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LAW AND THE FAMILY
"The
Hague
Conventions Psychological Harm Defense"
Joel R. Brandes
New York Law Journal
January 30, 2001
The purpose of the Hague Convention on the
Civil Aspects of International Child Abduction is to deter
international child abduction and to provide a mechanism
for the prompt return of abducted children to their home
country where the courts there can resolve the custody
issue on the merits. The convention, which only applies
between contracting states and this country, is available
only when a child is wrongfully removed from a signatory
country and retained in another signatory country.
The United States and other countries
which have acceded to the Convention have agreed that a
child who is habitually resident in a country that is a
party to the Convention, who is removed to or retained in
another country that is a party to the convention, in
breach of a parents "rights of custody", shall, subject to
certain exceptions, be promptly returned to the child's
country of habitual residence.
The Convention applies only to children
under sixteen who have been "habitually residing" in a
contracting state immediately before the breach of custody
or access rights and ceases to apply on the day when the
child attains the age of sixteen. It only applies to the
wrongful removal or retention of a child in the responding
jurisdiction. The procedure, which is summary, does not
contemplate a custody hearing on the merits in the
responding jurisdiction.
Limited defenses are available at the
responding state. If the proceeding for return of the
child is commenced in the responding state more than one
year after the wrongful removal or retention, a
demonstration that "the child is now settled in its new
environment" may preclude return of the child. Other
defenses which may be raised to returning the child to the
demanding state are that the party now seeking return of
the child was not actually exercising custodial rights at
the time of the wrongful removal or retention of the
child; that there was consent to the removal or retention;
that return of the child would expose him/her to
physical or psychological harm "or otherwise place the
child in an intolerable situation;" that the child
objects to being returned and is of such age and maturity
that it is appropriate to take account of his views; and
that human rights and fundamental freedom would be
abridged if the return were permitted.
In Blondin v Dubois the Court of
Appeals expanded the factors, which may be considered in
the Agrave
risk of harm defense@.
Marie-Eline, age 7, and Francois, age 2, were the children
of petitioner Felix Blondin and respondent Merlyne Marthe
Dubois. In August, 1997 Dubois removed them from their
home in France and brought them to the United States,
without their father's knowledge or consent. Blondin, a
French national, petitioned the District Court for the
return of his children to France pursuant to the Hague
Convention . After a hearing the District Court found that
a defense had been established under Article 13(b) in that
there was a "grave risk" that return of the children to
France would "expose" them to "physical or psychological
harm or otherwise place them in an intolerable situation,"
and denied the petition.
The District Court found that in the years
that he lived with Dubois, Blondin repeatedly beat her,
often in the presence of the children. He also beat Marie-Eline.
Blondin repeatedly hit Dubois with a belt, spit on her
with their daughter watching, and twisted an electrical
cord around Marie-Eline's neck. The situation became so
intolerable in 1993 that Dubois left Blondin's home with
Marie-Eline and Crispin and lived
in shelters for almost a year. After a reconciliation, the
beatings continued. Blondin beat Dubois even when she was
pregnant. The situation deteriorated to the point again in
1997 when Dubois felt she had no choice but to leave
France altogether. Blondin denied under oath ever having
abused Dubois or his children, but the court was convinced
that he was not telling the truth finding that his
testimony was incredible.
The Second Circuit Court of Appeals
vacated the order and remanded the matter to the District
Court, holding that the evidence supported the District
Court's factual determination but that remand was required
for further consideration of a range of remedies that
might allow both the return of the children to their home
country and their protection from harm, pending a custody
determination by a French court with proper jurisdiction.
It raised the question whether the District Court could
have protected the children from the "grave risk" of harm
that it found, while still honoring the important treaty
commitment to allow custodial determinations to be made if
at all possible by the court of the child's home country.
It held that it is important that a court considering an
exception under Article 13(b) take into account any
ameliorative measures that can reduce whatever risk might
otherwise be associated with a child's repatriation. The
reason for this is because the aim of the Convention is to
ensure the "prompt return" of abducted children.
On remand, the District Court found that
if Dubois and the children returned to France, they would
be eligible for social services, and Dubois would receive
free legal assistance in the pending custody proceedings;
that Blondin would assist her
and the children financially in moving
back to France, and would agree not to attempt to make
contact with them prior to the judicial determination of
custodial rights; and that the French government would not
prosecute Dubois for the abduction or the forgery.
However, the District Court found that any arrangements at
all-would fail to mitigate the grave risk of harm to the
children, because returning to France under any
circumstances would cause them psychological harm. The
Court based this determination on uncontested expert
testimony that the children would suffer from
post-traumatic stress disorder upon repatriation.
