Internal Job Promotion Letter

International Child Abduction & Human Trafficking in the Western Hemisphere

INTERNATIONAL CHILD ABDUCTION AND HUMAN TRAFFICKING IN THE WESTERN HEMISPHERE

 

International Parental Child Abduction and Human Trafficking Prevention Report In Correspondence To The Western Hemisphere Travel Initiative And Other Related Abduction Prevention Challenges Faced By The United States And Its Neighboring Countries.

Written By

Carolyn Ann Vlk

&

Peter Thomas Senese

 

Overview

Since beginning our work together on child abduction prevention we have remained actively involved in advocacy and education in this area. Recently our research has led us to uncover significant border control security vulnerabilities that we believe are currently being utilized in illegally transporting children across U.S. borders in both incoming and outgoing parental abduction cases as well as being capitalized by smugglers who trade in human life.

Our findings are a cause of great concern.

The purpose of the following report is to bring these facts to the forefront of targeted and victimized parents of international parental child abduction, activists involved in the war against human trafficking, leaders of non-governmental agencies, lawyers practicing family or human rights law, all levels of law enforcement, the judiciary responsible for our nation's children, our local, state and federal legislative policymakers, and all government agencies responsible with oversight as they are related to cross-border child abduction and human trafficking. It is our hope that our findings will cause both short and long-term preventative steps and solutions to be taken at all necessary levels so that we may work together to further protect our nation's children. To put it mildly, we have a serious, growing, and immeasurable problem on our hands, and its far-reaching tentacles lash out at society's greatest resource: our children.

Our initial research evolved around the question "How are children illegally abducted into and out of the United States and our adjacent neighboring countries despite preventive measures that may be in place either by court order or by preventive laws and programs?"

The answers to this question varies and includes, but is not limited to a lack of or failure to uphold child abduction prevention laws, inept courts and uneducated or naïve judges who fail to consider abduction risk or fail to carry out the intent of the laws they oversee in order to protect the welfare of a child, carefully-orchestrated abduction plans conceived well in advance by an abducting parent or trafficker, or flaws in the legal system that enable would-be abductors to capitalize on various loopholes so that they may steal a child across international borders. Many of these issues have previously been well documented. Thus, we directed our investigation toward the possibility of whether there are any existing loopholes in present law. Specifically, do opportunities presently exist that enable abductors and traffickers to steal and transport children despite our government's legal efforts to prevent cross-border child stealing from occurring?

Dual Citizenship

Our conclusions acknowledge the existence of cross-border child abduction via individuals who possess dual-citizenship, which enables them to possess foreign passports. Often, the children of these individuals possess dual nationality as well and may be issued a passport by another country. The Department of State's Office of Children's Issues alerts parents to the possibility that "Your child might also be a citizen of another country (dual nationality)," and offers the following information on the subject of dual nationality. "The concept of dual nationality means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based on its own policy. Individuals may have dual nationality by automatic operation of different laws rather than by choice. For example, a child born in a foreign country to U.S. citizen parents may be both a U.S. citizen and a citizen of the country of birth." Conversely, a child born in the U.S. to a citizen of another country may automatically acquire citizenship of that country or in some cases the parent may apply for the child to be granted citizenship.

How Are Children Illegally Abducted Into And Out Of The United States

Security flaws that can lead to our children becoming victimized include, but are not limited to the following:

1.     Failures by courts and judges to properly assess abduction risk and attach court orders that would preempt international child stealing; and,

2.     Failure to create or uphold present child abduction prevention laws or other laws created to protect our children's safety; and,

3.     Identity and travel documentation fraud; and,

4.     A lack of uniform requirements for travel documentation when departing or entering the U.S.; and,

5.     The ability under present lawto easily illegally transport children under age 16 across borders during land and sea travel; and,

6.     Human error during verification of travel documents by CBP at a point-of-entry or departure; and,

7.     Failures by law enforcement to act expeditiously to a potential abduction threat; and,

8.     Inefficient communication and data sharing between government agencies responsible to assist in preventing or resolving an international child abduction case; and,

9.     The deficiency byour federal government to create and interlink a children's travel alert, travel restrictiondata base consisting of real-time family court decisions at the state level with all U.S. border control agencies and transport companies similar to capabilities available through the Prevent Departure Program; and,

10. A lack of or outdated or underutilized state or federal laws and programs that fail to prevent the abduction of a child and in fact may enable an abduction to occur.

Western Hemisphere Travel Initiative (WHTI)

Our research drew us to focus on the Western Hemisphere Travel Initiative (WHTI).

Under the Intelligence Reform and Terrorism Prevention Act of 2004, the WHTI was designed to strengthen border security and is a joint Department of Homeland Security (DHS) and Department of State (DOS) plan that is carried out in part by the U.S. Customs Border Protection Agency (CBP). The intent of the initiative is to further protect and strengthen our nation's borders by requiring all travelers to and from Canada, Mexico, the Caribbean and Bermuda to present a WHTI compliant document that establishes identity and citizenship.

During the course of our investigation it became apparent that there is limited available research or data concerning international parental child abduction or human trafficking as it relates to travel document requirements for children crossing into contiguous countries by land or sea under WHTI policy. However, what is certain is that child abductions and human trafficking to our bordering nations of Mexico and Canada representa great number of 'reported' international abductions and missing person cases originating from the United States. Additionally,we believe that a vast majority of 'unreported' child abduction cases are associated with Mexico and Canada. Our findings are cause for grave concern. It is clear that due to the varyingtravel documentation requirements for land and sea travel that there exist substantial loopholes in U.S. law that allow would-be abductors or traffickers to capitalize on the porous travel documentation requirements for children.

Today, very serious security gaps exist directly related to WHTI, especially as it pertains to a child's travel document requirements. These stunning flaws and loopholes provide substantial opportunity for illegal cross-border family or stranger child abductions and human trafficking to occur to and from the United States.

Hague Convention Compliance Report On International Child Abduction

Congress mandates that under Public Law 105-277, Section 2803 the Department of States Office of Children's Issues (OCI) publish an annual report which indicates the effectiveness of securing the return of children whom have been unlawfully removed from their home country and for whom an application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction has been filed. The publication is titled Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction.

Statistics from the two most current annual reports that are dated April 2009 and April 2010 demonstrate abduction crimes against children in the United States and abroad are substantially on the rise. Assistant Secretary of State for Consular Affairs, Janice L. Jacobs reports that during fiscal year 2009, the Office of Children's Issues (OCI) experienced a significant increase in the number of reported international parental kidnapping cases. The 2010 report indicates that we can anticipate the current trends previously seen with respect to the increase in international parental child abductions to continue. In fact, the number of International Parental Child Abduction (IPCA) cases in which a Hague application has been filed has nearly doubled since fiscal year 2006 from 564 to 1,135 cases in fiscal year 2009.

The 2009 report utilized data that was collected during the period from October 1, 2007 through September 30, 2008 and is referred to as fiscal year (FY) 2008. This report reflects that 1,082 new cases were filed involving 1,615 children. During the study year, the U.S. was successful in the return of only 361 children.

The 2010 report covers the time period from October 1, 2008 through September 30, 2009 that is referred to as FY 2009. During FY 2009 1,135 new applications were received for assistance in an attempt to facilitate the return of 1,621 children who were wrongfully removed from the United States. Sadly, during FY 2009 the U.S. was successful in the return of only 436 children. The report does not indicate during which FY year a returned child was abducted.

REPORT YEAR         FISCAL YEAR          CASES          TOTAL CHILDREN     TOTAL CHLIDREN  RETURNED

2010                         2009              1,135                  1,621                        436

2009                         2008              1,082                  1,615                        361

2008                         2007                575                     821                         341

Now consider if the international child abduction growth rate continues at an average of 20% per year for the next ten years. This means that the projected number of 'reported' U.S. children-citizens that will be internationallyabducted in the year 2020 would be 9,647. To put this into perspective, this loss would be the equivalent of 241 school buses carrying 40 children each suddenly disappearing.

Additionally, if we add the total number of 'reported' international child abductions that have occurred from 2007 and add the forecasted number of abductions anticipated to occur using a 20% growth rate, then a total of 53,285 children will have been ‘reported' as internationally abducted from 2007 through 2020. To put this into perspective, this would be the equivalent of an entire major league baseball stadium filled with children simply vanishing.

As remarkably disturbing as these actual and projected numbers are, these forecasted statistics do not project the large and growing number of ‘unreported' cases of international parental child abduction cases. Furthermore, they do not represent any international abductions related to stranger abductions and human trafficking, which we anticipate to be substantial.

Recovery Of Internationally Abducted Children

It is important to include that as time passes, it becomes substantially more difficult to recover an abducted child. This is especially true in light of the fact that the Hague Convention on the Civil Aspects of International Child Abduction contains under Article 12 a policy that could allow a judge to order for the criminally abducted child to remain in the country they were stolen to if after one year the child is considered to have settled into their new environment and it is believed that removing the child would be detrimental.  As you may well imagine, there are numerous difficulties in locating and negotiating the return of a child who has been internationally abducted.  The likelihood of this type of case being resolved as expeditiously as one year is slim and essentially the chasing parent may be left to negotiate on his/her own after one year has passed. Undeniably, time is not a child or a chasing parent's friend.

