A History of Noncompliance

[SageDad]

The Hague Convention on the Civil Aspects of International Child Abduction treaty went into force between the US and Mexico in 1991.

In 1999 The US State Department released their first Non-Compliance report in compliance with Section 2803 of Public Law 105-277.

1999 “Noncompliant”

MEXICO: In view of the large number of unresolved applications for return of children from Mexico, 33 of the 56, the Department considers Mexico to have demonstrated a pattern of noncompliance with the obligations of the Convention. Ongoing efforts by the Department of State to address Mexico''s lack of compliance include: a meeting of the Director of the Office of Children''s Issues and the Mexican Central Authority in May 1997; attendance in January 1998 of a representative of the U.S. Central Authority at a binational meeting on child abduction organized by California''s Attorney General''s office and the Mexican Consulate in San Diego; a November 1998 meeting involving a representative of the United States Central Authority, the Mexican Central Authority and Mexican Foreign Ministry officials.

[SageDad]

2000 “Pattern of Noncompliance”

MEXICO: Mexico was listed in the previous Compliance Report to Congress as noncompliant with its responsibilities under the Convention. While systemic problems continue and a large number of cases remain unresolved, Mexico has shown impressive efforts to better meet its Convention responsibilities. Mexican and U.S. Central Authority officials have met four times to discuss better procedures for dealing with cases, resulting in better and more frequent communication and case updates. The Department of State is further encouraged by recent discussions with the Mexican Central Authority regarding plans by the Mexican foreign ministry to allocate additional resources to the program.

Twenty-five of the 34 cases listed in the previous Compliance Report have been closed, with approximately one-third resulting in the return of the children to the United States. There have been ten Hague court hearings since Fall 1999, with all children except one returned to the U.S. In one case, children were returned to the United States only six months after the abduction. In addition, there have been voluntary returns in more than 30 cases, with the existence of a pending Hague case a factor in the voluntary return decision. Once a child has been located, the taking parent must be notified of the hearing date. Mexico’s new procedure of taking children into custody at that time has been very effective in ensuring that the taking parent does not go into hiding with the children.

Progress has occurred primarily in cases recently filed with the Mexican Central Authority. The six cases raised by the U.S. delegation in the Binational Commission meetings illustrate the delays in cases when the location of the child is not known and/or an amparo appeal (a provision of the Mexican Constitution where a claim is made that a civil right has been violated) is filed. There has been progress in one of those cases.

Mexico has no implementing legislation integrating the Convention into the Mexican legal system. This lack of a legal structure facilitating the Convention’s operation is a major obstacle to the Convention’s effective implementation in Mexico.

Most cases go a year or more without resolution. The Central Authority does not have law enforcement powers and must rely on federal and state police to locate children. Mexican law enforcement agencies do not consistently undertake serious efforts to locate parentally abducted children. In addition, the amparo has been abused by taking parents to block Hague proceedings indefinitely.

These concerns were raised at the 1999 Binational Commission (BNC) meeting, the 1999 follow-up meeting to the BNC, and the 2000 BNC meeting

[SageDad]

2001: “Patterns of Noncompliance”

from the United States. While systemic problems continue and a large number of cases remain unresolved, Mexico has shown impressive efforts to better meet its Convention responsibilities. As a result, it was moved from "noncompliant" status (1999 Report to Congress) to "not fully compliant" (2000 Report to Congress). Further progress has been shown since the last report; however, many cases remain unresolved 18 months after the filing of a Hague application. The September 2000 Compliance Report listed 18 such cases; twelve of these remain open. An additional six cases have been added to this report.

There remain several areas in which systemic problems appear to delay resolution of cases. Mexico has no implementing legislation integrating the Convention into the Mexican legal system. The Convention, therefore, is implemented under existing state family code and varies from state to state. This lack of a legal structure facilitating the Convention's operation is a major obstacle to the Convention's effective implementation in Mexico. Significant processing delays have occurred in at least two of the states. However, one of these states has recently notified the Mexican Central Authority that the primary judicial concern delaying cases has been resolved and has pledged to process cases more expeditiously. The Department is also encouraged by recent discussions with the Mexican Central Authority concerning plans for the development of implementing legislation.

