May 23, 2011

Mr. SMITH of New Jersey (for himself and Mr. WOLF) introduced the following bill; which was referred to the Committee on Foreign Affairs, and in addition to the Committees on Ways and Means, Financial Services, the Judiciary, and Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To ensure compliance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction by countries with which the United States enjoys reciprocal obligations, to establish procedures for the prompt return of children abducted to other countries, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `International Child Abduction Prevention and Return Act of 2011′.

SEC. 2. FINDINGS; SENSE OF CONGRESS; PURPOSES.

(a) Findings- Congress finds the following:

(1) The Department of State’s Office of Children’s Issues, which serves as the Central Authority for the United States for the operation of 1980 Hague Convention on the Civil Aspects of International Child Abduction, is currently handling approximately 1,793 open cases involving more than 2,488 children abducted by a parent or legal guardian from the United States to other countries. For a variety of reasons reflecting the legal and factual complexity of parental abduction cases and the significant obstacles to recovery, only a percentage of all cases are reported to the Department of State.

(2) In fiscal year 2010, the Central Authority for the United States responded to cases involving 696 children abducted from the United States to countries with which the United States enjoys reciprocal obligations under the Hague Convention, but during that same time period only 360 children were returned from Hague Convention countries to the United States.

(3) The number of outgoing international child abductions reported to the Central Authority for the United States increased by about 60 percent since 2006.

(4) In evaluating the obstacles to recovering children abducted from a parent in the United States, the first difficulty is presented by countries who are signatories to the Hague Convention, but have not acted in compliance with the responsibilities of the Convention. According to the Central Authority for the United States, St. Kitts and Nevis has not acted in compliance with the terms it agreed to as a party to the Hague Convention, and Bermuda, Brazil, Bulgaria, Burkina Faso, Mexico, Honduras, and the Bahamas have demonstrated patterns of noncompliance. The failure of these countries to meet their obligations is found in the actions of their designated central authorities, the performance of their judiciaries, as reflected in the legal process and decisions rendered to enforce or effectuate the Hague Convention, or the ability and willingness of law enforcement to insure the swift enforcement of orders rendered pursuant to the Hague Convention. Argentina, Australia, Austria, Costa Rica, France, Germany, Honduras, Hungary, Israel, Mexico, Romania, South Africa, Spain, Switzerland, and Turkey all failed to enforce return and access orders in 2010.

(5) The United States and other State Signatories to the Hague Convention have expressed their desire, through the Convention, `to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.’.

(6) In evaluating and assessing the problem of the abduction of children from the United States, the Central Authority for the United States in fiscal year 2010 reported that it had been provided notice of 384 cases of parental abductions involving 523 children taken from the United States to countries with which the United States does not enjoy an agreement related to the treatment of parental abduction cases and that are not signatories to the Hague Convention, currently including for abductions and access cases a cumulative total of 156 children in Japan, 94 children in India, 60 children in Brazil, and 29 children in Russia. The number of reported cases likely represents an even smaller percentage of the total number of United States children impacted as the process for the location and recovery of abducted children differs significantly with each country, and there is currently no formal protocol for intervening in such cases.

(7) According to the Department of State’s April 2010 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, `parental child abduction jeopardizes the child and has substantial long-term consequences for both the child and the left-behind parent.’.

(8) Abducted children are at risk of serious emotional and psychological problems and have been found to experience anxiety, eating problems, nightmares, mood swings, sleep disturbances, aggressive behavior, resentment, guilt and fearfulness, and as adults may struggle with identity issues, their own personal relationships, and parenting.

(9) Left behind parents may encounter substantial psychological, emotional, and financial problems, and the majority have no means to generate the enormous financial resources required to pursue individual civil or criminal remedies to attempt to secure the return of their children, even if such remedies were available or effective in foreign courts or political systems. Left-behind parents also often have to pursue child custody and other protective orders through expensive litigation at home.

(b) Sense of Congress- It is the sense of Congress that the United States should set a strong example for other Hague Convention countries in the timely location and return of children wrongly removed from and retained in the United States.

(c) Purposes- The purposes of this Act are to–

(1) protect United States children from the harmful effects of international child abduction and to protect the right of children to exercise parental access with their parents in a safe and predictable way, wherever located;

(2) provide parents, their advocates, and judges the information they need to enhance the resolution of family disputes through established legal procedures, the tools for assessing the risk of wrongful removal and retention of children, and the practical means for overcoming obstacles to recovering abducted children;

(3) establish effective mechanisms to provide assistance to and aggressive advocacy on behalf of parents whose children have been abducted from the United States to a foreign country, from a foreign country to the United States, and on behalf of military parents stationed abroad;

(4) promote an international consensus that the best interests of children are of paramount importance in matters relating to their custody, and that it is in the best interest of a child to have issues of custody determined in the State of their habitual residence immediately prior to the abduction;

(5) provide the necessary training for military officials and training and assistance to military families to address the unique circumstances of the resolution of child custody disputes which occur abroad, or occur when a parent is serving abroad;

(6) facilitate the creation and effective implementation of international mechanisms, particularly the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to protect children from the harmful effects of their wrongful removal and retention; and

(7) facilitate the compliance of the United States with reciprocal obligations contained in the Hague Convention regarding children wrongfully removed to or retained in the United States.

