Mexico is amongst the world's most popular sources and destinations for international child abduction while also being widely regarded as having one of the least effective systems of protecting and returning internationally abducted children within its borders.
To help protect abducted children Mexico signed on to the United Nations Convention on the Rights of the Child in 1990, the Hague Convention on the Civil Aspects of International Child Abduction in 1991, the Inter-American Convention on the International Return of Children and the Inter-American Convention on International Traffic in Minors.
Since adhering to the Hague Abduction Convention, the world's most recognized and utilized instrument for addressing international child abduction or parental child trafficking, Mexico has been repeatedly criticized for enjoying the benefit of having its treaty partners protect Mexico's own internationally abducted children, while being consistently non-compliant in fulfilling its reciprocal obligations to protect and return children abducted to Mexico. To date its procedures for enforcing its treaty obligations are unpredictable and entirely ineffective. The Centre for International Family Law Studies in Cardiff, Wales compared seven jurisdictions, including Mexico. The conclusion was that Mexico was by far the worst offender in its failure to return abducted children.
In consideration of Mexico's history of noncompliance, as documented extensively over the past 11 years in the US State Department's annual compliance reports, Texas courts made a landmark decision finding Mexico's legal system ineffective and lacking legal mechanisms for the immediate and effective enforcement of child custody orders and, furthermore stating, 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 abuse laws.
The US State Department has posted multiple travel warnings for Mexico including at least one every year since 2007. In 2010, the murder of three Americans connected to the U.S. Consulate in Juarez prompted the US State Department to modify their warning to authorize the departure of children dependents of U.S. government personnel in U.S. consulates and offer financial assistance to relocating families.
Child abduction has been defined as a form of child abuse.Parental Child Abduction is Child Abuse . Nancy Faulkner, Ph.D. Presented to the United Nations Convention on Child Rights in Special Session, June 9, 1999
Recovery of abducted children from Mexico
Broadly defined, there are five principal avenues for attempting to recover children abducted to Mexico: the Hague Convention, deportation/expulsion, criminal extradition, domestic Mexican family law and other, mostly extralegal, options.
Hague Convention The Hague Convention is widely viewed as completely ineffective in Mexico with the country being extensively cited as having problems with nearly every aspect of its implementation. Oftentimes children can not be located for Convention proceedings to start due to problems with law enforcements performance. Law enforcement has reported an inability to locate children even when parents have reported giving them the children's exact address in Mexico. Although, Mexico claims to provide free legal representation for victim parents the provided representation is often completely unable to move the case forward and will only represent the parent during the natural trial, not during appeals. Parents who have been able to gain traction in Mexican courts have turned to private attorneys. Even when these attorneys have won favorable verdicts they are not enforced if the abductor files appeals or amparos which suspend enforcement of the decision until they've been adjudicated, frequently causing years of delays. In the unlikely event that children are located, legal proceedings commence, all appeals are heard and a final return order is issued, the abductor may appeal the manner in which the order is enforced (though it is less likely that enforcement will be suspended in such cases.) Once all judicial hurdles to enforcement have been cleared law enforcement issues can arise anew due to their inability to locate children as in the case of the Combe-Rivas abduction where, after four years, the Mexican Supreme Court issued a final decision ordering the child's return in June 2009. To date the decision remains unenforced due to an inability to locate the child.
Domestic family law Mexican courts grant automatic custody of children below 7–12 years (depending on the state) to mothers unless they have been proven to be unfit. This maternal preference has been the subject of Constitutional challenges on the basis that the Mexican Constitution enshrines the equality of the sexes, but has been upheld on the grounds that the Constitution also protects the integrity of the family. Custody cases are also not immune to a number of the problems found in Hague cases and, even if a custody decision were to be won it would not necessarily allow for the child to be taken back out of Mexico. In cases where taking the child back out of Mexico to the home country is sought the decision can be subject to the same lack of enforceability pending the exhaustion of all appeals that plagues Hague Convention applications.
