[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
RESOLVING INTERNATIONAL PARENTAL
CHILD ABDUCTIONS TO NON-HAGUE
CONVENTION COUNTRIES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON AFRICA, GLOBAL HEALTH,
GLOBAL HUMAN RIGHTS, AND
INTERNATIONAL ORGANIZATIONS
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MAY 9, 2013
__________
Serial No. 113-58
__________
Printed for the use of the Committee on Foreign Affairs
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COMMITTEE ON FOREIGN AFFAIRS
EDWARD R. ROYCE, California, Chairman
CHRISTOPHER H. SMITH, New Jersey ELIOT L. ENGEL, New York
ILEANA ROS-LEHTINEN, Florida ENI F.H. FALEOMAVAEGA, American
DANA ROHRABACHER, California Samoa
STEVE CHABOT, Ohio BRAD SHERMAN, California
JOE WILSON, South Carolina GREGORY W. MEEKS, New York
MICHAEL T. McCAUL, Texas ALBIO SIRES, New Jersey
TED POE, Texas GERALD E. CONNOLLY, Virginia
MATT SALMON, Arizona THEODORE E. DEUTCH, Florida
TOM MARINO, Pennsylvania BRIAN HIGGINS, New York
JEFF DUNCAN, South Carolina KAREN BASS, California
ADAM KINZINGER, Illinois WILLIAM KEATING, Massachusetts
MO BROOKS, Alabama DAVID CICILLINE, Rhode Island
TOM COTTON, Arkansas ALAN GRAYSON, Florida
PAUL COOK, California JUAN VARGAS, California
GEORGE HOLDING, North Carolina BRADLEY S. SCHNEIDER, Illinois
RANDY K. WEBER SR., Texas JOSEPH P. KENNEDY III,
SCOTT PERRY, Pennsylvania Massachusetts
STEVE STOCKMAN, Texas AMI BERA, California
RON DeSANTIS, Florida ALAN S. LOWENTHAL, California
TREY RADEL, Florida GRACE MENG, New York
DOUG COLLINS, Georgia LOIS FRANKEL, Florida
MARK MEADOWS, North Carolina TULSI GABBARD, Hawaii
TED S. YOHO, Florida JOAQUIN CASTRO, Texas
LUKE MESSER, Indiana
Amy Porter, Chief of Staff Thomas Sheehy, Staff Director
Jason Steinbaum, Democratic Staff Director
------
Subcommittee on Africa, Global Health, Global Human Rights, and
International Organizations
CHRISTOPHER H. SMITH, New Jersey, Chairman
TOM MARINO, Pennsylvania KAREN BASS, California
RANDY K. WEBER SR., Texas DAVID CICILLINE, Rhode Island
STEVE STOCKMAN, Texas AMI BERA, California
MARK MEADOWS, North Carolina
C O N T E N T S
----------
Page
WITNESSES
The Honorable Susan Jacobs, Special Advisor for Children's
Issues, Bureau of Consular Affairs, U.S. Department of State... 6
Ms. Patricia Apy, Attorney, Paras, Apy & Reiss, P.C.............. 37
Ms. Bindu Philips, Mother of Children Abducted to India.......... 52
Mr. Michael Elias, Father of Children Abducted to Japan.......... 64
Mr. Colin Bower, Father of Children Abducted to Egypt............ 74
Mr. David Goldman, Father of Child Abducted to Brazil............ 86
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
The Honorable Susan Jacobs: Prepared statement................... 8
Ms. Patricia Apy: Prepared statement............................. 43
Ms. Bindu Philips: Prepared statement............................ 55
Mr. Michael Elias: Prepared statement............................ 68
Mr. Colin Bower: Prepared statement.............................. 79
Mr. David Goldman: Prepared statement............................ 94
APPENDIX
Hearing notice................................................... 108
Hearing minutes.................................................. 109
Written responses from the Honorable Susan Jacobs to questions
submitted for the record by the Honorable Christopher H. Smith,
a Representative in Congress from the State of New Jersey, and
chairman, Subcommittee on Africa, Global Health, Global Human
Rights, and International Organizations........................ 110
Written responses from the Honorable Susan Jacobs to questions
submitted for the record by the Honorable Mark Meadows, a
Representative in Congress from the State of North Carolina.... 116
RESOLVING INTERNATIONAL PARENTAL
CHILD ABDUCTIONS TO NON-HAGUE
CONVENTION COUNTRIES
----------
THURSDAY, MAY 9, 2013
House of Representatives,
Subcommittee on Africa, Global Health,
Global Human Rights, and International Organizations,
Committee on Foreign Affairs,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 o'clock
a.m., in room 2172 Rayburn House Office Building, Hon.
Christopher H. Smith (chairman of the subcommittee) presiding.
Mr. Smith. The committee will come to order, and I want to
thank all of you for joining us this morning to focus once
again on the persistent and devastating problem of
international parental child abduction, which occurs when one
parent unlawfully moves a child from his or her country of
residence, often for the purpose of denying the other parent
access to the child.
The damage to the child and the left-behind parent is
incalculable, and often lifelong. The children especially are
at risk of serious emotional and psychological problems, and
may experience anxiety, eating problems, nightmares, mood
swings, sleep disturbances, aggressive behavior, resentment,
guilt, and fearfulness. These victims are American citizens who
need the help of their Government when normal legal processes
are unavailable or failed.
In 1983, the United States ratified the Hague Convention on
the Civil Aspects of International Child Abduction to try to
address this serious issue. This convention creates a civil
framework for a quick return of abducted children, and for
rights of access to both parents. Absent extenuating
circumstances, the child is to be returned within 6 weeks to
his or her country of habitual residence for the courts there
to decide on custody, or to enforce any previous custody
determinations.
The Convention has helped return many children, but it is
far from a silver bullet. Even in countries where the
Convention is allegedly working, only about 40 percent of the
children are returned. Other cases are ``resolved'' but too
often with dubious application of the Convention. Susceptible
to abuse by taking parents or unwilling judges, the Convention
has too often been stretched to provide cover for the
abduction, rather than recovery of the child.
Taking parents have figured out that they can drag out
hearing after hearing, appeal after appeal, for years, until
the courts can claim yes, the child should have been returned,
but that the child has settled in a new country by that point
and does not have to be returned under an exception in the
Convention.
Some Hague Convention signatories are simply not enforcing
legitimate return orders. The State Department's 2012 Hague
Convention Compliance Report highlights five countries--
Argentina, Australia, France, the Netherlands, and Romania--for
failing to enforce return orders. Other countries--Costa Rica,
Guatemala, the Bahamas, Brazil, and Panama--are non-compliant
with the Convention, or showing patterns of non-compliance. In
other words, abducted American children are not coming home
from these countries, and American families, I would
respectfully submit, need other options.
The same is true for many countries that have not signed
the Hague Convention. In 2012 alone, more than 634 children
were abducted to countries that have not signed the Hague
Convention, countries like Japan, Egypt, and India. More than
300 children have suffered abduction from the United States to
Japan since 1994. Congress does not know of a single case in
which the Government of Japan has issued and enforced an order
for the return of an abducted child to the United States.
According to the U.S. Department of State's statistics, the
United States is monitoring 54 ongoing cases involving 74
children who were abducted from the U.S. to Japan, and 21
additional children from the United States who may not have
been abducted, but who are being denied access to their
American parent. Although Japan has taken steps, including this
morning, to join the Hague Convention, Japan's ratification
will not address current cases for return. Moreover, experts
question whether the ratification includes reservations that
will make it nearly impossible for even new abduction cases to
be resolved with returns.
The United States does not have a bilateral or other
agreement with Japan to facilitate the return of American
citizen children who are currently abducted, citizens like Jade
and Michael Elias, whose father will testify before us today.
Under the Convention alone, if ratified by Japan, the best
that American parents of currently abducted children can hope
for is, perhaps, a visit with their child. Such visits are
projected to look like 1 hour, once a month, in a secure
facility. Hardly dignified or unfettered.
Despite our multi-billion dollar investment in Egypt,
neither the Mubarak government nor the Morsi government has
seen fit to return abducted American children Noor and Ramsay
Bower. They, along with 30 other American children in Egypt,
are forced to live without half of their culture, half of their
identity, and without the love and guidance of an American
parent who fights daily for their return. The United States
does not have a bilateral agreement with Egypt to facilitate
the return of American citizen children, and has so far been
unwilling to make prioritization of these cases a condition for
the continued funding of the Egyptian Government.
India has also been a source of immense frustration and
grief for American parents. In 2012, 32 more children were
abducted to India, bringing the total number to 78 open
abduction cases involving 94 children. Although some Indian
courts make Hague-like decisions to return some children,
returns are at best uneven. Parents attempting to utilize
India's courts for the return of abducted children report
corruption and incessant delays. The United States does not
have a bilateral agreement with India, either, to facilitate
the return of American citizen children to the United States.
In the last Congress, I introduced legislation which we
entitled the Sean and David Goldman Child Abduction Prevention
and Return Act, and I will reintroduce it shortly, to impress
both upon the Hague and non-Hague Convention countries alike
that the United States will not tolerate abduction or have
patience with countries that hide abductors behind the Hague
Convention.
The bill would empower the President and the Department of
State with new tools, and I would say necessary tools, and
authorities, to secure the return of abducted American
children. When a country has shown a pattern of non-cooperation
in resolving child abduction cases, the President will be able
to respond decisively with a range of 18 actions and penalties.
Based on past experience, particularly with the Goldman case in
Brazil, we know that penalties manage to get the attention of
other governments and help them prioritize resolution.
The bill also calls for the State Department to work out
memorandums of understanding with countries that have not
signed the Hague Convention in order to create agreed-upon
routes to abduction resolution between countries, rather than
the neverending and torturous maze Americans are currently
forced to run.
The status quo, despite best intentions, is simply not
adequate. And while well-meaning and sincere, current policy
has failed far too many children and their left-behind and
brokenhearted parents. To combat the cruelty and exploitation
of human trafficking, over a decade ago I authored the
Trafficking Victims Protection Act. To tangibly assist abducted
American children--and this is a human rights violation--and
their left-behind parents, I again am introducing the Sean and
David Goldman Child Abduction Prevention and Return Act of
2013. The United States can, and I believe must, do more to
protect innocent American children and their left-behind
parents from the absolute horrors of international child
abduction.
I now turn to my friend and colleague, Mr. Cicilline.
Mr. Cicilline. Thank you, Chairman Smith, for holding
today's hearing on a topic that deserves this committee and
Congress' full attention. Chairman Smith, I also want to
commend you for your efforts to address this ongoing issue and
the many challenges to ensuring that abducted children are
returned to loving, caring and safe homes.
And while today's hearing is on international child
abduction, I think it's an important moment to acknowledge the
extraordinary and harrowing developments of the three young
women who won their freedom earlier this week in Cleveland.
These people have endured a horrendous ordeal, and their
nightmare is now over. We can all breathe a sigh of relief that
they are back with their families and a new brighter chapter in
their lives can begin. They will continue to be in our thoughts
and our prayers.
I would also like to offer my gratitude to the witnesses
for their testimony today--I would particularly welcome
Ambassador Jacobs--and for the important work that is being
done on this critical subject.
Today's hearing is vitally important because children who
have been abducted internationally can experience extreme
stress and confusion. Not only have they been taken from a
parent, but they must also live and adapt to a place that is
foreign to them in many ways. These are terrible events that no
parent or child should ever have to endure, and as we approach
International Child Abduction Day on May 25th, I am pleased
that we are able to address the full complexity of these
challenges around this issue.
The complications associated with returning abducted
children to the United States from countries that are non-
signatories to the Hague Convention are very difficult and
troublesome, yet not unresolvable, and holding this hearing is
one step in the right direction. I hope the committee will also
focus on the occurrence of domestic violence and child abuse in
child abduction cases. There are many examples where parents
who flee with a child do so to escape environments that are
unsafe and, frankly, dangerous. This, too, deserves our
critical attention and focus.
I look forward to hearing your thoughts and recommendations
on resolving international parental child abductions, and I
thank you again, Mr. Chairman, and would like to yield to my
colleague----
Mr. Smith. No, I will yield.
Mr. Cicilline. Okay. I yield back.
Mr. Smith. I would like to yield to Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman, for conducting this
hearing on this important topic. And I want to thank the
witnesses, obviously, and Ambassador Jacobs, thank you for
being here. The witnesses that will testify in our second
panel, we appreciate your willingness to tell your story.
This seems to be a problem that simply is not addressed by
current law or policy, and what I look forward to hearing from
you, Ambassador Jacobs, is, as we start to look at that--we
know that you are in a difficult situation where you have got
law, policy, regulations--how we can be the heavy, how Congress
can be the heavy and say, ``This must stop, and this is the law
of the land,'' and how we can do that to help facilitate you on
doing your job. Because obviously you wouldn't be here today if
you didn't have a heart for these children, and we appreciate
your willingness to be here.
We know that as of January, the number of open cases in the
international parental child abduction in the Office of
Children's Issues was some 1,113 cases involving some 1,575
children, and of these cases 649 of them, or 941 of the
children, were in Hague Convention partner countries. But
another 464 of those, or 634 children, were in non-Hague
Convention countries. And so that presents an issue, and
obviously this means that there is a significant portion of
these abducted kids who are going to countries where there is
virtually no ability for them to reach out to their families,
and for their families to reach them. And this situation is
just unacceptable.
We obviously live in a global world, and perhaps a global
solution is part of this particular issue. But we want to act
as Congress, and I want to support the chairman in his efforts
to make sure that we have legislation, and bring and highlight
the fact that it needs to be addressed. And you know, child
abduction is really child abuse. And when we see that--we have
seen the effects of child abuse. And what we cannot do--we have
a moral obligation to not allow that to happen.
So I thank the ranking member here today for his
willingness to join in a bipartisan way to address this issue,
and I'm hopeful that we can develop some effective solutions
that not only attack this difficult issue, but puts forward a
way that we can move forward so that we can reunite these
families.
And I thank you, and I yield back, Mr. Chairman.
Mr. Smith. Thank you very much, Mr. Meadows. I need to go
to members of the committee first, and then I will go to Mr.
Kennedy. Mr. Weber, Randy Weber.
Mr. Weber. Well, thank you, Mr. Chairman. I am good. I am
really here to listen and to learn. I applaud you, Madam
Ambassador, for being here, and I look forward to the
testimony, and being able--as my colleague, Mr. Meadows, said--
to help make a difference. So I am anxious to listen. Thank
you.
Mr. Smith. Thank you. The chair recognizes Mr. Kennedy, not
a member of the committee, but most welcome.
Mr. Kennedy. Chairman, thank you very much for allowing me
to speak this morning and join all of you, even though I do not
sit on this subcommittee. I am honored to welcome Colin Bower,
a constituent from Newton, and most importantly a devoted
father to his two sons, Noor and Ramsay. Mr. Bower will be
joining us on a panel a little bit later this morning.
As this panel knows, Mr. Bower has worked tirelessly to try
to bring his two children home to the United States, after they
were abducted by their mother in 2009. Despite a court ruling
that gave him full custody and a subsequent Egyptian court
order granting him the right to visit with his children, Colin
has continually been denied the opportunity to visit his sons.
Well, he has never given up hope. We must do more than just
hope. As elected officials, every person on this dais feels a
passionate responsibility to help our constituents, and we must
remain vigilant and committed to all American children who are
far from home, far from their families, through no fault of
their own.
Mr. Chairman, thank you for the opportunity to join you
today. I look forward to hearing the testimony of Ambassador
Jacobs and the families later this morning, and to the
commitment of the members of the panel. Thank you.
Mr. Smith. Thank you, Mr. Kennedy.
It is now my privilege and honor to welcome to the
committee Ambassador Susan Jacobs, who currently serves as
Special Advisor in the Office of Children's Issues at the U.S.
Department of State. Ambassador Jacobs has had a long and
distinguished career in the Foreign Service, in which she has
served around the world, including in Papua New Guinea, where
she was the Ambassador. And she has also held a number of
senior positions with the State Department here in Washington,
serving as liaison to both Congress and the Department of
Homeland Security.
Ambassador Jacobs, the floor is yours.
STATEMENT OF THE HONORABLE SUSAN JACOBS, SPECIAL ADVISOR FOR
CHILDREN'S ISSUES, BUREAU OF CONSULAR AFFAIRS, U.S. DEPARTMENT
OF STATE
Ambassador Jacobs. Thank you, Mr. Chairman. Mr. Chairman,
distinguished members of the subcommittee, thank you for the
opportunity to testify again before you on the Department of
State's efforts to prevent international parental child
abduction, to resolve existing cases, and to encourage all
sovereign nations to join the United States in membership in
the Hague Abduction Convention.
I would like to speak about the two main points of my
written statement: The important work of the Bureau of Consular
Affairs Office of Children's Issues in promoting the Hague
Abduction Convention and our work in ensuring compliance with
the Convention. I ask that my full written statement be entered
into the record.
Mr. Smith. Without objection, so ordered.
Ambassador Jacobs. Thank you. The Department of State has
no higher priority than to safeguard the welfare of children
who have been wrongfully abducted across international borders.
