Mr. Paulo David
United Nations Center for Human Rights
Palais des Nations (Room 1010)
United Nations
1211 Geneva 10 Switzerland

RE: URGENT! Committee on the Rights of the Child---Review of Germany's Report on the Convention on the Rights of the child.
 
 

Dear Mr. David
 
 

In accordance with Article 44(1) of the Convention on the Rights of the Child, it is my understanding that the Government of Germany may in the future submit a request to the Committee on the Rights of the Child based on the progress made in hopes of the enjoyment of those rights. It is my further understanding that Germany did not submit a request to be considered by the Convention.

For the record it is my hope that research done by the coalition P.A.R.E.N.T on Germany's Family Law and Social Welfare System shows that the Nation of Germany has a system that aids and abets in International Parental Kidnapping and Unlawful Retention. You will note that this communication is not an Individual or Group complaint, but rather provides the Committee with information on certain aspects of Germany's legal and social welfare system, and its pattern of conduct in the context of the Convention on the Rights of the Child.

As indicated above, this communication was sent to you by Fax (41-22-917-9022) and by international air courier. Thank you for your courtesy, and for your assistance in ensuring consideration of this material by the Committee.

Sincerely
 
 

Dr. Mboi, Chair
United Nations Committee on the Rights of the Child
UN Center for Human Rights
Palais des Nations
1211 Geneva 10, Switzerland

RE: Germany
 
 

Dear Dr. Mboi:
 
 

As a result of not knowing the Committee's precise schedule until recently, I greatly regret that this communication concerning the Government of Germany's failure to adopt measures (including implementing legislation) to give effect to several of the most fundamental rights set fourth in the Convention on the rights of the child.

Despite its international legal obligations under the Convention, Germany's harmful conduct toward children with respect to family law matters, international child abduction, and wrongful retention of children is beyond question and based on clear evidence. It cannot be denied by the Government of Germany, and will be apparent to Members of the Committee, based on this communication and other available information. From the article by article analysis below, members will note the provisions of convention that Germany has failed to implement, and or violates, in this area (notably Articles 2, 5, 8, 9, 10, 11, 16, 18, 21, 29, and 35).

Germany's gross misuse of Article 13 of the Hague Convention is implemented often on very young children months or years after the abduction takes place. This is a viololation of articles 9 and 18 of the Convention not to mention outright child abuse, plane and simple. During months or years of isolation of abducted children from the victim parent, classic Parent Alienation Syndrome, (PAS) is allowed to thrive. Children are often placed in German schools following the abduction to immerse the child into a new culture. Once (PAS) is profoundly inset, the abducted child is subjected to a custody hearing and asked to testify against her/his own parent. PAS - Analogous to the Stalkhome Syndrome, exploits the child's fear of losing the only remaining parent following the trauma of losing the victim parent during the abduction. This was denoted at the Senate Foreign Relations Committee Hearing Held on 01 October 1998. The following is an excerpt from this hearing and is sworn Testimony used as evidence:

* 3. Perversion of the Conventionís intent

* In a number of countries, therefore, interpretations of the Hague Convention extend its meaning to encompass in practice an unwarranted jurisdiction in custody matters. Certain consequences flow from this, all of them prejudicial to the victim.

* When a child is not returned, the abducting parent has the additional advantage of having subsequent proceedings dealt with in the country of retention rather than the country of the childís habitual residence. Case studies show that these court decisions, dealing with custody and access rights, tend to favor the abducting parent. This, combined with the fact that in some countries (for example in Germany,) judges are reluctant to enforce access orders, results in a situation where a parent is often deprived of all contact with the child, or at best, has contact in only the most harrowing circumstances (e.g. a government office with a third party present). On this interpretation of Article 13, the Hague Convention becomes in effect the instrument of alienation between child and victim-parent ñ the very opposite of what was intended

* Professor Elisa Perez-Vera provided the primary source of interpretation of the Convention in her Report of 1980: "The Convention as a whole rests upon the unanimous rejection of the phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognitionÖ the systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to a collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration".

* 4. Child trauma and Parental Alienation Syndrome

* Children who are abducted will have already suffered from their parents' separation. But, in addition, they will experience the trauma of being suddenly cut off from their familiar environment ñ from a parent, grandparents, school and friends.

* This experience is already bad enough: many children do not understand what is happening or why. But things are often made even worse, when the abducting parent is hiding from the police or taking precautions against re-abduction; when the child realizes that there is a state of war between its parents. The child has already been traumatized by the loss of one parent; its greatest fear becomes that it will lose the other parent. This fear itself then becomes an obstacle to resolving the situation, since it is central to what is known as Parental Alienation Syndrome (PAS).