Mexican law enforcement agencies have not consistently undertaken serious efforts to locate parentally abducted children. Location of the child remains undetermined for eight of the cases included in the September 2000 Compliance Report and in all six of the cases added to this report. In June 2000, Mexico passed a law making familial child abduction a federal crime and forming a federal police unit charged with investigating crimes against children, including the location of missing children. These recent actions may result in improved efforts to locate children.

Although not a problem in recent cases, the amparo (a special appeal claiming a violation of constitutional rights) has been used by taking parents to block Hague proceedings indefinitely and remains a problem in at least three long-term cases. Other judicial delays, such as judges not scheduling hearings in a timely manner, also have affected prompt case resolution.

Several of the cases cited above, and the issue of implementation of the Convention in general, were raised at the Binational Commission meetings in 1999 and 2000 and by the Ambassador in a discussion with a Foreign Ministry Under Secretary in February 2001. In addition, on-going meetings between Mexican and U.S. Central Authority officials have resulted in better communication, case updates, and case resolutions. At the March 2001 Hague Special Commission, the Department's Assistant Secretary for Consular Affairs and head of the U.S. delegation raised the cases and the systemic problems noted above with the Mexican delegation.

[SageDad]

2002-2003:  “Noncompliant”

MEXICO

Mexico remains the destination country of the greatest number of children parentally abducted from the United States. In the 2000 and 2001 reports Mexico was listed as “not fully compliant” due to its serious efforts to better meet its Convention responsibilities. Mexico’s performance since the 2001 report, however, has deteriorated significantly, to the point that Mexico is now non-compliant.

Systemic problems continue to delay resolution of cases. These problems include: the Mexican Central Authority’s lack of adequate resources, the lack of implementing legislation integrating the Convention into the Mexican legal system, and an apparent lack of understanding of the Convention among the judiciary.

The lack of resources including personnel resulted in difficulties in communication between the Office of Children’s Issues in the Bureau of Consular Affairs, which acts as the United States Central Authority (USCA), and the Mexican Central Authority (MCA). Communication began to improve in May 2002 when monthly meetings to discuss cases began between the MCA and the consular section at the United States Embassy in Mexico.

Lack of resources may have contributed to the increase in the number of cases still active more than 18 months after filing with the MCA. In the present report there are 29 Mexican cases in this category compared with 18 in the 2001 Report.

The lack of implementing legislation integrating the Convention into the Mexican legal system remains a problem. The amparo (a special appeal claiming a violation of constitutional rights) has been used by taking parents to block Hague proceedings indefinitely. Six cases still active 18 months after filing had one or more amparos and 3 of those cases currently have amparos pending. One of the four cases resolved through the Convention process since the 2001 Report was published resulted in the denial of a return by the Mexican Supreme Court because six years had passed while the taking parent filed successive amparos after the original judge ordered the children returned.

In addition, the Mexican court’s ability to reconsider the facts at any stage of the proceeding is a major area of concern and highlights the effect the lack of implementing legislation integrating the Convention into the Mexican legal system has had on the Convention’s effectiveness. In one long-standing case, the taking parent is raising again, now that the case has been returned to the trial court after appeal, defenses already adjudicated and rejected in the original trial proceeding.

Another systemic problem is the apparent lack of understanding of the Convention’s purpose and intent by many judges. The Convention was not designed to address underlying custody issues. Those were meant to be dealt with by the courts in the country of the child's habitual residence, after the child has been returned. However, as noted above, the lack of implementing legislation has allowed judges to apply Mexican procedural and custody law in Hague cases to deny return when the only issues the court is supposed to examine are: (a) whether the child was "habitually resident" in another Hague state prior to the abduction or illegal retention; (b) whether the left-behind parent had some form of custodial rights at the time; and (c) whether those rights were being exercised.