Make no mistake, nearly every abducting parent who is required to defend their criminal action in the international Hague courts will use every conceivable stall tacticas well as every possible defense strategy available to them including but not limited to false allegations, slander and defamation of character. In applicable cases the child may not be returned due to provisions under Article 13 of the Hague Convention. Article 13 of the Hague Convention allows for the court overseeing a Hague case to allow for a child to remain with the abducting parent in the receiving country if the court determines that a return order would cause grave risk and harm to the child. Thus, child-abductors attempting to sanction their criminal act of international child-stealing will typically make horrendous false allegations against the left behind parent in order to not only sanction their criminal behavior but to also avoid prosecution for kidnapping under the federal International Parental Kidnapping Crimes Act, the federal Parental Kidnapping Prevention Act, the federal Fugitive Felon Act and various other federal or state criminal laws where applicable.

Fortunately society has begun to take notice of the tragedies related to international child abduction and human trafficking. Amore educated judiciary continues to evolve and new abduction preventive laws have been implemented to prevent child abduction and human trafficking. We have made substantial strides in social and judiciary awareness, and in certain states created new child abduction prevention laws. However, the fact is that the system in place today that was created to protect our children and their targeted parents from the nightmare of international child abduction does not work efficiently and needs to be substantially overhauled. At present, our judiciary, law enforcement, policymakers and the legislation they oversee, and the government agencies responsible for oversight fall significantly short from meeting the necessary needs of targeted children and parents. We must do substantially better at all levels of abduction prevention and child reunification.

On August 31, 2009 a speech titled Child Abductions: Globally, Nationally and Along the U.S./Mexico Border was given by Ernie Allen, President and CEO of the National Center for Missing and Exploited Children and International Centre for Missing & Exploited Children.  Mr. Allen states, "The problem of missing, abducted, trafficked and sexually exploited children is large, growing, under-recognized and under-reported." On November 16, 2010 Mr. Allen delivered the keynote address at the National Amber Alert Symposium.  During his speech he revealed, "Children are the leading victims of violent and personal crimes in this country, victimized at a rate twice as high as the general population." Continuing he stated, "Children are the single most victimized segment of our population.  Even with all of the progress we have made, most Americans still don't understand that basic fact.  According to Justice Department research, more than 2,000 children will be reported missing in the United States today!" Additionally, Mr. Allen stated, "The numbers are staggering. The tragedies continue and too many children do not make it home."

One of the questions we must ask ourselves in connection to such statements is How are our children disappearing?

In relationship to parental child abduction cases, we acknowledge the failures of courts to act cautiously and prudently in preventing a potential abduction. There is no question that judges and the courts they oversee need to become better informed, and that more education is desperately needed to influence a judge's decision making when it comes to protecting the welfare of a child. The existence of serious foul play and deceit by an abducting parent who steals a child across international borders without the targeted parents anticipation or knowledge is a serious concern. And we acknowledge extreme circumstances when a child is removed from the United States despite court orders because both the child and the abducting parent have dual citizenship and both possess a primary or secondary passport issued by the abducting parent's country of origin. This circumstance renders programs such as the United States Children's Passport Issuance Alert Program (CPIAP) or Prevent Departure Program (PDP) useless.

This report focuses on the substantial loopholes available to would-be abductors and traffickers that presently enable them to commit their egregious crimes despite great efforts to prevent cross-border abduction. We believe there is a direct correlation between the high number of successful child abductions to our neighboring countries and the legal loopholes that allow minimum travel documentation requirements for children traveling by land or by sea under WHTI policy.

Documentary Requirements For Children Traveling Internationally

The WHTI requirements for air travel took effect on January 23, 2007. According to U.S. Customs Border Protection, "All U.S. citizens and non-immigrant aliens from Canada, Bermuda, and Mexico departing from or entering the United States from within the Western Hemisphere at air ports-of-entry are required to present a valid passport (or NEXUS card, if utilizing a NEXUS kiosk when departing from a designated Canadian airport)." We believe that this stringent mandate for verifiable documentary identification prior to air travel has significantly reduced the ability to unlawfully remove a child from the United States.

Additionally, the U.S. increased the security of its child citizens when on February 1, 2008 new requirements under Public Law 106-113, Section 236 took effect requiring the permission of both parents prior to the issuance of a U.S. passport for children under the age of 16. According to the Department of State Office Of Children's Issues, "U.S. law requires the signature of both parents, or the child's legal guardians, prior to issuance of a U.S. passport to children under the age of 16. Generally, to obtain a U.S. passport for a child under the age of 16, both parents (or the child's legal guardians) must execute the child's passport application and provide documentary evidence demonstrating that they are the parents or guardians.  If this cannot be done, the person executing the passport application must provide documentary evidence that he or she has sole custody of the child, has the consent of the other parent to the issuance of the passport, or is acting in place of the parents and has the consent of both parents (or of a parent/legal guardian with sole custody over the child to the issuance of the passport)."

Due to the implementation of these new requirements, the ability to unlawfully transport children that do not possess dual citizenship across borders has become increasingly difficult.  The two-parent signature necessary for a minor child's U.S. passport issuance has strengthened our border security and reduced the ability to present incomplete or fraudulent documentation in order to travel with a child across international borders. Thankfully, our child citizens are better protected than they were just a few years ago.

The two-parent signature requirement necessary for a U.S. Passport to be issued for a child has greatly reduced the opportunity that a passport will be issued without another parent's knowledge or consent. Unfortunately, documentation fraud is still very difficult to detect and remains a severe threat to our nation's children, especially if initiated by parental forgery. Tragically, for many targeted-parent victims of international parental child abduction this type of fraud is common. Unquestionably, it is critical that precautionary steps continue to be taken before issuing passports to children due to substantial evidence of documentation fraud.

Additionally, and to our great concern, it appears to be relatively easy to obtain fraudulent or falsified identification or residency documentation.

Tere Silva, resident agent in charge of the U.S. Immigration and Customs Enforcement (ICE) Office of Professional Responsibility (OPR) in San Juan, Puerto Rico, said in a statement issued on November 17th, 2010, "Among the various schemes and artifices being used by some unscrupulous persons are offers to provide immigration services, including ways to avoid the established channels for adjusting one's immigration status, offers to provide false and forged identity documents, even threats and false impersonation of immigration officials."

On November 19th, 2010 Daniel Lane, assistant special agent in charge of ICE Homeland Security Investigations (HSI) in Sacramento, California stated, "Targeting those responsible for making and selling fraudulent documents is an enforcement priority for ICE HSI. Anyone who knowingly and indiscriminately sells phony identity cards is putting the security of our communities and even our country at risk. Documents like this could potentially be used by dangerous criminals and others seeking to obscure their identities and mask their motives." Agent Lane's comments came after ICE arrested four individuals for running a highly sophisticated forged document factory that included creating fraudulent California drivers licenses, permanent resident cards (Green Cards), U.S. birth certificates and other documents capable of removing a child from the U.S. under the WHTI.

In response to the rise of illegal entry and exodus to the United States, the implementation of WHTI policy has effectively narrowed the types of documents that are acceptable in proving identity and citizenship. Although this change is a critical step towards meeting the challenge of securing our borders there still remain significant security challenges due to certain allowable exemptions. Unfortunately, when it comes to cross border travel by children being transported by land or sea, numerous security defects exist. Unquestionably, individuals or organizations with intent to breach the law have exploited these policy flaws.  Our nation's children as well as children from other countries are suffering either as defenseless victims of international parental child abduction or as helpless slaves taken into the world of human trafficking, where the worst types of crimes against humanity are the norm.

As a nation concerned with our children's safety and welfare, it is unacceptable that large gaps in security protocol exist in our nation's international travel document requirements for children traveling in the Western Hemisphere. In the 2009, annual Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, Janice L. Jacobs, Assistant Secretary of State for Consular Affairs writes, "Unfortunately, current trends reflect a steady increase in the number of international parental child abduction cases and highlight the urgency of redoubling efforts to promote compliance with Convention obligations and encourage additional nations to join the Convention." She also writes, "Very few options exist for parents and children who are victims of parental child abduction." In the 2010 annual report Ms. Jacobs continues to voice concerns over the increasing numbers of our child-citizens who have been wrongfully removed or wrongfully detained.

Assistant Secretary of State of Consular Affairs Jacobs concern about the growing rate of international parental child abduction (IPCA) is alarming, yet our adjacent borders remain relatively open for those with the knowledge on how to circumvent border security protocol.  Make no mistake, nearly every IPCA case is well thought out and planned.

Human Trafficking

The buying and selling of humans is the second largest criminal activity in the world. In the U.S., this problem is much more severe than commonly discussed. Of particular concern is that it is estimated that over 70% of all humans trafficked into the U.S. originate from Latin America: countries such as Mexico, Honduras, and El Salvador are well-known supply sources for human cargo.