* Studies of PAS have established the severity of psychological damage done to abducted children, suddenly separated from a parent. The studies have also shown how susceptible the child is to being systematically alienated by the abductor-parent from the victim-parent.

* This susceptibility bears comparison to the ìStockholm Syndromeî, when hostages start to identify with their captors. In the case of an abducted child the identification will be the stronger, because of the age of the ìhostageî and the childís relationship with the ìcaptorî. For fear of losing the abducting parent as well, the child will not only be eager to please, but ready to believe allegations that it has been abandoned by the victim parent.

* This is fertile ground for systematic indoctrination by the abducting parent and/or a professional psychologist. Since under some judicial systems, children ñ sometimes as young as three ñ may be required to appear in court, it becomes of paramount importance to abductor-parents that their children say ìthe right thingî to judges. This puts an even higher premium on placing psychological pressure on abducted children.

* The irony ñ and tragedy ñ is that the Hague Convention, in judicial systems like these, delivers children into precisely the danger from which it is supposed to protect them. Again Article 13 b is the crux. It can only be invoked if returning the child would expose it to grave risk of ìphysical or psychological harmî or place it in an ìintolerable situationî. What greater psychological harm, what more intolerable situation could there be for a child, than to be exposed to systematic indoctrination by one parent against the other; and, worse, to carry the main burden of responsibility in adult court proceedings for deciding between mother and father? When placed in this context ìthe will of the childrenî becomes nothing less than a vehicle for legitimizing the actions of the abductor-parent.

In view of these points, combined with the devastating impact on children of the present German system (i.e., the nearly certain loss of one parent in custody and abduction /retention cases), the committee's, limited opportunity to address Germany's conduct for the next five years, the leadership role that Germany has unilaterally claimed in the field of children's rights, and the complete lack of effective and legally enforceable remedies under the current German system, (starting with the inability of German courts to enforce their own civil orders), It is hoped the committee will give full consideration to this communication and will vigorously press the Government of Germany to adopt the necessary reforms and remedial actions. This is NOT an an individual or Group complaint against Germany. I am well aware that the Convention does not provide such a mechanism and the Committee on the Rights of the Child does not have procedures for handling such complaints.

As indicated above, the purpose of this communication is to inform the Committee of the inadequacy of the German Government's implementation of the Convention, and the manner in which the rights of children under the Convention articles listed above are violated on a daily basis by Germanys overall legal and social welfare system in both domestic and international cases.

Specifically, as discussed also in the attached summary and outline of the German government System of International Child Abduction and Wrongful Retention of Children (much of which also applies to Germany's treatment of children in regular custody cases), the Government of Germany facilitates, finances, and otherwise supports such violations by means of a legal and social welfare system that, as a practical matter, encourages and rewards German citizens for their wrongful conduct.
 
 

BACKGROUND

Before proceeding, it is necessary for me to inform the Committee that I am very much involved as a child advocate with the coalition organization called P.A.R.E.N.T and have devoted these last two years to research specifically to Parental Abductions and Unlawful Retention's to Germany. I have a data base full of case scenarios and have also devoted my life to providing moral support to Left Behind Parents who are victim to German abductions. Information provided for this communication comes not only from cases dealt with by the coalition P.A.R.E.N.T but also actual Hague litigation posted on the WEB at http://www.hiltonhouse.com/. A major resource of information also comes from evidence presented at the United States Senate Foreign Relations Committee Hearing Held on 01 October 1998. Transcripts and impact statements of this hearing are public information and can be obtained free of charge from the Senate Foreign Relations Committee in Washington DC.

Further, for the sake of full disclosure and to state my interest in the subject, this communication is based partially on my personal experience and knowledge of the German legal and social welfare systems, both as the parent of a child kidnapped to Germany by a German and a child advocate as an officer for the coalition P.A.R.E.N.T. Nevertheless, I trust that the Committee will recognize that every effort has been made in this communication to concentrate on the German legal and social welfare systems, German institutions, and patterns of German conduct. This communication clearly does not contain the names and details that would characterize an individual or group complaint, and should not be viewed as such.

Finally, in the event that there are doubts about the "standing" of a citizen from a country that has signed but not ratified the Convention to criticize Germany's conduct, I would simply reply that Germany's misconduct impacts on non-German or dual national children and their non-German Parents from many countries. Moreover, the United States, at both Federal and state levels, has a far better record of compliance than Germany with the actual terms of the Convention articles listed above.
 