The USCA has raised these issues with the MCA and the Embassy of Mexico in on-going meetings and conversations since the 2001 Report. The Assistant Secretary for Consular Affairs raised the issue of implementation of the Convention in a letter to the Mexican Ambassador in March 2002. In response, the MCA acknowledged the need to improve its implementation of the Convention but other than improved communication no significant change has occurred. The Assistant Secretary for Consular Affairs raised our concerns about the implementation of the Convention in Mexico at the Binational Commission meetings in November 2002. The Binational Working Group agreed to work together to ensure passage of implementing legislation and to promote judicial training aimed at improving compliance with the Convention. A group of Mexican judges and Central Authority officials visited Washington in December 2002 for a U.S. Government-arranged program focused on familiarization with Hague implementation in the U.S.

[SageDad]

2004: “Noncompliant”

Mexico remains the destination country of the greatest number of children abducted from or wrongfully retained outside the United States by parents or other relatives. Despite coordinated efforts undertaken by the U.S. Embassy, the U.S. Central Authority, and senior Department of State officials to press for more expeditious processing and resolution of cases, the systemic problems in Mexico's handling of Convention applications that were detailed in the 2002 Compliance Report persisted during the reporting period. The Department’s experience is that, relative to the large number of pending Convention cases in Mexico, the number of cases resolved annually in Mexico is quite small. Most Convention return applications remain pending and never progress to the point of a definitive adjudication. Among the U.S. Central Authority's greatest concerns is Mexico's inability to locate children. Other problems include long delays in adjudication of return applications, the Mexican Central Authority's lack of adequate resources to perform its role effectively, the absence of implementing legislation integrating the Convention into the Mexican legal system, and an apparent lack of understanding of the Convention among many Mexican judges, which has resulted in Convention cases being treated as custody matters or mishandled in other ways.

Mexico's inability to obtain better results in locating children and taking parents is particularly troubling. Many Convention return applications forwarded by the U.S. Central Authority have languished for years; when children and taking parents are not located, Mexican courts will not rule on the application. As a result, and despite persistent efforts by the U.S. Central Authority to prompt Mexican authorities to address these cases, numerous parents have waited for years with no contact or information about the whereabouts of their children. Of the return applications submitted to the Mexican Central Authority that remained unresolved after eighteen months or longer, approximately half remain in limbo because Mexican authorities have not located the children. As a practical matter, the left-behind parent or someone working on his/her behalf must develop most leads pertaining to the possible location of abducted children without the help of Mexican authorities. In some cases, Mexican authorities profess an inability to find children even when the family or the U.S. Embassy has shared concrete information with the Mexican Central Authority on the child's whereabouts.

If the whereabouts of an abducted or wrongfully retained child cannot be established, for whatever reason, Mexican courts return the case file to the Mexican Central Authority, which in turn refers the case to Mexican law enforcement. The U.S. Central Authority is not aware of even a single case in which Mexican law enforcement, once the Mexican Central Authority forwarded a Convention case to them, located the children.

Those cases that do result in a court hearing face further obstacles, including lengthy court delays. Lack of implementing legislation to integrate the Convention into the Mexican legal system remains a problem. The amparo (a special appeal claiming a violation of an individual's constitutional rights) has been used by taking parents to block Convention proceedings indefinitely pending a ruling by another court as to whether the parent's constitutional rights have been violated. In addition, Mexican courts are able to reconsider at any stage of the proceedings factual determinations made by lower courts, producing additional delay. Both problems highlight the degree to which the lack of implementing legislation in Mexico has hampered the Convention’s effectiveness.

Another problem (also compounded by the absence of implementing legislation) is the apparent lack of understanding by many judges in Mexico of the law of the Convention. Mexican judges frequently seem to ignore the fact that a case before them arises out of a return application under the Convention, and instead simply apply the procedural and substantive law that would govern a Mexican custody dispute. The result is almost always that those courts deny return without evaluating the merits of the application under the law of the Convention. U.S. Embassy officials report that the Mexican Central Authority has taken some preliminary steps to address this problem. The Mexican Central Authority actively participated in June 2003 in a conference hosted by the U.S. Embassy to educate family law judges about the Hague Convention. The Mexican Central Authority has also started to contact judges it believes may be presiding over a Convention case for the first time to provide support and guidance, and, in particular, to emphasize the distinction between the court's role in Convention cases and its role in domestic custody determinations.

