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In Baran v Beaty,
526 F.3d 1340 (11th Cir. (Ala.))
from October 2001 through August 2006, Gareth Baran, an Australian national, lived with Susan Beaty, a United States
citizen, at their home in Australia. On March 11, 2006, Beaty gave birth
to their son, Samuel, who was the subject of this petition. In October
2001, Baran sustained debilitating injuries in an automobile accident,
rendering him unable to work or care for himself for some time
thereafter. Beaty, a registered nurse, tended Baran and worked to
support the household financially. After his accident, Baran became
depressed and began drinking heavily, becoming intoxicated on an almost daily basis. It was not uncommon for
Baran to drive while intoxicated or to pass out after an allday drinking
binge. When drunk, Baran was violent and unstable. He berated Beaty and
intimidated her physically. On occasion, he was physically abusive
towards her. On one such occasion Baran slapped Beaty so hard she fell
to the ground. Another time, he pushed her in the presence of his
daughter, frightening and upsetting the child. On a separate occasion,
while Beaty was pregnant with Samuel, Baran pinned her between a door
and the wall, pushing on the door in a manner that applied intense
pressure to her abdomen. On other occasions, Baran hurled furniture at
Beaty and smashed the door of the couple's microwave oven in a fit of
anger. After Samuel was born, Baran's alcohol abuse and anger
intensified. Baran began drinking all day every day, and participated
only minimally in Samuel's care and supervision. Although there were
times when Baran would assist in caring for Samuel, such occasions were
isolated and infrequent. Baran did not temper his abusive conduct when
Samuel was present. One night when Samuel was less than a week old,
Baran became intoxicated and decided he wanted to show his drinking
companions "how big Sam's balls were." He took Samuel, undressed him,
and carried him balanced on one hand into the night air before stumbling
into a table, sending glassware flying as he did so.
On July 13, 2006, Baran subjected Beaty to a
six-hour, expletive-laden barrage of verbal abuse and threats while she
held Samuel in her arms. On that occasion, Baran screamed to Beaty he
hated her, she was never going to see Samuel or her family again, and he
was going to "bash her face in." To punctuate the threat, Baran
repeatedly swung a portable telephone at her head, causing Beaty to fear
for her life. All the while, Beaty held Samuel and attempted to use her
body to shield him. Samuel remained very quiet, but he cried out when
Baran tore him from Beaty's arms and deposited him on a couch
unsupervised. Despite these incidents of endangerment, there was no
evidence Baran had ever beaten or otherwise physically harmed Samuel.
At various times Baran told Beaty in pointed
terms she had "tricked" and "trapped" him with the pregnancy, he did not
want another child, Beaty should not blame him if anything happened to
Samuel, and she should have had an abortion. Baran informed Beaty when
the child grew older, he would tell Samuel he did not want him. On at
least two occasions, in the context of disagreements concerning his
family or financial matters, Baran told Beaty to return to the United
States, admonishing her to take Samuel with her because Baran wanted his
freedom. Based on this course of conduct, Beaty came to fear for her
life and Samuel's life if they remained in Australia with Baran. Beaty
felt isolated and believed none of Baran's family could provide any kind
of support or intervention necessary to protect her and Samuel from
Baran's explosive outbursts. Beaty never went to the Australian police
or judicial system for help because she firmly believed those
institutions would be unable to protect her. She never sought legal
custody of Samuel from any Australian tribunal because she believed no
one in Australia was capable of helping or protecting her or Samuel.
On August 20 Baran came home from an errand to
find a note in Beaty's handwriting reading, "Hey Babe, Went for a walk
be back later. Susie & Boo Boo." ("Boo Boo" was Beaty's pet name for
Samuel.) Beaty and Samuel went to the United States. Since arriving in
the United States, Beaty and Samuel lived with Beaty's parents in
Alabama. Beaty was adamant that she would never return to Australia
under any circumstances because she feared Baran would harm her if she
did. Baran has had no face-to-face contact with Beaty or Samuel since
they left Australia, although he and Beaty had numerous telephone
conversations. On September 21, 2006, Baran submitted to the Australian
Central Authority an "Application for the Return of a Child," pursuant
to the Hague Convention. The application stated Beaty had removed Samuel
to the United States without Baran's consent, and requested that Samuel
be returned immediately. Under the heading "proposed arrangements for
return of the child," the application read: The child should be returned
forthwith to me at the family home in Altona, Victoria, Australia. I
would like the mother to return with the child. As I am unemployed, I am
unable to cover the costs associated with their travel. I am willing to
meet the child at the Melbourne Airport upon arrival. If the [mother]
does not return I am able to look after the said child alone. In his
petition, Baran did not propose any alternative arrangements for
Samuel's care.
On February 16, 2007, Baran filed a petition in
federal district court, seeking Samuel's return. The court held an
evidentiary hearing March 22, 2007, at which Beaty testified in person.
