MEXICO: Cross-Border Child Custody, a Legal Tangle

• by Emilio Godoy (mexico city)
• Friday, January 13, 2012
• Inter Press Service

The claim for restitution of an under-age child taken to another country, or to Mexico, is based on the Inter-American Convention on International Restitution of Minors (IACIRM), ratified by Mexico in 1994, and the Hague Convention on Civil Aspects of International Child Abduction, which came into force in 1983.

'Lawmakers are not necessarily familiar with the provisions of the conventions. Most judges do not use them as references in their decisions. And the red tape, when a child is abducted from or brought to Mexico, is a real ordeal for the families,' Martín Pérez, head of the Network for Children's Rights in Mexico (REDIM), told IPS.

Moreover, the families 'have to undertake the search for their children using their own resources,' added Pérez, the executive director of REDIM, a coalition of 63 NGOs that carries out programmes for vulnerable children and adolescents.

In 2008, there were 272 petitions for the return of children to custody, compared to 123 in 2003, according to the Permanent Bureau of the Hague Conference on Private International Law. These figures do not include petitions brought under the IACIRM.

And there were 168 demands for restitution under the IACIRM in 2008, an increase of 522 percent compared with 2003.

Fifteen Latin American and Caribbean nations reported 315 petitions for the return of minors in 2008, equivalent to 16 percent of the world total. In 61 of these cases, both countries involved were within the region.

In 2010, there were 221 such cases in Mexico; 101 of them involved the abduction from this country to others of 141 children or adolescents; and the remaining 120 cases involved 169 irregular transfers of minors from other countries to Mexico, according to the foreign ministry, which is the designated central authority in Mexico tasked with fulfilling the provisions of the Hague Abduction Convention.

Mexico's free trade treaties, like the 1994 North American Free Trade Agreement (NAFTA) with Canada and the United States and the 2000 Global Agreement with the European Union, brought transnational companies flocking to Mexico, creating opportunities for marriage between Mexican citizens and foreigners as well as increasing the presence of couples from other countries.

'We don't have national legislation for detecting, warning and following up on these kinds of cases. There is no comprehensive system for the protection of children, paying paramount attention to the best interests of the child, nor of measures to benefit mothers and children,' Nashieli Ramírez, general coordinator of Ririki Intervención Social, an NGO active on behalf of the rights of children, told IPS.

The aim of the Inter-American and the Hague conventions is for minors to be returned to their country of origin when they have been illegally taken away or kept in another, and for a parent's custody rights, granted by any state, to be respected and monitored.

In 2008 there were 36 cases in Mexico in which children were voluntarily returned, nine of which involved a court decision based on an agreement between the parents and 22 on decisions without an agreement, while in another 34 cases restitution was legally denied because the child did not reside in the petitioning country, or the petitioner did not have custody rights.

Forty-nine percent of the persons who brought the legal complaints were fathers, and 47 percent mothers. In 2008, 270 children were involved in the lawsuits, 51 percent of whom were girls and 49 percent boys. This contrasted with 2003, when the gender balance was markedly skewed, with 64 percent of the children being girls.

Final decisions on the proceedings can take months, comparable to the global average. Voluntary repatriations took an average of 232 days, compared to the world average of 121 days, while restitution by court order took 206 days, and judicial denials 290 days, on average.

Time is regarded as a key factor by the experts, especially in cases where the mother has been a victim of domestic violence and the child is at risk.

In its 2011 response to the questionnaire on fulfilment of the Hague Abduction Convention, Mexico's foreign ministry acknowledged that while some judges were experts on international abduction of minors, the majority were experts in family law.

It also indicated that legal advice was provided at the start of proceedings, but the parties involved had to find their own legal representation, at their own cost.

'The children's views are not consistently taken into account, and the legal rights of the plaintiff are not safeguarded. Therefore, legislative harmonisation, training of judges and lawmakers and clear procedures are required,' REDIM's Pérez recommended. A new feature observed by experts is 'parental alienation', involving brainwashing of the abducted minor by the abducting parent against the other, which inflicts emotional damage on the child.

The foreign ministry also admitted that it does not use the Hague Convention's iChild system.

iChild is an electronic case management tool that is used to identify, save and share information and monitor cases of child abduction.

'What predominates in Mexico is a view of children as part of the private domain, and not the public domain. So the issue needs to be on the public agenda and in the state budget,' said Ramírez, of Ririki Intervención Social.

In October 2011, a constitutional reform established that the best interest of the child was to be the guiding principle in all the decisions and actions of the state.

But the problem of parental abductions of minors does not appear in campaigns on behalf of children organised by NGOs, nor is it mentioned among the recommendations made to the Mexican state by the internationally elected Geneva-based Committee on the Rights of the Child, as part of its task of monitoring implementation of the 1990 Convention on the Rights of the Child.

© Inter Press Service (2012) — All Rights ReservedOriginal source: Inter Press Service

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