My experience over the past few years, as the Special Advisor
for Children's Issues, has convinced me that the Hague
Abduction Convention is the best tool for resolving cases of
international parental child abduction, or IPCA. Of course, the
prevention of IPCA is our priority as well, and my written
testimony describes the work of our dedicated officers on this
front. In those unfortunate circumstances where an abduction
does take place, we turn to the Convention whenever it is
available as a possible remedy. This has been the focus of my
work since Secretary Clinton appointed me in 2010.
The Hague Convention is a multilateral international treaty
that allows us, in our highly interconnected world, to work
harmoniously across cultures, borders, and legal systems. As
you all know, however, there are many cases involving children
abducted to countries where the Convention is not an available
remedy. One of our top priorities is to engage bilaterally and
multilaterally with those foreign governments to explain why
the Convention is beneficial and to encourage expanded
Convention partnership throughout the world.
Last year, the United States welcomed Singapore and Morocco
as new treaty partners, and we were pleased to see several
other nations, including South Korea, Russia, and Lesotho,
accede to the Convention and take steps to institute effective
implementation.
Parents, of course, want to know what we are doing
specifically to help their children when the Abduction
Convention is not an option for them to seek their child's
return. In those cases, unfortunately, the options for seeking
the return of a child are far more limited, thus underscoring
why the Convention membership is critical as we move forward.
The Office of Children's Issues works closely with those
parents to provide information about domestic and foreign
resources that may help them to resolve their children's cases.
We raise individual cases with foreign governments, requesting
through diplomatic channels that they return abducted children
to the United States. We assist parents to obtain access,
confirm their children's welfare, and understand their options.
We monitor legal proceedings as the case unfolds in the court,
and we attend hearings when appropriate. We also engage child
welfare authorities and advocate for counselor and parental
access.
In addition, we coordinate with law enforcement authorities
when parents choose to pursue criminal remedies and work every
day to explore all available and appropriate options for the
return of children to their habitual residence.
In countries where the Convention is available, the Office
of Children's Issues works to promote Convention compliance.
Again, we have a variety of tools at our disposal. Among these
are judicial seminars, legal information and infrastructure
guidance, and ongoing monitoring as part of the annual
compliance report to Congress. We follow individual cases very
closely. We coordinate with parents and their attorneys to
provide information and updates. We also review judicial
decisions for compliance.
But it is important to keep in mind that there are times
when proper application of the Convention does not result in a
child's return to the United States. When this happens, we
stand by to provide parents with information about pursuing
access to the child under the Convention, as well as providing
all other appropriate assistance.
Today, the Office of Children's Issues provides full
support to my efforts, as well as those of Secretary Kerry and
the entire Department, to increase the number of children
returned to their parents, to advocate for membership in the
treaty, and to create safeguards that will minimize the risk of
international parental child abduction.
Mr. Chairman and members of the subcommittee, in conclusion
I want to assure you that we continue to develop programs and
outreach to prevent abductions through increasing awareness of
this issue. Your support remains a key element to our success.
Congressional interest is crucial as we encourage other
countries to join the Convention and continue bilateral
discussions to resolve existing cases that fall outside the
Convention framework. I will be very happy to take your
questions.
[The prepared statement of Ambassador Jacobs follows:]
----------
Mr. Smith. Thank you very much, Ambassador. Let me thank
you for your testimony, and for the work of your office and
yourself.
Part of the concern that many of us have is that your
office, assuming and believing that there is nothing but good
will there, doesn't have the sufficient tools to get the job
done. And I would hope--and you may not want to comment on it
today, but I know you have seen the legislation. But as I said
in my opening statement, our hope is to empower you, and
empower the Secretary of State and the President, as we did
with the International Religious Freedom Act--and as you know,
the penalties, starting with a simple demarche on to very
significant penalties, is derived verbatim from the IRFA
legislation of 1998, which went through my committee and is
authored by Congressman Frank Wolf. And it parallels very
closely what we did on the Trafficking Victims Protection Act.
Both of those initiatives were strongly opposed, especially
IRFA, by the Clinton administration, but he signed them at the
end of the day, both of those pieces of legislation. I know
that human rights enforcement, if we assume good will on the
part of a country, without a penalty phase, becomes somewhere
between slim and none in most cases. That was a lesson learned
from those two landmark laws that we are trying to apply now to
child abduction.
If you wanted to comment on the legislation, because the
new bill will be very similar to the old, but with some
significant upgrades. Would you like to comment on it?
Ambassador Jacobs. Thank you, sir. We look forward to
working with you on it. We would welcome seeing the new
legislation and discussing it with staff at your earliest
opportunity.
Mr. Smith. Okay. I would hope you would. And I hope--you
know, because time delay is denial for a left-behind parent and
for a child. I mean, this legislation can move and should move
quickly. It has been delayed far too long for whatever reasons,
so we really need to, on both the congressional side and the
executive branch side, come to a consensus and get this done.
I noted in your testimony you talked about Japan, and we
are all looking forward to a ratification. I am very concerned
that the caveats and the reservations may be onerous, and may
lead to very few resolutions where the child is actually
returned. But you noted in your testimony that it will be
entered into force automatically, it will immediately be
applicable to the U.S. situation.
And yet, when you talked about Korea, you said that the
Department needs to study the Republic of Korea's
implementation of the treaty, its domestic legislation,
institutions and the like. It seems to me that Japan, with its
sole custody laws and other hindrances, particularly in its
family law, raises very significant barriers to a successful--I
am wondering why the difference between Korea and Japan.
Why isn't Korea entering into force now?
Ambassador Jacobs. The reason is because Japan was a member
of the Hague Conference when the treaty was written in 1980,
and every country that was a member of the conference, of the
Hague Conference, automatically becomes a party to the
Convention without anyone else having to do anything.
Mr. Smith. So regardless of how infirm their laws might be?
Ambassador Jacobs. Regardless, that is the way the
conference works. Korea was not a member of the Hague
Conference then, and so we have to check that the central
authority has proper authorities, that there is a judicial
system and law enforcement to make sure that the treaty will
work.
So there is a big difference, and I can understand the
concern.
Mr. Smith. Congress has made several requests to be
informed of the number of children returned to the U.S. in 2011
and 2012, as had previously been the practice of the State
Department, but we have not received a response. Do you know
why?
Ambassador Jacobs. I am sorry, but I don't. I will find out
for you and let you know.
Mr. Smith. Okay. And more importantly, if we could get
those numbers----
Ambassador Jacobs. I will see what I can find out.
Mr. Smith [continuing]. That would be very good.
Ambassador Jacobs. I think one of the things that is
important to remember is that there is always something behind
the numbers. The numbers are not the complete story. And so we
look forward to working with your staff----
Mr. Smith. Well, we are concerned about a breakout with
actual returns, and then others that are deemed resolved but
really there was no return. And that differentiation is
something that it would be very helpful for policymakers to
know. So if you could include that?
Ambassador Jacobs. I will see what I can find out.
Mr. Smith. Okay. Could you get that to us?
Ambassador Jacobs. I will get you an answer.
Mr. Smith. Let me ask you about memorandums of
understanding and bilateral agreements. When I went with the
Eliases to Japan, I met with members of the Diet, members of
the government, our own Embassy people, who obviously were very
empathetic.
But as you know, children are not coming home from Japan.
Whether the abductor is a father or a mother, it continues to
be a serious, serious problem. In the case of Michael Elias, as
you know, his former wife worked for the Japanese Government.
And the judge, when custody was being decided, took the
passports and said, ``No travel.'' She went and had a duplicate
set made, because she worked for the government, and then
whisked off with the two children. And as far as I know, there
has been no real investigation, no penalty, no sanctioning, of
that young woman for that terrible act of not just abduction,
but also fraud, in terms of the passports.
And one of the several conversations that I have had with
your office, and with Ambassadors around the world who are
dealing with this, particularly in non-Hague countries, is the
compelling need to have a bilateral agreement. We do it on
adoption in many cases, where there are gaps, even with those
that have signed the inter-country adoption Hague Convention.
But with Japan, it seems to me, the opportunity is ripe for an
agreement.
Good will, you know, only goes so far. And like I said, for
Michael Elias, who is sitting there, and all the other left-
behind parents, delay is denial. And why not an agreement?
Hammer out an agreement for a modality to work this out.
You know, the British have such an agreement with Pakistan,
and it works. And it works well. Patricia Apy, in her
testimony, will be speaking to that later on today. I mean, it
is a vehicle that will undoubtedly yield positive results. I
see no downside.
Ambassador Jacobs. Well, I am going to have to disagree
with you, sir. We have three bilateral--we have three memoranda
of understanding with Egypt, Jordan, and Lebanon. There is no
enforcement mechanism, and we have had no returns under those
memoranda. We believe that the Hague Convention provides the
best opportunity for resolving these cases. And it took Japan--
I think that the problems, one of the problems in Japan, is
their belief about custody, that one parent is supposed to drop
out of the child's life when there is a divorce. But we see
that these things are changing, and that Japan is moving to a
more global understanding of what custody is, and how both
parents need to participate in a child's life.
So we hope that, when they are soon a party to the
Convention, we will be able to work with them on compliance and
access, and make sure that parents do get to see their children
for more than an hour a week. I agree with you that that is not
access.
Mr. Smith. But I would just say, even though the examples
with Egypt, Lebanon, and Jordan--I mean, Egypt went from a
dictatorship that was elected but maybe falsely, under Mubarak,
and I met with him so I know what he was like, to Morsi who has
gone from bad to worse. Jordan is a good friend. Lebanon,
obviously, has many problems.
I mean, against those examples, Japan and India are mature
democracies with functioning Parliaments. I mean, the Diet and
the Parliament in New Delhi have checks and balances. It seems
to me that they are major world players. They purport to follow
the rule of law. For the life of me, I can't understand why the
reluctance. It can only be value added. It can only add an
additional mechanism. If it brings home one child, it will be
well worth the effort. I believe it would bring home many
children, and that it would start a process that might even
have a chilling effect on future abductions.
One of the things that Bindu will testify to--do you agree
with that?
Ambassador Jacobs. I think that we will have better success
with Japan and India when they are members of the Abduction
Convention.
Mr. Smith. But again, all of the current cases with Japan
are grandfathered out. And to assume that there will be a
reservoir of good will created, I think, given their past--past
is often prologue--we need some game-changers. And an MOU, I
believe, would do that.
Ambassador Jacobs. I think, for the cases that are not
covered by the Convention, that we do need to reach an
agreement with Japan. I agree with you, and we will be working
with them to see what we can do, and also with our partners,
who were incredibly helpful in working with us to persuade
Japan to join the Convention.
Mr. Smith. So then you would be for an agreement with
Japan.
Ambassador Jacobs. We will explore every avenue to get
those children home.
Mr. Smith. Okay. Again, I would hope that the sooner that
is initiated, because the agony--as you know so well--I don't
know how people--and you have met many of these people as well,
as have your staff. When you sit and look them in the eyes, and
realize that they lose hope, one of the--again, Bindu will
testify that, when she went for help to our folks in India,
that is to say U.S. Embassy personnel, she was told that there
was very little they could do because she didn't have custody.
She then got custody, and she has told me and, I believe, will
testify to that, but she told me earlier today, because I asked
her, that she still hasn't gotten help.
And in your testimony, you cite a case: ``We are encouraged
by a recent decision in the High Court of New Delhi to return a
child to her country of habitual residence for a final
determination of custody.'' I mean, it is one case. I don't
know what country you are talking about. Is it the U.S.?
Ambassador Jacobs. It is a return to the United States,
yes.
Mr. Smith. Oh, it is? Okay. Do you see a precedent in that?
Ambassador Jacobs. I see hopeful signs that judges are
making the right decisions. And we will continue to work with
India to encourage them to continue to make those kinds of
decisions while they write their implementing legislation to
join the Convention.
Mr. Smith. Okay. Again, it takes effort, but a bilateral
agreement there as well could bring these two children home. I
mean, based on all of the available court evidence, this man
has acted--her ex-husband--with absolute impunity, which is why
she is here today to testify. And so I would hope our efforts
in-country would be redoubled on her behalf as well, if you
could commit to that. That would be very helpful.
Ambassador Jacobs. Absolutely.
Mr. Smith. I do have other questions, but I will yield to
my friend, and then come back. Thank you. Mr. Cicilline?
Mr. Cicilline. Thank you, Mr. Chairman. Thank you,
Ambassador Jacobs, for your testimony.
I just want to focus for a moment on the Hague Convention
and compliance with that, because I agree that ensuring as many
countries as possible become signatories of the Convention is
the best and most effective way to ensure the return of
American children, and so I was struck by a comment you made
about some examples where compliance with the Hague Convention
does not result in the return of the child.
I take it that is not because of a failure in the current
drafting of the Convention requirements, but just the parent
who was seeking return is not--I mean, I am looking for an
example of where that might happen. Is there something we need
to address or revisit with the Convention protocols, in
particular?
Ambassador Jacobs. No. Thank you for that question. There
is a section of the Convention, and it is called 13(b). Where
there is a grave risk to the child, the child doesn't
necessarily have to be returned to its habitual residence.
Mr. Cicilline. Okay. Great. And I noticed in your written
testimony that in June 2011, the parties to the Hague
Convention did an examination and made some conclusions and
recommendations, and some of those conclusions were that
applications for returns had increased, but the number of
returns had decreased.
What is the reason for that? Are there things we can be
doing about that? And are you sort of satisfied with the
current provisions of the Hague Convention, that if parties are
signatories and comply, it does what it is expected to do?
Ambassador Jacobs. If countries--that is a great question.
Because if countries comply, it works very well. And we are--
the treaty is a living thing, and we are constantly working
with our partners in the Convention to help them comply better
with it, which is why we have the compliance report and we cite
countries when they aren't doing the right thing, when the
central authorities don't communicate with us or when law
enforcement doesn't enforce what the courts are doing, or, in
many countries, where court delays really delay the return of a
child.
And what you are citing in June 2011, there was a special
commission meeting where we had the opportunity to meet with
all of our partners and to talk about compliance and best
practices. And this is something that we continually strive
for. We try to improve our practices, and we certainly try to
educate other countries on how they can do a better job in
enforcing the Convention.
Mr. Cicilline. But are we still seeing increased
applications, meaning people are relying on or having
confidence that this is a mechanism by which they will have the
children returned, but in fact seeing a decrease in the number
of children that are actually returned?
Ambassador Jacobs. We have seen an increase in returns,
especially from Mexico. We have a very productive relationship
with Mexico. We have worked very hard at it. And we are getting
much better at cooperation. There are some Hague countries
where we do have problems, and where we have problems we work
with them, we visit them and talk to them very frankly about
what they need to do. Sometimes it works. It worked with St.
Kitts. It was only one case, but they finally wrote their
implementing legislation and now are enforcing the Convention.
But it is an ongoing process. We have working groups with a
number of countries. We meet jointly and we do everything we
can to persuade countries to implement the Convention properly.
Mr. Cicilline. And Ambassador Jacobs, what are your
thoughts on the use of sanctions against countries that either
violate the Convention and are signatories, or as a condition
of United States assistance being required to become a
signatory? For example, obligating in exchange for U.S. foreign
aid, or some preferential trade status, that there be a
condition that you be a signatory on the Hague Convention as it
relates to abducted children. I mean, is that effective?
Ambassador Jacobs. Thank you for the question. I think that
sanctions are a two-edged sword. I think that threatening
countries is often an unsuccessful way to get them to cooperate
with us, because most of the relationships that we have are
very complex and involve many issues. So to use Japan as an
example, we have defense arrangements with Japan. We have trade
arrangements.
The return of these children is incredibly important to us,
and we pledge to work to do the best we can to get these
children returned, but I don't think that we are going to
sanction Japan, or threaten them with sanctions, because I
think that would be detrimental to our bilateral relationship.
Mr. Cicilline. But how about countries in which, for
example--just to use Egypt as an example--that are significant
recipients of foreign aid?
Would it be an effective--I mean, I don't know whether
those conversations take place at a much higher level than both
of us, but it seems like an obvious question to say, in the
moment when we're providing substantial foreign aid, that while
it may not warrant or it may be difficult to have an individual
conversation about an individual case, a broader policy
requirement of sort of signing on to a treaty such as this
might be something that would yield some results.
Ambassador Jacobs. It might, but it might also mean that
they won't cooperate with us at all if they feel that they're
being threatened. Egypt is a country in transition, and we are
mightily trying to influence the direction that it takes. This
is one of the issues that we raise constantly.
The Ambassador--we have 20 cases in Egypt, and she raises
this issue with the President, with the Foreign Minister, and
with others all the time. I have made a number of trips to
Egypt, most recently in March, to raise these issues. And the
Egyptians listen. I think they hear the message. And we are
hoping that they will be able to do something about it.
One thing that I think will help us is when we become a
party to the 1996 Hague Convention on Protection of Children,
which includes the recognition of foreign court orders, and
then we might not have to go through all the Hague procedures,
but we would be able, with our partners, to present a court
order and that would be recognized.
Mr. Cicilline. Thank you for raising that. I agree with
you, and I hope we will join that. And I yield back, and thank
you, Mr. Chairman.
Mr. Smith. Thank you. I will yield to myself for just a
moment to make a point.
You know, with Egypt, there is no MOU dealing with
abduction. There is no MOU with Egypt, or bilateral agreement.
It has to do with access, not with return, according to the
Department of State's Web site. Not with return, it has
everything to do with just having access to the child.