A significant number of these enslaved are young teenagers between 13 and 15 years old who originate from poverty-stricken communities, and who are lured into the dark world of slavery due to false promises of legitimate jobs and a better life in America. What awaits them is an inhuman slave world filled with torture, violence, and threats of death to family members they left behind if they ever attempt to flee their imprisoned ‘cantinas' – prison-like brothels where they are never allowed to leave. Tragically, sure death awaits those imprisoned into this inferno: they are either murdered, die of drug overdose, or die of disease and infection.

One of the grave concerns we must ask is How are these individual doomed to enter the awaiting world of human slavery trafficked into the United States from Latin America and crossing our border?

It is apparent that the majority of human cargo entering our borders due so illegally. Though limited data is available, sound reasoning leads us to anticipate that this number is substantial.

Due to limited border documentation requirements under WHTI policy, particularly for minors traveling, there is substantial concern that human traffickers are currently using this loophole in order to move their young human cargo into the United States from Mexico and Caribbean island-nations.

The world of human trafficking and slavery is very real. According to author of Free The Slaves, Kevin Bale, there are nearly 27 million people across the world caught in modern-day slavery. The United States Department of State Trafficking In Persons Report (TIP Report) estimates this number to be between 4 million and 27 million individuals. Additionally, the Department of State estimates that there are over 800,000 individuals each year being transported across international borders. And according to their 2005 report titled Facts About Child Sex Tourism, there were over 1 million children exploited by the global commercial sex trade every year. All of these numbers continue to increase. Human trafficking is a dark world without any peer and most organizations involved in human trafficking and slavery are highly sophisticated.

Yet our borders remain relatively unencumbered for children traveling abroad in the Western Hemisphere.

U.S. Passport Requirements For International Travel

For U.S. Citizens, a Federal Statute mandates that any citizen of the U.S. must possess a valid U.S. passport to depart from or enter the U.S. Following is the text of Federal Statute 8 U.S.C. 1185 (b).

(b) Citizens Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.

When WHTI requirements for land and sea became effective on June 1, 2009 exceptions to the Federal Statute passport requirement were allowed. The new regulation states that U.S. citizens and citizens of Canada, Bermuda and Mexico may present a passport or other WHTI-compliant documents when entering or departing the United States at sea or land ports-of-entry from within the Western Hemisphere.

Due to exceptions to the passport requirement, our research has concluded there exists distinct areas of vulnerability at the border for our children.

Fraudulent Documentation

The presentation of fraudulent documents at border points has long existed and is well illustrated in the publication of Western Hemisphere Travel Initiative (WHTI) Land and Sea Final Rule" that was released March 27, 2008 by the Department of Homeland Security. It was reported that CBP officers had intercepted over 129,000 fraudulent documents since January 2005 from individuals trying to cross the border over an approximate 3 ½ year period. This is a substantial number; however, we must ask ourselves how many fraudulent documents were never uncovered and successfully used?

To better demonstrate the severity of this problem we take note of a scenario that occurred several years ago in Texas and was reported by the Department of Immigration and Naturalization Services. A women acting as a lay-midwife was charged and convicted with fraudulently filing and obtaining over 3,400 United States birth certificate claims over a ten year period: almost one American birth certificate a day was fraudulently obtained and sold on the black market over a decade by one woman alone. This individual was one of eleven individuals convicted of filing and obtaining false birth certificates that were sold on the black market in Texas during a federal investigation. Of immense concern to us is that WHTI allows a child to cross international borders by land or sea and in lieu of a passport an original or copy of a birth certificate may be presented.

As noted in language of the Federal Statute above, limitations and exceptions do exist. According to CBP passport exceptions exist when traveling with U.S. or Canadian citizen infants and children. Of grave concern are the deficiencies that could be utilized in the cross border unlawful removal by land or sea of at risk children. If traveling by air everyone, even infants require a passport. However, WHTI allows that U.S. and Canadian citizen children "will not require passports for travel by land or sea when the June 1, 2009 rule goes into effect requiring all land and sea travelers to have a passport. Children under the age of 15 will have a blanket exemption from this requirement – although they will be required to present a copy of a birth certificate and, if not traveling with both parents, a consent letter from the other parent(s)."

We are especially concerned about the ability to falsify travel documentation for children. The capability to easily present travel documentation without another parent's consent or to falsify travel documents for children in cases where a passport is not required appears relatively easy. The fact that simply a birth certificate or worse, a "copy" of a birth certificate and a letter of permission with no documentation to verify its validity, is sufficient to cross international borders is a serious security concern. And although it is also recommended that a parent or guardian possess a letter of consent from the absent parent(s) this may or may not be required or requested. We must also consider that there is no way to verify the validity of a parental consent letter.

These concerns should sound an alarm bell directed at courts presiding over child custody cases where there is concern for potential international parental child abduction. Peter Thomas Senese, the co-writer of this report wrote in Chasing The Cyclone, "I know first-hand of several international parental child abduction cases where a false international travel consent letter was either fraudulently produced or never produced by the other parent in order for that abducting parent to depart from Canada into the United States or from the United States into Canada. The court's orders were not followed, as is the case with all abducting parents. More troubling is the fact that in each of these cases, none of the necessary consent letters were ever checked by either countries border patrol or immigration agencies. This is absurd, particularly when knowing many of these consent to travel letters were not notarized and not original documents. It must be a requirement on both sides of the border for all land and sea travelers regardless of age to use a passport, which is the policy in place for air travel."

When we consider the growing rate of international abduction here in the U.S. and abroad, there is a very real concern that our borders are used not only as a final destination for an abducting parent or trafficker, but as the launching point for an abductor to travel to their intended final destination. Although most countries recognize that documentation fraud is a severe concern it is clear that the minimization of travel document requirements needed for a minor to travel across our borders enables would-be abductors to criminally abduct a child. For example, if a would-be abductor traveling by land from the U.S. to Canada has in their possession any child's original or ‘a copy' of a birth certificate and a falsified consent to travel letter, they have the capability to internationally abduct any child from the U.S.

Realistically, all a potential abductor may need is a copy of a birth certificate. Although it is recommended that children traveling alone or with one parent posses a consent letter from any absent parents this is not a requirement. In reference to the birth certificate requirement, many parents obtain several copies of a child's birth certificate: it is not as if you are allowed only one copy such as a U.S. Passport. Unquestionably, if all cross-border travel for children of all ages does not include the much more secure and controllable use of a passport, then abducting parents and human traffickers will still be capable of abducting children.

The required travel document for an infant under age one who is traveling by land or sea between the U.S. and Canada is alarming. The CBP states that "If you have not yet received a birth certificate for a U.S. or Canadian citizen infant, U.S. Customs and Border Protection (CBP) will accept either the birth record issued by the hospital or a letter on hospital letterhead providing details of the birth, including the name of the child, time and place of birth, and parents names. Birth certificates should be used for children over 1 year old." Once again, the ease of fraudulently creating this type of "document" exists and a child could easily be smuggled across international borders.

Contiguous Countries – Mexico and Canada

Contiguous and adjacent countries seem to allow for the possibility of additional serious security breaches that need to be immediately resolved. While WHTI appears to remedy much of the ability to present fraudulent documentation at the border, it does allow for certain exceptions to the rule.

CBP reports this security vulnerability for children when it states, "U.S. and Canadian citizen children under age 16 arriving by land or sea from a contiguous territory may present an original or copy of his or her birth certificate, a Consular Report of Birth Abroad, a Naturalization Certificate, or a Canadian Citizenship Card." Contiguous territories are defined as countries sharing a common boundary with the United States. Canada and Mexico are both contiguous to the U.S.

In regards to outgoing cross-border abductions to Mexico (a contiguous country), the U.S. Department of State (DOS) reports "Mexico is the destination country of the greatest number of children abducted from the United States by a parent." Additionally, "65% of all outgoing international parental abductions from the United States to Hague Convention countries are to Mexico, and that 41% of all incoming international parental abductions to the United States are from Mexico." It is also important to note that according to the DOS, "Since March 1, 2010, all U.S. citizens – including children – have been required to present a valid passport or passport card for travel beyond the "border zone" into the interior of Mexico. The "border zone" is generally defined as an area within 20 to 30 kilometers of the border with the U.S., depending on the location." Concerns arise when you consider that entry into Mexico is allowed without a passport if a representation is made that you intend to remain within the designated "border zone".

Although Mexico acceded to The Hague Convention on June 20, 1991 and entered into force with the U.S. on October 1, 1991, Mexico has consistently been labeled non-compliant with the Convention. The 2010 Hague Compliance Report states that for fiscal year 2009 there were 474 children involved in new outgoing (from the U.S. to Mexico) Hague applications. The 2009 Hague Compliance Report states there were 533 children abducted to Mexico, representing a 67% increase of reported abduction cases from 2007 (320 cases). The ‘reported' cases do not include the immeasurable anticipated ‘unreported' cases ofparental child abduction occurring between the United States and Mexico previously discussed in Crisis In America: International Parental Child Abduction Today (2010). Mexico's non-compliance with the Hague Convention is unquestionably appalling; however, the suffering and danger that must be endured by the thousands of abducted U.S. child-citizens stolen from their American homes to Mexico, nor the pain of their chasing parents left behind in the wake of the criminal act of child-stealing will never be fully understood by others unless it is experienced first-hand.

