that legal advice was provided at the start of proceedings, but the parties involved had to find their own legal representation, at their own cost.

“The children’s views are not consistently taken into account, and the legal rights of the plaintiff are not safeguarded. Therefore, legislative harmonisation, training of judges and lawmakers and clear procedures are required,” REDIM’s Pérez recommended. A new feature observed by experts is “parental alienation”, involving brainwashing of the abducted minor by the abducting parent against the other, which inflicts emotional damage on the child.

The foreign ministry also admitted that it does not use the Hague Convention’s iChild system.

iChild is an electronic case management tool that is used to identify, save and share information and monitor cases of child abduction.

“What predominates in Mexico is a view of children as part of the private domain, and not the public domain. So the issue needs to be on the public agenda and in the state budget,” said Ramírez, of Ririki Intervención Social.

In October 2011, a constitutional reform established that the best interest of the child was to be the guiding principle in all the decisions and actions of the state.

But the problem of parental abductions of minors does not appear in campaigns on behalf of children organised by NGOs, nor is it mentioned among the recommendations made to the Mexican state by the internationally elected Geneva-based Committee on the Rights of the Child, as part of its task of monitoring implementation of the 1990 Convention on the Rights of the Child.

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Parents who abduct children should face longer in prison, says top judge


Source: The Telegraph

Parents who abduct their own children could face life sentences because of the “unspeakable cruelty” they cause, the country’s most senior judge said yesterday.

Lord Judge said has called for tougher penalties for parents who abduct their own children. Photo: PA

Lord Judge, the Lord Chief Justice, dismissed a legal precedent that parents in such cases should not be charged with kidnap.

That could mean them facing life imprisonment instead of the current seven year maximum for child abduction.

Lord Judge said the maximum term for child abduction should also be increased because it currently does not meet “true justice”, especially for the other “loving parent” whose children are snatched away.

The call for a review came as he dismissed sentence appeals by two fathers who abducted their children and took them abroad “for very many years”.

He said cases where fathers abducted children and took them abroad “have become increasingly troublesome”.

In one case, the children were away from their mother for so long that they now refuse to have contact with her.

Lord Judge said: “The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction.”

Ruling on a separate case in 1991, the Court of Appeal concluded that in cases where a parent abducts their child prosecutors should “avoid altogether charging anyone with child kidnapping”.

But sitting in the same court yesterday, Lord Judge said: “Our view is clear.

“Simply because the child has been abducted by a parent, given current conditions, it no longer necessarily follows that for policy reasons a charge of kidnapping must always be deemed inappropriate”.

He said the previous ruling “has no continuing authority” and asked the Law Commission, the Government’s legal advisers, to address the issue as part of its ongoing review of kidnap laws.

It paves the way for such parents being charged with kidnap and facing a possible life sentence.

Lord Judge also called for those convicted of child abduction to face longer terms by raising the maximum term available for such offences beyond the current seven years.

He said there were currently child abduction cases which “merit a sentence greater than the maximum current sentence of seven years imprisonment after a trial”.

The “wide discrepancy” between sentences for kidnap and abduction offences under “seems illogical”, he said

Sitting with Lord Justice McFarlane and Mr Justice Royce, Lord Judge said: “There are some cases of child abduction where, given the maximum available sentence, with or without the appropriate discount for a guilty plea, the available sentencing options do not meet the true justice of the case, properly reflective of the culpability of the offender, and the harm caused by the offence.”

Such crimes result in “depriving the other parent of the joy of his or her children and depriving the children from contact with a loving parent with whom they no longer wish to communicate,” he said.

The court dismissed an appeal by Talib Hussein Kayani, 49, who pleaded guilty at Luton Crown Court to two offences of abducting a child and was sentenced in June to five years imprisonment.

The two sons, who were taken to Pakistan until 2009, have not seen their mother since 2000 and still refuse to have contact with her.

Madhat Solliman, 58, who pleaded guilty at Harrow Crown Court to three counts of abducting a child and was sentenced to three years jail in April, also lost his sentence appeal.

He abducted his three children in 2002 and took them to Egypt before returning in 2009.

Lord Judge stressed that abduction was an offence of “great seriousness” and in both cases the mothers had “suffered extreme emotional hardship”.

He said: “The periods of abduction were prolonged, many years in duration, and the relationship with the mothers was irremediably damaged.

“In the case of the mothers, the hardship will be life long.”

Lord Judge also called for tougher penalties for those who breach court order designed to prevent forced marriages, describing the current sentence of two years as “utterly inadequate”.

The Home Office is currently consulting on whether to make forcing someone in to a marriage as a criminal offence in itself. Lord Judge added that forcing someone to marry against their will also effectively results in them being raped.

Published by: ABP World Group International Child Recovery Services

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Parental child abduction still far too easy, officials say


Sherri Zickefoose, Calgary Herald

Published: Friday, June 03, 2011

Stricter travel regulations should be in place to hamper schemes of parents abducting their children and escaping to foreign countries, according to investigators charged with chasing them.

“When our children are going out of the country, there’s no bar. Some of the airlines do their due diligence, but do all of them do their due diligence? It would be better to have a binding legal document that’s notarized prior to travelling with a child,” said Missing Children Society Canada investigator Wendy Christensen.

“The issue is coming to light and more people are being affected.”

Earlier this week, the plight of a Calgary mother made headlines after police made a public plea for help in solving her year-old case.

Mona Gill hasn’t seen her toddler since he was abducted by his father and taken to India in May 2010.

Canada-wide abduction without consent warrants have been issued for Harpreet Singh Arora, 44, for whisking the estranged couple’s 21/2-year-old son Shael abroad without warning.