SEC. 3. DEFINITIONS.

In this Act:

(1) AMBASSADOR AT LARGE- The term `Ambassador at Large’ means the Ambassador at Large for International Child Abductions appointed under section 101.

(2) ANNUAL REPORT- The term `Annual Report’ means the Annual Report on International Child Abductions required under section 102.

(3) APPROPRIATE CONGRESSIONAL COMMITTEES- Except as otherwise provided, the term `appropriate congressional committees’ means the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate.

(4) CENTRAL AUTHORITY FOR THE UNITED STATES- The term `Central Authority for the United States’ has the meaning given such term in article 6 of the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.

(5) HAGUE CONVENTION- The term `Hague Convention’ means the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980.

(6) HAGUE CONVENTION COMPLIANCE REPORT- The term `Hague Convention compliance report’ means the annual report on compliance with the Hague Convention required to be submitted by the Department of State to Congress under section 2803 of the Foreign Affairs Reform and Restructuring Act of 1998 (42 U.S.C. 11611).

(7) HAGUE CONVENTION SIGNATORY- The term `Hague Convention signatory’ means a country that has signed or acceded to the Convention and with which the United States has entered into a reciprocal agreement pursuant to the Convention.

(8) MOU- The term `MOU’ means a memorandum of understanding.

(9) MOU COUNTRY- The term `MOU country’ means a country or entity with which the United States has entered into a memorandum of understanding to resolve cases of international child abduction. Such MOUs shall include–

(A) identification of a specific protocol designed to establish and effectuate the urgent return of children abducted from the United States not later than six weeks after the date of the application for return of the child having been received by the agency authorized for such purposes;

(B) identification of a specific protocol for the establishment and protection of the rights of both interim and ongoing parental access between children and their parents;

(C) identification of an official entity within the government possessing the authority to facilitate the resolution of child abduction cases in cooperation with the Office on International Child Abductions and left-behind parents in the United States;

(D) identification of the judicial or administrative agency possessing the authority to facilitate the prompt adjudication of a request for the return of an abducted child to the United States;

(E) identification of a law enforcement agency and available mechanisms and procedures to investigate and assist in the location, protection, and retrieval of an abducted child and to ensure the immediate enforcement of orders entered by the court in the habitual residence to return an abducted child to the United States;

(F) establishment of welfare and whereabouts visits between a United States embassy and a wrongfully removed or retained child; and

(G) additional requisite elements that shall be satisfied and maintained for purposes of section 201(b) as determined by the Secretary of State.

(10) NONSIGNATORY COUNTRY- The term `nonsignatory country’ means a country which is neither a Hague Convention signatory nor a MOU country to which a United States child has been abducted or in which a United States child remains wrongfully retained.

(11) OFFICE- The term `Office’ means the Office on International Child Abductions established pursuant to section 101.

(12) PATTERN OF NONCOOPERATION- The term `pattern of noncooperation’ means a national government’s systemic failure, evidenced by the existence of ten or more parental child abduction cases which, after having been properly prepared and transmitted by the Central Authority for the United States remain unresolved within its borders after 18 months or, where there are fewer than ten unresolved cases, any cases still unresolved after nine months from the time of receipt and transmittal by the Central Authority for the United States of a request to fulfill its international obligations with respect to the prompt resolution of cases of child abduction.

(13) RIGHTS OF ACCESS- The term `rights of access’ means the rights of a parent and child to enjoy reasonable unfettered contact both within and outside the State of the child’s habitual residence.

(14) UNRESOLVED ABDUCTION CASE- The term `unresolved abduction case’ means an abduction case which has been properly documented to establish that pursuant to the law of the State of habitual residence of a minor child, an international abduction or wrongful retention of such child whose habitual residence immediately prior to the abduction was the United States, remains unresolved more than two months following the date of the receipt and transmittal by the Central Authority for the United States of the request for return of such child.

(15) UNRESOLVED ACCESS CASE- The term `unresolved access case’ means an application for the establishment of rights of parental access on either an interim or permanent basis, or the request for the enforcement of rights of parental access (contact orders) which have been previously established by a court of competent jurisdiction, which remain unresolved more than two months following the date of the receipt and transmittal by the Central Authority for the United States of a request for assistance in the organization of rights of access.