More insight should perhaps be shared on Mexico's decade-long atrocities against children and their consistent and ongoing failures to follow international laws pertaining to the world's children and their safety. The U.S. Department of State's annual compliance report has documented Mexico's history of non-compliance over the past decade. A Texas courts made a landmark decision when it went so far to find Mexico's legal system ineffective and lacking legal mechanisms for the immediate and effective enforcement of child custody orders. The court stated that Mexico posed a risk to children's physical health and safety due to human rights violations committed against children, including child labor and a lack of child abduction laws. This ruling was not rendered without insight and reason: in fact the U.S. Department of State, who has consistently posted travel warnings to U.S. citizens traveling to Mexico, recently issued a warning to authorize the departure of children dependents of U.S. government personnel in U.S. consulates and offer financial assistance to relocating families.

Nearly every year since The Hague Compliance Report was ordered to be prepared for Congress the DOS has sited that one of the gravest challenges in having a U.S. child-citizen stolen to Mexico is Mexico's inability to locate abducted children. This problem remains severe today despite Mexico's Central Authority claims that there has been slight improvement. Maura Harty, Assistant Secretary for Consular Affairs for the U.S. Department of State previously commented, "Among the underlying causes of Mexico's poor performance overall under the Hague Convention appear to be a woefully understaffed and underfunded Central Authority in the Foreign Ministry; a judiciary unfamiliar with, and not infrequently hostile to, the Convention; and law enforcement and court authorities unable to locate children even in cases in which we and the left-behind parents can provide exact addresses. In general, Mexico has only partially implemented the Hague Abduction Convention into its legal, administrative and law enforcement systems."

Our concern regarding Mexico is magnified due to this nation's poor record to stop human slavery.

In a written statement made in the U.S. Department of State's Trafficking in Persons Report in June 2009, "Mexico is a large source, transit, and destination country for persons trafficked for the purposes of commercial sexual exploitation and forced labor. Groups considered most vulnerable to human trafficking in Mexico include women and children, indigenous persons, and undocumented migrants. A significant number of Mexican women, girls, and boys are trafficked within the country for commercial sexual exploitation, lured by false job offers from poor rural regions to urban, border, and tourist areas. According to the government, more than 20,000 Mexican children are victims of sex trafficking every year, especially in tourist and border areas."

Additionally, Anne Keehn, the 2010 Zimmerman Fellow recipient of the world renown human rights and anti-slavery advocacy group 'Free the Slaves' recently stated, "Unfortunately, [Mexico's President] Calderón's attack on drug cartels has left few resources to combat human trafficking. Mexico has tried to address the issue through legal changes to combat trafficking as recently as 2007, when ‘federal legislation to prohibit all forms of drug trafficking' was passed. Nonetheless, according to the U.S. Department of State's Trafficking of Persons Report 2010, ‘some local officials tolerate and are sometimes complicit in trafficking, impeding the implementation of anti-trafficking statutes.'"

Due to the overall consensus of the significant dangers related to child abduction, exit controls for U.S. citizens departing the U.S. through all modes of travel need to be immediately implemented. If passports were required for all travelers to travel abroad, it is reasonable to believe there would be a significant reduction in the number of international parental child abductions and children missing due to human trafficking.

Under the present travel requirements, children in specific circumstances may be transported across borders without a passport. We believe this security deficiency has allowed hundreds if not thousands of defenseless children to be transported out of the country.

Due to the circumstances stated above and further disturbing information provided in this report, it is imperative that we attempt to hinder the possibility of illegal passage of children into Mexico due to the non-compliance exhibited in areas of law enforcement and judicial performance and the myriad of difficulties encountered in regards to a return application.

International Child Abduction Statistics

We must also consider the incoming cases of children that are consistently illegally transported into the U.S. The 2010 Hague Compliance Report indicates that 75 new Hague return applications were filed that represent 120 children that crossed from Mexico into the U.S. in violation of law. One can surmise that the security vulnerability that exists for outgoing cases could also be utilized in the illegal transport of children in incoming cases.

Cross-border abductions between the U.S. and Canada (a contiguous country) are also reported in the 2010 Hague Compliance Report. It indicates that there were 74 new outgoing cases involving 104 children and 29 new incoming cases representing 39 children. These are only cases in which a Hague application was filed and it should be noted that the number of Hague applications in no way accurately represents the actual number of children abducted in either incoming or outgoing cases. In statistical data compiled by the Royal Canadian Mounted Police there were over 60,000 children reported missing annually from Canada each study year between 1998 and 2007.

Within the U.S. the most recent National Incidence Study of Missing, Abducted, Runaway and Thrownaway Children (NISMART-2), reports that of the 203,900 children that are estimated to be parentally abducted annually in the U.S. that only 28% (56,500) of these abductions were reported to law enforcement. Additionally, the NISMART 2 statistical data is certainly outdated as it was compiled with information from cases studied that were concentrated in 1999. These facts lead us to surmise that we have an incalculable number of children abducted annually.

Adjacent Island-Nations

Currently, according to CBP "closed loop" travel to adjacent islands allows for the same documentary exceptions under WHTI, as do contiguous countries.  Specifically, "Travelers on "closed loop" voyages are NOT subject to the same documentary requirements for entry to the United States as other travelers."

The CBP website indicates at least thirty-seven countries currently meet this definition. Adjacent islands are defined by statutes and regulation, specifically the Immigration and Nationality Act § 101(b)(5) and 8 Code of Federal Regulations §286.1. CBP reports that adjacent islands to the U.S. are: "Anguilla, Antigua, Aruba, Bahamas, Barbados, Barbuda, Bermuda, Bonfire, British Virgin Islands, Cayman Islands, Cuba, Curacao, Dominica, the Dominican Republic, Grenada, Guadeloupe, Haiti, Jamaica, Marie-Galantine, Martinique, Miquelon, Montserrat, Saba, Saint Barthelemy, Saint Christopher, Saint Eustatius, Saint Kitts-Nevis, Saint Lucia, Saint Maarten, Saint Martin, Saint Pierre, Saint Vincent and Grenadines, Trinidad and Tobago, Turks and Caicos Islands, and other British, French and Netherlands territory or possessions bordering on the Caribbean Sea."

As previously discussed, the 2010 Hague Compliance Report reflected during FY 2009 there were 1,621 children for whom a Hague application was filed.  Alarmingly, 833 of these children were victims whose cross border abduction was into or out of a country that is considered either contiguous or adjacent to the U.S.  The report indicates that 652 children were taken OUT of the U.S. and into contiguous or adjacent countries. An additional 181 children were brought INTO the U.S. from contiguous or adjacent countries who are Hague treaty partners. The annual Hague Compliance Report does not indicate how many children are abducted into the U.S. from countries that are not Hague Treaty partners. We believe that the available data indicates a substantial security breach exists due to a lack of uniformity in documentary requirements while crossing international borders within the Western Hemisphere.

 

The opportunity for trafficking of children in the Caribbean is substantial. As Anthony M. Davis, the former U.S. Coast Guard Officer and the best-selling author of ‘Terrorism and Maritime Transportation System' shared, "There's significant potential for illegal cross-border travel off the shores of Puerto Rico and other U.S. island territories. Generally, there is a consistent flow of people on small, low vessels called ‘Yolas'. During my Coast Guard time I saw many of the boats involved with illegal travel were from the Dominican Republic to Puerto Rico's west coast. However, there also exists a substantial number of boats traveling from Puerto Rico to other island-nations. While Coast Guard and other assets look for these hard-to-spot vessels, they typically search for those heading toward Puerto Rico, not leaving it. In many cases of incoming vessels, it was common to have undocumented women and children of all ages traveling on these boats.

"Due to the close proximity of many of the island-nations to U.S. territory including Puerto Rico, St. Thomas, and St. John, there's a substantial opportunity for parents and traffickers to criminally remove a child from the United States across international borders to carry out an illegal act.  The reasons:  difficulties related to logistics in inspection and documentation requirements.  Unquestionably, illegal inter-island travel originating from a U.S. territory to another Caribbean island nation is a serious matter, one easily capitalized on by individuals involved in crimes against children. In order to prevent individuals who seek to capitalize on our exit controls in U.S. island territories, it is important for the courts to recognize the relative ease of illegal travel connected to the Caribbean."

Sea Travel Closed-Loop Voyages

We are also very concerned that the documentary requirements for a "closed loop" cruise ship or other water vessel's voyage or itinerary to contiguous countries or adjacent islands allows travelers to be exempt from the documentary requirements necessary for other types of travel. The CBP defines "closed loop" as occurring when "a vessel departs from a U.S. port or place and returns to the same U.S. port upon completion of the voyage. U.S. citizens who board a cruise ship at a port within the United States, travel only within the Western Hemisphere, and return to the same U.S. port on the same ship may present a government issued photo identification, along with proof of citizenship (an original or copy of his or her birth certificate, a Consular report of Birth Abroad, or a Certificate of Naturalization). A U.S. citizen under the age of 16 will be able to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by DOS, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services."