So I think, just a point of--if I could just make a point
on the sanctions issue. Sitting right where you sit, John
Shattuck, Assistant Secretary for Democracy, Human Rights, and
Labor under Bill Clinton, testified against the International
Religious Freedom Act, citing opposition to sanctions.
Madeleine Albright was unalterably opposed to sanctions when it
came to combatting human trafficking. At the end of the day,
Bill Clinton signed the bill. He was presented a bipartisan
bill, and I know, because I authored it.
But we had total bipartisanship. Sam Gejdenson, from nearby
Connecticut, was the prime co-sponsor, and we worked hand in
glove together on that legislation. But the administration was
against sanctions, and they made the exact case, exact,
verbatim, that you just made, that sanctions are two-edged
sword and can be counterproductive.
We give the President tools. He doesn't have to use them.
Hopefully he will, the threat of sanctions, and then when you
have an egregious violator--and remember, these are American
kids. American human rights are being violated, and American
parents.
Ambassador Jacobs. I understand that, and I appreciate your
passion for this. But I would argue that abduction and
trafficking are two very different things. Trafficking in
children is horrible. Abduction is horrible. But they are very
different.
Mr. Smith. Evidence clearly suggests that the child is
injured very seriously, particularly psychologically.
Ambassador Jacobs. I didn't say they weren't.
Mr. Smith. Okay.
Ambassador Jacobs. But the trafficking, it is my
understanding that our laws cover trafficking for sex or for
labor.
Mr. Smith. Yes.
Ambassador Jacobs. And this isn't that. This is a wrongful
removal from the other parent's custody, and I think that we
would be better off trying to enforce civil remedies to find a
solution to these problems. And if we can do this outside of
the Convention, I think that would be great, but we have had
very limited success in doing that.
Mr. Smith. Can I just say, with deep respect, that--and
David Goldman will testify to this--that the return rates are
almost identical for non-Hague and Hague countries, just below
40 percent. I am all for the Hague Convention, but it has
proven itself to lack enforcement, and we are saying that when
it comes to our children and our left-behind parents, we want
additional tools in the toolbox to provide for enforcement,
because their human rights have been egregiously violated. As
you know, you now have Brazil back on the list. I am not sure
why there have been problems there. It is another question. But
I really should yield to Mr. Meadows, and then I will come
back.
Mr. Meadows. Thank you, Ambassador. And I understand some
of your diplomatic issues that you have to deal with from
trying to balance diplomacy at the same time as trying to make
sure that we protect the rights of parents, U.S. parents and
children that have been abducted.
And so I want to follow up a little bit on my opening
statements. And it has been mentioned here about sanctions and
aid, and those kinds of things. We have to figure out
legislatively, and as I look at the numbers from the Hague
Convention, if you exclude some of the results--well, if you
exclude Mexico, where we have had some successes, there, if we
start to look at this, it doesn't look like there is really a
big difference in terms of the return rate, whether they are in
one or the other. We still have a third of the children that
are in non-Hague countries, according to your testimony, and I
think two thirds of them in Hague Convention countries, that
are still not being returned.
But as you look at that, is there a huge difference in
terms of the return rate with regards to it? There doesn't
appear to be, and maybe I am looking at it wrong.
Ambassador Jacobs. No, I am sorry, you are not looking at
it wrong. But the returns are not always under the Convention.
Some of them are mediated agreements between the parents.
Sometimes the parents just do the right thing and return the
child. But in a Hague country, there is a legal framework for
resolving these issues that are not available in non-Hague
countries.
Mr. Meadows. I understand the legal framework, but if the
results are no different, then what benefit is the legal
framework? I mean, if we have a legal right to get them back,
and it is not doing anything better, then it doesn't matter?
Ambassador Jacobs. Well, without Hague, the parents are
really on their own. They have to hire an attorney. They have
to go to court----
Mr. Meadows. So you are saying that it is cheaper on the
parents to get non-results?
Ambassador Jacobs. It is not cheaper, it is more that there
is a clearer path to a resolution in a Hague country, and we
can provide a lot more assistance.
Mr. Meadows. Okay. And again, I want to remind you of my
opening statement. I believe your heart is to return these
kids, and so I am just trying to be--I need you to be the
diplomat. I need to be the jerk. Okay? To put it from an
international point of view, what I want you to do is say,
``Golly, I would be with you, but those guys in Congress are
holding your funds,'' or, ``The guys in Congress are doing''--
what I need is, I need to provide you the tools where there is
some motivation.
I mean, I get requests every day from foreign nations,
because we sit on the Foreign Affairs Committee, wanting money.
And yet, that is not my decision. But if it were, where you
bring up these issues, there has to be a--if you got paid based
on the number of kids that came back from abroad, it would be
every day you were saying, ``Well, how many people have come
back?'' And I am not saying that changes your motivation. It
just highlights it some.
And so I want to provide you the tools, and if you can give
me some of those--I am a little troubled when we start talking
about international law and its attack on U.S. sovereignty,
when we start saying, ``Well, we have got an international
court that is going to decide this.'' And I am not saying that
you are saying that. But what I am concerned about is that,
from a sovereignty standpoint, what can we do, in America, to
provide an incentive for these countries to return our
children?
Ambassador Jacobs. First of all, your interest and having
hearings like this send a very strong message to other
countries.
Mr. Meadows. Right.
Ambassador Jacobs. And believe me, when I go, and I travel
a lot, to Hague and non-Hague countries, I tell them that
Congress is watching this closely, and that this is an
incentive to do the right thing.
Mr. Meadows. Okay. Well, let me give you this, so we are
clear on this, Ambassador, so you can take this and you can
play this little short YouTube video wherever you need to play
it.
We are serious. And even if it goes beyond the normal just
waiting, Congress is serious about resolving this. We have a
bipartisan resolve in terms of wanting to resolve this, and so
that you can take that message that, not only are you here
today, but we have other witnesses that will be testifying,
that we are going to continue to highlight it until the rule of
law prevails. And we are not asking for some non-rule to be
enforced. We are just saying the rule of law must be enforced,
whether we have a bilateral agreement or not.
And so that really is not a question as much as it is a
statement that I want you to be able to use. So let me go on a
little bit further. Because what we talked about, it sounds
like most of what has been done is judicial seminars,
compliance reports, those. And that can be very frustrating to
a parent when they start to look at ``Okay, what do you need to
do?'' Well, you need to go and go to this judicial compliance
review.
And it is kind of like saying that, if you go to a seminar,
it is going to get better. And what I want to make sure of is
that I provide the tools that are necessary, not only from a
prevention standpoint, but what do we have to do to make it
going forward?
Can you and your staff provide me with some recommendations
that we might look at to introduce as legislation that might
help you?
Ambassador Jacobs. Absolutely.
Mr. Meadows. All right. And then I want to finish up,
because I think they are calling votes here, what would you
say, in terms of that relationship, the only--you mentioned
Mexico as being the one that you had the best options with,
just because of our relationship with Mexico. What other
countries would you say we need to model, from a standpoint of
return rates, and how that could happen? I mean, is there
anything to be learn from Mexico in terms of that, or is it
just that we have a good relationship?
Ambassador Jacobs. We have a good relationship with Mexico
because we work very hard at it, and we do that with every
country.
And when we say judicial seminars, we have a Hague network
of judges who travel at our request and work with the judges of
other countries to explain how the treaty should be implemented
and judged, and how cases should be decided. We have
international visitors that come to meet with us, and we have
lots of bilateral meetings to talk about the importance of the
Convention and proper implementation. But we have some ideas on
other things that can be done, because, as I said, it is a
living document, and it can always be improved upon, as can the
compliance of every country that is a party to it.
Mr. Meadows. Okay. Well, I believe my time is up, and so I
will yield back to the chairman from Texas. But as I do that, I
want to say thank you for coming. Again, I look forward to
those specific recommendations, and I can assure you that, from
a legislative standpoint, I will work with my colleagues
opposite here to make sure that we act on those. Thank you.
Mr. Weber [presiding]. Thank you. Now, without objection, I
will yield to my colleague, Mr. Kennedy from Massachusetts.
Mr. Kennedy. Mr. Chairman, thank you very much. It sounds
good to say that.
Ambassador Jacobs, I want to thank you again for your
testimony this morning. You have worked with my office for the
safe return of both Noor and Ramsay to their father, and I want
to thank you again for all of your work. As you know and as you
have mentioned, the political situation in Egypt at this moment
is complex and complicated, but we can't let that stop us from
working for the safe return of abducted Americans.
You mentioned in your testimony the lengths to which
Secretary Kerry will go through his diplomatic channels to
fight for the rights of Americans, and that nowhere has that
been more evident than with his efforts as both Senator and now
as Secretary of State, with regards to Mr. Bower. Egypt, as you
also mentioned, is an emerging democracy that is struggling
with the transition from decades of dictatorship. It has a long
history with the United States, and is an important stabilizer
to a volatile region.
However, the United States has an obligation to its
citizens to see that our laws are enforced, and that the rights
of our citizens will not be infringed by blatantly illegal
acts. A father has a right to expect that he can see his
children, and a citizenry has the right to expect that its
government will do all it can to enforce the legal obligations
on its people.
Given that dynamic, how do you balance our role in the
international community with the obligation to reunite two
young American citizens with their father? I ask for your
renewed commitment today to continue that fight against child
abduction, and will be interested in hearing your thoughts on
how we can move forward. And only a couple of moments,
unfortunately, because our time is limited. But thank you.
Ambassador Jacobs. I will speak quickly. Thank you, sir. We
will continue to advocate in every country for the return of
children who have been abducted. The Secretary has been very
strong on his first trip, I think the trip to the Middle East
was one of his first trips. He met with President Morsi and he
raised all the abduction cases in Egypt. We are not going to
forget about these cases. We are constantly thinking of ways
that we can use our influence to persuade the Egyptians that
this is something that they should do and recognize.
Mr. Kennedy. And Madam Ambassador, just to be a little more
concrete on that--and I understand that you have been. You have
been vocal about bringing these issues up through diplomatic
channels. I have brought them up with the Egyptian Ambassador.
I know Mr. Bower has, Secretary Kerry has.
What more can we do, seeing that you have done much, but we
are still not getting there? What are some concrete actions we
can take moving forward to try to move the ball a little bit
here?
Ambassador Jacobs. I think we just have to keep talking to
the Egyptians. And you know, eventually diplomacy can work. And
that is what we have to do. I don't think that threatening the
Egyptians is going to be effective. I don't think that--we
aren't going to break relations with them. We are going to
continue to talk to them, because we have to keep the channels
of communication open so that they understand, yet again, how
serious we are about resolving all of the cases in Egypt.
Mr. Kennedy. Thank you. I will yield back. Thank you, Mr.
Chairman.
Mr. Weber. Thank you, Madam Ambassador. And I have a couple
of questions for you. You mentioned in your earlier testimony
that abduction of children by one parent is not really viewed
in the same light as trafficking, for example, and that it is
more of a civil instance, I think you said, than a criminal.
Is that accurate?
Ambassador Jacobs. Parental abduction is a crime in the
United States.
Mr. Weber. And that is the point I want us to get to, that
under the International Parental Kidnapping Act, it is a crime.
Ambassador Jacobs. It is.
Mr. Weber. And so what would you say if I highlight the
fact that, when you take a child, and one parent, who is
supposed to be a trusted overseer, or guardian, if you will,
uproots that child from the other parent, would you agree that
that is pretty heinous? I mean, the child has got to be really
confused, because here that child was in a loving, stable,
hopefully stable, nurturing relationship with the other parent,
in a safe environment, and now one parent has taken that child
from the only home they have ever known to a foreign place.
And not only that, but if they get to the point where they
feel like our country has deserted them, the only home they
have ever known, then is it safe to say that they would
actually feel the double whammy, double effect, if you will, of
the fact that one of their parents has betrayed them now, not
only by uprooting them from the other parent and the only home
they have ever known, in most instances, but now the only
country they knew, it seems like, has turned their back on
them.
How do we mitigate that? What do we do about that?
Ambassador Jacobs. Well, I completely agree with you that
it is a heinous act to abduct your child. But we haven't
forgotten about them, and we work in Hague countries with the
central authorities for the return of children under the
Convention, and bilaterally and multilaterally in countries
that are not parties to the Hague. We do not forget about these
children.
Mr. Weber. Well, I----
Ambassador Jacobs. We work for them every single day.
Mr. Weber. Well, you, of course, certainly have been doing
that through your work, and the very fact that we are
passionate about that also. But does the child know that?
Ambassador Jacobs. I don't know what the child knows.
Mr. Weber. But what does----
Ambassador Jacobs. I think that the child is probably
scared and confused and troubled----
Mr. Weber. And kept in the dark.
Ambassador Jacobs [continuing]. And kept in the dark about
what has happened. We know that the taking parent often lies to
the child, and says that the other child is not interested in
them anymore. I just can't imagine anything worse. I'm a mother
and a grandmother, and it would be incredibly awful to have had
one of my children abducted.
Mr. Weber. Okay. Well, thank you for that. Unfortunately, I
am out of time. They are calling votes. I have got to go. So I
am going to have to recess. Chairman Smith will be returning
shortly. So if you don't mind, stay put and stay tuned. Thank
you.
[Recess.]
Mr. Smith. Thank you for your patience. And Ambassador,
sorry for that break.
Let me just ask you, if I could. I kind of hinted at this
before, but Brazil is listed as demonstrating a pattern of non-
compliance with the Hague Convention in the most recent
abduction report. Can you explain what has happened there in
Brazil?
Ambassador Jacobs. I will be happy to.
Mr. Smith. Please.
Ambassador Jacobs. While we have an excellent relationship
with the central authority and meet with them frequently,
judicial decisions take an awfully long time and we often find
that they, in our view, are misinterpreting the Convention. And
then, once there is a return order, it takes a long time for it
to be enforced. So there is the law enforcement problem and the
judicial decisions.
Mr. Smith. How many cases do we have in Brazil now?
Ambassador Jacobs. One moment and I will look it up.
Mr. Smith. Sure.
Ambassador Jacobs. I am not sure, sir. I am going to have
to get you that information.
Mr. Smith. I appreciate that.
Ambassador Jacobs. I don't want to keep you waiting.
Mr. Smith. No, thank you. As I think you may know, the
Japanese Foreign Minister reportedly said that if there is any
chance that a taking parent could be prosecuted in the country
of habitual residence, even if there is no pending charges, the
child will not be returned. If that is accurate, that would
mean that no children can be returned to the United States,
where parental child abduction is a criminal offense.
What is the State Department doing to ensure that the
Japanese implementing legislation does not undermine the core
principles of the Convention, or otherwise give the Japanese
Government an excuse not to return an American child?
Ambassador Jacobs. Thank you for that question. The
Convention does not have criminal penalties in it, because it
is a private international law convention. So the idea is that
the child is returned for a custody hearing in the country of
habitual residence. The problems would arise if the parents had
chosen to go to the FBI and filed a criminal case against the
taking parent.
Mr. Smith. So they would be precluded an opportunity to use
the Hague, as the Japanese see it, to permit that child to come
home?
Ambassador Jacobs. I am not sure. We would have to look at
that.
Mr. Smith. Well, is it something that your office could
raise, if you haven't already? Because it seems to me that
becomes a veto power. I mean, who can blame a left-behind
parent for using every potential remedy at their disposal,
including criminal sanctions, when such a horrible act has
occurred?
I mean, many have done that. And now they will be told
``Tough luck.'' I mean, that makes ratification of the Hague by
Japan even more suspect, more of a sense of Japan--I mean, a
sense of Congress-type legislation that we have here. But how
will it be implemented? Not well.
Ambassador Jacobs. That is the question. We are going to
have to work very hard with Japan on proper implementation. But
criminal charges against a taking parent often lead to a
reluctance to return the child to the habitual residence,
because they don't want the parent thrown in jail. I mean, the
whole idea of the Hague is to find civil remedies that will
encourage the return of children.
Mr. Smith. Okay. Again, all the more reasons why a
bilateral agreement could iron out those issues. Because I
think the left-behind parents, like Michael Elias and all the
others, Patrick Braden, all of them, will find themselves in
even more of a maze, particularly if they took some legal
action.
Okay. So if you could take that back.
I do hope, and I know it has probably been asked by my
friend and colleague Mr. Kennedy, but I was wondering when
Secretary Kerry was last in Egypt and provided a check to the
tune of a quarter of a billion dollars, was the issue of child
abduction on the table?
Ambassador Jacobs. It was.
Mr. Smith. And was there any sense of movement on the part
of Morsi to resolve these cases?
Ambassador Jacobs. He said he would look into it, that he
would take action. We are waiting.
Mr. Smith. And again, I know Mr. Cicilline mentioned this
in talking about conditionality. I mean, Egypt does get an
enormous amount of foreign aid from the U.S. Government, $1.3
billion, approximately. When we fought last year to include
religious freedom conditionality, it was opposed by the
administration. It got in, but it has been waived, regrettably,
particularly because of the mistreatment of the Coptic
Christians.
But do you think conditionality on aid would be a wise
tool? Again, it's conditionality, it can be waived. The
President would have that authority. But it would allow you and
your staff, and our Ambassadors, and all those involved, to
have additional clout. Because, again, I don't assume good will
with some of these governments when they show a pattern of
either non-cooperation, or they are not compliant, if they are
Hague signers.
Ambassador Jacobs. That is a question I am going to have to
get back to you on.
Mr. Smith. Okay. Do the others have any questions? No, they
are all voting.