 

THE GERMAN LEGAL AND SOCIAL WELFARE SYSTEM:

Like Germany's ratification of the Convention, other relevant elements of Germany's legal system look progressive and humane on paper, but it is crucially important for the Committee to distinguish between appearance and reality in Germany.

Reality in Germany with respect to family law and child abduction /retention matters must begin with absence of adequate and effective enforcement mechanisms to promote and protect the rights of the child under the articles of the Convention listed above.

In regular child custody cases and in cases involving either domestic or international child abduction and wrongful retention of children, the current German legal and social welfare systems guarantee that the child will completely lose one parent UNLESS the custodial or abducting parent decides otherwise. As a practical matter, the exercise of child custody jurisdiction by a German court effectively terminates the child's relationship with the non-custodial parent, both in purely domestic cases, or in international abduction/retention cases where Germany fails to return a child in accordance with its obligations under the Convention (and, when applicable, the Hague Convention on the Civil Aspects of International Child Abduction).

As indicated above, Germany essentially gives the custodial parent (who often has already abducted or wrongfully retained the child) a veto power over every aspect of the child's relationship with the non-custodial parent. Thus, despite all the standards and safeguards enumerated in the articles of the Convention cited above, Germany leaves each child's relationship with the non-custodial and non-German parents at the mercy of the German custodial parent. By perpetuating this cruel and irresponsible system, the Government of Germany completely disregards its international legal obligation under the Convention to protect and ensure the child's rights to substantial contact with both parents and both extended families and, in international cases, with both countries and cultures as well. In short, the German legal system does not and cannot either control the conduct of German custodial parents or protect the rights of children to contact non-custodial and non- German parents.

In a recent demonstration of the German legal system at its worst (one that is well known to the German Government officials referring to Lady Catherine Meyers Case), the German court ignored the objections of a non-German mother and permitted the German courts to take custody jurisdiction and award sole custody of two children to a German father in a clearly unlawful retention case. This is of interest to the committee as German law and not just an individual case.

Germany's sophisticated and Well-financed international child abduction system (most of which also apply to regular custody cases in Germany) demonstrates the extent to which the Government of Germany has failed to implement, and/or violates, the ten articles of the Convention listed above.

Germany lacks any legal mechanism comparable to "Contempt of Court" in common law countries that can enforce the rights of children, for example, to have contact with both parents and, in international cases, with both countries. More than any factor, the impossibility of effective enforcement machinery for German civil court orders means that Germany cannot give effect to the rights recognized in the Convention at issue here, even if individual judges might wish to do so.

Extreme gender and national bias of German courts. This is common knowledge in Europe, North America, and perhaps other regions, and is not a subjective or unsubstantiated allegation. Accurate and complete statistics from German child custody proceedings, which the German Government may be unwilling to supply to the Committee, would unquestionably reveal that German courts grant sole custody to German mothers virtually without exception in both domestic and international cases. German courts have almost certainly never granted custody to Non-German fathers residing outside Germany. This national bias is also exemplified by the grotesque but not uncommon practice of German judges granting non-German fathers visitation of their children in Germany, and often only under social welfare, police, or other supervision.

Unlimited German Government payment of legal fees in Germany and abroad for German citizens involved in regular custody proceedings or who abduct or wrongfully retain children. Non German parents are confronted by "The Deep Pockets" of the German government with custody and abduction/unlawful retention litigation wherever conducted. In exhausting their savings and other resources while fighting against the German Government to uphold the rights of their children set forth in the convention articles listed above, most non-German parents suffer irreparable financial harm. Ultimately, as with every other aspect of this problem, it is the children involved who suffer most from the permanent and unnecessary waste of resources in each case caused by the German Government.

Absence of principle of comity from the German legal system The rights of children are severely harmed by Germany's lack of respect for non-German laws and court orders.

Refusal of Germany to extradite or effectively prosecute German Nationals As with every other accept of the German system, it is primarily the children involved whose human rights are violated by Germany's status as a sanctuary for child abductors/unlawful retainers.
 
 

ARTICLE-BY-ARTICLE ANALYSIS:

Article 2: Germany does not respect and ensure all the rights in the Convention for children with a non-German parent, as discussed above, and thus discriminates against such children.

Article 5: Germany only respects one parent and one extended family by failing to protect the child's relationship with the other parent and extended family, thus assuring the elimination of that parent/family from the child's life.