Travel requirements for children traveling at sea are quite alarming. The porous documentation controls in place due to the WHTI facilitate child abduction opportunity at sea in unthinkable ways. For example, there are certain cruise ships that have ports of call in other countries that cater specifically to children. These cruise ships hold over 5,000 passengers and typically have weekly departures. With thousands of children boarding one of these cruise ships, we acknowledge it is clear there is substantial opportunity for a parental or non-parental child abduction to occur.

In a likely scenario for cruise ship related international parental child abduction or child trafficking, an individual could presumably board a cruise ship with a targeted child with limited or fraudulent documentation for the child, travel to WHTI designated foreign ports, disembark with the child at a port of call and simply choose not to re-board the ship, effectively circumventing the necessity of a passport which is required for other types of travel.

The potential to illegally remove a child across international borders via cruise ship travel is substantially magnified because currently there are no systematic data base controls and other security measures that would prevent a child's illegal departure from the United States. Exemplifying this grave concern are direct statements made from the security departments of two of the world's largest cruise lines operators. In statements made by both companies, neither have a security database that would enable a parent nor a court of law to place a child's name on a 'no embarkment' list due to specified court order. So even if a court order is issued that either directly names the cruise ship company as part of the action or if the court order references the cruise ship company to prohibit a child's departure but does not list the cruise ship as part of the legal action, the cruise ship companies have nothing in place that would enable them to comply with the court order.

When representatives in the security departments of both cruise ship companies were asked what could be done with a court order prohibiting a child's departure, each spokesperson suggested that if the targeted parent knew what cruise ship and departure date their child was scheduled to travel on, then it would be up to the parent to contact local law enforcement.

Obviously, the ability for a single parent trying to protect their child's abduction to run from cruise ship port to cruise ship port hoping to determine if their child is traveling on one of the ships is more than daunting and unrealistic, particularly since the vast majority of international child abductions are well planned, and cleverly orchestrated.

In a time of increased international security concerns, it is inconceivable that the only type of data bases most cruise ship operators have in place is a data base that flags previous passengers from traveling on their fleet due to past conduct on board one of their ships.

Remarkably, there is no systematic check to determine if a child's name has been placed on any law enforcement or government travel alert lists. However, if a U.S. passport was required and the U.S. passport was scanned, then a border patrol agent would have immediate access to potentially critical information regarding the safety of the child. We call upon the cruise ships to act responsibly by establishing security procedures including a 'no-embarkment' database that would assist in the prevention of international parental child abduction and human trafficking.

When we consider there are approximately 760 cruises scheduled to depart from the U.S. and travel in a ‘closed loop' to the Caribbean during fiscal year 2011, this becomes very concerning. Our worry increases after we consider there are 47 "closed loop" cruises scheduled to depart the U.S. to Canada during the same period. And finally, our concern surges when we realize that there are 379 cruises scheduled to depart the U.S. and travel in a "closed loop" to Mexico.

As previously discussed in this report, Mexico is a hotbed for ‘reported' and ‘unreported' incoming and outgoing international parental child abduction cases.  A substantial number of U.S. parents have filed a Hague application due to the criminal international abduction of their child or children.  Unfortunately, very few abducted children return to the U.S. despite court orders demanding the child's return.  These opinions are substantially backed by the U.S. Department of State, as Mexico has repeatedly been reported to Congress as a non-compliant member of the Hague Convention. In addition, Mexico's record as a country known for its criminal activity of human trafficking is substantial.

We express our grave concern that cruise ships may be utilized to transport children illegally to and from the U.S., Mexico, and Canada as well island nations of the Caribbean.

It is inconceivable that U.S. children are still permitted to travel to specific foreign countries in accordance with the WHTI without a passport.  Today, nearly 30% of all U.S. citizens possess a passport. As that number continues to grow substantially each year it is unthinkable not to require a passport for a child to travel abroad.  In 2011 cruise ships are scheduled to originate from the U.S and travel to 63 ports of call in Mexico, 48 ports in the Caribbean, and from 20 ports of call in Canada. We contend that a failure to require children to present a passport for all international travel is an act of misguided negligence.

Closed-Loop Foreign Destination        Number of Cruises       Number of Ports

Caribbean                                              760                                63

Canada                                                  43                                  20

Mexico                                                  379                                48

The CBP does state that a U.S. Citizen "may" be required to present a U.S. passport if disembarking at a foreign port but that this requirement is up to the individual ports-of-entry. We must also consider that smaller personal watercrafts traveling to foreign ports under a "closed-loop" journeyoffer distinct opportunity for child abductors and human traffickers to circumvent our nation's laws or court orders. The lack of formidable travel documentation for cruise ship or other water vessel excursions originating from and returning to the United States is a black hole for would-be child abductors or traffickers.

The fact that cruise ships are being utilized in human trafficking is not unrecognized within the U.S. or in other countries. The following statements come directly from a human rights watchdog organization in Belize.

The Belize Organization for Responsible Tourism (ORT) issues this appeal to cruise lines bringing passengers to Belize, a superhighway for human trafficking. "We are asking for your help in stopping human trafficking in Belize. In particular, we appeal to Norwegian Cruise Line and Carnival Cruise Lines, which bring a combined 700, 000 tourists to Belize annually.

Cruise lines have a moral responsibility to help stop human trafficking in Belize. Each year thousands of human trafficking victims are transited through Belize via its porous and corrupt borders. Many are exported to other countries and never seen again by their families. Many endure lives of forced prostitution in Belize ficha bars."

As these serious challenges come to light, we need to create a comprehensive short-term and long-term strategy that will prevent child abduction and human trafficking from occurring due to limited WHTI child travel documentation requirements for land and sea travel. There remains a significant amount of work necessary to enhance border security so that current weaknesses will no longer be available to be exploited. Our children must become a priority and the risk of abduction and human trafficking be lessened through mandating legitimate and uniform travel documentation.

The issues of child abduction and child slavery have received relatively limited public exposure. There has been limited government reaction directed toward changing public policy, government agency operations and protocol, and reform of laws that may facilitate or enable international abduction. It is important to recognize that over the past two years there have been over 1,000 ‘reported' cases of U.S. child citizens being criminally abducted to Mexico and untold numbers of unreported cases. Imagine how our nation would act if:

1.     25 school buses containing 40 defenseless 5th grader American students disappeared in Mexico; or,

2.     4 Boeing 757 passenger jets containing 250 middle school children each was hijacked; or,

3.     A cruise ship with1,000 high school students on a spring break trip was pirated off of Mexico's borders; or,

4.     A train traveling with 1,000 students and their teachers was hijacked.

Undoubtedly, there would be public outcry and reform at every level. However, our public and government concern has not reached levels that it should. The many voices of this unthinkable crime tend to be diluted due to the singular reporting methodology. It is imperative that immediate revisions in law and government policy be initiated including reform of the WHTI land and sea travel requirements for minors.

U.S. Passport Concerns and Statistics

International parental child abduction and human trafficking are extraordinary issues where there is no such thing as ‘collateral damage'. In the past, certain legislators have expressed concern that possession of a passport as a requirement to travel by either ground or sea to our neighboring countries would have a direct impact on commercial trade.  One additional concern expressed by some of our policymakers is the requirement for a passport for all travel may be an expensive proposition for the average American family, particularly since a child's passport alone costs over $80.00. The cruise ship industry, with many of its fleet of ships bearing the flags of nations other than the United States, has petitioned against the use of passports for ‘closed loop' travel since the conception of the WHTI.  Obviously, the industry is concerned that the additional cost associated with a passenger having to obtain a passport may cause a potential traveling customer to view a cruise as too costly.

However, statistics for new passport issuances effectively dispute these claims.

According to Assistant Secretary of State for Consular Affairs Maura Harty, "there were over 60 million U.S. citizens who had a valid passport in 2005." Further research shows substantial increase in the number of U.S. Passports issued since 2005. They include:

1.              2006: 12,133,537 new passports; and,

2.              2007: 18,382,798 new passports; and,

3.              2008: 16,208,003 new passports; and,

4.              2009: 13,486,000 new passports.

Thus, there were over 60 million new passports issued during the past four years, excluding the number of passports presently issued during FY 2010. Unquestionably, we have become a passport-friendly society. We contend that a previous position that a passport requirement results in financial disadvantages to commerce are inaccurate, clearly outdated, and are misguided.

Assistant Secretary of State for Consular Affairs Maura Harty, a proponent of harmonized passport travel stated, "For increased security and increased document integrity . . . State and DHS together rarely, singly or together, visit with a foreign entity without touching that very point, that the better and more secure documents are, the better and more easy it is to facilitate legitimate travel by legitimate travelers."

Admittedly, passport requirements for all children traveling internationally under all circumstances will result in increased cost to the potential international traveler.  However, this additional level of security will help ensure the safety of all children. Furthermore, the heavy financial burden associated with the recovery of criminally abducted or trafficked children should be paramount to any economic conversation.