Mexican Central Authority officials discuss the Convention with the judiciary and attorneys, monitor proceedings, and provide the U.S. Embassy with updates on active case processing. However, the Mexican government dedicates limited resources to the Mexican Central Authority, including insufficient staff to handle the volume of cases. The Mexican Central Authority’s ability to help bring about successful resolution of individual cases involving children taken from the U.S. is correspondingly limited. U.S. Embassy officials meet monthly with Mexican Central Authority personnel to obtain updates on pending cases but, even with regular and continued embassy involvement, the Mexican Central Authority clearly is overburdened. Improvement in this area seems unlikely unless the Mexican government commits more resources to the Central Authority.

[SageDad]

2005 “Patterns of Noncompliance”

In the last report, the Department found Mexico to be noncompliant with the Convention due to systemic problems, including slow case handling, lack of progress in resolving cases, and inability to locate children.  Mexico continues to be the destination country of the greatest number of children abducted from the United States or wrongfully retained outside the United States by parents or other relatives.  Over the recent reporting period, the Department has seen some notable improvements in the performance of the Mexican Central Authority (MCA).  The MCA forwards Hague applications to judges much more expeditiously than before; whereas previously delays of 3-6 months were common, cases are now being forwarded to the courts as early as 4-8 weeks after being received.  MCA responsiveness to inquiries from the U.S. Central Authority has also improved.  The Office of Children’s Issues is now in regular (weekly and at times daily) contact with the MCA.  Mexican authorities and judges participated in various training opportunities and judicial conferences co-sponsored by the Department of State.  This training appears to be having a positive effect.  Over the past year we have seen the highest number of court-ordered returns from Mexico to the United States of any reporting period.

Many of the problems cited in the past do persist, however.  Our greatest concern remains Mexico’s inability to locate missing children or taking parents.  In some cases, finding them takes years.  Though the MCA has begun to work more closely with the various branches of local law enforcement, including Interpol, we have not observed a substantial change in the frequency with which children are found.   Also of serious concern are lengthy court delays, especially due to the excessive use of a special Constitutional appeal process (the “amparo”), which can block Convention proceedings almost indefinitely. 

Delays are also due to the ability of Mexican appellate courts to reconsider factual determinations made by a lower court.  These case delays could be dealt with through the passage of implementing legislation incorporating Convention procedures and obligations, something that the Department of State has urged Mexico to do; we have seen no steps taken in this direction.  In addition, Mexico’s record on enforcement of judicial orders for return is mixed.  Although some mechanisms do exist to enforce court orders, they are not utilized consistently.  Finally, we continue to see Hague cases mishandled as custody cases rather than focusing on securing the prompt return of children wrongfully removed or retained abroad. 

We have made numerous appeals to the Mexican Government to invest greater funding and attention towards international child abduction-related issues, including strengthening the MCA, offering more training for judges, and allocating more resources for locating children.  The U.S. Embassy and Consulates in Mexico have worked closely throughout the year with Mexican officials and judges to explain roles and obligations under the Hague Convention.  Assistant Secretary for Consular Affairs Maura Harty has repeatedly raised USG concerns over Mexico’s compliance problems with senior Mexican officials, including during the November 2004 Binational Commission meetings and during Secretary of State Rice’s first trip to Mexico in March 2005.  Mexican judges participated in Department-sponsored training and conferences, including a December 2004 Latin American Judicial Seminar, at which judges from 19 countries in the hemisphere shared experience and worked through cases studies using Hague principles.  Nevertheless, the MCA has not taken a sufficient lead in broadening the amount of training offered within its borders to judges.  While the Department is pleased at the progress seen since last year’s report, there remains considerable room for improvement.

[SageDad]

2006: “Patterns of Noncompliance”

Over the course of the latest reporting period, we have seen some notable improvements in the performance of the Mexican Central Authority (MCA).  The MCA is continuing to forward Convention applications to judges much more expeditiously than before; whereas previously delays of three to six  months were common, cases are now being forwarded to the courts as early as four to eight weeks after being received.  MCA responsiveness has also improved.  USCA case officers are in weekly if not daily contact with the MCA, a welcome change compared to past years.  Relations between the MCA and U.S. Embassy Mexico City have significantly improved during the last year as well.  They have held joint meetings and telephone conference calls with Mexican state representatives and left-behind parents, and have worked together to review the status of long outstanding cases.  The training opportunities and judicial conferences organized by the Department for Mexican officials seem to be reaping benefits; the past year again saw a high number of court-ordered returns from Mexico to the United States.