Again, I thank you. I look forward to your answers,
including some of the more just bookkeeping-type,
accountability, as to children that have been returned, those
that resolved that were not returned and what that means, if
you could get back to us on that.
Because there always seem to be some questions about what
are the numbers, even when we have worked on legislation and we
put findings, we get one number, and before the ink is dry it
seems--not because--I mean, huge differences, disparities. So
please, get those numbers back to us. It would be very helpful.
Ambassador Jacobs. I will take the issue back to the
office.
Mr. Smith. Okay. I appreciate that.
Ambassador Jacobs. Thanks.
Mr. Smith. I am planning a follow-up hearing, and maybe you
or the Assistant Secretary for Asia might want to testify. Has
that person been selected, do you know?
Ambassador Jacobs. For what, sir? I am sorry.
Mr. Smith. For East Asian and Pacific Affairs, the
Assistant Secretary.
Ambassador Jacobs. Not that I am aware.
Mr. Smith. Or maybe the DAS would come up, to talk about
Japan again, especially since things are happening there. And
we do plan on having additional members, family members who
have been left behind, testify. So I do hope you will just work
with us on this, if you would.
Ambassador Jacobs. Absolutely.
Mr. Smith. Thank you.
Ambassador Jacobs. I pledge that to you.
Mr. Smith. I appreciate that. Thank you, Madam Ambassador.
I would like to now invite to the witness table our next
panel, and maybe if they wouldn't mind, we will wait until the
other members come back, because they will want to hear what
you have to say as well. So we stand in recess.
[Recess.]
Mr. Smith. The hearing will resume its sitting, and I again
apologize to our witnesses and to all here for the delay
because of the voting on the floor. Some of our members are en
route, coming back.
And I will now introduce our witness table, beginning first
with Patricia Apy, who is a partner in the law firm of Paras,
Apy & Reiss, which specializes in complex family litigation,
particularly international and interstate child custody
litigation.
Her qualifications for testifying at this hearing are
unbelievably impressive and extensive. She has litigated and
been qualified as an expert witness and consultant on
international family disputes throughout the world. Ms. Apy
frequently consults and is regularly qualified as an expert on
family dispute resolution in non-Hague countries and risk
factors for child abduction.
She was also one of the lead attorneys for David Goldman,
and provided expert advice and counsel in his long, arduous
case, and has been, I would say, a very, very important and
very wise guide to our deliberations as a subcommittee with
regards to technical issues, because she has litigated and has
been all over the world dealing with these issues. So I thank
you, and I welcome her back.
Bindu Philips came to the United States in 1996 and became
a U.S. citizen in 2009. Ms. Philips has lived in New Jersey
since 2000, where her twin boys, Alfred and Albert were born 12
years ago. She is an electronic engineer by training, and works
in central New Jersey, and will be testifying on behalf of her
sons in an appeal to our Government, and of course to the
Indian Government, to do the right thing and allow her not just
access, but to allow her to have her sons back.
We will then hear from Mr. Colin Bower, who is the father
of Noor and Ramsay Bower. Noor and Ramsay were abducted by
their mother from Boston to Egypt in August 2009. Colin remains
committed to the safe and swift return--swift is now an
oxymoron in his case--of his children.
I am pleased to have joined Barney Frank last year in
sponsoring H.Res. 193 with regard to their particular case in
the last session of Congress, and we welcome him back to the
committee.
We will then hear from Michael Elias, who is a former
sergeant in the United States Marine Corps and met his wife
while stationed in Japan in 2004 to 2005. She abducted their
two children, Jade and Michael, to Japan in December 2008. I
traveled to Japan with Nancy and Miguel Elias, Jade and
Michael's grandparents--and Nancy is here with us today--
Michael's mom and dad. I spent several days there meeting with
high officials in the Japanese Government, and it was very
clear that when they got to make their case, the Eliases were--
there was an empathetic ear, especially from some of the
members of the Diet, but the question is whether or not those
empathetic ears turn into tangible policy that will permit the
return of children who have been abducted.
And then, finally, our cleanup batter, if you will, is
David Goldman, who is the father of Sean Goldman, who was born
in Red Bank in 2000. Sean was abducted to Brazil in 2004. Mr.
Goldman spent 5 arduous years devoting enormous amounts of time
and financial resources, and had a great number of people
supporting him in the community, to secure the return of his
beloved son. In December 2009, I had the privilege of being
with David and Sean when they were finally able to return to
the United States.
Mr. Goldman has been a trailblazer in opening the eyes of
our country to the agony endured by left-behind parents. I can
say without any fear of contradiction, he did it like the left-
behind parents who are here with us today, with great tact,
with discipline. I remember being in a court where a man who
was not the stepfather, but had custody, made so many
disparaging remarks about him, and yet he remained steadfast,
eyes fixed on the judge, and made the case as to why he
absolutely had the right to have his son returned to him.
So we welcome him back, and I would just note
parenthetically that the legislation that we are introducing is
named the Sean and David Goldman International Child Abduction
Prevention and Return Act because there are successes that can
be had, but levers need to be pulled, especially when you have
a government that is, at best, indifferent.
I would like to now ask, if you could, our first witness,
Patricia Apy, if she would testify.
STATEMENT OF MS. PATRICIA APY, ATTORNEY, PARAS, APY & REISS,
P.C.
Ms. Apy. Congressman Smith, thank you so much for
permitting me to come back and address the subcommittee as it
confronts international parental abduction, particularly
abductions involving jurisdictions which have not ratified the
Hague Convention on the Civil Aspects of International Child
Abduction.
Interestingly enough, in listening to the testimony and the
questions from members and Congressman Kennedy, I noticed that
I have litigated cases, non-Hague cases, from each of the
districts that are represented on the panel today.
I have chosen two cases as demonstrative of the precise
issue that we have here. I have been representing Michael
Elias, one of the witnesses on this panel, in a pro bono
capacity in response to the request of the former Commandant of
the United States Marine Corps, General Conway. This battle-
wounded Marine discovered his two children had been abducted by
their mother. Mr. Elias' wife worked for the Consulate of Japan
in New York, and with the help of the Japanese consulate
authorities in Chicago was able to obtain the replacement of
the children's court ordered surrendered Japanese passports and
abduct his children.
Mr. Elias will share in his testimony that the Japanese
Government not only failed to address the clearly criminal
behavior of his wife, the complicity of their consulate in
Chicago, but their duplicity in telling yourself, a member of
this subcommittee, along with the grandparents of these
children, that they were actively investigating the criminal
behavior--which would have provided a basis for extradition, I
might add--when in fact they had already determined that they
had no intention of doing so. And that information would be
purposely withheld from Mr. Elias, as well as from this
committee, for over a year.
Christopher Dahm's daughter Gabrielle was abducted from her
home in Florida to the United Arab Emirates, specifically Abu
Dhabi, by her dual national Belgian mother. Gabrielle's mother
brazenly obtained a Belgian passport for her daughter without
the knowledge of Gabrielle's father, despite a Florida order
which prohibited the issuance or the removal of Gabrielle from
the United States. She abducted her with the assistance of the
maternal grandfather, a pilot for Eithad Airlines, the national
airlines of Abu Dhabi. That case is being prosecuted by the
United States Attorney in Miami, which participated in issuing
Interpol red orders.
I chose those two countries, first of all, because they
would be described, I think by every individual, as countries
with whom we enjoy positive relationships. We are partners in
issues of commerce and in issues of security. No one would
identify them as behaving purposefully inappropriately. And it
is in that context of non-Hague cases that the legislation that
is proposed is the most important, because by having
legislation that provides a construct of available tools, these
countries have a mechanism with which they can have a political
will and a legal will to do what we know they want to do, which
is partner with us to address this issue.
I think it is missing something if you see this merely as
punitive, because in fact the type of remedies and the type of
sanctions that are suggested are those that, in many cases--and
I am thinking particularly of the use of memoranda of
understanding--those are the kinds of things that can be
educative and positive and level the playing field in
negotiating for a remedy.
One of the most important things to know about non-treaty
cases is that they present the most expensive and challenging
cases for the left-behind parent. Parents are consigned to live
in legal limbo for fear that their chance to locate or retrieve
their child will be diminished by their actions.
For example, fearful of ruining their case, in many
countries they cannot be divorced from the kidnapping parent,
because to do so would cease their ability to seek a return.
There has been reference to criminal prosecution, and the
implication of those references were that a parent might choose
to engage in criminal prosecution rather than use the treaty--
for example, the Hague Convention--or other remedies. It is
missing the point that, many times, the only way to locate a
missing child is with the assistance of the Federal Bureau of
Investigation, Interpol, and other law enforcement agencies.
Unless a parent is extraordinarily wealthy, they certainly
can't have their own private investigation of where their child
might be located.
And so it is a situation, as we believe it is in Japan at
this moment, where if a parent engages in criminal prosecution
in order to have the ability to locate their child, by
definition, they will have lost the opportunity to use the
civil remedies, which are being touted as being the most
responsive.
One of my colleagues--and in advance of this testimony, I
had an opportunity to reach out to colleagues of mine who
practice in this area as I have, and ask them their issues and
concerns. And in addressing the issue in Japan, one of my
colleagues, David Blumberg, who practices in Glendale,
Wisconsin, said the following, and I think it is entirely
appropriate for where we are today.
``The truly scary part of this whole question is that,
because in this case Japan was technically a
participating country to the original promulgation of
the Hague Convention, if their legislature ratifies the
Convention it will automatically go into force between
the United States and Japan, even if nothing is done to
set up effective enforcement processes or to change
their legal system. In my view, such an eventuality
could make our problems with Mexico or Brazil look like
idyllic strolls in the park.''
In fact, I agree with my colleague, and must indicate that
my testimony would be that the ratification of the Hague
Abduction Convention in Japan has to be considered now illusory
at best, and deceptive at worst. The April 17, 2013 article in
Japan Times described the situation and said what international
family lawyers already know, and that is that Japanese
authorities have repeatedly stressed that in any case where an
unsubstantiated claim of domestic violence is voiced, the
children will not be sent back ``regardless of the
Convention.''
Japanese family courts, as that article went on to propose,
have seen an exponential jump in reported cases, going from, in
2001, 409 reported cases, to 1,985. Now, those are cases in
which a parent has the temerity to actually file something in
the family court in Japan which, as my written testimony
provides, is a fruitless application. There is no alternate
remedy.
The enabling legislation has demonstrated that, as a
practical matter, there are significant obstacles to the
reciprocal protections upon which the other 89 treaty partners,
and most importantly our American judges, are expected to rely.
See, American judges are going to be told that the Hague
Convention is in effect between the United States and Japan
when they assess applications for international access. They
will believe, and they will follow the Convention here,
returning American children to Japan when there is an
application made here.
But more importantly, when there is an application for
access to visit a parent in Japan, they will be told that Japan
is a signatory to the Hague Convention, and therefore when they
assess risk they should permit that removal when, truthfully,
as it stands right now, there is no reasonable expectation that
a child under the current circumstances will be returned.
If this were an accession case, if this were a situation in
which we were talking about a country where we had the ability,
as the Ambassador referenced in her testimony, the ability to
review their processes and to assure that there is reciprocity,
then we would clearly have to take time in order to do that.
That situation is one that American judges are going to have to
know is a situation in force.
In listening to the testimony of the Ambassador, one of the
things that struck me was the colloquy that occurred with the
member from Rhode Island in addressing the decisionmaking
process, and I believe that the Ambassador and the member both
agreed that decisionmaking in some of these areas are above
their pay grade or level.
I respectfully must say that I believe that the
decisionmaking process with respect to this issue is in this
body, because the client for the Ambassador is not the left-
behind parent. It is the diplomatic status of the United States
of America which, as she continued to repeat, is a broad,
systemic sort of issue.
As someone who has practiced in this area for 20 years, the
only people watching the shop on the individual needs and the
potential redress for American children in parents is found in
the Congress of the United States. The legislation that is
being proposed provides extraordinary tools which we presume
will be utilized well by the executive branch and by the
Department of State. Nothing that the Ambassador said gave us
any reason to believe that our confidence could not be placed
in utilizing those tools properly. But it is ridiculous to
assume that you can negotiate with countries and not have any
possible level playing field in doing so. It makes no sense.
And in this status of the legislation that has been
proffered, you have a range of possibilities that, frankly,
provides the genuine opportunity to sit down with countries
like, for example, Pakistan, where you have a common law based
Sharia court system where the judges have been indicating that
they want an opportunity to sit down and seek bilateral
agreements.
The Ambassador has referenced, both in this testimony and
in her prior testimony, that quiet diplomacy is used in the
return of these children. In fact, there is not much that can
be said other than ``Please, oh, please.'' Ultimately, in
addition to the strong and positive diplomatic work, what has
to happen is the governments abroad have to be sure that this
is, in fact, an issue that is taken quite seriously.
One of the concerning aspects of the Ambassador's
testimony--and frankly, I think it reflects my experience as
well--is the belief that there is a difference between the
crime of international parental abduction and the human rights
concerns that were referenced by other pieces of legislation.
Demonstrative of this is, as it is contained in my testimony,
the case of Christopher Dahm.
Christopher Dahm had no choice, because of the way that the
law is structured in the UAE, but to file criminal charges. To
the credit, the United States Attorney in Miami initiated
prosecution and, for the first time, indicted not only the
abducting mother but the abducting grandparents who were as co-
conspirators in that process.
However, once that was done, the ability to criminally
prosecute that case fell into, very frankly, disrepair. Mr.
Dahm had to continually ask for reports, for assistance in the
location of his child. Eventually, we requested a private
meeting for the second time after 2\1/2\ years had gone by with
no action. Let me say that again. Two and a half years.
Meeting with the United States Attorney now assigned to the
case, the second, asking for the FBI agents to be there--they
weren't--and then being in a situation in which the U.S.
Attorney on the case indicated that they didn't know who the
FBI agent assigned was, they had no idea whether the child was
still in the United Arab Emirates, they could not provide an
explanation as to the response of the judge to the extradition
request, or to the pickup on the red order.
When this issue was raised, and we requested that the FBI
agent be produced for the meeting, we were told that there was
none assigned at that time. Finally, the young Assistant U.S.
Attorney on the case said, ``Well, I think that the pictures we
have of the child are all from,'' and then she went on to
describe the location, at which point my client starts to cry,
because he has not seen his daughter for 3 years, and he says--
and I indicated, ``Do you mean to tell me you have photographs
in the file that this parent hasn't seen?''
As it turns out, the Assistant U.S. Attorney didn't know
who had taken the photographs and under what circumstance. But
the point is that on non-Hague cases in particular, right now
the only aspect of being able to raise the criminality of this
issue--and I appreciate the comments of Mr. Meadows in
addressing that issue--is the prosecution by the United States
Attorneys, who don't like these cases.
I get that. I understand, as a former prosecutor, that the
very last thing that they want to be involved with is anything
that remotely looks to them like family law. However, I think
that the idea--and this is how it gets translated. And I am not
attributing this to the Ambassador, but I think that this is
the default feeling. ``Well, after all, how bad is this really?
I mean, the child is with the other parent.''
I have been doing this for over 20 years. I remember the
day when people said to me that intercountry adoption would
have no impact on international foreign policy. Well, actually,
as it turns out, that isn't the case. And international
parental abduction has an impact on foreign policy because,
while most of constituents have no idea what is involved in the
decisionmaking process that goes on here, and frankly it would
boggle most of their minds just what all of those moving parts
are, what they know is ``Somebody took my grandchild and the
United States of America is powerless to do anything.''
I mean, the folks from the greatest generation who I deal
with look at me like I am insane. How is it possible we don't
have Marines, never mind sanctions. The fact of the matter is
that David Goldman's case and other cases that have
successfully used quiet diplomacy also used the specter of
having a threat behind it. Not a punitive threat, but a
recognition that American children are important, that the fact
that they have been abducted and are not being returned in
accordance with the rule of law or a criminal prosecution,
where one is necessary to locate the child, is something that
we will not ignore.
With the fact that the Japanese cases, over one third are
American military members who we sent there, it is mind-
boggling to me that we would actually not consider placing in
articulable form the potential remedies of the use of a
memorandum of understanding in those places where it will be
effective and will lead to the application of rule of law, and
potentially treaty signatory down the road.
I served as a delegate of the United States of America at
the Hague for the negotiation and the signing of the Protection
Convention that was referred. The Protection Convention is not
a panacea. We are going to have enough trouble getting it
enacted in the United States of America, never mind creating a
reciprocal relationship that allows for mutual enforcement.
As the judge in the United Arab Emirates said to me, ``You
don't care about these cases. Why would you expect that we
would politically go out on a limb to do so?'' Clearly--and I
said it a moment ago, but I do think it bears repeating. The
place where the decisionmaking that is most protective of the
American parents whose children have been abducted takes place
is not in some office away from all of us. It is in the
Congress of the United States.
This bill, for example, would require that Members of
Congress would know that someone in their district has a
pending abduction case. For reasons that pass understanding,
that provision has been opposed by the Department of State on
``privacy grounds.''
Well, very frankly, the fact of the matter is, I have never
met in my 20 years of representing cases, particularly
involving abductees in non-Hague cases, where a parent didn't
want everyone they could tell. And it would be much easier to
opt somebody out than to say--so that a Member would know that
they have a pending case, so that when they are considering
rule of law issues involving a country, they know how American
citizens in that context are being treated.