Article 8: By failing to ensure that the child has substantial contact with both parents and both extended families (and both countries and cultures in international cases), Germany clearly does not respect the right of the child to preserve his or her full identity, nationality, and family relations.

Article 9: Germany does nothing to facilitate personal relations and direct contact for a child separated from one parent and as discussed above, rewards the parent responsible for the separation.

Article 10: In international cases, as discussed at length above, Germany does not respect the right to maintain regular personal and direct contacts with both parents, and to leave Germany. As a practical matter, the German legal and social welfare systems are wealthy and indispensable accomplices of German parents who abduct or wrongfully retain children.

Article 11: As discussed above, Germany combats any transfer of children abroad from Germany, while at the same time essentially encouraging and rewarding abduction of children to, or wrongful retention of children in Germany.

Article 16: By stepping aside and leaving children under the total control of the German custodial parent, the German legal and social welfare systems guarantee arbitrary and unlawful interference with the child's overall family (i.e., the non-custodial or non German parent).

Article 18: Despite the image Germany attempts to portray, the reality is that the German legal and social welfare systems virtually guarantee the elimination of one parent from the child's life, since non-custodial parents have no significant enforceable parental rights in Germany.

Article 29: Since the norm in Germany is that one parent is eliminated from the child's life in divorce and abduction/retention cases, it is highly unlikely that the German educational system is developing respect for both parents. Since the German educational system is so ethnocentric, for example, it teaches little or nothing about Western Hemisphere history and culture, the education of the child in Germany is clearly not directed in international cases to develop respect for overall cultural identity/language/values and the national values of the country from which he or she may originate.

Article 35: As with Article 11 above, Germany may take measures to prevent the abduction of children from Germany, but, as detailed above, the overall German legal and social welfare systems actually constitute a German Government Child Abduction/Retention System that facilitates, finances, otherwise supports and rewards abduction and wrongful retention of children by German citizens.
 
 

CONCLUSION

For far too many years, the German government has succeeded in portraying itself to the International human rights community as a staunch defender of children's rights in general and a leading proponent of the Convention in particular, while at the same time maintaining a legal and social welfare system that systematically violates numerous fundamental rights of children recognized in the Convention and identified above. For too many years, the international human rights community has remained silent about the difference between the reality of Germany's actual conduct toward children in areas under discussion here and German Government rhetoric in support of countless human rights initiatives. It is respectfully requested that the Committee on the Rights of the Child remedy this situation in two ways:

FIRST, by alerting the General Assembly and international community generally to the ongoing violations by Germany of the rights of children already within Germany and the risks to children that may be taken to Germany in one way or another, and,

SECOND, by utilizing its authority under Article 45(d) of the convention to make suggestions and general recommendations to Germany (reported also to the General Assembly) concerning the measures that Germany must adopt to give effect to the rights in question, to eliminate current German violations of the Conventions, and to prevent future ones.

Under its current legislation, policy, and practices, as described in this communication, the Government of Germany does not fully implement or comply with articles of the Convention discussed above(2, 5, 8, 9, 10, 11, 16, 18, 29, and 35). In addition to addressing the cruel impact of Germany's current violations of the Convention on the children affected today, it is hoped that the Committee will also be particularly concerned with absolute certainty of continuing and future German violations of the Convention affecting thousands of children in Germany or at risk of being taken to Germany, unless immediate and sweeping reforms of German laws, policies, practices and judicial conduct take place.
 
 

In both domestic and international situations, cases of abduction and wrongful retention of children of a German parent are not merely "private custody disputes," in view of the lack of effective remedies provided by the German legal and social welfare systems to the left-behind parent and the extensive German government financial, law enforcement, social welfare, and other support supplied to German parents who engage in abduction/retention of children.

In international cases where only one parent is German (Particularly where the mother is German), children not returned under the Hague Convention on the Civil Aspects of International Child Abduction are, as a practical matter, completely lost to their non-German parents unless the German parent decides otherwise. This is the result of the German legal system's inability to effectively control and conduct of German parents and protect the rights of non-German parents in the absence of any judicial power comparable to contempt of court. In regular child custody cases German courts invariably grant sole custody to German mothers and as noted, have no power to enforce visitation for non-custodial parents.

Even in cases where a foreign parent has sole or joint custody under a non-German custody order and no German custody order exists, there is no concept of comity in the German legal system (despite Germany's obligation under Article 1 of the Hague Convention to ensure respect for the rights of custody and access under the law of other States Parties). The fact that foreign custody orders have no validity in Germany, aggressively interferes with any effort by a foreign parent to exercise her/his custody rights in Germany, and attempting to do so could result with the non-German parent being arrested.

