2006 HAGUE COMPLIANCE REVIEW -- COLOMBIA

UNCLAS BOGOTA 011850

SIPDIS

DEPT FOR CA/OCS/CI

E.O. 12958: N/A
TAGS: CASC KOCI CO
SUBJECT: 2006 HAGUE COMPLIANCE REVIEW -- COLOMBIA

REF: STATE 223680


1. Per reftel, paragraph 4, Bogota proposes the following
text for use in compiling the next Hague Compliance Report
on Colombia. The proposed language reflects significantly
improved work on behalf of the Colombian executive and
legislative branches on Hague issues, but continuing and
serious problems in the judicial branch. Embassy Bogota
recommends that Colombia's status be shown in the report as
"not fully compliant."


2. Begin text of proposed compliance report language:

The Colombian Central Authority, located in the Colombian
Family Welfare Institute (ICBF),has consistently shown a
high degree of cooperation on Hague cases in 2005. In one
case, ICBF facilitation of a home visit by an Embassy
consular officer and the resulting report led the State of
California to retract its Hague petition for the children's
return. California instead decided to leave the children
with their grandmother in Colombia, who was serving in loco
parentis. In another case, ICBF intervention resulted in a
decision by the parents to reconcile, and the Embassy and
the Department of Homeland Security were able to facilitate
the taking mother's return to the United States with the
child. Communication among the ICBF, the U.S. Embassy,
CA/OCS/CI and the National Center for Missing and Exploited
Children has improved markedly. The ICBF moves Hague
applications forward in a timely manner.

Furthermore, the Colombian Congress - responding in part to
lobbying by the Embassy, the ICBF, and the Colombian Foreign
Ministry - completed work on new Hague implementing
legislation. The law assigns administrative responsibility
for Hague cases to the ICBF, and judicial responsibility for
Hague cases to Colombia's family courts, or to civil courts
in locations outside the geographic range of family courts.
This law should put an end to the delays that occurred in
the past, when courts would avoid assuming jurisdiction in
Hague cases and thereby cause injury to taken children and
their left-behind parents.

Despite these developments, serious problems with Colombian
compliance remain, especially in the courts and with
INTERPOL Bogota's ability to locate abducted children. ICBF
insistence on attempting family reconciliation as a first
step in all cases, and the resulting delay, provide
Colombian judges with an improper rationale for determining
that a change in habitual residence has occurred, even in
cases in which a Hague application was filed within one year
of abduction or wrongful retention. Such reasoning was
employed by a Colombian court in a May 2005 ruling and
appeared to have been part of the judge's basis for
rejecting a timely and proper Hague application.

Colombian judges have been inclined to make their decisions
based on their own sense of "the best interests of the
child," drawing on hortatory language in the UN Convention
on the Rights of the Child, rather than on the more precise
and binding language found in the Hague Convention.
Furthermore, judges tend to presume that a child is better
off remaining in Colombia, even in the absence of evidence
of risk if the child were to be returned to the United
States. Although steps have been taken to educate judges
about the Hague Convention, including a May 2005 conference
hosted by the Ministry of Foreign Relations in coordination
with the Colombian and U.S. Central Authorities and Embassy
Bogota, far more needs to be done. The ICBF recognizes the
problem and has initiated a series of workshops around the
country for judges and family welfare officials. However,
until a judicial precedent is clearly established and
followed in favor of Colombia's Hague Convention
commitments, Colombia cannot be considered fully compliant
with its Hague responsibilities.


3. Bogota will provide a translation of the new Colombian
Hague implementing legislation septel.

WOOD