Unequivocally, we take the position that a passport requirement for international travel can potentially protect thousands of our nation's innocent children from the cruel fate of international abduction or from entering into the infernos of human slavery. Our U.S. child-citizens are entitled to the fundamental rights of freedom, justice and liberty and we must protect them.

We recommend that the documentary requirements implemented for air travel in Phase One of WHTI be the same requirements necessary for cross-border land and sea travel. In the interest of the safety of all children, we request that there be no exceptions to the passport mandate for contiguous countries, adjacent countries or "closed loop" voyages. Specifically, that all children, regardless of age must posses a passport for any cross-border travel. Harmonization of the documentary requirements for all modes of travel and at all international borders will help us achieve a reduction in the heinous crimes of child abduction and human trafficking.

Recommendations And Strategies

We hope that this report will educate victim parents, legal professionals, and members of the judiciary about an assortment of viable exit strategies that would-be abductors and traffickers can capitalize on in order to commit crimes against our and other nation's children. Child abduction prevention strategies are critical and must include e

About the Author

About the Authors:

Carolyn Ann Vlk is a child abduction prevention advocate who drafted the landmark State of Florida's ‘Child Abduction Prevention Act' that will be enacted on January 1st, 2011. Ms. Vlk was highly influential in raising the public's awareness on the little-known, highly effective child abduction prevention federal program titled the ‘Prevent Departure Program'. Carolyn is also a writer/producer of the highly educational documentary film series titled ‘Chasing Parents: Racing Into The Storms Of International Parental Child Abduction', and, is the author of numerous essays and studies on parental child abduction, including the groundbreaking report titled ‘Crisis in America: International Parental Child Abduction Today' (2010). Carolyn is dedicated to assisting parents and their children who are targets of international child abduction, and is committed to bringing about positive reform and change in law and government protocol that has been established to aid at-risk children. Ms. Vlk is a supporter of The Hague Convention, The Department of State's Office Of Children's Issues, and the Uniform Child Abduction Prevention Act (UCAPA). Carolyn is a loving and dedicated mother to her children, and fought rigorously to protect her own child who was a target for potential abduction that she went so far as to draft legislation that has now become new law in her home state of Florida. To contact Carolyn Ann Vlk, please e-mail her at [email protected]

Peter Thomas Senese is a child abduction prevention advocate and a successful chasing parent in accordance to the rules of international parental child abduction law established under the Hague Convention. Peter advocated for the passage of the State of Florida's ‘Child Abduction Prevention Act' (CAPA) that will be enacted on January 1st, 2011. In addition, he contributed to raising public awareness on the previously widely underutilized federal child abduction prevention program; specifically, the ‘Prevent Departure Program' (PDP) that is now more commonly implemented in aiding targeted parents and their child from abduction in certain case scenarios. Peter is the creator/writer/producer of the educational documentary film series ‘Chasing Parents: Racing Into The Storms Of International Parental Child Abduction', a best-selling author whose upcoming world-wide book release that focuses on international child abduction titled ‘Chasing The Cyclone' has been critically acclaimed as a call-to-arms against child abduction. Peter is the writer of an extensive number of influential articles and essays pertaining to IPCA. He has created and oversees a comprehensive website dedicated to child abduction prevention and good parenting (www.chasingthecyclone.com) where numerous essays and may be found, including the eye-opening report ‘Crisis In America: International Parental Child Abduction Today' Peter co-authored with Ms. Carolyn Vlk. Dedicated to bringing about new child abduction prevention laws while creating dialogue that may reform certain government programs and protocols so that they may better serve targeted children and their parents, Peter Senese is a strong supporter of The Hague Convention and The Department of State's Office Of Children's Issues. Paramount to all things, Peter is a loving father deeply dedicated to raising his young son. To contact Peter Thomas Senese, please e-mail him at [email protected] To read more of Peter's articles or books, please visit him at www.peterthomassenese.com

 

 

END REPORT

 

Cover letter for internal position in the same department?

I need help writing an cover letter for an internal promotion. Do I address it to my boss? (It is in the same department). I need this job!

Help!

Yes, address it. Can't hurt to be formal when asking for a promotion.

Internal Job Promotion Letter

Taiwan's Protest Against WHO

International Service of Process in Europe

The Basics of International Service of Process

The purpose of this note is to present you arguments to convince you and invite you to employ us for service of Judicial or Extra Judicial documents, Commercial or Civil in the Jurisdictions of Europe. I intent hereto give enough legal and logical arguments about our “Hybrid System”.

International Personal Service of Process (IPSOP) is one of the services of Joseph A. de LA CUETARA, in practice, an International law Attorney providing litigation support services, as well as regular legal services on the European Union. Our services are: Service of Process, taking depositions or evidence, Legal Videographers, Collections, Judgment recovery or enforcing, Legal Research, Exequatur, Inter cultural negotiations (ADR-Mediation, Transactions, Conciliations and Arbitration), briefly, all those aspects of international private relations on the different Hague Conventions. We are registered and insured Attorneys at law, having physical offices in Spain and France and by the virtues of the treaty of Rome, creating the European Union, our legal practice is authorized in all of the European Union's Jurisdictions.

There are two main methods to choose from when serving documents on the European Union, both methods, are proposed by the Hague Convention of 1965 and have the same legal value, no hierarchy exist between them, but one is less reliable than the other, the legal effects are basically the same. We propose a third method, a mixture of the above which we call “Hybrid”. Any other methods employed are outside the Hague Convention or irregular.

The basic legal methods of the Hague Convention are the following;

One, a public service of the “Judicial Administration” called “Centralized Authority” because it uses the “Government” to transmit documents. Is is intergovernmental, in principle a free service but submitted to economical constrains with high possibilities of no completion.

 

Two, by the use of a service provider, alternative method, called “decentralized”, it can use an “International private process server”, “Mail” or “Local Bailiffs”; All under the Hague Convention regulations, Art. 10. It's applicability varies with the country's opposition. As a Private method, it is paid, and therefore submitted to market and quality control.

International Service of Process, by either method, is ruled by two different legal systems, linked by the treaty of the Hague. The main law, called « Lex Fori, » is the law where the documents are issue and where judgment takes place, “Lex fori forum”. These rules, govern service of process validity and recognition in the “lex fori forum”, but not necessarily its effects and legality in the jurisdiction where documents where served, “Lex loci”. Recognition and enforcement by the “Lex loci forum” depend on the respect for internal laws of civil procedure and the procedure of “exequatur” It is then to each “lex fori” and their “foum” to determine their requirements for an “acceptable service” but being their powers limited in space they can not enforce it abroad, so necessarily need to keep in mind that: The act of notification is completed under a different legal system with different exigences, those of a sovereign state which must be taken in consideration, based on International treaties and for future enforcement.

Based on International Legal Principles, we can affirm that a “Lex fori forum” can not accept in a procedure a “foreign illegal procedural actuation”, an act that violates foreign laws.Oon the other hand the “Lex Loci forum” will not enforce a judgment obtained under these circumstances in. Because of this, you must act in harmony with local codes of procedure and the Hague Convention and not only with your own laws,.or, your liability will be engaged in a Criminal or Civil manner.

The Centralized method seems to be the most appropriate and reliable, but it is not, is not mandatory nor exclusive, as explained by the Hague Convention itself (visit the Department of State's1 web pages for more information). Therefore the “Central Authority” is not the only organ proposed as available to serve documents abroad as is the general believe or as promoted by many translation companies or unscrupulous servers who have created a :”Vox Populi” that takes advantage of ignorance of the treaty, to sell Translations and Apostilles.

Luckily for the legal profession, there are a series of alternatives or decentralized channels, Art. 10 a,b and c of the Convention, often more reliable and always faster and efficient. The method to employ must be in no conflict with the laws of Civil Procedure of both jurisdictions involved and both must be signatory countries as explained in Art. 5,b.: That is a legal harmony of “Lex fori” and “Lex loci”. These laws must be applied simultaneously when serving.

All signatory countries have accepted the “Centralized” method and not all accept all the channels of the the “decentralized method”. In Europe most countries accept both entirely. The reason is that most people believe that the alternate decentralized method does nor exist. The legal text are not interpreted or applied properly as it ends as a “Fraud to International law” and service is Void or Voidable.

The liberty of method is inspired by “International Civil Procedural Liberty” Convention, as expected by the Hague of 1954 giving flexibility to the Convention of 1965. The evolution of both and their application and Interpretation by jurisprudence has given a positive empiric result. Mondialisation of process, which needed a fast way for Judicial information exchange and judgment that adapts to it. World trade, has opened the door to more efficient and fast ways of litigation and serving process, resulting in a gain of time and money by cutting “Red Tape”. Nonetheless, there are limits to this liberty that trensform into critics to the methods and which are based on the need to eliminate some absurds requirements like the risky exam of legality prior to service or the choice given to defendant to refuse service if documents are not translated and the lacunae such as no distinction between service to Individuals or Multinational Companies, Nonresistance of presumptions and many more will see later..

