Chile's Pattern of Noncompliance

CHILE'S PATTERN OF NONCOMPLIANCE: US Department of State's 2009 Report

Although there have been some improvements during FY 2008, the Department finds that Chile's judicial performance under the Convention continues to be of concern, as it was in FY 2007. Chilean courts delay Convention cases and often improperly treat them as custody decisions, citing the UN Convention on the Rights of the Child. U.S. parents often experience bias by the courts in favor of Chilean parents, especially Chilean mothers. 

In addition, it is customary in Chilean courts to order psychological or social evaluations in all cases involving minor children, regardless of whether there is evidence of possible risk to the child in being returned to his or her country of habitual residence. As the Convention focuses on returning a child to his or her country of habitual residence, the USCA takes the view that psychological evaluations are unnecessary, and cause inappropriate delays in processing cases, if there is no evidence of risk to the child should the court order the child's return. 

Another trend is for Chilean courts to deny Convention applications upon finding that the child is well settled in the new environment. This result, which could be avoided if Chilean courts handled Convention cases more expeditiously, leaves the LBP with the much less desirable option of filing an application under the Convention for mere access to the child, or for visitation, and even these applications in some cases have not resulted in contact between the LBP and the child. 

To take an example during the reporting period, a Chilean court ordered a scheduled access visit by the LBP, and the LBP purchased and confirmed his plane ticket and accommodations for the trip. Hours before the LBP was scheduled to board the plane for Chile, the Chilean Central Authority (CCA) notified him that the Chilean judge had suspended the scheduled visitation. 

In April 2008, the CCA sponsored a seminar on the Convention and its application in Chile, including topics such as the emotional impact of IPCA on children and parents, and the role of “network judges” in promoting the correct application of the Convention in Chile.  Several months after the seminar, the Chilean Supreme Court designated a family court judge to serve as Chile's network judge for Convention cases.  The USCA and the CCA have a strong, cooperative working relationship.  The CCA is communicative, responds to inquiries promptly, and processes cases expeditiously.

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