Many of the systemic problems mentioned in previous compliance reports persist, however.  Primarily, our greatest concern remains the inability to locate missing children and taking parents in Mexico.  Although it does seem that the MCA is beginning to work more closely with the various branches of local law enforcement, including Interpol, there has not been a substantial change in the frequency with which children are found.  Secondly, cases continue to experience lengthy court delays, especially due to the excessive use of a special appeal process (the “amparo”) to block Convention proceedings almost indefinitely, and also due to the ability of the Mexican courts to reconsider factual determinations made by a lower court.  These case delays could be dealt with through the passage of implementing legislation to integrate the Convention into the Mexican legal system, something that we have urged Mexico to do in the past.  Finally, Mexico has participated in Department-sponsored training and conferences, but the Government of Mexico (GOM) has not taken sufficient lead to broaden the amount of training offered within its borders to judges, or to provide additional resources to the Mexican Central Authority.  As a result, we continue to see Convention cases mishandled as custody cases and not strictly as Convention (i.e. habitual residence) determinations.  As for enforcement of judicial orders for return, it seems the record in Mexico is mixed.  Although some mechanisms do exist to enforce court orders, they are not utilized consistently. 

We have made numerous appeals to the Mexican Government to invest greater funding and attention towards international child abduction-related issues, including strengthening the MCA by increasing resources and adding additional staff, offering more training for judges, and improving coordination with local resources for locating children. The U.S. Embassy and Consulates in Mexico have worked closely throughout the year with Mexican officials and judges to explain roles and obligations under the Convention.  Assistant Secretary of State for Consular Affairs Maura Harty has repeatedly raised U.S. Government concerns over Mexico’s compliance problems with senior Mexican officials, including during the November 2004 Binational Commission meetings and during Secretary of State Rice’s first trip to Mexico in March 2005.  Mexican judges participated in Department-sponsored training and conferences, including a December 2004 Latin American Judicial Seminar, at which judges from 19 countries shared experiences and worked through cases studies using Convention principles.  Nevertheless, the MCA has not taken a sufficient lead to broaden the amount of judicial training offered within its borders. 

In the last report, Mexico was upgraded to "not fully compliant" from an earlier designation of "noncompliant" to reflect an increase in the number of successful returns and the GOM’s efforts to address some of the Department’s long-held concerns.  We continue to be optimistic regarding Mexico.  However, due to the persistence of the above-mentioned problems, we believe that Mexico should again be listed as “not fully compliant.”  Further improvements to Mexico’s ranking in upcoming reports will require continued progress in resolving the remaining issues that complicate Convention case processing.

[SageDad]

2007:  “Patterns of Noncompliance”

For FY 2006, the Department continued to see patterns of
noncompliance with the Convention in Mexico. Many of the systemic
problems mentioned in previous compliance reports persist. Locating
children or taking parents in Mexico continues to be a serious
impediment for Convention applicants, and often takes years. Of the
USCA ’s 30 unresolved cases, 24 remain unresolved because the taking
parents and the children have not been located (see “Unresolved Cases”
for more information).

An inability to locate abducted children taken to Mexico remains the
single largest frustration that left-behind parents face. Often family
members in Mexico help hide the taking parent and child and deny
knowledge of their location when questioned by authorities. Taking
parents also often disappear again when ordered to appear before a judge
for a Convention hearing.

In addition to difficulty locating children, the Department also
continues to note occasional abuses of the amparo system, as discussed
in the “Notable Issues and Cases” section of this report.

MEXICO:
THE AMPARO LEGAL SYSTEM
The United States has more outgoing IPCA
cases to Mexico than to any other country. In
the last decade, the USCA has opened more than

900 outgoing IPCA cases to Mexico, involving
more than 1,300 children. The Department
therefore sees this issue as an important one that
affects such a large number of its cases.