The Hague Convention's Centralized method has, as said many “legal lacunae” or serious defects:, the main one is that is a free governmental service that does not uses a “fast Independent Private Process Server.”, as is requested by many courts and litigants, it is defective and often deceptive method. It promotes the use costly translation and the contents of summons is exam for legality before they can be served. These requirements makes it slow and therefore not adapted to modern international litigation. It is also contradictory because under the veil of gratuity there are a series of unnecessary expenses that result in an expensive service, more that using private channels. I consider it promotes unnecessary translations because, if documents are not translated, the defendant can refuse service and in other cases the central authority will not be able to exam their legality, Article 5..

It is advisable not to have the documents translated unless you do it properly with the right qualified professional. As a preventive measure, if you do a translation to avoid “possible” future problems, the translation itself can be easily “questioned” in court during enforcement because European courts only accept as valid translations from tindividuals that give the necessary legal guarantees, either by Certification and/or Registration. Is is considered that only those listed each year by the different Courts or the Foreign Affairs Ministries. do reliable translations. There are other “glitches” that appear at the home Jurisdiction but these can be kept at home.

On the other hand, an essential defect of using the Centralized, is the requirement of an exact address of defendant. A problem, because there is no possibility of “locating a defendant” or “Skip tracing” The Central Authority does not “searches” for Individuals or Corporations. If a defendant changes address or the address is not correct , if he is a tourist or illegal, service is paralyzed and returned, waisting your time and money, sending you back to square one while court time is running. Interesting to mention is the situation of corporations which can change the address of the registered headquarters and do not have an immediate obligation to notify this changes to the Mercantile registry. The central authority will not pay tfor any expenses such as access to a mercantile regustry.

Another defect, is in the requirement for “Personal Private Service”, concept that is understood in different ways in different countries: Bailiffs or Local Judicial Officers apply the local Code of Civil Procedure and not the special instructions received from foreign jurisdictions.

In practice, what is understood in Common law as “Personal” is understood in Europe as “Substitute” and the problem increases if we distinguish between service to corporations from service to individuals. When servicing corporations, this must be completed in the person of those individuals who have the power to represent the corporation, that is to say the “officers” publicly listed in the mercantile registry. Therefore service to the front desk, secretary, gardener or any employee of a corporation, is “Substitute service”. For individuals, most local laws allow officers to leave documents at the address specified or leave a note in the door as equivalent of service. These officers, do not need to understand the hierarchy of the Hague Convention in this sense and what are the “Lex fori Forums” needs . Instructions for service to the central authority, transform into let's do it our legal which is not necessarily valid on the other jurisdiction.

Remark therefore, that the use of “insistence and perseverance” is not possible by the “Centralized method”, its efficiency is not good and it is only, by the use of a private personal server that you can achive the best results, have more legal security on service and what is the most relevant, you will be courteous to your adversary and sure of your case.

These above reasons explain why most Common Law Attorneys have used as many many “tricks” as possible or patches to remove these obstacles of the “Central” method, I do not blame them. Sometimes by the use of “an agent” which often is, their local process server, their friendly “tacky” translation company or their neighborhood's Private Investigators. The reality is, that on the long run, not only they have waisted time and money but they are liable of fraud to international law, defamation, Ilegal practice of law,Revelation of Secrets... and to complete the apocalypse, if not prosecuted or challenged, the judgment obtained will not pass “Exequatur”.(Enforcement).

No doubt then, that ignoring European laws, rights of image and privacy amongst other can happen and can have undesired consequences. Jurisprudence has considered that services completed this ways as irregular and have engage the liability of the plaintiff.

The “Lex fori forum” and “Plaintiff's Attorney” are obliged ex-lege to respect the lex-loci or the legal requirements of the jurisdiction where documents will be served and these starts at home with confidentiality, secrecy and a proper translation of documents as the basic right of defendant.

Service of Process must protect the defendant abroad. It is my understanding that “Lex fori” process servers, Non Certified Translations Companies, even with offices in Europe and other intruders in the chain of International litigation can severely contaminate a case.

There are, a series of channels in an “alternatives or decentralized method” , more reliable and with more efficient ways to serve, these are replacing the anachronistic central method.

Centralized Service of Process has the following characteristics:

Translations, High Cost and Unnecessary

Service Speed: Slow and can paralize eassily

Prior Exam of legality Slows down

Contradictions and exact Address required

Non Personal Service, No Courtesy and No Confidentiality

 

 

The Hague's Alternative method of International Service of Process

The Alternative method is composed by channels , using them has the same legal value and effects as the “Centralized” method, if the country of “Lex Loci” has presented no express opposition to them,.there is no hierarchy between “Centralized” and “Decentralized” methods.

Art. 10 a, Service by a Currier, UPS, Fedex, DHL, Postal, fax, internet (email or messenger), as confirmed by different jurisprudence are not reliable, even if they are contemplated and accepted in some countries. The reason is that they lack of “legal guarantees of delivery of contents” violating the Principle of Contradiction,and Equality in a fair Judgement. These channels can bring the defendant into “defenseless”. Therefore they are mostly considered by jurisprudence as “evidence of an address” more than evidence of a Legal Notification. The Hague Convention permits these in Article 10, but they require some logical complements to be “Legally binding” even if the Convention does not indicates those. Indeed, one can serve blanc pages by mail or fax since nobody will check the contents and thereto obtain a judgment by default. Because of this, I recommend a “Certification of Contents” necessary either on the sending Jurisdictions or in the receiving Jurisdiction by a qualified, but done by a qualified professional that has “Public trust” The postal of fax receipt are not an affidavit.

Understand that the objective of service of process abroad is transmitting information, a legal notification to a defendant, inform him of a “cause” in which he is part and which could have serious consequences in his patrimony, rights and obligations as they will in your own jurisdiction.

These rights must be respected and protected by the rules of the legal art in order to avoid Arbitrary application of law and fraud to International law. To avoid this, the Hague Convention canalizes these notifications by taking in consideration internal laws Art. 5 but without providing a way to control it or a procedure for appeal..It imposes the protection of defendant's rights and obligations as well as those of the plaintiff but does not says exactly how this could be materialized. Please determine, not if the notification was done but if it was “properly done. Service by mail, fax or email are very fragile channels that must be avoided..

These alternate channels are symbol of the “Liberty of Transmittal” but have enter into excesses, for exqample the email, reason why the decentralized method, has been wrongly understood by many Common law Attorneys,. Translators and Private Agents. This happened because the “mechanism of service” applied and employed has been the “known one” the one that sound logical, unconsciously applied in violation of foreign laws. Professionals have use what they know, as a reflex, they have used the same manners as for their state notifications and have sent abroad a joke. This has resulted, in failure to enforce, impossibility of judgment recovery or simply a challenged of service. A distinction must be made between a banal Service of Process and an International Service of Process and to honor international justice even if the effects of your judgment will remain in your jurisdiction do that international service properly, is just a matter of International legal courtesy.

The philosophy behind and the rational explanation, is that the concept of “Public trust” is very different to each culture and their legal order. Think about that opposite to Europe,- No Governmental Identification Card exist in common law countries, there is no central land and/or property registry, sometimes Notaries are simple individuals, Process Server and/or Translators have minimal requirements. In old and experienced Europe, everything is “suspicious” and therefore surrounded by the maximum guarantees of legal security enforced by the state at “Felony or Criminal level” to avoid any possible “misunderstanding”, “fraud”,”deviation” or “Abuse”.

In Europe. service of process, either for internal purposes, European Purposes or for International foreign courts, is considered as a penetration of “Jurisdictional Power”, when completed it is actually a “delegation of powers” to the server. In Europe. the monopoly of legal representation, actuation and consultation, has been given, traditionally and since middle ages, to the different “Legal Corporations”. Private agents are excluded of these basic requirements.

The legal professional associations are those of “Huissiers de Justice”,”Procuradores”, “Ufficiali Judiciario”,”Abogados”,”Avocats”,”Advogados”.... Unlike common law countries where almost anyone mentaly capable can perform these “legal contents and jurisdictional acts”. Please, know that only qualified legal professionals can serve properly and legally in most of Europe since are the only professionals, who can offer “Ex-lege” the required and necessary legal guarantees. Service by a “Agent” as known in common law does not exist in Europe nor in the Hague Convention, it has been used but this usage does not rises service by agents to a legal stage.

Logically explained: If any country's laws of Civil Procedure establishes for internal service of process, a procedure that requires guarantees of public trust; given only by the use qualified professionals, how come, for International Service, you can expect to use anyone? An agent? In conclusion: When in Rome, do as the Romans!

