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Retention of children in Germany
United Nations
Committee on the Rights of the Child
Joseph R Howard
Director of Affairs for Germany
P.A.R.E.N.T
USA
May 22,1999
Mr. Paulo David
United Nations Center for Human Rights
Palais des Nations (Room 1010)
United Nations
1211 Geneva 10 Switzerland
RE: URGENT! Committee on the Rights of the Child
Review of Germany's Report on the Convention on the Rights of the
child.
Dear Mr. David
In accordance with Article 44(1) of the Convention on the Rights of the
Child, it is my understanding that the Government of Germany may in the
future submit a request to the Committee on the Rights of the Child
based on the progress made in hopes of the enjoyment of those rights.
It is my further understanding that Germany did not submit a request to
be considered by
the Convention.
For the record it is my hope that research done by the coalition
P.A.R.E.N.T on Germany's Family Law and Social Welfare System shows
that the Nation
of Germany has a system that aids and abets in International Parental
Kidnapping and Unlawful Retention. You will note that this
communication is not an
Individual or Group complaint, but rather provides the Committee with
information
on certain aspects of Germany's legal and social welfare system, and
its
pattern of conduct in the context of the Convention on the Rights of
the
Child.
As indicated above, this communication was sent to you by Fax
(41-22-917-9022) and by international air courier. Thank you for your
courtesy, and for
your assistance in ensuring consideration of this material by the
Committee.
Sincerely
Joseph R Howard
P.A.R.E.N.T
Director of Affairs for Germany
Joseph R Howard
P.A.R.E.N.T
Director of Affairs for Germany
May 23, 1999
Dr. Mboi, Chair
United Nations Committee on the Rights of the Child
UN Center for Human Rights
Palais des Nations
1211 Geneva 10, Switzerland
RE: Germany
Dear Dr. Mboi:
RETENTION OF CHILDREN
As a result of not knowing the Committee's precise schedule until
recently, I greatly regret that this communication concerning the
Government of Germany's failure to adopt measures (including
implementing legislation) to give effect to several of the most
fundamental rights set fourth in the Convention on the rights of the
child.
Despite its international legal obligations under the Convention,
Germany's harmful conduct toward children with respect to family law
matters, international child abduction, and wrongful retention of
children is beyond question
and based on clear evidence. It cannot be denied by the Government of
Germany, and will be apparent to Members of the Committee, based
on this communication and other available information. From the article
by article analysis below, members will note the provisions of
convention that Germany has failed
to implement, and or violates, in this area (notably Articles 2, 5, 8,
9, 10, 11, 16, 18, 21, 29, and 35).
Germany's gross misuse of Article 13 of the Hague
Convention is implemented often on very young children months or
years after the abduction takes place.
This is a viololation of articles 9 and 18 of the Convention not
to mention outright child abuse, plane and simple. During months
or years of isolation of abducted children from the victim parent,
classic
Parent Alienation Syndrome, (PAS) is allowed to thrive. Children are
often
placed in German schools following the abduction to immerse the child
into
a new culture. Once (PAS) is profoundly inset, the abducted child is
subjected to a custody hearing and asked to testify against her/his own
parent. PAS - Analogous to the Stalkhome Syndrome, exploits the child's
fear of losing the only remaining parent following the trauma of losing
the victim parent during the abduction. This was denoted at the Senate
Foreign Relations Committee Hearing Held on 01 October 1998. The
following is an excerpt from this
hearing and is sworn Testimony used as evidence:
* 3. Perversion of the Convention‚s intent
* In a number of countries, therefore, interpretations of the Hague
Convention extend its meaning to encompass in practice an
unwarranted jurisdiction in custody matters. Certain consequences flow
from this, all of them prejudicial to the victim.
* When a child is not returned, the abducting parent has the additional
advantage of having subsequent proceedings dealt with in the country of
retention rather than the country of the child‚s habitual residence.
Case studies
show that these court decisions, dealing with custody and access
rights,
tend to favor the abducting parent. This, combined with the fact that
in
some countries (for example in Germany,) judges are reluctant to
enforce
access orders, results in a situation where a parent is often deprived
of
all contact with the child, or at best, has contact in only the most
harrowing circumstances (e.g. a government office with a third party
present). On this
interpretation of Article 13, the Hague Convention becomes in effect
the
instrument of alienation between child and victim-parent ˆ the very
opposite
of what was intended
* Professor Elisa Perez-Vera provided the primary source of
interpretation of the Convention in her Report of 1980: "The Convention
as a whole rests upon the unanimous rejection of the phenomenon
of illegal child removals and upon the conviction that the best
way to combat them at an international level is to refuse to grant them
legal recognition∑ the systematic invocation of the said exceptions,
substituting the forum chosen by the abductor for that of the child's
residence, would lead to a collapse of the whole structure of the
Convention by depriving it of the spirit of mutual confidence which is
its inspiration".
