Each year, between 600 and 800 American children are taken from the United States by one parent without the consent of the other.
The parent left behind can only wonder if the children are safe, warm, well-fed, and loved, and what – if anything – their precious children are being told about them. Many children are intentionally misled by the taking parent to hate and distrust the left-behind parent.
Abducted children also suffer tremendously from the abduction and the subsequent loss of contact with the left-behind parent. Research shows that abducted children who are recovered often experience a range of serious short- and long-term emotional and psychological problems, including anxiety, eating disorders, nightmares, mood swings, sleep disturbances, aggressive behavior, resentment, guilt, and fearfulness.
In 1988, the United States became a party to the Hague Convention on the Civil Aspects of International Child Abduction, which seeks to deter parents from putting their children through the trauma of an international abduction by—absent a grave threat to a child’s well-being—returning abducted children back to their home country and home courts to determine the best interests of the child.
The Convention affirms that if a custody decision has already been made, it should not be re-litigated thousands of miles away in a foreign court. If a custody decision needs to be made, the courts in the home country are the courts with the best access to school records, police reports, neighbors, teachers, friends, and many other resources to help determine the child’s best interest. The Convention also protects an abducted child’s relationship with the left-behind parent, requiring that a child should have access to the parent for the duration of court proceedings for return, and should have access to the parent even if the return is denied. Seven of eleven Partners for Cooperation, including Japan, are party to the Hague Convention, as are fifty-one of fifty-seven participating States, including Slovakia.
However, as the Cook and Frisancho families know all too well, securing implementation of the Convention can be a financially and emotionally draining nightmare.
James Cook learned just weeks ago that Japan has again failed to return his four children to him. He has been kept from contact with them for more than three years in a family vacation-turned-abduction case.
More than two years ago, Japan’s high court ordered Cook’s ex-wife to return the children to their father in the U.S., per the Hague Convention. However, despite the court ruling, Japanese authorities failed to enforce the return decision for a year. As a result, Mr. Cook spent thousands of dollars on legal fees and travel to Japan to fight for his children. When the financial burden forced Mr. Cook to move to an apartment, Japanese courts revoked the return because they did not consider an apartment a “stable home”—a conclusion that would surprise the millions of families in Japan and the U.S. who live happily in apartments.
That conclusion also would surprise the writers of the Convention, who provided as an exception to return “grave threats that would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”—situations that would include war, famine, a disease epidemic, or very serious abuse or neglect of the child from which the home country could not protect the child.
“Japan’s own Hague courts twice ordered return of my children, but Japan ignored the orders until they could find a way to revoke them,” said Mr. Cook. “I followed the rules, respected the process, and trusted in the Convention—but Japan remains the ‘black hole’ of child abduction.”
Dr. Augusto Frisancho knows all too well the heartache of winning in court, only to have enforcement of a judgment delayed until it is eventually reversed. Dr. Frisancho, a medical doctor at the Johns Hopkins University, has not seen or even been allowed to speak to his three sons after their mother abducted them to Slovakia seven years ago.
Like Mr. Cook, Dr. Frisancho opted to use the Hague Convention rather than seek the criminal prosecution of his estranged spouse in the United States or Slovakia for kidnapping. The Slovak courts ordered that his children be returned to the United States to resolve any custody questions. Although the court order returning custody to Dr. Frisancho was—according to standard procedural rules governing such legal actions—final, a year later the decision was reversed in a closed-door proceeding from which Dr. Frisancho was excluded.
Dr. Frisancho took his case to the European Court of Human Rights, which found unanimously that his rights had been violated by Slovakia. Slovakia paid the court-imposed damage award and changed its laws on closed proceedings and appeals in abduction cases.
However, seven years after the abduction, Dr. Frisancho still has no access to his children, much less custody. He has not even been given a photo of his children and relies on age-enhanced images from the National Center of Missing and Exploited Children to see a glimpse of what his children may look like today.
When Slovakia ordered Dr. Frisancho’s estranged wife to bring the children to court to verify their well-being with a psychologist, she refused. When Slovakia ordered her not to remove the children from Slovakia, she moved the children across the border into Hungary.
Although the children regularly visit their grandparents in Slovakia and Dr. Frisancho’s estranged wife works in Slovakia, Slovakia has not enforced the court orders or ruled on Dr. Frisancho’s petition to finish the case.
Were Slovakia to finish the case, Dr. Frisancho could enforce the ruling in Hungary using the Brussels II Regulation. As it is, Dr. Frisancho is facing the fact that he may have to translate thousands of pages of Slovakian court proceedings into Hungarian and restart his case in Hungary—losing more precious time with his children.
“I want to see my children. I want my children to know they have a father who loves them dearly and who prays every night that somehow this wrong to them will be righted,” said Dr. Frisancho. “Despite every opportunity over 7 years, Slovakia has inexplicably failed to meet the two main goals of the Hague Convention—return and access.”