The Office of Children's Issues of the U.S. State Department's Bureau of Consular Affairs has recently released the annual report on Hague Convention compliance. The report details various issues of non-compliance with member countries. It places countries under two categories; "Not Compliant" and "Demonstrating Patterns of Noncompliance," with the former category signaling more serious compliance problems. This year The Bahamas has been classified as "Demonstrating Patterns of Noncompliance." The text of the 2013 report follows, as well as case summaries from the report.
Patterns of Noncompliance:
The Bahamas demonstrated patterns of non-compliance with the Convention in the area of judicial performance. Although the U.S. Central Authority (USCA) has an excellent working relationship with the Bahamian Central Authority and the Office of the Attorney General, significant delays in the Bahamian courts remain a serious issue, as does the courts' treatment of Hague Convention cases as custody cases and their imposition of burdensome undertakings before ordering the return of children. The USCA continues to observe significant delays in the handling of Hague Convention cases by courts. There are seven active cases (up from three in 2011) that have been pending for 18 months or longer that are presently awaiting action by the Supreme Court; four of those cases have been pending 28 to 40 months. The significant delays result in part from the Supreme Court's frequent imposition of burdensome undertakings before it enforces the return order of a child. In one active case, the Supreme Court ordered the return in June 2012 only if the left-behind parent (LBP) first vacated the marital home and a November 2010 U.S. domestic violence restraining order against the LBP was reinstated. In addition, the Supreme Court also tends to treat Hague Convention cases as custody cases, requiring home studies in every case, whether or not a 13(b) defense to return is raised. This also causes significant delays and financial hardship for all parties. The USCA likewise remains concerned about the Supreme Court's insistence on apostilles for documents submitted with Convention applications, which appears inconsistent with Article 30 of the Convention, and which results in lengthy delays and substantial financial burdens for parents.
Unresolved Return Applications, Case Summaries:
1. In June 2010, the Office of the Attorney General (OAG) requested that a taking parent (TP) home study be conducted by the Department of Social Services. The OAG did not receive the report until December 2010. The OAG requested that the left-behind parent (LBP) provide apostilles for Convention application documents causing further delays. The U.S. Central Authority (USCA) forwarded the apostilled documents received from the LBP to the Bahamian Central Authority (BCA) in January 2011 and the case was presented to the court in April 2011. The first Convention hearing was scheduled for October 2011, but it and subsequent hearings have been repeatedly rescheduled for various reasons, including the misplacement of the case files by the court. Following that incident, the OAG resent documents to help reconstruct the file. In August 2012, the hearing was postponed because the LBP was unable to attend. The OAG submitted a request for a new hearing date, but as of December 2012, the OAG had yet to receive a response from the court. The USCA and U.S. Embassy Nassau have regularly requested updates from the BCA on court proceedings.
2. After receiving the Convention application, the Office of the Attorney General requested home studies on both parents. In January 2011, the Convention hearing was heard before the First Instance Court. The court reviewed the case in April 2011 and in January 2012 denied the return of the child to the United States. The left-behind parent appealed the decision and a hearing was held in December 2012. The Department of Social Services was also ordered to interview the child and provide a report to the court. A second appellate hearing is scheduled for March 2013.
3. The Bahamian Central Authority (BCA) acknowledged receipt of the Convention application only in October 2010, and the case was filed before the First Instance Court in July 2011. The First Instance Court requested a home study of the taking parent (TP). The court received the home study results in July 2011. During the September 2011 hearing, the First Instance Court judge recused himself because he knew the TP. The Office of the Attorney General (OAG) sent numerous requests to the First Instance Court requesting a new hearing date, and in January 2012, the court informed the OAG that the case file had been misplaced. The TP's attorney requested a new hearing date in June 2012 after the file was found, but as of December 2012, a new hearing date had not yet been set. The U.S. Central Authority and U.S. Embassy Nassau have regularly requested updates from the BCA on court proceedings.
4. The Bahamian Central Authority (BCA) acknowledged receipt of the Convention application in July 2010. The Office of the Attorney General (OAG) requested a taking parent (TP) home study and it was completed in February 2011. The OAG subsequently reported that the First Instance Court misplaced the file and the OAG resent documents to help reconstruct it. In September 2011, the OAG requested a Convention hearing date. After it was discovered that the TP was working in the United States, in December 2011, the TP's mother, with whom the child was actually residing, was served with the court summons. The scheduled August 2012 hearing was postponed because the left-behind parent (LBP) was hospitalized and unable to attend. In September 2012, the OAG proposed to the court a new hearing date, but a date has not yet been set. In November 2012, the OAG contacted the Department of Social Services in the United States and requested a home study on the LBP. The U.S. Central Authority and U.S. Embassy Nassau have regularly requested updates from the BCA on court proceedings.