Again, it is my privilege to return and to have an
opportunity to address this subcommittee to address what I
consider to be extraordinary issues. I must say, the Japanese
situation is a current, immediate danger. It is going to
contribute, as we are right now sitting here, to a creation of
a safe haven. American judges will not know that there is a
risk of a child not being returned, because they will see the
Japanese, appropriately so, as ``signatories.''
I am hoping that the legislation which provides genuine
diplomatic tools will be used, that this body will seek to
oversee this issue as they should. And if there are any
questions that I can answer to enhance that process, I stand
ready to do so. Thank you.
[The prepared statement of Ms. Apy follows:]
----------
Mr. Smith. Ms. Apy, thank you so very much for that very
comprehensive and, I think, very incisive look, and for
reminding us that the accession to the Hague, illusionary and
deceitful at best, I thought that was a very profound
statement. Because my sense is that there will be a breaking
out of the champagne bottles, and--I won't say euphoria, but
there will be an enormous amount of celebration. But people
will not understand what this might actually portend for the
abducted children and their parents, especially those to whom
it has already happened. So, thank you so very much for that.
Ms. Philips?
STATEMENT OF MS. BINDU PHILIPS, MOTHER OF CHILDREN ABDUCTED TO
INDIA
Ms. Philips. Thank you, Mr. Smith. Good afternoon, ladies
and gentlemen of the Congress. It is my honor and privilege to
testify before you today, and I thank you for taking your
valuable time to hear of my plight. My name is Bindu Philips,
and it is my ardent hope that my story shall capture your
attention today.
While I have held many roles in life, none has been more
meaningful to me than that of motherhood. Twelve years ago, I
was blessed to be the mother of twin boys, my precious
children, Albert Philip Jacob and Alfred William Jacob. When my
children were born, my ex-husband, Sunil Jacob, and I made a
joint decision that I would stay home and be their primary
caretaker.
I was an active and loving mother in every aspect of our
children's life. My children came first in everything I did,
and in every decision I made. Tragically, my world and that of
my innocent children was violently disrupted by my ex-husband,
Sunil Jacob, in December 2008, when he orchestrated the
kidnapping of the children during a vacation to India. I would
note that the children are American citizens and that the
children were born in America, which is the only nation they
identified as home.
Sunil Jacob worked in the financial industry and was laid
off by his employer, Citigroup, late in 2008. My ex-husband
pressed me to agree upon this family vacation to India during
the children's winter break. My ex-husband was both physically
and emotionally abusive to me, and I feared the consequences of
refusing him. I had seen return tickets for our flight on
January 12, 2009, and I had every reason to believe that we
would be home in a few weeks to resume our life in the United
States. Had I known what would follow, I would have never
boarded that flight to India.
On reaching India, I was not only physically and
emotionally abused by my husband, but also by his parents. I
was finally very cruelly separated from my children with no
means to communicate with them. I could not bear the separation
from my children, and on learning that they were admitted to a
local school in India I approached the principal, requesting
that I be allowed to see my children, and I was granted
permission.
As soon as my ex-husband learned about this, he transferred
them to another school and gave the school strict orders to
neither allow the mother or any of her maternal relatives to
see or communicate with the children. I contacted the U.S.
Consulate in Chennai, India for assistance, yet, absent an
order granting me custody of the children, there was little
that the consulate could do for me.
I would like to point out that Sunil Jacob's plan to kidnap
the children and sequester them in India out of my reach was
not a decision that was quickly or lightly reached. Subsequent
events showed how carefully he had planned his actions.
Unable to communicate with my children, I finally returned
to the United States 4 months later, on April 9, 2009. I
literally came home to an empty house. Our residence in
Plainsboro was devoid of all furniture and possessions, and our
cars were gone from the garage. While in India, my ex-husband
had his three friends strip the entire house of everything
inside. They took everything, leaving me with not a single
photograph of my children. He had not paid the mortgage on the
home, our Plainsboro home, nor the utilities, nor the equity
line of credit which he had transferred to India and left me
with additional financial burden.
Heartbroken and impoverished, I had to start from scratch
and initially survived on the graciousness of good people. My
neighbors allowed me to move in with them briefly, and a local
church provided me a car. Shortly thereafter, I found
employment, secured an apartment, and purchased my own car.
Over the last 4\1/2\ years, I continue to uncover
information that shows how deceptive my ex-husband, Sunil
Jacob, is. The investigation report from the Plainsboro Police
Station showed that he had planned the move to India as early
as March 2008. He had communicated his intentions to the
principal of the children's elementary school without my
knowledge. In November 2008, 1 month prior to the trip to
India, Sunil Jacob had obtained a status for him and the
children known as OCI, overseas citizen of India, that would
allow him and the children to stay for an extended period of
time in India, since the children are American citizens.
Sunil Jacob, an American citizen, deceptively abducted my
American citizen children and is staying in India, out of my
reach and that of the Hague Convention indefinitely. Please
note that India does not honor dual citizenship. I came to know
that he has two software firms in India, and recently got
information that he is the owner of a resort in India that was
registered in 2007. That was when we were still married. I also
came to know that he is remarried. Very recently, Sunil Jacob's
family member confirmed with the Plainsboro Police that the
separation of the children from me was planned well in advance.
Frustrated but determined, on May 14, 2009, I filed a
petition with the Superior Court of New Jersey for the custody
of our children. Sunil Jacob tried to delay the matter by
arguing that the U.S. did not have jurisdiction to hear the
case, but the American courts, both at the Superior Court and
appellate levels, have held that jurisdiction was indeed proper
in the Superior Court family part. My ex-husband was in
contempt of the court order granting me parenting time over the
children's winter break, although he participated in the
hearing over the phone. The flight information was conveyed to
Sunil Jacob by the U.S. Consulate, my American attorney and me.
The honorable New Jersey Superior Court granted me
residential and legal custody of the children. The Plainsboro
Police and the FBI have issued arrest warrants against Sunil
Jacob. Please note, in 2007, while Sunil Jacob was working at
Citigroup, he was involved in an unknown incident at his office
that resulted in an FBI inquiry on him.
It is significant that Honorable Barry A. Weisberg, judge
of the Superior Court family part in New Jersey, not only
granted me sole custody of the children and demanded their
immediate return to the United States, but also said that Sunil
Jacob must comply with a psychiatric evaluation and risk
assessment upon return of the children. Clearly, Judge
Weisberg, an experienced jurist in the family part, felt that
Sunil Jacob's conduct was evident of a man who was disturbed.
I fear for the safety of the children, and their emotional
well-being, in their father's care. Despite having kidnapped
our children, Sunil Jacob filed for custody of the children in
the Indian courts. The case is currently pending at the
Honorable Supreme Court of India. In addition to wrongfully
keeping the children from me, Sunil Jacob has thwarted every
effort I have made even to speak to my children and say that I
love them.
Beyond the kidnapping, Sunil Jacob continues to file false
cases against me and my family in India, and is brainwashing
the children against their own mother. He believes that if the
campaign of harassment becomes too much for me to bear, we will
back away from the quest to regain custody of my children.
He must learn that this will not happen. He must be held
accountable for his actions. I have put everything I have in my
mission to be reunited with my children. I have rebuilt myself
financially and made a viable career path for myself. I have
made a new home for my children to return to, as I was forced
to sell the marital home to satisfy the debts my ex-husband
created.
It must be remembered that America is the children's home.
It is where they were born. The children went to school in
America, in the culture that they love. They must be brought
home to the American soil. I implore the Congress to assist me
in righting the wrongs that have been done to me and to my
children by my ex-husband, Sunil Jacob. Every day I awaken with
the heartwrenching reality that I am separated from my children
whom I love more than anything else in this world.
I have done everything I can think of in this nightmarish
situation, and I will never give up on my children. Yet I am
here because I can no longer fight the good fight on my own. I
respectfully request you, the Members of Congress, to help me
make my voice heard in a way that shall be meaningful and allow
me to be reunited with my children, who need the love and the
nurturing of their mother.
Please help me to put an end to the nightmare that Sunil
Jacob has created for my family. Please help my precious
children and me. I do not want to know, and cannot imagine, a
meaningful life without them. Please act, not just for the
benefit of the two innocent children and their brokenhearted
mother. Please think of all the other children and parents
caught in similar nightmarish situations due to hostile-minded
parents who abduct the children to overseas nations.
Thank you from the bottom of my heart for hearing my humble
and fervent plea during your otherwise pressing schedules. I
shall always be grateful for the time and the opportunity to
share my story and that of my children. Thank you.
[The prepared statement of Ms. Philips follows:]
----------
Mr. Smith. Ms. Philips, thank you so very much for that
very moving testimony. We are here because we want to be here.
When someone says that they don't have the time, they have
stated not a fact but a priority.
And the idea behind not just this hearing, and the series
of hearings that we have had to build the case, to have cases
that have failed because civil remedies proved to be
ineffective and inadequate, is that we need to take it to the
next level. Reasonable people, a reasonable man or woman, would
say, ``Okay, if that didn't work, what else do we have? What
other tools might we put into that toolbox?'' And that is what
the legislation is all about. Because there are far too many
people just like this very distinguished but harmed panel that
are not being well served. So, thank you for your testimony.
Mr. Elias?
STATEMENT OF MR. MICHAEL ELIAS, FATHER OF CHILDREN ABDUCTED TO
JAPAN
Mr. Elias. Congressman Smith and distinguished members of
the subcommittee, my name is Michael Elias and I would like to
thank all of you once again for this opportunity to share my
personal experience involving international parental child
abduction with you once again.
From August 2003 to November 2007, I was a sergeant in the
United States Marine Corps. I am currently employed as a Bergen
County Sheriff's Officer in the State of New Jersey. I was
stationed at Camp Foster, Okinawa, Japan, from 2004 to 2005,
where I met my future wife, Mayumi Nakamura. Shortly
thereafter, my unit returned to Camp Lejuene, and Mayumi
returned to her hometown of Saga, Japan. We remained in
constant contact, and in late September I received a startling
phone call from Mayumi informing me that she was 5 months
pregnant.
I was stunned. However, at the same time I was excited at
the prospect of becoming a father. Therefore, in October 2005,
Mayumi came to the United States and we were married at an
intimate ceremony in Rutherford, New Jersey. I then purchased a
home for us in Jacksonville, North Carolina, and our first
child, Jade Maki Elias, was born on January 5, 2006.
In March 2007, I was deployed to Iraq for a 9-month tour of
duty while Mayumi was expecting our second child. She then
moved in with my parents in Rutherford, New Jersey, so Mayumi
and Jade would have full support and the assistance of my
family.
On August 2nd, 2007, my son Michael Angel Elias was born at
the Hackensack Medical University. During my deployment, Mayumi
started a relationship with a Japanese national. His name was
Kenichiro Negishi. He worked as a travel agent in Manhattan.
Sadly, a few months after my return, Mayumi and I separated,
and on October 29, 2008 I was awarded joint custody of my
children.
On that day, the judge clearly ordered that the children's
passports, both American and Japanese, be turned over because
it had clearly been demonstrated that my wife was a flight
risk. I felt I did everything I could to ensure the safety and
well being of my children. I was confident that I had the
reasonable expectation that my American-born children would be
protected from being kidnapped to Japan.
Mayumi was an employee of the Japanese Consulate in New
York City, issuing visas and passports. She used her position
at the Consulate as a tool to carefully collaborate the
kidnapping of our children. Mayumi and Kenichiro flew to
Chicago with the two of my children to obtain illegal
replacement passports at the Japanese Consulate in Chicago,
where she and her boyfriend Kenichiro exited the country via
Chicago's O'Hare Airport on December 6, 2008 with Jade and
Michael. I still have in my possession their original
passports.
My family and I were horrified and sickened by Mayumi's
actions. We have repeatedly attempted to contact Japanese
Consulates in New York, Chicago, Washington, DC, and continue
to receive no cooperation whatsoever. Shortly after she arrived
in Japan, Mayumi contacted me and told me that she had
unilaterally decided that she would raise our children in
Japan. When I explained to her that she had kidnapped our
children, she maintained, and I quote, ``It's not kidnapping.
My country will protect me.''
Thereafter, I was awarded full custody of our children in
the Superior Court of Bergen County, New Jersey. The judge
ordered the immediate return of the children to the United
States from Japan by means of the Hague Convention.
Unfortunately, the judge was unaware that Japan was not a
signatory of the treaty, something that Mayumi seemingly
understood.
Since the kidnapping, my family and I have pleaded with
Mayumi to return our children to the United States, assuring
her that there was no criminal charges pending. Since January
2009, my family and I continue mailing gifts, cards, care
packages to the children, with no responses or acknowledgement.
After numerous emails and telephone calls, on January 5, 2010 I
was granted the privilege to see my children via Skype on my
daughter's fourth birthday. Although it was very hard to see my
children through the monitor, it was very satisfying to see
them happy to see me. My daughter, Jade, looked at her mother
in heartache and said to her, ever so softly, something in
Japanese. When I asked Mayumi what Jade had said, she replied,
``She wants to be with you.'' The monitor immediately went
back, and that was the last time I saw my daughter's face.
Prior to our final contact on Jade's birthday, Mayumi
assured my parents, and only my parents, they would be allowed
to visit Jade and Michael. In February 2011, my parents flew to
Japan with the assistance of the United States Embassy in
Tokyo, accompanied by Congressman Smith, his Chief of Staff,
Mary Noonan, and my attorney, Patricia Apy.
Congressman Smith, along with Ms. Noonan and Ms. Apy, spent
every waking moment meeting with Japanese officials, trying to
convince Japan to sign and ratify the Hague Convention.
However, the Hague is not retroactive, so it would provide no
benefit to the nearly 400 children abducted prior to the Hague
implementation. So they urged Japan to prepare a memorandum of
understanding to accompany their signing Hague which would
cover the hundreds of pre-existing cases.
They also contacted Mayumi to ask my parents if they could
visit their grandchildren. However, Mayumi denied any access
for it. She told the Embassy she would not accept their calls,
and she told them to go home. While in Japan, my attorney, Ms.
Apy, spoke with the Deputy Foreign Minister of Japan, and he
informed her that the Japanese Government was moving forward
with the prosecution of Mayumi. After numerous requests, we had
still not received any information about the investigation or
prosecution of Mayumi's case until December 2012.
I received a call from my case worker from the Office of
Children's Issues, Ms. Leah George, informing that she had
received information regarding Mayumi's prosecution. However,
she was unable to open the document or read Japanese, so we
waited until February 21, 2013 for the letter I hold before you
today from the Saga District Prosecutor's Office in Japan.
And it says, ``Notice,'' and I quote, ``This notice is in
response to your inquiry regarding the criminal case of
violation of the Passport Act. With regard to this case, after
conducting necessary and sufficient investigation, the
prosecutor decided not to institute prosecution. Decision of
the non-prosecution was made on October 29, 2010. If you have
any further questions regarding this notice, please contact
International Affairs Division, Criminal Affairs Bureau or
Ministry of Justice, Japan. Yours truly, Takuya Komagata, the
public prosecutor.''
The timing on this decision clearly demonstrates the total
disregard that Japan has for Americans and our children. This
decision was made 2 years ago, and only now I am receiving the
outcome? My only hope was that Japan would hold Mayumi
responsible for her crimes, but like she so calmly stated, ``My
country will protect me.'' And they have.
Since December 2008, there has been no visual confirmation
on the whereabouts or the well being of my children in Japan.
Mayumi had agreed to a welfare visit by the Office of
Children's Issues. This occurred a few years ago, and at the
last minute Mayumi informed the case worker she would meet them
at a local mall. Mayumi showed up with a photo album of the
children that was good enough for the case worker. However, it
was highly unacceptable for me.
Right up to this day, no one from the State Department or
the American Embassy in Japan can say they have seen my
children, know their whereabouts, and are certain of their well
being. Mayumi is running the show, and she is being permitted
to do so. It is haunting to know that my children, along with
thousands of other children from around the world, will suffer
in silence because they are afraid to ask about their families
who were left behind, in fear of disappointing and upsetting
their abductor. It appears that their fate has already been
determined.
I cannot think of anything more important than the fate of
my children. What about all the American citizens who have been
ripped from their homes in this country against their will?
What about my children? I don't know how to pick up the pieces
and move on. My pieces are in Japan, a country that has
willingly, knowingly aided and abetted the abduction of
children from all over the world, a country that refuses to
prosecute my wife for crimes that are recognized worldwide as
fundamental human rights violations.
Does the word parental in front of kidnapping make it less
of a crime? If so, for whom? You, or the children involved, the
children who have been silenced, sacrificed and brainwashed,
the very children who have been ripped from their only life
they ever knew, the family, the love, and now will be
programmed to never look back? This is what it becomes, not
only parental cruelty, it becomes child abuse. Can it be Japan
has always felt this way, a private family mater, and never
really looked at it from the eyes of children, my children?
I often wonder when I look in the mirror why I don't see me
anymore. I see a reflection looking back at me, watching me
look at him. It makes me wonder if this happens to my children.
What do my children see when they look in the mirror? Will they
ever know who they really are? Do they think like me? Do they
act like me? Do they dream with me? What does Mayumi tell them?