In both Hague Convention and regular child custody litigation in Germany and abroad (Including all possible appeals in Germany, the other country concerned, and the European system), the German social welfare system provides unlimited payment of legal fees for German citizens, thus significantly reducing the incentive for the German child abductor/retainer to compromise or otherwise settle the case. This enables the German citizen to pursue appeals to the highest courts of Germany and the other country concerned at no expense, while exhausting the financial resources of most non-German parents. In any event, German authorities will not enforce or otherwise respect foreign appellate judgments against German parents.

In summary, Germany's overall legal and social welfare system concerning child custody and parental child abduction/retention does not comply with numerous provisions of human rights treaties, notably the Convention on the Rights of the Child, the European Convention on Civil and Political Rights as a result of five factors:

the undeniable gender and national bias of German Courts, especially in favor of German mothers.

the absence of anything comparable to contempt of court to enforce visitation or other parental rights for fathers (i.e., non-custodial parents)

the unlimited financial support received in Germany and abroad by German child abductors

the lack of comity with respect to non-German court orders, and

the refusal of Germany to extradite or effectively prosecute German Child abductors.

Most notably, Germany's legal and social welfare systems are inconsistent with both the letter and spirit of Germany's obligations under the Convention on the Rights of the Child to ensure contact with both parents and, in international cases, with both countries. Thus Germany cannot ensure compliance with the provisions of the convention most relevant to child custody and child abduction/retention: Article 9, 10, 11, and 18. The United States has signed but not ratified the Convention, but complies with these articles in practice to a far greater extent than Germany.
 
 

--Overall refusal to extradite German citizens

--No possibility of effective German prosecution of German citizens who commit parental child abduction or custodial interference.

--Payment by the German Government of all but a token amount of German abductor's legal fees and related expenses in Germany or abroad in Hague Cases, except that the victim parent (instead of the German Government) is ordered (in violation of Article - 26 of the Convention) to pay the abductors legal fees and related expenses when a German court refuses to grant a Hague Convention Application.

--Either no return from Germany of abducted children under the Hague Convention or returns only after extraordinarily costly, lengthy and burdensome proceedings for the victim parent (e.g., full trials at both the trial and appellate levels), with the danger of last-minute stays and interference by German Social Welfare Authorities.

--Payment by the German Government of All legal fees and related expenses of German parents in the regular child custody battles in Germany or abroad against non German parents which usually follow resolution of a parental child abduction, further disadvantaging and intimidating non German parents.

--Payment by the German Government of child support not paid by the foreign fathers (i.e., Government elimination of any practical impact of German citizens ignoring foreign custody orders, as well as its elimination of any legal risks )

--There is evidently no repercussions for perjury committed by Germans in Hague Convention Proceedings in German court.

--Free psychiatrists and psychologists from the Social Welfare Authorities for psychiatric/psychological evaluations of children in Germany (with pro-German results a certainty)

--German law which gives German child abductors a "Right of protection" over abducted children and permits the abducting parent to deny the child access to the victim parent, while at the same time, contrary to US law purporting to criminalize any efforts by a non-German parent with primary or sole custody to attempt to exercise that right without a German court order.

--Total support for German child abductors by the German Central Authority under the Hague Convention, combined with the German Central Authority's refusal to assist non-German victims despite its obligations under the convention.

--Virtually unlimited paid leave from work for German child abductors claiming a need to care for the child(ren) but, actually working on their cases against non-German Parents.

--"Address Protection" (i.e., legalized disappearance and cut-off of even consular access to children) granted by German authorities with no questions asked, based only on unilateral accusations by the German parent against the non-German parent.

--German social welfare laws which permit the abducting parent to initiate custody investigations, psychiatric evaluations, and commitment of abducted children to child psychiatric hospitals without consulting the non-German parent, without regard to joint custody and habitual residence outside Germany, and in violations of the Hague Conventions stay on custody proceedings in the abducting parents country.

--Issuance of replacement German passports on demand (no questions asked) at any German embassy or consulate worldwide (i.e., surrender of a German to non-German judicial or other authorities provides no protection or safeguard whatsoever)

--No effective enforcement of "contempt of court" or anything comparable and thus no effective means of enforcing court orders in Hague Convention or child custody cases on behalf of non-German Parents.

--No effective enforcement of visitation or access under German or foreign custody orders and no implementing legislation for Article 21 of the Hague convention concerning rights of access.