On the second appeal to the Court of
Appeals it noted that Dubois originally sought to make out
only the grave risk of harm defense under Article 13(b),
which the District Court considered in Blondin I, and the
Court of Appeals reviewed in Blondin II. Following the
decision in Blondin II, Dubois asked the District Court to
expand its inquiry specifically to take into account
"whether Marie-Eline had become so deeply rooted in the
United States that returning her to France would expose
her to a grave risk of psychological harm,
Aarguing
that the Second Circuit had left this issue open to
consideration on remand.
The District Court noted that ordinarily,
the issue of whether a child is "settled" in a new
environment arises under Article 12 of the Convention,
which applies only if the petitioning parent commences
proceedings more than one year after the abduction. Since
Blondin filed his petition within a year, Article 12 did
not apply in this case. Expressly recognizing this, the
District Court granted Dubois' request and took into
account whether both children were settled in their new
environment as one factor in its "grave risk" analysis
under Article 13(b).
In addition, the District Court considered
Marie-Eline's objections to returning to France, which
ordinarily arises under an unnumbered provision of Article
13, as another factor in the "grave risk" analysis under
Article 13(b).
The Court of Appeals held that the
applicable standard of review in Hague cases is a de novo
review and in cases arising under the Convention, a
District Court's factual determinations are reviewed for
clear error.
The Court of Appeals noted that the
District Court accepted the experts conclusions which, as
the only expert testimony presented on the risk of
psychological harm to the children, stood uncontroverted.
He concluded that Marie-Eline and Francois were
"recovering from the sustained, repeated traumatic state
created in France by their father's physically and
emotionally abusive treatment" and that "if the children
were returned to France with or without their mother and
even if they could avoid being in the same domicile as
their father they would almost certainly suffer a
recurrence of their traumatic stress disorder (i.e.
post-traumatic stress disorder) that would impair their
physical, emotional, intellectual and social development."
Blondin did not present any evidence as to
the psychological impact that a return to France would
have on the children. Reviewing the District Court's
application of Article 13(b) to this factual
determination, the Court of Appeals affirmed its decision
to deny repatriation.
The Court of Appeals concluded that the
District Court properly considered whether the children
were settled in their new environment as one factor in the
Agrave
risk@
analysis under Article 13(b). It noted that to the extent
that Article 12 permits the courts of a party to the
Convention to deny repatriation on this basis, it
effectively allows them to reach the underlying custody
dispute, a matter which is generally outside the scope of
the Convention. It pointed out that it had suggested in
Blondin II that a District Court may consider it as part
of an analysis under Article 13(b) as long as that factor
is not the sole basis for a finding that there is clear
and convincing evidence that a grave risk of harm exists.
Here , the District Court considered the evidence that the
children were settled in their new environment as one
factor in its grave risk analysis, and was careful to
establish the connection between the fact that they were
settled and the grave risk of harm the Court had found a
return to France would create. The District Court
explicitly rejected considering it as a defense under
Article 12 of the Convention.
In declining to order the return of the
children, the District Court also took into account Marie-Eline's
objections to returning to France and explained that
considered her views as only one factor under its Article
13(b) analysis.
The Court of Appeals held that the
unnumbered provision of Article 13 provides a separate
ground for repatriation and that, under this provision, a
court may refuse repatriation solely on the basis of a
considered objection to returning by a sufficiently mature
child. It also held that a court may consider a younger
child's testimony as part of a broader analysis under
Article 13(b), taking into account the child's age and
degree of maturity in considering how much weight to give
its views. If a child's testimony is germane to the
question of whether a grave risk of harm exists upon
repatriation, a court may take it into account. It
concluded that the District Court properly considered
Marie-Eline's views as part of its "grave risk" analysis
under Article 13(b).
Marie-Eline stated that she did not wish
to return to France because she was afraid of her father,
and she described various instances of abuse and its
effects on her, including her father's spitting on and
hitting her mother, at least once with a belt buckle; his
putting something around Marie-Eline's neck and
threatening to kill her; and Marie-Eline's own fear,
nightmares, and inability to eat. On the basis of these
interviews, the District Court found that "Marie-Eline
objects to being returned to France," noting that she
"explicitly stated that she does not want to return to
France because she does not want to be subjected to
further physical and emotional abuse at the hands of her
father."
Blondin questioned whether any
eight-year-old is old enough for its views to be
considered. The Court of Appeals found that this argument
lacked merit because to accept it would have to conclude
that under the Convention, as a matter of law, an
eight-year-old is too young for her views to be taken into
account. It declined to do so, as this would read into the
Convention an age limit that its own framers were
unwilling to articulate as a general rule. It concluded
that the District Court did not clearly err in finding
that Marie-Eline was old enough and mature enough for her
views to be taken into account, and that it properly
considered them as one factor in a broader "grave risk"
analysis under Article 13(b).
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