As long as our Government allows Japan to continue to
disregard our children, the number of parental kidnappings will
continue to rise. Countless families will suffer the same
heartache again and again, and Japan and its abductors will
remain in control. It is time for a change. I have been waiting
for 4\1/2\, along with hundreds of other parents, some who have
been waiting for decades. There is not a day that goes by I
don't pray for the return of my children. I am depending on
Congress an the State Department to make that change.
Thank you.
[The prepared statement of Mr. Elias follows:]
----------
Mr. Smith. Thank you very much, Mr. Elias. Thank you for
your service to our country in Iraq. And there are some folks
that stayed back from the Office of Children's Issues, and I do
hope they will take your letter back. Because I had asked while
I was in Japan, asked it at hearings, if we were pressing the
prosecution of your wife for the passport fraud, among other
things, what was the investigation? And I am wondering if we
ever got a response back, and if not, why not. And to realize
that a decision made on October 29, 2010 was not conveyed to
us, the U.S. side, and to you for so long, is absolutely
unconscionable.
And leaving every other issue aside, that kind of
nonresponsiveness suggests a relationship with an ally that is
not what it purports to be. So we will follow up on this, and I
do hope you folks will take back that letter and check into
that, because that is 2 years.
Mr. Bower?
STATEMENT OF MR. COLIN BOWER, FATHER OF CHILDREN ABDUCTED TO
EGYPT
Mr. Bower. Thank you, Chairman Smith and honorable
committee members. Thank you for allowing me to be here today
to testify in front of you.
My name is Colin Bower. And I am here today for one reason:
To ask the U.S. Government to please stop giving Egypt billions
of dollars until they release my two American, kidnapped
children. David Goldman and the respected chairman can attest
to the fact that this has worked before. And I think that, once
you have heard the facts in this testimony, you will be
compelled to agree that we can't continue to blindly fund a
state that has sponsored, aided and abetted crimes against not
only Americans, but defenseless American children.
In the way of background, despite my having sole legal
custody of my sons, Noor and Ramsay, they were kidnapped from
the United States to Egypt in August 2009. Today's testimony
marks the second time in the past 2 years I have testified in
front of this honorable committee. Meanwhile, my boys remain
illegally held in Egypt, as do 20-plus other American children,
including Blake Cleveland, whose father just called me
yesterday. All in danger, suffering child abuse and having
their human rights compromised.
To these children, their parents, and to Noor and Ramsay,
when you watch or read this, please know that you are in my
prayers, and it is my sincere hope that this testimony leads to
the U.S. Government acting to bring each and every one of you
home.
Year after year, the U.S. Government sends billions of
taxpayer dollars to the Government of Egypt with the U.S.
Department of State using waivers under the guise of national
security to get around conditions Congress tries to put on the
aid. As to whether Egypt deserves this aid, please note some of
their behavior since 2009, when my children were abducted,
during which they continued to receive their annual billion-
plus dollar stipend.
They have engaged in state sponsored crime by aiding and
abetting the kidnapping and illegal detention, child abuse, of
at least two American children. They provided the false
passports and transportation for the kidnapping, and they have
abetted the kidnapper through ongoing protection. They have
directly threatened U.S. national security. They issued false
Egyptian passports for the purpose of committing a crime in the
United States. And for nearly 4 years, they have refused to
respond to formal requests from the U.S. Government for
information around how or why these passports were issued. This
is in direct contravention of the bilateral mutual legal
assistance treaty. The Government of Egypt has refused to
acknowledge the Hague Convention principles, or to commit to
joining the Convention, and they continue to regularly commit
flagrant human rights violations.
If supporting this country without conditions is American
foreign policy, then American foreign policy isn't working Not
only are we not getting what we pay for, Egypt has thumbed its
nose at real reform and at our leaders. I have seen my boys
less than a handful of times since they were taken. Each visit
was in Egypt, and each was attended by a large band of Egyptian
relatives and government security personnel who watched the
boys' every move, scrutinized the boys' every word. The boys
were understandably anxious, and they behaved unnaturally.
My last visit with them was in January 2012. Both my mother
and myself, and the U.S. Embassy personnel who attended this
meeting, noted that it was clear the boys wanted to interact
with me. They wanted to be with me. And that is precisely, I
believe, the reason why Mirvat el Nady, their mother, has
forbidden me any contact with them since that time.
I practice one-way communication in the form of posts that
I send to them on a committed Facebook page every week. It is
all I can do.
In 2010, I fought for and won an Egyptian court order
allowing me to visit my children regularly. I have made eight
separate trips to Egypt to see my boys with no success despite
this order. On these trips, I sat alone in a park with bags
full of letters, toys, magazines, sports equipment, other
mementos, waiting 6 hours hoping to see, speak with and hold my
boys again. They were never brought to these visits.
I have been forced to retain new counsel in Egypt at the
behest of the State Department with no recourse. I don't know
when I will see them again next. I don't know if they will ever
come home. All I know is that I will never stop fighting.
It is important to note that the el Nady family has direct
ties to the Egyptian Military. They started the only private
sector yeast factory in Egypt in 2005 through a company called
EGYBELG. Like the production and distribution of all Egyptian
necessities, this remains under the control of the Egyptian
Military. The ties between the el Nady family and the military
were strong under the Mubarak regime, and they have persevered
into the Morsi regime. The el Nady family has been allowed to
ignore both Egyptian and U.S. court orders, and refused
communication with me, U.S. Embassy personnel, and the Good
Intentions Subcommittee, which is a committee which includes
senior Egyptian officials appointed to address issues specific
to American children who have been abducted to Egypt.
The majority of U.S. aid is directed to the Egyptian
Military, which has been the bedrock of the Egyptian side of
our bilateral relationship since the Camp David Accords in
1978, and the U.S. Government has seemingly served at the
pleasure of the Egyptian Military, apparently not wanting to
upset the status quo since the kidnapping.
Now, this is not to say that the U.S. Government has not
made substantial efforts on behalf of Noor and Ramsay. On the
contrary, pleas for Noor and Ramsay's return have been made,
both face to face and in writing, by many senior officials in
our Government, including the Vice President, two Secretaries
of State, the Attorney General, two U.S. Ambassadors to Egypt,
the chairman of the Foreign Relations Committee, and ranking
members of House committees and subcommittees.
In Congress, resolutions calling upon Egypt to return Noor
and Ramsay passed in both the House--thank you, Mr. Chairman--
and the Senate, including through this committee. Further, as
the chairman of the Senate Foreign Relations Committee, now-
Secretary of State John Kerry, said, his last conversation with
President Mubarak was what he called a half-hour shouting match
on this issue. His call to President Mubarak, and his call on
President Mubarak to return the two boys, was to no avail.
Secretary Kerry has continued to focus on this issue
directly at the highest levels in his dealings with Egypt since
he has become Secretary. Yet, I can't tell you where my boys
are, when I will see them again, or when or if they will ever
come home. Since 2009, these pleas from the U.S. Government
have been made directly to former President Mubarak, current
President Morsi, the Supreme Council on the Armed Forces, SCAF,
the Egyptian Minister of Foreign Affairs, the Egyptian Minister
of Justice, and other various Egyptian ministers and leaders.
I remain incredibly grateful for all the assistance of all
U.S. officials involved, all Members of Congress involved, the
chairman of this subcommittee, as well as Secretary Kerry, in
their sustained attention to bringing home Noor and Ramsay.
Despite all of this, the Government of Egypt has been
completely nonresponsive. They have refused to give the
location of the children. They have refused to allow welfare
visits with the children. They have refused to abide by the
terms of MLAT. They have refused to enforce court orders. They
have refused to acknowledge the rights of Noor and Ramsay. They
have refused to return the children. They, along with the el
Nady family, continue to aid and abet a wanted felon.
And this nonresponsiveness has gone entirely without
consequences. In fact, the United States has rewarded Egypt
during this time by continuing to send them billions of U.S.
taxpayer dollars and acting as if it is business as usual. The
State Department has simply said, in a TV interview recently
and in private, that our relationship with Egypt is
complicated, and there are other important issues on the table.
I have to ask the basic questions: What is more important
than the safety of our children? What message are we sending to
the perpetrators of crime against American children when we
continue to support the perpetrators, unchecked and without
consequences? Obviously, as Noor and Ramsay's father, I am
devastated. But as an American, I am appalled. The inability of
Mirvat el Nady to responsibly parent is outlined in our divorce
judgment.
It is also outlined in more detail in the House Resolution
193, which includes analysis from various mental health and
other professionals who evaluated Mirvat el Nady during the
divorce proceeding and recommended that she receive inpatient
care. I don't want to disparage the boys' mother in this forum,
but the text in this resolution is chilling, as are the
implications of allowing an unfit parent to watch over Noor and
Ramsay in such a volatile social, political and religious
environment such as exists in Egypt today.
Obviously, a fit parent would never have kidnapped her
children, alienated them and forced them to be estranged from
their legal guardian, myself, a healthy father who provided for
them and simply loves them more than anything else in this
world. The combination of the instability of Mirvat el Nady,
the instability in Egypt, and the nature of the recent events
at the marathon in my hometown of Boston make my stomach churn
with fear for the underlying safety of my boys. I am literally
scared to death to whom she is outsourcing the parenting or
mentoring of my children, what they are being taught, how they
are being treated.
What will be their future if I am not able to protect them,
if their government has forsaken them for other important
issues? Will they be led down a dark and mortal path? To
Ambassador Jacobs' point earlier on, I don't see how this is
any less terrible than trafficking. I don't see the difference.
I actually cannot bring myself to articulate my fears on this
front. All I can say is I pray my Government will change tack
and do what is necessary to help me protect my boys before
these fears become a full, or even a partial, reality.
There are many things we can do immediately to protect our
children. With regard to Egypt, not surprisingly, several
include withholding U.S. and U.S.-controlled financial
assistance pending certain actions. Of course, I understand the
de facto services contract we have with Egypt, which is the
most populous and strategically important Arab State. But I
have to say, when one side kidnaps your children and ignores
your leader, I say all bets are off. We have to start holding
Egypt accountable. It is not a question of applying financial
pressure to influence their politics, but of doing the right
thing for us as Americans, to protect our citizens, to protect
our children, and to protect our own moral credibility.
I have some recommendations, Mr. Chairman. The first
recommendation regards prevention. I think we need better
controls in place to protect against the unlawful removal of
our children to foreign countries. This includes better checks
at the point of departure by Homeland Security and agreements
with foreign carriers. Prevention is the easiest way to help
cure and protect our children from being subjected to what is
very much a nightmare.
In the case of Noor and Ramsay, for example, Mirvat el Nady
kidnapped my children despite the following flags: The boys
were providing Egyptian passports in false last names. These
Egyptian passports had no U.S. entry visas, leading to the
obvious observation that my boys were in the United States
under another, legitimate, auspice. These Egyptian passports
were issued in a family name different than that of el Nady,
therefore providing no connection between the children and the
kidnapper. The kidnapper had no U.S. court or other
documentation denoting her legal standing to be with the
children. The airline tickets were purchased at the ticket
counter, in cash and one way. The National Transportation
Safety Board and airlines operating in the United States need
to be held responsible for failing to act on any and all of
these flags. Failure to do so is an inexcusable breach of
security and, frankly, remains a huge risk to our children.
Law enforcement. The FBI just did not act quickly enough to
gather information tied to this crime, including identifying
those who aided and abetted. This evidence, primarily email
records, was deleted by the time the FBI started looking more
deeply into this matter. If they had moved with the requisite
urgency, further leverage could have been brought against those
responsible, which could have aided in the return of the boys.
Further, neither have the FBI been aggressive or committed
enough in finding those that are aiding and abetting this
fugitive and bringing them to justice.
The enforcement of existing treaties. Because Egypt
provided false passports for the purpose of committing this
crime in America, a technique used in multiple terror attacks
against our country, they must be held accountable to the MLAT
agreed to by both our countries to protect our citizens from
crimes just like this one. We need to see the MLAT enforced,
the extradition of Mirvat el Nady and her co-conspirators,
before we provide ongoing meaningful financial assistance to
Egypt.
Probate orders. We must tie U.S. financial aid to Egypt's
agreement to recognizing their existing probate orders
involving custody decisions. We have acted in that capacity in
the United States, and I believe that we should act the same
way, and the country harboring the fugitive should issue a
mirror order consistent with that preexisting order.
Human rights and the Hague Convention. We have to tie U.S.
financial aid to Egypt's demonstration of commitments to human
rights, including the rights of children, as evidenced by
acceptance generally of the terms of the Hague Convention,
adherence to the probate orders mentioned above, as well as
Egypt's ultimately becoming a signatory to the Hague. In
abduction cases, this can be sequentially evidenced by
immediate wellness visits, normalized parental visits, and,
where probate orders exist, by the immediate return of the
children to their rightful home in the United States.
Sixth, preclusion of blanket waivers. When Congress ties
U.S. aid to protections for human rights and other like
measures, neither the U.S. State Department nor the White House
should be able to toss aside these congressional conditions via
general waivers under the cloak of national security. Often,
these congressional measures speak to the heart of our national
security, including the protection of our children, which I
consider to be our national treasure.
Seventh, freeze Egyptian assets in the U.S. In conjunction
with tying aid to Egypt to specific measures, Congress should
similarly freeze Egyptian assets held in the United States
pending compliance with these measures.
And lastly, Mr. Chairman, I would like to request a report
by the U.S. Government Accountability Office, the GAO, to
conduct a study focusing on the issue of all child abduction in
Egypt, including the role of the Government of Egypt in the
abduction and the ongoing abetting of the abductors.
Mr. Smith and other committee members, I thank you for the
invitation to speak today, for your attention to my testimony,
and for your consideration of this most important of issues.
[The prepared statement of Mr. Bower follows:]
----------
Mr. Smith. Mr. Bower, thank you very much not only for the
very moving testimony, but also for those very significant
recommendations, including the last one, the GAO. We will
follow up on all of those, and the red flags that you
referenced, I think, were telltale signs.
Mr. Bower. Absolutely.
Mr. Smith. And all were missed.
Mr. Bower. Yes.
Mr. Smith. So thank you.
Mr. Bower. Thank you, sir.
Mr. Smith. Mr. Goldman?
STATEMENT OF MR. DAVID GOLDMAN, FATHER OF CHILD ABDUCTED TO
BRAZIL
Mr. Goldman. Good afternoon. I am David Goldman, and I am
honored and privileged to be here today, and I thank you for
having me. And thank you for recognizing the fact that there is
a tragic issue upon us, and hopefully we will be able to figure
out a way to get you the support that you need from your
colleagues, across the aisle and on your side of the aisle.
And I think that is what we really need to do here, is
create a movement. It is imperative that we don't continue to
have parents that just suffer on a daily, on a moment-to-moment
basis, just looking for any second of relief from the pain that
is constantly searing in them.
I first would like to just point out a couple of things
that I heard before I go into my testimony. Mr. Cicilline, and
I hope I am pronouncing his name correctly, he mentioned the
fact that often times that these abducting parents are actually
fleeing from an abuse case.
Well, more often than not, these abducting parents create
an alleged abuse to keep or thwart the return of the child,
even after maybe months of years of custody disputes within
this country, when there is not one evidence or report of
abuse, which is very alarming in the fact that that is like a
front and center loophole in the Japanese acceptance of their
signing onto the Hague, is that if there is abuse, the child
stays. So that is basically opening the door for any parent to
come and say, ``I am abused,'' and the child never returns.
That is very alarming, and that is a big red flag in my
assessment.
As well, Mr. Meadows mentioned that we are a global
society, and in this global society we are going to have
companies that are working with each other. Johnson and Johnson
is working with Brazil, all these airlines and what have you,
and there are going to be marriages. There is going to be love;
there are going to be marriages. And in our own country, the
divorce rate, unfortunately, is greater than 50 percent. You
put two cultures together, and they are going to have issues as
well.
And the rate of abductions is growing at an alarming,
exponential rate, and we really need to address this. And thank
you, again, for holding this hearing, and for you recognizing
the importance of this issue.
The tools that we keep talking about that Ambassador Jacobs
didn't seem to favor, more often than not if we do have them in
our toolbox, just knowing that we do have them to use would be
enough for these countries to return our children, especially
if we start to use the tools, as are pointed out initially in
the Sean and David Goldman Abduction Prevention and Return Act.
There is a list right here, and it starts out with a
private demarche, an official public demarche, a public
condemnation. And they can see, ``Uh-oh, we are getting to the
big ones. They are using them. Let us get these children. This
is a thorn. We don't need these children. They are not ours.''
We are not asking, Americans are not asking these countries
for a favor. We are expecting them to abide by the rule of law.
And I keep hearing about these delays and these stall tactics,
and somebody mentioned Article 13(b), grave risk, and I had to
really point that out. That is the biggest misuse of a denial
to return a child. Grave risk is, in fact, an abuse or a
hostile situation that that child would be returned to, not
because the abducting parent had been allowed to delay and
obfuscate the court system in the country where they had
kidnapped the child for so long that the court could now say,
``It is a grave risk to return the child back to its home
state, back to its habitual residence, back to the competent
court of jurisdiction, because our courts have been delayed for
so long that the child is now settled, to return them back to
their home where they were abducted would be a grave risk,
because it would disrupt the children's life,'' as they were
supposed to return that child within 6 weeks of the abduction.
So to use that, and these judges that use that so often,
saying the child has settled, that is something that is
completely wrong and it needs to be addressed, and that Article
13(b) really needs to be outlined on what the purpose of it is.
