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Bermuda and the Hague Convention

Bermuda on Congressman’s hit list over child abduction treaty

By Sirkka Huish

Bermuda is among the countries that need to be punished for harbouring children kidnapped from the US, according to Congressman Chris Smith.

The Republican has named and shamed the Island as one of about 20 countries failing to abide by an international child abduction treaty.

Mr Smith, who represents New Jersey, said more than 2,400 American children were wrongly being held overseas, calling it a “deeply troubling and growing problem.”

He told the US Congress that Bermuda had carried out a “serious human rights violation” by failing to quickly return abducted children who had been unlawfully removed by one parent. The international treaty states that abducted children should be returned within six weeks for custody hearings as the courts in the country where the child was living have better access to the appropriate evidence and witnesses.

In light of this, Mr Smith is pushing to pass the International Child Abduction Prevention Act bill through Congress to secure the return of abducted children and penalise non-cooperating countries by withholding US financial aid and other assets.

Mr Smith said “the return rates of American children are still devastatingly low” even though more than 80 countries had signed The Hague Convention on the Civil Aspects of International Child Abduction.

In 2010, 978 children were abducted to Hague Convention signatory countries with only 350 children or 38 percent returned.

Mr Smith, chairman of the House congressional panel that oversees international human rights, said the US would not tolerate child abduction or have patience with countries “that hide abductors behind The Hague Convention.”

The report states that: “Bermuda demonstrated patterns of noncompliance in the areas of central authority performance and judicial performance.”

It questions Bermuda’s application of the Convention when the taking party is not a parent, the challenges in bringing a Convention case to court when the Central Authority is also responsible for representing the state in court for child abuse cases and some courts’ failure to prohibit consideration of the merits of custody in domestic proceedings while a Hague application is pending.

The report details a June 2010 case when the Bermudian Central Authority wrongly said that because the taking person was an aunt and not a parent, the Convention would not apply. The family court then proceeded with a custody hearing and granted the aunt “full care, control and custody” of the child despite the pending Hague application.

The report states: “In November 2010, Bermuda appointed a new Attorney General (Michael Scott) who has expressed his commitment to ensuring that Bermuda is compliant with the Convention.

“At his urging, the court in the above case scheduled a hearing on The Hague application, but the left-behind parent (LBP) withdrew the application just days before the hearing, citing a lack of legal representation and a voluntary agreement with the taking aunt.”

The emotional federal hearing debate, which took place on May 24, included speeches from the parents of children abducted from America.

Mr Smith said international abduction was “a global human rights abuse” that harms children and inflicts emotional pain and suffering on the left-behind parents and families.

He said: “International child abduction rips children from their homes and lives, taking them to a foreign land and alienating them from a left- behind parent who loves them and who they have a right to know.

“Their childhood is disrupted, in limbo, or sometimes in hiding as the taking parent seeks to avoid the law or to conjure legal cover for their immoral actions.

“Abducted children often lose their relationship with their mom or their dad, half of their identity and half of their culture.”

Attorney General Michael Scott and Youth Affairs and Families Minister Glenn Blakeney did not respond to requests for comment.

The US State Department’s 2010 Hague Convention compliance report highlights Argentina, Australia, Austria, Costa Rica, France, Germany, Honduras, Hungary, Israel, Mexico, Romania, South Africa, Spain, Switzerland and Turkey for failing to enforce return orders.

It also states that Bermuda, Brazil, Bulgaria, Burkina Faso, Honduras, Mexico, the Bahamas and Saint Kitts are among countries failing to abide by The Hague Convention, by not ensuring swift enforcement of convention orders.

He said: “The convention creates a civil framework for the quick return of children who have been abducted and for rights of access to both parents.

“Under the convention, courts are not supposed to open or reopen custody determinations, but rather decide the child’s country of habitual residence, usually where a child was living for a year before the abduction.

“Absent extenuating circumstances, the child is to be returned within six weeks to their habitual residence, for the courts there to decide on custody or to reverse any previous custody determinations.”

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