We must distinguish between communications to the Central authority or with the Server and notification or service of process to the defendant. One is an organ and the other a defendant. Communication with the Central Authority of to the server can be by any means, even e-mail

Also note that the Hague Convention obliges service of process to have two explicit and implicit

requirements for acceptance: voluntarily and knowingly. These can be compared to a “bilateral obligation in Civil Law” (See Article 5 (b) alinea of the Hague Convention). Therefore, if the defendant

is not ”capable to understand” what he is receiving, service is viced and the “Defendant can refuse

service”. If documents are not translated he is not “capable to understand”. The defendant is not sense to know foreign laws or could be economically challenged, but some presumption exist: If the defendant is not served multilingual Attorney at law and advise at the moment of Service or if the documents contain No Legal Notice and etceteras, the defendant is in “Procedural defenseless”.and therefore service of process is not valid and useless.

Service to Corporations doing International Business, those under the Hague of 1956 for “Company recognition” it must be presumed that they speak the language of the Jurisdiction in which the carry business and know their laws. The Hague Convention does not distinguishes between services according to defendant; Individual or Corporations. Therefore, I consider the Hague as placing an obstacle in service to corporations, since the plaintiff is oblige to translate the documents. Logically Corporations should never use the central authority, they do not need it.

The Hague Convention indicates “voluntary acceptance” as a condition of service, this does not mean “Refusal at all times and systematically to get civil or commercial impunity”. In this sense, service by Certified Mail, email, fax and other unilateral acts of service, which we can be consider as “Adherence” from defendant to service, have the common denominator that the defendant is not accepting voluntarily, since he is receiving something with unknown contents. The contents will discover later and he is accepting first, therefore contradicting the Hague convention confirming this way that these channels as good for a verification of an address but not of service.

In conclusion, Certified Mail, email and fax are not proper ways of serving and a Court accepting this kind of service are refusing rights to the defendant except if they are back up by a qualified professional's Affidavit of service.

“Service by Agent” as understood in common law, is not contemplated in the Hague Convention on Service of Process, it is another automatic reflex and has been used by many common law Attorneys. These agent services have required translations of documents because the Agent used, in most cases speaks the language of the Attorney requiring service. Often he is a foreign national in the country of service, sometimes illegal, but in any case not qualify to do this kind of Job. They provide “Shaky” services based on the fact that they speaks the language of the Attorney requiring service and dare to violate all kinds of laws, anyways most of them have nothing to loose..

These “Merchants of Process serving” use translations to increase profit and to reduce the possibility of future challenge of service. In most European countries, it is considered. that “Legal Guarantees”, are only given to, and are given by ”registered and insured professionals, recognized and controlled by the governments and grouped in special associations or corporations submitted to strict ethics control: These agents are an insult to law and order. The law and confirmed Jurisprudence protects “defendant's rights” against poor « qualities and qualifications » of a “dummy server” or anyone from here or there, an intruder, who for a “fist full of dollars” will issue an affidavit. Therefore service by “Agent” is possible if and only if the Agent to be used is a qualified legal professional in the country of service.

It is a interesting anecdote, that I found an “International service of process company in Spain” that also does “plumbing” services from the same office, a business run by a felon issuing affidavits even to service completed to non existing address or people he never saw..

It is a shame that Justices and Attorneys in North America often, accept, for international service of process, affidavits of persons that do not offer any guarantees or have the essential “Public trust”, looking down and with disrespect the rights of defendants and the laws of procedure of a foreign country. Indeed, employing anyone for international service of process, is a disregard on justice and disrespect for International and local law. To serve properly you must respect foreign laws of procedure! You must understand the European concepts involved in a “Procedural Notification” and respect for “Justice”.

Finally, art. 10 c, considers as “Agent” a Judicial officer or bailiff. Service by these agent depend on the kind of person to served: Physical or Juridical. In some jurisdictions, serving a corporation must be to a “Registered Officer” as it appears on the mercantile registry of their country or to their legal department or representative and the place of service has to be the registered headquarters otherwise it will be a substitute service (Individuals or Corporations can be served at their Attorney's office). If Individuals, an agent can served them at their home or place of work., but not in a public place.

One excess of the Hague Convention is the requirement for an exact address for service, meaning that the requester must have the exact information. This requirement reduces the rights of the plaintiff since a qualified legal professional acting as agent can complete service to two addresses to avoid impunity of defendants, that is to say, serve the address in the writ of summons and the legal or present address.

Service can be completed by directly instructing a Judicial officer of a Bailiff, article 10 c of the Convention, employing them as organ and as server, but they will issue am “Act” or document in the official language of the country, you will have to pay for a supplent for translation into English language and eventually the legalization of signature. Our Hydrid service take's care of everything.

Please remember, the principle in Europe is the “Protection of the rights and obligations of litigants” by due diligence completed with integrity and by qualified and reliable professional not an “affidavit” obtained in obscure circumstances at any judicial cause price or at justice expense.

Summarizing: The two main methods both have the same legal value within the Hague Convention and no “Hierarchy”exist amongst them, one is bad and the other is worse, they are equally poor, but combining them is possible and results into a more reliable international service:

WARNING: Translations and Apostilles (Legalizations) are not necessary but if you use them remember that the Translator must be “Certified” by the “Foreign Affairs department” or the “Local Appellate or Superior Court”. The use of a local Notary Public to certify the signature in a translation does not corrects the errors of “tacky” translations. The use of a non registered “Attorneys at Law” under most jurisdictions of the European Union for acts reserved to the legal profession causes “contamination of your case”, engaging your liability: Protecting the rights of litigants is your obligation. Do not use simply anyone willing to issue a statement of service affidavit if not qualified.

 

Inventing International Service of Process: The Hybrid system

 

Our “Hybrid system of international personal private service of process” combines, not only “methods”, but also the different channels or options of the convention, applied by steps and in less time that the “centralized”. The result is a better service that takes the positive side of each method in order to obtain the best legal guarantees: We consider it as “System" , more than a method, please consult us so we can discuss your case service in detail and how our system applies.

The hybrid system for International Service of Process, heals the disadvantages of the Hague Conference's centralized method and the abuses in the use and application of the decentralized alternate method. It is a non complicated service of process having the characteristics of Legality, reliability and fast. On the other hand, the “system” applies the principles of the Hague Convention combined to each jurisdiction, incoming and outgoing, and their respective laws of procedure. The “legal order” is to obtain with the maximum legality and protection of litigants, its main characteristic is that: Service is double, a preliminary International service and an Euro service.

The system provides that the rights of the plaintiff and defendants are guarantee and protected by registered and insured multilingual Attorneys at Law in the country of service. Documents are delivered personally in all confidentiality by a legal professional who will give advise in the language of the defendant, making it comprehensive by giving complete legal notice and explaining how to proceed. All services are completed with mandatory secrecy and neutrality, Courtesy and professionalism under the respect for internal laws of Civil procedure.

The defendant does not have an option to refuse service, or claim to be “unprotected” there is no “a priori” exam of contents or delay, no translation's cost or apostilles, no promises of service but a “Jurisdictional act completed according to local law by a qualified legal professional”, Note the advantages;

a. The defendant does not have an option to refuse service, or claim to be “unprotected”

b. Liberty to choose process server within the legal profession market value.

c. There is no “a priori” exam of contents or delay in exams

d. No translation's cost Nor apostilles, stapples,stamps or clips!

e. No doubt on delivery of Contents

e. Service with “Professional Integrity”

f. Customer service and Affidavit in English

g. Une of Bailiff when required

h. Service is guaranteed in delivery

i. Service is guaranteed in court

.....and much more

 

 

Our price list, reflect the need of taking in consideration many legal and practical aspects of service in Europe, specially to avoid incidents and possible cchallenge, appellate “quash” proceeding”, we provide services that are cheaper than the “Centralized” method and with the same value.

 

The different classes of service we proposed vary according to the required time for service: Urgent, and each has different protections. We always start by a “Skip Trace or Locate” in order to obtain an exact address as per mandatory requirement of the Hague Convention and to avoid you unnecessary expenses, then we mail a preliminary service of process to verify the address of delivery and physical existence. Our letter, asking for an appointment or an interview and placing ourselves as neutral Attorneys at Law available as required by law to avoid defenseless by counseling the defendant. During the interview, in presence of a local Judicial Officer or Bailiff when required, we verify the identity of the receiver, his knowledge of the language in which documents are written and explain in detail their rights and obligations. All of this procedure is condensed in a Custom made affidavit that is legalized by the Notary Public of the diplomatic representation of the lex fori (That is to say: the Consul)..

We hope we will count with you amongst our clients, please visit our website for forms, and do not hesitate to contact us by telephone, from U.S. dial 011 33 4 93 16 27 38 or by email if you have any questions or need written legal advise.

Thanking you in advance for your time and consideration, I am,

Joseph A. de LA CUETARA

http://servefast.eu/

 

 

 

 

1Please note that the U.S. Department of State website misguides persons requiring service of process abroad The U.S. Consulates are prohibited from serving or recommending Servers or Attorneys , therefore the list of Attorneys they maintain in each city has “obscure” origins..

 

About the Author

Joseph A. de LA CUETARA, Attorney at law in Europe member of the Spanish and French Bar Association practicing International Law since 1989 in USA,Spain,France,Portugal and Italy. Iuris Doctor from the University of Salamanca Spain and Post Graduate education at the University of Paris,France Pantheon Sobone.

Internal Job Promotion Letter