So I will go back to my written testimony now.
And I just want to say, my beginning is, I understand what
these three parents are going through. I walked in their shoes
for 5\1/2\ years. I did live in a world of despondency and
desperation, with that searing pain through my entire being.
Everywhere I turned, I did see an image of my abducted child.
Sleep was hard to come by, and never restful. If I smiled, I
felt guilt. When I saw children, whether it was in a store, a
park, on television, anywhere, it killed me. It killed me. It
was too painful. For the longest time, I couldn't be around my
own family members because they had children. I couldn't be
around my nieces and my nephews, it was too painful. ``Where is
my son? Where is my child?''
He had been abducted. He was being held illegally. He was
being psychologically, emotionally, and mentally abused. I
needed to help him. I needed to save him. He needed me, his
father. It was our legal, our moral, our God-given right to be
together as parent and child. I did everything humanly
possible, leaving no stone unturned, but for so many years the
result remained the same: My son, as these parents' children,
remained kidnapped, abducted, in a foreign country. They are
not home with them. And it is a crime. Every second, every day,
the crime continues.
Finally, after Congressman Smith, who is chairing this
hearing today, became directly involved with my case, he
traveled to Brazil with me on multiple occasions. Sean and I
were reunited after a nearly 6-year separation as a result of
his abduction. But it took not only Congressman Smith's direct
involvement, having meetings with high officials in Brazil, but
it took worldwide media attention, the personal outspoken
support of former Secretary of State Clinton and President
Obama, and ultimately U.S. Senator Frank Lautenberg, after the
urging of Congressman Smith was saying, ``Hold this trade bill.
Hold this trade bill.''
There was a trade bill that was coming up, and Congressman
Smith kept asking him to hold it. Finally, Senator Lautenberg
did decide to hold the trade bill to make it possible and help
return my son. And I must say that countless others also became
involved and joined in my fight, making it essentially their
fight, which made it our fight. And I am forever indebted and
humbly grateful for every ounce of their support.
Which leads to my last point of this paragraph, why I
wanted to say all the help I got. I also know it is next to
impossible for any single left-behind family to garner the
support which my family was so extremely fortunate to receive.
These folks don't have it. But I hope, today, collectively, we
will start to change that. We move mountains. We all came
together. Somehow, it was a perfect storm that helped me. But
these folks are like I had been, and they need help. Their
pleas are falling on deaf ears, as mine were for so many years.
And these are just three of the faces of thousands upon
thousands.
This is my fourth time testifying before Congress on this
issue, and I am disappointed to report that the situation with
international child abduction to both Hague and non-Hague
countries continues to worsen since the return of my son, Sean,
December 2009. This hearing today, by my count, is at least the
20th hearing--the 20th hearing--on this issue, dating back to
the 1980s. Yet today, over 30 years later, the problem
persists. The number of abducted children continues to rise at
an alarming rate, and precious little is being done about it.
As I prepared to testify today, I spent time looking back
at the extensive record of congressional testimony on this
issue over the years. So many important and meaningful
statements have been made that I felt the most effective way to
communicate my message is to quote these officials and their
testimony.
I would like to start with a brief quote from Congressman
Walter Jones of North Carolina from a session on the House
floor when my son Sean's case was being discussed which I
believe accurately sums up the issues we are here to discuss
today. Congressman Jones said, ``The world should be about
bringing families together.'' Simple. And he is absolutely
correct. Let us work together to bring more children home and
more families together. These American children, left without a
voice as a result of their abductions, they deserve better.
They don't have a voice. We are their voice.
The following is a quote from former Congressman Barney
Frank, from remarks made at a July 2011 congressional hearing
on international child abduction. And this is very important.
This goes again to what we were discussing with Ambassador
Jacobs.
``We sometimes hold back in using our legitimate moral
authority because we worry about somehow alienating
other countries. Now, I want America to be reasonable
and fair in its dealings with other people, but as a
general rule, it does seem to me that most countries in
this world need us more than we need them. I don't want
to abuse that, but I think we sometimes assume that we
can't press hard because people will get mad at us. A
reasonable assessment of what the relationships are
should allow us to press cases on their merits and not
be held back by some fear that we will somehow lose
influence.''
That was from Mr. Frank, very profound and still to this
day very pertinent and relevant.
Now I turn to the remarks made by Ambassador Susan Jacobs
at that same hearing.
``In non-Hague countries we rely on quiet diplomacy,
knowledge of local conditions and respect for local
customs, and often less visible means to try to resolve
an international abduction case. The Hague
Convention,'' as she said again today, ``remains our
best hope of resolving international abductions. It is
the first subject that I bring up with foreign
governments during my travels on behalf of the
Secretary.''
Well, these mechanisms, these quiet diplomacies, while they
may be effective, we need more. Obviously, these mechanisms
used to date to return our children are failing.
We have some statistics here. Over the last 5 years, 2008
to 2012, over 7,000 American children have been abducted from
the U.S. I mean, 7,000. If they were all abducted at one time,
we would have the U.S. forces to go invade wherever they are
and bring them home. But because there are 500 here, there are
200 in this country, 100 in this country, it is not that big of
a deal. Mexico is a great return, she said? It is not. Five
hundred are taken every year, and what is the Ambassador to
Mexico? His first thing is looking at arms, arms control,
border crossing, the handful in his mind of children aren't a
priority, and they need to be.
For the calendar year of 2008 to 2010, the State Department
reported an increase of almost 3,000 abducted children, yet the
number of children--this is one you need to pay close attention
to. In the last 2 years, there has been an increase of 3,000
abducted American children, yet the number of children whose
cases are active dropped from 2,800 to 2,400, and are now
1,900.
So what they are saying is, we have more cases, more
children and more cases being opened every year, yet the amount
of open cases is dropping. That does not add up. These figures
do not add up. And it is in their stat sheet. And we need
transparency. That is one thing that we asked before. Some of
these statistics, they don't show any longer. And we need
complete transparency from the State Department on all the open
cases.
And these are only the reported cases, and the reported
cases that they have. We also don't know exactly what
quantifies a report. An agreement between two parents closes a
case, or they count it as a return? The parent losing the case.
I know they close cases because the case is lost. The country
where the abducting parent takes the child decides they are not
bringing their child home, so they close the case. And then
they check that off as one less case they are working with.
But in the meantime, that parent is still somehow begging
on his knees every night, praying for the return of the child,
even though the state and our country failed them and gave up
on them.
And there are some more stats, but I will go back into what
we need to do in our State Department as a complete cultural
change. And nothing short of being extremely bold and
principled is going to do much to change the status quo and the
corresponding playbook for handling international child
abduction cases.
Left-behind parents, especially ones whose children have
been abducted more recently, often make the mistake of thinking
that the State Department is competently handling their cases
and that countries routinely return children as expected. And
that is one of the things that Ms. Apy said. Judges here, if
they look at a country and they say they are a signatory to the
Hague, when a parent is in a divorce or a custody dispute and
that parent goes to the judge and says, ``I want to go back to,
say, Brazil, because that is where my family is,'' and the
judge says, ``Okay, Brazil is a Hague country.'' And the other
parent is saying, ``No, they have already said they are going
to go and they are not going to return my child,'' and the
judge is going to say, ``Yes, this is a Hague country. The
parent can go back, because then they will return them if the
child is''--no, it doesn't work that way.
So we need to educate our judges as well, and they need to
see that these countries aren't abiding by the law and
returning the children as the Hague Convention requires, which
is also a very important aside.
In reality, the State Department and Foreign Services have
been involved in these cases almost since the founding of
America. We have always been a country of immigrants, and these
issues have always existed and been escalated to the State
Department. But what these parents, and what I failed to
appreciate, is that it is not incompetence or ignorance that
leads to the mishandling of abduction cases, but rather failure
to enforce our policy.
All the things that I was listening to today, the State
Department does quiet diplomacy, they pass information, they
gather information, they monitor the cases. But there is no
advocacy. We need an advocate. We need an advocate. We need our
State Department to advocate on our behalf. I mean, we do have
to find our own attorneys, here and in the country of the
abducting parent where they are taking our children, and we
don't have an advocate unless we are our own advocate and we
are our own voice, and then we have to find ways to hire
attorneys, which most of the time we end up giving up because
these cases drag on.
Because there is almost a playbook that these abductors
have, where they can figure out a way to keep having delays,
delays, delays in the courtrooms, until finally they get a
decision that they want. And they appeal every turn that looks
like they might be losing, or they will just go run and hide,
and then the judge will say, ``Yes, the child is here. Even
though they were abducted, the child has been here for so long
that they are settled. Sorry.'' And it is very, very sad, and
it is continuing.
Here is one from Secretary Clinton. This was to commemorate
National Missing Children's Day in May 2011.
``We are committed to preventing child abduction and to
helping the children and families caught up in these
very complex situations. Our dedicated staff in the
Office of Children's Issues work every day to support
families and children at risk. We help parents access
the tools available to prevent international
abductions, such as our Passport Issuance Alert
Program.''
Well, Secretary Clinton deserves credit for addressing this
issue, but unfortunately the tools her staff has to work with
are woefully inadequate to bring the majority of these abducted
children home. Yes, preventing abductions is critical, as Colin
pointed out, but we cannot give up on these children once they
have been taken out of the country. Parents don't have the
resources to fight this battle in two countries on their own.
They need real advocacy. They need real action. They need the
commitment and the resolve to bring these children home, not
platitudes and talk about how much we care.
I would also like to share a quote from Bernard Aronson,
former Assistant Secretary of State for Inter-American Affairs,
from his December 2009 testimony before the Tom Lantos Human
Rights Commission. Mr. Aronson stated that--and this is very
key, and we touched on this, too--``a diplomatic request for
which there are no consequences for refusal is just a
sophisticated form of begging.''
The success rate of using the Hague Convention for a left-
behind parent is abysmally low, and the number of abducted
children is increasing at an alarming rate. The main reason the
Hague is not working is that there are no material consequences
for abusing it, and the U.S. has to do more to change that.
Publishing a list of non-compliant countries does not
create much incentive for such countries to change their
behavior, and essentially that is all we are doing. We send a
list: Non-compliant, compliant, non-compliant, better, almost
getting there. What is that? That is not going to make a
country return our children if they don't want to.
Now let us look at the cases of thousands of American
children who have been wrongfully removed from the United
States. Could the U.S. find ways to put pressure on these
countries to honor their international obligations? Do we trade
with these countries? Do the leaders of our Government
understand the difference between a custody dispute and an
abduction? Do they really want to make the Hague Convention an
effective treaty to minimize international child abduction? If
the answer is yes, the case of my son can serve as a blueprint
for what can and should be done.
Our newly appointed Secretary of State, John Kerry, is
intimately familiar with international child abduction,
specifically the case of Colin Bower's two children who remain
in Egypt. As a U.S. Senator, Secretary Kerry authored a
resolution admonishing the Egyptians for their abduction of
Colin's children, Noor and Ramsay, and advocating for their
immediate return. He also called on all governments to assist
in the safe return of children abducted from or wrongfully
retained outside of the country of their habitual residence.
Once again, the intentions are good, but there is no action
to see that these children are returned. We should stop talking
and start acting. If we are sincere in our desire, as I believe
you are, Mr. Chairman, as I know you are, and the rest of us
here, if it is really, really, really that we sincerely desire
to see our children brought home to their loving families where
they belong, then let us do something about it.
At his swearing-in ceremony in February, Secretary Kerry
made the following remarks:
``We can protect children as we did in Africa. We can
keep students learning even after an earthquake
destroys their schools, as we did in Pakistan. We can
help young girls pursue their dreams of education, as
we did in Afghanistan and other places in the world.''
Well, that is what the State Department can do, and should
do. Certainly, American children are no less deserving of
protection than children of Africa and other countries. Because
the problem of IPCA is not being addressed in an effective
manner, thousands of abducted American children and their
parents are suffering daily. We can, and need, and should do
better.
At a Senate hearing on international child abduction, Vice
President Biden, then Senator Biden, remarked:
``The act of taking a child in violation of a custodial
order, whether across state lines or across
international borders, is a heinous crime which is
extremely heartwrenching, for the parent left behind
and for the child affected.''
These folks are still in office, and their positions have
heightened. They should step up. We have now a Secretary of
State, we now have a Vice President, and we know that they
spoke about it. They know about these cases. Let us call them
to action. Now is the time. Now is past the time. That was 15
years ago, and the same holds true today. With the passage of
time, the only difference between then and now is the names and
faces of the grieving parents here today before us telling
their stories. These cases are different, but all too similar
in so many ways. We are failing these parents and their
abducted children, again and again.
If Congressman Smith hadn't traveled with me to Brazil, I
wouldn't have been able to see my son after more than 4 years
of being separated because of his abduction. These cases
typically drag on for months, which soon turn into years, as
the abductor creates the home field advantage with endless
appeals and delay tactics in their home country's legal system.
This is the norm, not the exception. These case are abduction
cases, and laws have been broken. They are not custody cases.
Right now, as I sit here, Sarah Edwards, a suffering mom
whose child, Eli--her son, Eli, was kidnapped to Turkey. She
sat next to all of us, actually, in 2011, pleading for her
son's return. It was a black and white abduction case,
absolutely unquestionable. If you put it in a legal class, 101
Law, abduction, put her case up. Unquestionably that boy was
abducted, should be returned. She lost her case. She is there
in Turkey, right now, as we are here, looking to see her son,
Eli.
We failed her. We failed her.
We are not asking for anything other than the rule of law,
again, to be followed.
Let us be clear what we left-behind parents and families
are asking for. Some people mistakenly believe we are asking
our Government to intervene in custody disputes. We are not.
All we are asking is that, when our children are kidnapped to
thwart a proper resolution of custody, the law governing their
return to our country is upheld. We Americans proudly proclaim
that we are a nation of law, not of men. But when it comes to
the international law that deals with children abducted from
the United States to other lands, a law embodied in the Hague
Convention, which our country helped convince other nations
over the world to adopt, there is no rule of law. And the
broken lives and broken spirits of left-behind parents across
American, whom we represent here today, stand as a living
rebuke to that failure to enforce the rule of law.
The issue is not whether Ambassador Jacobs and her
colleagues are trying their best. I have no doubt they are. The
issue is that, after more than two decades, more than 20 years
of failure, Ambassador Jacobs and her colleagues still have no
effective tools to accomplish their objective. They are like
combat troops sent into battle with no weapons or ammunition.
The plain fact is that nations who refuse to return America's
children pay no price for defying the law, and unless we arm
the State Department with the tools they need to do their job,
and unless nations who break the law flagrantly and repeatedly
suffer real consequences, nothing is going to change.
Nothing is going to change, and we will have another
hearing in another year or another 2 years, and there will be a
new line of faces of parents who are just completely broken,
and their kids remain abroad, abducted, psychologically
tortured, emotionally battered, and we will be spinning our
wheels. Hopefully, we will change.
Thank you.
[The prepared statement of Mr. Goldman follows:]
----------
Mr. Smith. Thank you very much, Mr. Goldman. Thank you for
being an inspiration, I think, to other left-behind parents
that success can be had. But as you said, herculean efforts,
even when applied--and Mr. Bowers certainly has had the
Secretary of State in his corner solidly fighting aren't always
enough.
What we are trying to do with the legislation is to make a
systemic change to empower the diplomats, the executive branch
and anyone else concerned, who goes country to country, and say
that this has meaning. You sanction what you care about. If you
don't care about it enough to sanction it, that sends a very
clear, unmistakable message to an offending country, especially
when there is a lack of good will on the part of that country.
So we are trying--and I know you know this, but I think the
record needs to clearly state it--to make this a country-to-
country fight, so you don't have David versus Goliath being
replicated time and time again for Americans.
And I do believe, I find it disheartening that the
administration may not support this. I do hope that, if
presented with the bill, President Obama will sign it. But it
is value added at the very least. What is it that they would
oppose? Being much more robust when we deal with non-Hague
countries? Promoting MOUs so that we have a mechanism, as well
as with Hague countries, to effectuate positive results?
I mean, as you pointed out, Mr. Goldman, we have had years
of ineffective results. Reasonable people will then say we need
to go back to the drawing board and find some ways of fixing
it. So I do think, and I do hope, I wish--I did mention it, but
I will mention it even further now. There is a myth that
parental abduction is somehow not as egregious as other kinds
of behaviors. As the author of the trafficking law, and as
horrific as that is, this is right there, side by side, because
parental alienation is a horrible outcome for that child. And
of course, it is cruelty to the left-behind parent as well.
So I would hope that that myth would be shattered
immediately, if it is harbored by the Ambassador or anyone
else, about how bad parental abduction actually is. It is
awful, and those who have suffered from it, as you have done so
today, can speak volumes as to what----
Mr. Goldman. Yes, Mr. Chairman. If I may, I believe--or I
know it is in our country--parental abduction within our
borders is a crime punishable by law. As a matter of fact, most
of the Amber Alert signs that you see are from one parent, a
non-custodial parent in a divorce that takes the child.
And I know most of these other countries that I have
experience with, it is a crime punishable by jail time. So when
you have domestic parental abduction, it becomes a crime in
that country, for example Brazil, but when a parent who is a
Brazilian national takes an American child over to Brazil, all
of a sudden it is not a crime. And these parents also use the
Hague Convention as a double-edged sword, because it is civil
and the parent has nothing to lose. If they go to the court
here, they have a chance of having to do a shared custody. If
they go back to their country where they want to go--for
example, I use Brazil, because that is the one I am most
familiar with--the worst that they feel will happen is they
will get sent back to have a custody hearing in the country
where they abducted the child from.