Under the Mexican Constitution, there is a
legal procedure available to defendants called
an amparo. An amparo, which translates to
“protection” or “help,” is an appeal allowable in
any case in which the defendant challenges the
constitutionality of a local court decision.

Although the Department recognizes that amparos
are an integral aspect of Mexican law designed
to protect individuals’ legal rights, the USCA
is concerned that amparo appeals are being used
excessively in Convention return cases, and that
Mexico is allowing taking parents to use the
amparo process to delay cases and influence the
final outcome in ways that are not consistent
with the principles of the Convention. The
Department is encouraged by a recent decision
by a Mexican federal judge, which overcame an
amparo allowing a child to immediately return to
the United States, and hopes this precedent will
continue. By streamlining the amparo process in
Convention cases, the Government of Mexico
could better meet its treaty obligations.

[SageDad]

2008: "Patterns of Noncompliance"

For FY 2007, Mexico demonstrated patterns of noncompliance. Many
of the systemic problems mentioned in previous compliance reports
persist. Locating children or taking parents in Mexico continues to be
a serious impediment for Convention applicants, and often takes years.

Of the USCA’s 31 unresolved cases from Mexico, 23 remain unresolved
because the taking parents and the children have not been located (see
the “Unresolved Cases” section of this report for more information).
This inability to locate abducted children taken to Mexico remains the
single largest frustration that left-behind parents in the United States
face. Inadequate resources are devoted to locating missing children,
severely undermining successful implementation of the Convention in
Mexico. Cases can remain unresolved for years, as the taking parent
and the child/ren are not located. Even in cases in which parents
and children are located, taking parents often hide successfully when
ordered to appear before a judge for a Convention hearing. Mexico
must recognize the critical need to devote more resources to locating
missing children and bringing abducting parents to justice in order to
become compliant with the Convention.

The Department also continues to note patterns of noncompliance in
Mexico’s judicial system. Abuses of the Amparo appeal system during this
reporting period often led to excessive delays in Convention cases and
further increased the legal costs incurred by the left-behind parent. In
the few successful cases that led to the return of the child to the United
States, the left-behind parent turned to a private attorney who better
understood the principles of the Convention.

[SageDad]

2009: “Patterns of Non-Compliance”

Mexico demonstrated patterns of noncompliance in the areas of judicial
and law enforcement performance in FY 2008. Many of the systemic
problems identified in previous compliance reports persist. Locating
children and TPs in Mexico continues to be a serious obstacle for
Convention applicants and often takes years. There are instances in which
TPs flee into hiding when ordered to appear in court for a hearing on a
Convention application. Of the USCA’s 47 unresolved cases concerning
Mexico, 34 involve TPs and children who have not been located (see
the “Unresolved Return Applications” section of this report for more
information). Mexico devotes inadequate resources to locating missing
children, severely impeding successful implementation of the Convention.
In order to comply with the Convention, it is imperative for Mexico to
devote more resources to locate missing children and bring TPs to justice.

Although there are states in Mexico where judges have a better
understanding of the Convention and have ordered returns under
the Convention, the USCA continues to note an overall pattern of
noncompliance in Mexico’s judicial system. In the few cases that led to
the return of the child to the United States, the LBP retained a private
attorney with a greater understanding of the Convention’s principles
than Mexican public prosecutors have tended to exhibit. Mexican courts
delay Convention cases and often improperly treat them as custody
decisions. See Convention, art. 16. In these instances, Mexican judges
determine children to be well settled in the new environment and deny
the application for return to the child’s country of habitual residence.
This determination could be avoided by handling Convention cases more
expeditiously and adhering more closely to the Convention’s requirements.
Mexican judges have also abused the “amparo,” a special type of
constitutional challenge, which results in additional delays to Convention
cases and increases the LBP’s legal costs.

During FY 2008, the Mexican Central Authority (MCA) worked
closely with the United States Embassy in Mexico City to persuade
the Mexican branch of Interpol to apply more resources and efforts to
locate abducted children, and to educate the judiciary in an effort to
increase understanding of the Convention, with an observable increase in
Convention cases in the locations where these educational seminars were
held. The MCA works closely with judges to help them improve their
compliance with the Convention. In spite of these efforts, the MCA’s
performance is inevitably affected by inadequate staffing