TITLE I–DEPARTMENT OF STATE ACTIVITIES

SEC. 101. OFFICE ON INTERNATIONAL CHILD ABDUCTIONS; AMBASSADOR AT LARGE FOR INTERNATIONAL CHILD ABDUCTIONS.

(a) Establishment of Office- There is established within the Department of State an Office on International Child Abductions that shall be headed by the Ambassador at Large for International Child Abductions appointed under subsection (b).

(b) Appointment- The Ambassador at Large shall be appointed by the President, by and with the advice and consent of the Senate.

(c) Duties- The Ambassador at Large shall have the following responsibilities:

(1) IN GENERAL- The primary responsibility of the Ambassador at Large shall be to–

(A) promote measures to prevent the international abduction of children from the United States;

(B) advocate on behalf of children whose habitual residence is the United States and who have been abducted to another country;

(C) assist left-behind parents in the resolution of abduction or refusal of access cases; and

(D) advance mechanisms to prevent and resolve cases of international child abduction abroad.

(2) ADVISORY ROLE- The Ambassador at Large shall be a principal adviser to the President and the Secretary of State regarding matters of international child abduction and refusals of rights of access, and shall make recommendations regarding–

(A) the policies of the United States Government toward governments with a pattern of noncooperation with respect to cases of international child abduction;

(B) coordination with other United States agencies regarding criminal prosecutions, Interpol assistance in the issuance of warrants and alerts, pending cases, training for United States forces, and the negotiation of agreements to protect United States forces stationed abroad;

(C) policies to address international child abduction globally;

(D) the position of the United States Government on cases establishing the future functioning of the Hague Convention in the country at issue; and

(E) the position of the United States Government on a request to accept an accession to the Hague Convention.

(3) DIPLOMATIC REPRESENTATION- Subject to the direction of the President and the Secretary of State, the Ambassador at Large is authorized to represent the United States in matters and cases relevant to international child abduction and refusals of rights to access in–

(A) contacts with foreign governments, the World Organization for Cross-border Co-operation in Civil and Commercial Matters, the Hague Conference on Private International Law, and other international organizations of which the United States is a member;

(B) multilateral conferences and meetings relevant to international child abduction; and

(C) advocating accession to the Hague Convention, or, where accession to the Hague Convention is not possible, negotiating MOUs.

(4) REPORTING RESPONSIBILITIES- The Ambassador at Large shall have the reporting responsibilities described in section 102.

(5) CASE FILE MANAGEMENT SYSTEM AND INFORMATION PROTOCOL- The Ambassador at Large shall establish a case file management system within the Office to ensure the maintenance of accurate, complete, and timely information, to the extent available, on all cases of international child abduction or refusal of access about which the Office is notified, as well as a protocol for the receipt and updating of such information with actions taken by the Office and responses by the respective country, as well as deadlines required by the Hague Convention or the MOU at issue.

(6) UNIFORM CASE INTAKE PROCEDURES- The Ambassador at Large shall establish uniform case intake procedures, which also make note of deadlines for responses pursuant to the Hague Convention or MOU, where applicable.

(7) CIVIL SERVICE EMPLOYEES- The Ambassador at Large, in cooperation with the Secretary of State, shall ensure that a majority of the personnel of the Office are composed of civil service employees or members of the Service (as such term is described in section 103 of the Foreign Service Act of 1980 (22 U.S.C. 3903)) who shall be permitted to remain with the Office for at least four years.

(8) LEGAL ADVICE- The Ambassador at Large shall make available legal advice to case managers of the Central Authority of the United States on an as-needed basis to address country-specific legal issues and to provide such case managers with information that can be disseminated generally on questions frequently asked by left behind parents.

(9) USER FRIENDLY RESOURCES- The Ambassador at Large shall establish user-friendly resources, including–

(A) a toll free number that goes directly to the Office; and

(B) a language line for left behind parents who do not speak English.

(10) ASSISTANCE TO JUDGES- The Ambassador at Large shall–

(A) be responsible for producing and disseminating a training course for United States Federal and State judges likely to receive Hague Convention cases; and

(B) retain not fewer than four specially trained judges available on an as needed basis to advise United States Federal and State judges handling Hague Convention cases.

(d) Funding- The Secretary of State shall provide the Ambassador at Large with such funds as may be necessary for–

(1) the hiring of staff for the Office;

(2) the conduct of investigations by the Office;

(3) the establishment of a case file management system;

(4) the translation of case documents in cases that may have systemic effect in the country in question;

(5) the development of training materials; and for

(6) necessary travel to carry out the provisions of this section.

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