So they figure they have nothing to lose. ``Let me give it
a shot. I will break this guy. I will break him financially, I
will break him mentally, I will break him emotionally. I will
create a home court advantage, and go on and on and on,'' and
the worst that will ever happen is they return the child, they
return our son, our child, and she will have to come back, or
he will have to come back, whoever the abductor may be, and go
through a regular custody hearing.
So there is no deterrent. There is no deterrent.
Mr. Smith. You know, an important point, and anything you
would like to add. Mr. Meadows did want to come back and ask a
question or two, if he can get here. He is doing a radio
interview.
In your testimonies, because you have lived this, you have
answered most of the questions. And you gave all of us on this
committee and other Members of Congress the case histories, if
you will, of why we have to do more and why we have to do it
immediately.
But Ms. Philips mentioned a very important point, which all
of you have done, and she says, ``I know that Sunil Jacob feels
empowered by the passage of time.'' I think the sense of
urgency, if we don't have it now, we will never have it. So all
the more reason why we have got to do more in this Congress,
this session, within months if not weeks, to get this
legislation passed.
So you have given us a lot of ideas. I think the GAO
report, all those other ideas, Mr. Bower, that you conveyed to
the committee, we will take every one of them up, look at it,
see if we can do something with it. I just would yield to Mr.
Meadows, and then anything you want to say in closing.
Mr. Meadows. Thank you, Mr. Chairman. And I thank each one
of you for your testimony and highlighting this issue, and I do
believe that we have got to remain vigilant, but that we don't
continue, Mr. Goldman, just to have hearing after hearing after
hearing. Hearings with actions make sense. Hearings with
inaction are really a waste of time. And so my commitment to
the family members here is, we want to find real solutions and
a real bipartisan way to come up with legislation that gives
tools, and actually gives them some incentives.
And so with that, I would like to go to Ms. Apy. If you
could share, because I know as we were talking earlier and in
some of the testimony, it sounds like you have got a number of
years of experience here. And so if you were the Ambassador at
the State Department, what are some of the things that you
would like to see that would help out in this situation?
Ms. Apy. Well, that is a luxurious question, actually.
First of all, I believe that using the tool of a memorandum of
understanding, and using diplomatic means to begin to craft
agreements, both for Hague countries that are having
difficulties in compliance and reciprocity, as well as non-
Hague countries, would be number one on my list. I know there
was reference in the Ambassador's testimony about what she
characterized as unsuccessful MOUs involving Egypt, Jordan and
Lebanon, and there is some question about whether or not there
is actually an MOU involving Egypt. There are some access
agreements.
But the real issue is that when we have agreements, even
like in the British agreement with Pakistan, you have a
situation in which judges that are making decisions know that
this agreement exists. Parents who are making agreements know
that this exists. So there is an opportunity to have their
behavior, the decisions that the court makes, reference this
agreement. It changes the legal culture. It provides an interim
step.
Being able to not only have those agreements, but then be
able to say, ``We are serious about this, and if we are not
able to do this by agreement, we are going to have to tell our
judges,'' American judges, for example, ``that a reciprocal
agreement does not exist right now. That despite the fact that
we have entered into the treaty, they cannot rely upon that
reciprocal relationship until the following things have been
dealt with.'' That would be one of the first things.
As I mentioned earlier in my testimony, and I think is
crucial, the partnership between the Congress of the United
States, the decisions that you make, and this issue. By knowing
who in your district has a pending case, and having a non-
defensive response from the Department of State with respect to
those issues. You should know 15 minutes after they get the
application that there is a pending case in your district, what
country is involved, and what the issues are. If law
enforcement is involved, you should get a list so that you
know, when you are hearing testimony about dangers in these
places, about other aspects--that, I think is something that
lawyers, for example, can't address in the same way that you
would be able to.
Additionally, there has been discussion about having
judicial training and having other means, which go on in any
event, and they should continue. But being able to represent
that, on behalf of the United States of America, there are
positions that need to be taken with regard to these issues,
and having the Ambassador who is serving in that capacity go to
Pakistan, or the United Arab Emirates, or Japan, or other
places in Asia--and we haven't even talked about the number of
cases there right now, and the number of the countries
implicated--and be able to sit down and negotiate, identify the
issues, fine tune those issues for that legal system.
The other thing is, when our SOFA agreements are being
negotiated, our Status of Forces Agreements involving American
servicemembers, if we are putting them in a country we have to
ask the question as to what protections will be available for
them. If it is a country that is non-compliant with the treaty,
or if it is a country that will not provide them remedies with
respect to child custody disputes, if we are negotiating a SOFA
agreement we have to sit at the table and say that. And that is
not being said.
So again, I could warble on. But those are the things that,
if I were to identify the things that are the most important,
that would be what I think is the next level of what we are
talking about.
Mr. Meadows. And probably what I would ask of you, if you
could get to the committee, is really how we address the
notification process without violating privacy. Because any
time that we look at this, we have got to look at it in the
hands of not only those that are well intended, but those that
perhaps are not. And so I want to be sensitive to the privacy
side of that, but yet at the same time, if you can come up and
provide some thoughts on that, since you have experienced that
on a regular basis, that would be great.
Ms. Apy. And simply enough, for the purposes of your
decisionmaking, for example, the information could be provided
without indicating names and simply giving you the heads-up
that we have a pending case that has been filed. Because it has
been filed with the government.
Mr. Meadows. Right.
Ms. Apy. ``We have a pending case of an abduction of a
child from your district out to Country X,'' giving the parent
the opportunity to expand on that information.
Mr. Meadows. Well, what about some piece of legislation----
Mr. Smith. Will my friend yield on that?
Mr. Meadows. Yes, I would be glad to.
Mr. Smith. In the appropriations cycle in the last
Congress, we actually put some language together and got it
passed in the House. It basically said that the Office of
Children's Issues will notify a Member of Congress of an
abduction case, but they would pre-clear it with the family
member, thereby meeting the obligations of privacy.
It was not accepted by the Senate, watered down to
nothingness. But why can't it just be done by OIC on its own? I
mean, you don't need an authorization by Congress to ask the
parent, ``Would you mind if we told so-and-so?'' Because that
parent will then have an advocate who will, when he or she
travels, when he or she meets with delegations, especially on
our committee, will say, ``I have someone here in my district,
and I want to raise that case.'' And then he or she becomes an
advocate for them.
Ms. Apy. Well, may I just say, even beyond the advocacy
piece, which may be within the purview of a parent, the other
piece is, you are in possession of information and
decisionmaking that you should know, as you are listening to
that information and making those deliberations, what the
status of those issues are involving your district. Without the
names of the individuals. You wouldn't have to have that.
Mr. Smith. Right.
Ms. Apy. The other issue is, the current reporting
requirements in the existing legislation provide that you are
to be reported to by the Office of Children's Issues and
provided an accurate reflection of cases that are in existence.
And, of course, we have country reports. There have been some
changes in the way that information has been recently submitted
to you.
I need to tell you that the use of that information in the
practice of family law is extraordinarily important. The judges
hearing these cases now, requests for access and other
deliberations, rely upon it. The fact that it is not being
provided now is--I just don't understand. But parents who don't
have the ability or the resources to hire international experts
to testify to judges rely on the information that is provided
to you to educate judges. We heard about educating judges. That
is how they know. They look at the information provided to you
in compliance with the existing statute.
That information, I understand now, we are not having the
number of cases in the same way, we are not having--that
information is crucial to American judges to assess risk of
removal and to, frankly, be able to apply the law, both the
substantive law of the state as well as, obviously, the Federal
law, from both a criminal perspective and, certainly, the Hague
Abduction Convention. Without that information, it is very
difficult for a judge to be a country expert on every single
country.
And they rely upon that communication, so I would strongly
urge that, again, in the legislation that is being
contemplated, and any other deliberations that you will make,
keep in mind that the information that you receive gets
disseminated to our judges around the country, across the
jurisdictions, and it is extraordinarily important for them to
be able to access it.
Mr. Meadows. So if we had a congressional liaison that
would work with these type of cases, to work with some of our
other colleagues, to inform them and keep this in the
forefront, is that something that would be useful?
Ms. Apy. I think it would be extraordinarily useful. I
think, to the extent that it provides a conduit of information
by the body that is most familiar, if it is possible to say,
with how these individual problems can be worked. For example,
we have been talking about the role of the Justice Department
in the prosecution issues. Well, that is DOJ, and that is a
whole--that is an area, though, that having a congressional
liaison could be able to act in the capacity where it isn't
always within the bailiwick of the Department of State, very
frankly.
Mr. Meadows. Right.
Ms. Apy. And sometimes that disconnect can mean months or
years of waiting on the part of parents. Again, having a
private lawyer make numerous phone calls a day is not a
practicable answer for many, many people.
Mr. Meadows. Well, and it is costly. I mean, as you know,
every phone call that you make--my time is a lot cheaper, I can
tell you. And so in doing that, we want to be an advocate and
find a way to do that. But I thank you for your testimony.
Mr. Goldman, you seemed to agree with what she was saying.
Would that be fair to say?
Mr. Goldman. Yes. It is almost like we did have the
introduction of the Ambassador-at-Large. Anyone who is going to
almost be an independent liaison or conduit can only help.
And it is great that Ambassador Jacobs was appointed, but
she was appointed almost a day before we had another hearing,
after we already introduced legislation for an Ambassador-at-
Large, almost as another reason--remember, I am not a
politician. I am just a guy who sees what is going on and says
it like I see it. Almost as if to say, ``We don't need the
legislation with the Ambassador-at-Large now, because we have
this new position.'' And you can see, as history is repeating
itself, it is failing. So absolutely. Thank you.
Mr. Meadows. Thank you, and I will close with this for our
three witnesses. As you see areas that, even though none of you
to my knowledge, are in my district, if you see areas that
would be meaningful, please feel free to call our office and
call on us for suggestions that you might have. And with that,
I would yield back to the chairman. I thank you.
Mr. Smith. Mr. Meadows, thank you so very much for your
questions and for your keen interest.
Just a quick question to Ms. Philips, if I could. Will
Sunil Jacob be prosecuted in New Jersey for parental
kidnapping? Why or why not? And you mentioned in your testimony
the pre-planning that Sunil Jacob put into the abduction, and
that the Plainsboro Police investigation showed the involvement
of three of his friends in the abduction. Has there been any
legal sanction against the friends for their participation in
the abduction?
Ms. Philips. Thank you, Mr. Smith. Yes, the Plainsboro
Police did have two arrest warrants on Sunil Jacob. One is for
parental kidnapping, and the other is for interference with
custody. We have Sergeant Blanchard from the Plainsboro Police
Station here today.
And also, they did take actions on one of the friends who
was in New Jersey. So he was arrested. And what happened later
is the prosecutor, they had their case open since 2010, and
there was a Federal arrest warrant on him for unlawful flight
against prosecution. When the FBI wanted to execute the
prosecution, they requested the U.S. Attorney's office which
held the case for about 1\1/2\ years, and then gave the
decision over to the Middlesex County Prosecutor's Office. And
the Middlesex County Prosecutor's Office, in February 2013,
they administratively dismissed the case after keeping it open
for more than 3 years. And so the Plainsboro Police are going
to work to file for interference of custody again.
Mr. Smith. Ms. Apy, what do you think of that? Dismissing
the case?
Ms. Apy. It is certainly not limited to New Jersey. It is a
common problem. And again, part of it is that this is not the
standard case. It is not the standard type of prosecution. Some
of our U.S. Attorney's offices are brilliant at it. The U.S.
Attorney's office in Chicago, for example, has prosecuted a
number of cases. Once a prosecutor knows how to do it and an
FBI agency gets used to doing it, you find that you have that
kind of follow-up. It is like anything else. If it is a job we
are not used to doing, we kind of--we are not as facile at it.
One of the concerns is the interjurisdictional fight that
goes on. The United States Attorney, of course, when evaluating
these cases, as well as the state courts, look at the expense
involved. I mean, when you are putting together a case to
beyond a reasonable doubt, you are talking about having to get
somebody in India, or the witnesses involved. You know, there
is that push-back. And there is the context that ``Well, this
is just a parent. The child is not really in danger.''
It is consistent and across the board, even in the Dahm
case that I mentioned in my testimony. Here is a situation
where orders against leaving, the U.S. Attorney indicts, but
then they basically do nothing on the case and we have to ask
them to have another meeting, the FBI doesn't show. When people
come in from out of state--I mean, it is appalling. And
ultimately, I think it is a reflection of the systemic story
that you are hearing, and that is a lack of understanding that,
not only is it an academic rule of law issue, it is a crime.
And from the standpoint of deterrence and all the things
that you all would talk about if we were talking about drug
trafficking or sex trafficking or other issues----
Mr. Smith. Child abuse.
Ms. Apy. Absolutely. Deterrence is one of the primary
issues. You know, if we are not going to take it seriously--and
countries know what that looks like when we take things
seriously--and U.S. Attorneys know that their careers are not
going to be advanced on a case that is tough if it is not at
the priority of those watching, then you have to be constantly
on it, and you have to constantly be asking them what to do
next.
Frankly, the latest movement in the Dahm case came because
I indicated that I was going to be testifying about the case to
this body, because I am at a loss as to what we can do to
encourage and inspire the Department of Justice to be active
and supportive to the victims of these crimes. And by the way,
a footnote on this. To get the case queued up before the U.S.
Attorney, it has got to be a good case. They would have dumped
it. It gets dumped quickly otherwise. If it has been brought
before--and I champion the U.S. Attorney in Miami for issuing
the indictments they did. No small feat.
But there is a huge reluctance across the board. Getting
them to do it and keeping on it is extraordinarily important.
And again, your interest for future hearings, or in your
deliberations, or in dealing with congressional liaison
contexts, would be to partner with DOJ and make sure that there
is a seamless application of these issues.
Mr. Smith. Thank you
Ms. Philips. Can I add something?
Mr. Smith. Yes, please.
Ms. Philips. Also, the FBI was involved when I sent a
letter to the President, Barack Obama, in 2009. So they are
willing to go ahead and extradite my children, but they are
waiting for the approval from the U.S. Attorney's office. And
when the prosecutor administratively dismissed my case, like
Mr. Ramisar and Mr. Preston Findlay from the National Center
for Missing and Exploited Children, they spoke to the right
people in the prosecutor's office and gave them the right
information, and told them why this case has to be open. But
they didn't reopen the case.
Mr. Smith. Thank you. Anything else before we close?
Yes, Mr. Bower?
Mr. Bower. I just had one point I wanted to call out a
little bit more, and it is the issue of financial burden. I
think a lot of times we are talking about the politics here,
and we are talking about legislation here. And a lot of times,
I know myself, for instance, I have been told I need to retain
local counsel. And after fighting a fight for 3\1/2\ years on
multiple fronts I will tell you that local counsel, even in
Egypt, doesn't come cheap. And particularly not if you are
going to get the right kind of local counsel that can stand up
to the various forces in a country like that.
And I didn't know whether or not there were mechanisms for
USAID or through their funding of certain NGOs locally that
might be considered or put in place that would allow that
financial burden for families like ours to be eased a little
bit. And I just heard reference to it, and I don't think that
we had really talked about it. I know I hadn't before, but I
think it is an important issue, and I just wanted to bring it
up to you before we close, Mr. Chairman.
Thank you.
Mr. Smith. Thank you, Mr. Bower.
Mr. Goldman. And a couple more things. I am sure we can
keep going and going, because there are always more issues. One
thing Ambassador Jacobs said is that she considered sanctions
as extortion, and I liked how Mr. Meadows put it, maybe not
sanctions, but incentives. I mean, if it has to be a play on
words to get something going, you return our children and here
is an incentive for returning our children. Maybe that is how
we can get it in somehow in a positive way.
And the other thing that is also disturbing is, she was
appointed as somebody to monitor and work with these cases
solely as her position, and doesn't see international child
abductions as a heinous crime. Doesn't even put them on the
same playing field as human trafficking and those other things
that we have laws about. And I think that is quite alarming,
too.
I just wanted to make that point. Thank you.
Mr. Smith. I appreciate that. Thank you. And I would agree.
That is why I spoke of the myth that somehow child abduction by
a parent means ``that child is now in safe hands.'' It is a
terrible myth, and the science that even led to the Hague
Convention itself, the psychological data about what parental
alienation does and the consequences for that child, it just
shatters that myth. So you know, the act of abducting puts is
just like child abuse. You wouldn't say, ``Well, at least the
child is in good hands, even though he or she is getting beaten
every day by a child abuser.'' And this is a pernicious form of
child abuse.
Mr. Goldman. Absolutely.
Mr. Smith. So I do thank all of you for your testimonies.
It will be very helpful as we move to markup on the
legislation, which I suspect will be opposed at least at some
level, by the administration, as was every other human rights
bill I have ever seen go through this body. I exaggerate a
little, but that has been true for the ones I have worked on.
But we will persist, and it will be bipartisan, I can assure
you, because there is good buy-in from both sides of the aisle
on the need to do this now.
So I thank you, and the hearing is adjourned.
[Whereupon, at 2:05 p.m., the subcommittee was adjourned.]
A P P E N D I X
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