Extradition
The current Extradition Treaty between the United States of America and the United Mexican States (see 31 U.S.T. 5061) was signed by President Jimmy Carter in 1978 and went into effect in 1980. Like other such treaties, it provides for the extradition of a party who has been charged with or found guilty of an offense committed in the United States, who has fled to Mexico. An offense is extraditable if it is a crime in both countries and punishable by incarceration for a period of one year or more. In theory this allows for the extradition of child abductors who have absconded to Mexico as child abduction is a federal crime there. In practice US authorities rarely request extradition in preference of Hague Convention litigation and, even when they do, Mexico is not bound to deliver up its nationals. If extradition is denied based on nationality, the request for extradition is automatically converted into a foreign prosecution pursuant to Article IV of the Mexican Federal Penal Code. Although by law Mexican authorities are authorized to extradite their own nationals in “exceptional circumstances”, in practice they most often will refuse to do so. (See “Ley De Extradicion Internacional”, enacted May 19, 1897, revised January 10, 1994: “extradition of Mexican nationals is prohibited except in “exceptional” circumstances”.) “Nationality” is also liberally construed and often, marriage to a national, having dual citizenship, parents or other close relatives who are Mexican nationals, or simply having a Hispanic surname will suffice for purposes of extradition.
Prosecutors in Mexico have asserted that prosecution under Article IV of the Mexican Penal Code is sufficient compliance with the Extradition Treaty and allows Mexico to try fugitives for crimes committed in a foreign territory by a Mexican citizen. The trial is conducted in accordance with Mexican Federal Law when the accused has not been tried in the country where he committed the offense. Although efforts are underway to address the widespread corruption which has historically plagued Mexican judicial and law enforcement communities, little is known about the results of Article IV prosecutions. Often warrants remain in their system, unserved, for years. Prosecutions are commenced and then dismissed or have their sentences substantially reduced in appellate courts. No verifiable system exists to track sentences served. Demands for such information have been mostly ignored by the Mexican government. Informal surveys of law enforcement regarding the results of such prosecution reveal an abysmal record. Approximately 85% of the cases appear to have never been prosecuted. The remaining cases appear to result in acquittals or vastly reduced sentences in comparison to what would have been the sentence in the United States. The Extradition Treaty bars future extradition once a “trial” has been conducted in either country and, regardless of the result, double jeopardy provisions generally bar subsequent prosecution in multiple US States if the suspect returns to the United States, regardless of the outcome in Mexico.
Additionally, even if extradition of the abductor is successful, it does not guarantee the return of an abducted child. Extended families of parental child abductors in Mexico, including aunts and grandparents, have also been able to tie up repatriation efforts, under the Hague Convention or Mexican family law, for years.
Deportation or expulsion Deportation and expulsion options are frequently quite successful at returning child abductors and children, but can only be used when the abductor is not a citizen of Mexico as the Mexican Constitution prohibits the deportation of its citizens.
Corruption and crime in Mexico
Corruption is an intrinsic part of the problem with international child abduction in Mexico and affects every other aspect of the issue from locating children and judicial decisions to enforcing court orders for repatriation in the rare cases where the obstacles of locating children and judicial noncompliance have been overcome. Parents of children abducted to Mexico have reported being asked for a "mordida" (literally "bite", ubiquitoius slang for bribe in Mexico) in order for Mexican officials to do routine work. Mexico bears the stigma of being considered one of the most corrupt countries in the hemisphere. Experts say the corruption extends from ordinary citizens to high reaches of government and that most Mexicans have become accustomed to paying bribes and to the notion that the average police officer will try to shake them down in some way.
A 2005 study measuring corruption by Berlin-based Transparency International found that 50 percent of Mexicans remain pessimistic about corruption and believe it will get worse. The survey showed that Mexico was one of the top four countries where the largest number of respondents answered yes when asked if they or someone in their family had paid any kind of bribe in the last 12 months. In Mexico the ruling elite often operate outside of the law leading to the police becoming an instrument by which the rule of force is implemented. Without respect for the rule of law economic activity becomes arbitrary and unpredictable, and something as simple as a business contract can quickly become unenforceable.
A United Nations Special Rapporteur undertook a mission to Mexico in 2002 to investigate reports by the United Nations Commission on Human Rights that the country's judiciary and administration of law was not independent. During the course of his visit to a number of cities, the rapporteur observed that corruption in the judiciary had not been reduced significantly. One of the principal issues is that, because the federal courts operate at a relatively high level, most citizens are compelled to seek justice in the inadequate state courts. Additionally, the rapporteur expressed concerns about such issues as disorganization in the legal profession, difficulties and harassment faced by lawyers, poor trial procedures, poor access to the justice system for indigenous peoples and minors, and lacklustre investigation of multiple crimes.