* 4. Child trauma and Parental Alienation Syndrome
* Children who are abducted will have already suffered from their
parents' separation. But, in addition, they will experience the trauma
of being
suddenly cut off from their familiar environment ˆ from a parent,
grandparents,
school and friends.
* This experience is already bad enough: many children do not
understand what is happening or why. But things are often made even
worse, when the abducting parent is hiding from the police or taking
precautions against
re-abduction; when the child realizes that there is a state of war
between
its parents. The child has already been traumatized by the loss of one
parent;
its greatest fear becomes that it will lose the other parent. This fear
itself
then becomes an obstacle to resolving the situation, since it is
central
to what is known as Parental Alienation Syndrome (PAS).
* Studies of PAS have established the severity of psychological damage
done to abducted children, suddenly separated from a parent. The
studies have also shown how susceptible the child is to being
systematically alienated by the abductor-parent from the victim-parent.
* This susceptibility bears comparison to the „Stockholm Syndrome“,
when hostages start to identify with their captors. In the case of an
abducted child the identification will be the stronger, because of the
age of the „hostage“ and the child‚s relationship with the „captor“.
For fear of losing the abducting parent as well, the child will not
only be eager to please, but ready to believe allegations that it has
been abandoned by the victim parent.
* This is fertile ground for systematic indoctrination by the abducting
parent and/or a professional psychologist. Since under some judicial
systems, children sometimes as young as three ˆ may be required to
appear in court, it becomes of paramount importance to abductor-parents
that their children say „the right thing“ to judges. This puts an even
higher premium on placing psychological pressure on abducted children.
* The irony and tragedy is that the Hague Convention, in judicial
systems like these, delivers children into precisely the danger from
which it is supposed to protect them. Again Article 13 b is the crux.
It can only be
invoked if returning the child would expose it to grave risk of
„physical
or psychological harm or place it in an „intolerable situation. What
greater
psychological harm, what more intolerable situation could there be for
a
child, than to be exposed to systematic indoctrination by one parent
against
the other; and, worse, to carry the main burden of responsibility in
adult
court proceedings for deciding between mother and father? When placed
in
this context „the will of the children becomes nothing less than a
vehicle
for legitimizing the actions of the abductor-parent“.
In view of these points, combined with the devastating impact on
children of the present German system (i.e., the nearly certain loss of
one parent in custody and abduction /retention cases), the
committee's, limited opportunity to address Germany's conduct for
the next five years, the leadership role that Germany has unilaterally
claimed in the field of children's rights, and the complete lack of
effective and legally enforceable remedies under the current German
system, (starting with the inability of German
courts to enforce their own civil orders), It is hoped the committee
will
give full consideration to this communication and will vigorously press
the Government of Germany to adopt the necessary reforms and remedial
actions.
This is NOT an an individual or Group complaint against Germany. I am
well
aware that the Convention does not provide such a mechanism and the
Committee
on the Rights of the Child does not have procedures for handling such
complaints.
As indicated above, the purpose of this communication is to inform the
Committee of the inadequacy of the German Government's implementation
of the Convention, and the manner in which the rights of children under
the Convention articles listed above are violated on a daily basis by
Germanys overall legal and social welfare system in both domestic and
international cases.
Specifically, as discussed also in the attached summary and outline of
the German government System of International Child Abduction and
Wrongful Retention of Children (much of which also applies to Germany's
treatment of children in regular custody cases), the Government of
Germany
facilitates, finances, and otherwise supports such violations by means
of a legal and social welfare system that, as a practical matter,
encourages
and rewards German citizens for their wrongful conduct.
BACKGROUND
Before proceeding, it is necessary for me to inform the Committee that
I am very much involved as a child advocate with the coalition
organization called P.A.R.E.N.T and have devoted these last two years
to research specifically to Parental Abductions and Unlawful
Retention's to Germany. I have a data base full of case scenarios
and have also devoted my life to providing moral support to Left Behind
Parents who are victim to German abductions. Information provided for
this communication comes not only from cases dealt with by the
coalition P.A.R.E.N.T but also actual Hague litigation posted on the
WEB at http://www.hiltonhouse.com/. A major resource of information
also comes from evidence presented at the United States Senate Foreign
Relations Committee Hearing Held on 01 October 1998. Transcripts and
impact
statements of this hearing are public information and can be obtained
free
of charge from the Senate Foreign Relations Committee in Washington DC.