Their current location is unknown.

Gill is one of hundreds of Canadian parents who suffer every year from having their children abducted by the other parent.

Children taken to another country against one parent’s will unravel into costly emotional, financial and legal nightmares that sometimes never get resolved.

According to 2009 statistics from the RCMP’s National Missing Children Services, there were 237 cases of children being snatched by a parent.

Five cases in the past five years have come to Calgary investigators.

Only two cases have been resolved.

Some parents have been forced to take matters into their own hands.

The case of Calgary mother Melissa Hawach made global headlines when she hired two mercenaries and secretly travelled to Lebanon during Hezbollah’s war with Israel at the end of 2006 to take back her daughters Cedar and Hannah from their father.

But without stronger checks in Canada, more children will be lost, said Christensen.

“Airlines follow Transport Canada guidelines, but there’s no exit control in our country,” she said.

“I don’t think there’s consistency with other countries. If we were more proactive in what we do, we may be an example to other countries to show how to do it right.”

The day Gill was to pick father and son up from the airport, a note was left on her front door informing her that Arora was taking his son away to spend time with him.

Gill reported the abduction to police before she travelled overseas from June to September.

Unless Arora hands the child over himself, police say the investigation may rely on family and friends rethinking their roles in helping him.

After exhausting all other leads for the past year, the RCMP’s National Missing Children Services launched an international alert protocol. Interpol in Hong Kong and Singapore have also been alerted.

The estranged couple, who were married for four years, did not have a custody agreement in place, but there was no acknowledged dispute.

Airlines generally recommend that parents who travel solo with children carry a parental consent letter authorizing travel. The letter must be signed and dated by the other parent.

But without a warning of a custody dispute, airlines say they are helpless to stop travellers.

“Unless we have been notified in advance by the authorities that a specific parent should not be travelling with their child, assuming all the appropriate paperwork was in order, we would have no reason to suspect anything was wrong,” said WestJet spokesman Robert Palmer.

“Parents travel solo with their children all the time.”

Air Canada spokeswoman Angela Mah said, “We are obliged by law to ensure that all passengers have government-issued ID before boarding the aircraft, with no lawful obligation for additional documentation checks before boarding an aircraft.

“All other documentation checks fall under the responsibility of government immigration authorities on entry into those countries.”

The Canada Border Services Agency is responsible for checking people entering Canada, not leaving.

One saving grace is the international treaty designed to help parents whose children have been taken illegally to another country.

The Hague Convention on the Civil Aspects of International Child Abduction has been in force in Alberta for 20 years. About 75 countries are signatories to the treaty and more than 400 Canadian children have been returned over the years, thanks to the agreement.

Some countries do not recognize parental abduction as a crime.

“A custody order issued by a Canadian court has no automatic binding legal force beyond the borders of Canada,” according to the Foreign Affairs guide.

Investigators say all countries should require parents travelling solo with children to have permission from both parents, even though that means adding another level of bureaucracy.

“‘We have to make it difficult. We have to have something similar for international travel with our children,” said Christensen.

“It would be a start, everybody having to take onus and everybody being part of the solution.”

“People don’t look at it as a crime, but it is. We have to take steps working with Transport Canada, the airlines, border services, everyone, to have something in place so we can have confidence that if that child is leaving the country, they’re coming back.

“We need to treat our children as precious, because they’re a precious commodity.”

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More Norwegian children snatched


The number of children taken illegally out of Norway by one of their separated parents has more than doubled in the past year.

Nearly 400 Norwegian children have disappeared overseas in the past decade, and authorities fear economic motives are behind several of the abductions.


Under Norwegian law, a parent who loses his or her child to their former partner must still continue to pay child support. As long as the child lives with one of the parents, the other must pay child support, even if a Norwegian court has ruled that the child was illegally abducted.

‘Good business’

Child support payments often amount to around NOK 5,000 (USD 900), a lot of money in many countries. ”Rumors are beginning to fly overseas that it’s good business to abduct Norwegian children,” Martin Waage of security firm ABP World Group Ltd. told newspaper Aftenposten. “I know of some cases where the abductions were probably planned even before the children were conceived.” Most of the children abducted between 2004 and 2010 were taken to Sweden, followed by Great Britain and the US. total of 64 children disappeared last year, compared to 31 in 2009, according to figures from the ministries of justice and foreign affairs.

Martin Waage specializes in child abductions and dealt with around 50 cases last year alone. In the most difficult cases, he has found children and brought them home to Norway after armed counter-abductions. Government officials agree that child support laws can be a motivating factor in some cases, and state secretary Astri Aas-Hansen in the Justice Ministry told Aftenposten that they’re reviewing current regulations: “We see that (the child support) can contribute towards the child being abducted and held abroad.”

‘High priority’

She said the ministry is making child abductions a high priority. Police have received special instructions in how to handle abductions, Norway has hosted seminars for judges and others in the Baltic countries, for example, and efforts are being made to urge other countries to adopt international rules against child abductions. The problem is that many countries like Slovakia haven’t followed up on the rules.

“We have put this on the agenda in international circles,” Aas-Hansen told Aftenposten. The ministry also has compiled a website, in English, with information and tips for parents involved in abduction cases.

The efforts haven’t yet helped fathers like Tommy Hoholm, who has been trying to retrieve his two sons from their mother, who took them to Slovakia. He hasn’t seen them for four years, despite court rulings in both Norway and Slovakia that he has custody of the boys. He told Aftenposten their mother is keeping them hidden, something she denies.

Published by: ABP World Group International Child Recovery Service

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