Further, for the sake of full disclosure and to state my interest in
the subject, this communication is based partially on my personal
experience and knowledge of the German legal and social welfare
systems, both as the parent of a child kidnapped to Germany by a German
and a child advocate
as an officer for the coalition P.A.R.E.N.T. Nevertheless, I
trust
that the Committee will recognize that every effort has been made in
this
communication to concentrate on the German legal and social welfare
systems,
German institutions, and patterns of German conduct. This communication
clearly does not contain the names and details that would characterize
an
individual or group complaint, and should not be viewed as such.
Finally, in the event that there are doubts about the "standing"
of a citizen from a country that has signed but not ratified the
Convention to criticize Germany's conduct, I would simply reply that
Germany's misconduct impacts on non-German or dual national children
and their non-German Parents from many countries. Moreover, the United
States, at both Federal and state levels, has a far better record of
compliance than Germany with the actual terms of the Convention
articles listed above.
THE GERMAN LEGAL AND SOCIAL WELFARE SYSTEM:
Like Germany's ratification of the Convention, other relevant elements
of Germany's legal system look progressive and humane on paper, but it
is crucially important for the Committee to distinguish between
appearance
and reality in Germany.
Reality in Germany with respect to family law and child abduction
/retention matters must begin with absence of adequate and effective
enforcement mechanisms to promote and protect the rights of the child
under the articles of the Convention listed above.
In regular child custody cases and in cases involving either domestic
or international child abduction and wrongful retention of children,
the current German legal and social welfare systems guarantee that the
child will completely lose one parent UNLESS the custodial or abducting
parent decides otherwise. As a practical matter, the exercise of child
custody jurisdiction
by a German court effectively terminates the child's relationship with
the
non-custodial parent, both in purely domestic cases, or in
international abduction/retention cases where Germany fails to return a
child in accordance with its obligations under the Convention (and,
when applicable, the Hague Convention on the Civil Aspects of
International Child Abduction).
As indicated above, Germany essentially gives the custodial parent (who
often has already abducted or wrongfully retained the child) a veto
power over every aspect of the child's relationship with the
non-custodial parent. Thus, despite all the standards and safeguards
enumerated in the articles of the Convention cited above, Germany
leaves each child's relationship with the non-custodial and non-German
parents at the mercy of the German custodial parent. By perpetuating
this cruel and irresponsible system, the Government of Germany
completely disregards its international legal obligation under the
Convention to protect and ensure the child's rights to substantial
contact with both parents and both extended families and, in
international cases, with both countries and cultures as well. In
short, the German legal system does not and cannot either control
the conduct of German custodial parents or protect the rights of
children to contact non-custodial and non- German parents.
In a recent demonstration of the German legal system at its worst (one
that is well known to the German Government officials referring to Lady
Catherine Meyers Case), the German court ignored the objections of a
non-German
mother and permitted the German courts to take custody jurisdiction and
award sole custody of two children to a German father in a clearly
unlawful
retention case. This is of interest to the committee as German law and
not
just an individual case.
Germany's sophisticated and Well-financed international child abduction
system (most of which also apply to regular custody cases in
Germany) demonstrates the extent to which the Government of
Germany has failed to implement, and/or violates, the ten articles of
the Convention listed above.
Germany lacks any legal mechanism comparable to "Contempt of Court" in
common law countries that can enforce the rights of children, for
example, to have contact with both parents and, in international cases,
with both countries. More than any factor, the impossibility of
effective enforcement machinery for German civil court orders means
that Germany cannot
give effect to the rights recognized in the Convention at issue here,
even
if individual judges might wish to do so.
Extreme gender and national bias of German courts. This is common
knowledge in Europe, North America, and perhaps other regions, and is
not a subjective or unsubstantiated allegation. Accurate and complete
statistics from German child custody proceedings, which the German
Government may be unwilling
to supply to the Committee, would unquestionably reveal that German
courts
grant sole custody to German mothers virtually without exception in
both
domestic and international cases. German courts have almost certainly
never
granted custody to Non-German fathers residing outside Germany. This
national
bias is also exemplified by the grotesque but not uncommon practice of
German judges granting non-German fathers visitation of their
children in
Germany, and often only under social welfare, police, or other
supervision.
Unlimited German Government payment of legal fees in Germany and abroad
for German citizens involved in regular custody proceedings or who
abduct or wrongfully retain children. Non German parents are confronted
by "The Deep Pockets" of the German government with custody and
abduction/unlawful retention litigation wherever conducted. In
exhausting their savings and other
resources while fighting against the German Government to uphold the
rights
of their children set forth in the convention articles listed above,
most
non-German parents suffer irreparable financial harm. Ultimately, as
with
every other aspect of this problem, it is the children involved who
suffer
most from the permanent and unnecessary waste of resources in each case
caused
by the German Government.
Absence of principle of comity from the German legal system The rights
of children are severely harmed by Germany's lack of respect for
non-German laws and court orders.
Refusal of Germany to extradite or effectively prosecute German
Nationals As with every other accept of the German system, it is
primarily the children involved whose human rights are violated by
Germany's status as a sanctuary for child abductors/unlawful retainers.
ARTICLE-BY-ARTICLE ANALYSIS:
Article 2: Germany does not respect and
ensure all the rights in the Convention for children with a non-German
parent, as discussed above, and thus discriminates against such
children.
Article 5: Germany only respects one parent and one extended family
by failing to protect the child's relationship with the other parent
and extended family, thus assuring the elimination of that
parent/family from the child's life.
Article 8: By failing to ensure that the
child has substantial contact with both parents and both extended
families (and both countries and cultures in international
cases), Germany clearly does not respect the right of the child
to preserve his or her full identity, nationality, and family
relations.
Article 9: Germany does nothing to facilitate
personal relations and direct contact for a child separated from one
parent and as discussed above, rewards the parent responsible for the
separation.
Article 10: In international cases, as
discussed at length above, Germany does not respect the right to
maintain regular personal and direct contacts with both parents, and to
leave Germany. As a practical matter, the German legal and social
welfare systems are wealthy and indispensable accomplices of German
parents who abduct or wrongfully retain children.
Article 11: As discussed above, Germany
combats any transfer of children abroad from Germany, while at the same
time essentially encouraging and rewarding abduction of children to, or
wrongful retention of children in Germany.
Article 16: By stepping aside and leaving
children under the total control of the German custodial parent, the
German legal and social welfare systems guarantee arbitrary and
unlawful interference with
the child's overall family (i.e., the non-custodial or non German
parent).
Article 18: Despite the image Germany attempts to portray, the
reality is that the German legal and social welfare systems virtually
guarantee the elimination of one parent from the child's life, since
non-custodial parents have no significant enforceable parental rights
in Germany.
Article 29: Since the norm in Germany is that one parent is
eliminated from the child's life in divorce and
abduction/retention cases, it is highly unlikely that the German
educational system is developing respect for both parents. Since the
German educational system is so ethnocentric, for example, it teaches
little or nothing about Western Hemisphere history and culture, the
education of the child in Germany is clearly not directed in
international cases to develop respect for overall cultural
identity/language/values
and the national values of the country from which he or she may
originate.
Article 35: As with Article 11 above, Germany
may take measures to prevent the abduction of children from Germany,
but, as detailed above, the overall German legal and social welfare
systems actually constitute a German Government Child
Abduction/Retention System that facilitates, finances, otherwise
supports and rewards abduction and wrongful retention of children by
German citizens.
CONCLUSION
For far too many years, the German government has succeeded in
portraying itself to the International human rights community as a
staunch defender of children's rights in general and a leading
proponent of the Convention in particular, while at the same time
maintaining a legal and social welfare system that systematically
violates numerous fundamental rights of children recognized in the
Convention and identified above. For too many years,
the international human rights community has remained silent about the
difference between the reality of Germany's actual conduct toward
children
in areas under discussion here and German Government rhetoric in
support
of countless human rights initiatives. It is respectfully requested
that
the Committee on the Rights of the Child remedy this situation in two
ways:
FIRST, by alerting the General Assembly and international community
generally to the ongoing violations by Germany of the rights of
children already
within Germany and the risks to children that may be taken to Germany
in
one way or another, and,
SECOND, by utilizing its authority under Article 45(d) of the
convention to make suggestions and general recommendations to Germany
(reported also to the General Assembly) concerning the measures that
Germany must adopt to give effect to the rights in question, to
eliminate current German violations of the Conventions, and to prevent
future ones.
Under its current legislation, policy, and practices, as described in
this communication, the Government of Germany does not fully implement
or comply with articles of the Convention discussed above(2, 5, 8, 9,
10, 11, 16, 18, 29, and 35). In addition to addressing the cruel impact
of Germany's current violations of the Convention on the children
affected today, it
is hoped that the Committee will also be particularly concerned with
absolute certainty of continuing and future German violations of the
Convention
affecting thousands of children in Germany or at risk of being taken to
Germany, unless immediate and sweeping reforms of German laws,
policies,
practices and judicial conduct take place.
ORIGINAL SIGNED
Joseph R Howard
P.A.R.E.N.T
Director of Affairs for Germany
1240 N 7th Ave
Apartment #127
Tucson Arizona
85705
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