Baran appeared by counsel. At the hearing, Beaty introduced as evidence
a May 1997 affidavit Baran's ex-wife had filed in Australian court
during custody proceedings regarding Baran's older children. In the
affidavit, the ex-wife averred Baran had slapped her, thrown her against
the wall, kicked her in the abdomen while wearing heavy work boots, and
thrown furniture about the home during their relationship. Beaty also
introduced transcripts of phone conversations between herself and Baran
she had secretly recorded. Baran did not provide any testimony at the
hearing, relying solely on the affidavit attached to his original
petition, in which he denied having physically harmed Beaty during his
relationship with her.
In an opinion dated March 28, 2007, the
district court found although Beaty had wrongfully removed Samuel from
the country without Baran's consent, Samuel would face a grave risk of
harm were he to be returned to Australia. Noting Baran had not suggested
conditions of return that would reduce or eliminate the risks Samuel
faced on return, the court denied the petition.
The Eleventh Circuit Court of Appeals affirmed.
Beaty contended on appeal that Samuel would face a grave risk of harm
were he to be returned to Australia because of Baran's violence and
drunkenness. Baran challenged the district court's conclusion,
contending that his drunkenness and temper were not the sort of grave
risks to which Article 13(b) is directed. He contended that to establish
grave risk, Beaty was required to show Samuel had been mistreated, not
that she herself had been verbally or physically abused. Although there
was no evidence to suggest Baran intentionally harmed Samuel, the
district court was presented with evidence Baran had threatened to do so
both before and after Samuel's birth. Moreover, the court heard
testimony that Baran had placed Samuel in harm's way by abusing Beaty
while she was pregnant, verbally berating Beaty for hours on end while
she held Samuel in her arms, and handling newborn Samuel irresponsibly
while drunk. To deny return, the district court was not required to find
Samuel had previously been physically or psychologically harmed; it was
required to find returning him to Australia would expose him to a
present grave risk of physical or psychological harm, or otherwise place
him in an intolerable situation. Convention, art. 13(b). The evidence
presented was sufficient to support the court's conclusion that Baran's
violent temper and abuse of alcohol would expose Samuel to a grave risk
of harm were he to be returned to Australia.
Baran contended the grave risk analysis does
not end when a court concludes the conditions to which the child will be
returned pose a grave risk of harm. He argued that before denying a
petition for return, the court must first determine whether the child's
country of habitual residence is capable of protecting the child from
the identified risk. The Court noted that neither the Convention nor
ICARA specifies the manner in which a reviewing court must assess
whether a grave risk of harm to the child exists and whether that risk
alone justifies denying a petition for return. Nevertheless, before
denying a petition for return, some federal courts have required
respondents to present evidence the child's country of habitual
residence is not equipped to protect the child upon return. This
proposed requirement" appears to have originated with the Sixth
Circuit's opinion in Friedrich v Friedrich, 78 F.3d at 1069. The Sixth
Circuit's formulation has been repeated by courts throughout the
country, and has been accepted by many lower courts as a governing
principle of law. Not all courts, however, have accepted the Sixth
Circuit's interpretation of the grave risk analysis. Relying on the
plain language of Article 13(b), many courts hold when a respondent
proves returning a child would expose him to a grave risk of physical or
psychological harm, the reviewing court has discretion to deny the
petition for return outright. That position is consistent with the
Convention's official commentary and with directives from the United
States State Department. (Eisa Prez-Vera, Explanatory Report: Hague
Conference on Private International Law, in 3 Actes et Documents de la
Quatorzieme Session 426 (1980) ("Prez-Vera Report"), P 29; Hague Int'l
Child Abduction Convention: Text and Legal Analysis, 51 Fed.Reg. at
10510.) The State Department's pronouncements, while not binding, are
entitled to deference. Although a court is not barred from considering
evidence that a home country can protect an at-risk child, neither the
Convention nor ICARA require it to do so. Although the Convention's goal
is to quickly return abducted children to their countries of habitual
residence, the text of the Convention and the commentaries on it place a
higher premium on children's safety than on their return. Consequently,
the Eleventh Circuit declined to impose on a responding parent a duty to
prove that her child's country of habitual residence is unable or
unwilling to ameliorate the grave risk of harm which would otherwise
accompany the child's return. The court pointed out in a footnote that
its rule does not prohibit courts from considering, as part of the
discretionary decision to deny return under Article 13(b), whether the
child's country of habitual residence may be able to protect the child
from harm. It simply held that the responding parent may meet her burden
of proving grave risk of harm without adducing evidence regarding the
home country's ability or willingness to offer the child protection.
The Court noted that although the practice is
far from uniform, some courts hold that once a respondent has shown a
child is at grave risk of harm, the burden shifts to the petitioner to
provide evidence that specific undertakings will alleviate the
identified risk. (See, e.g., Danaipour v. McLarey, 286 F.3d 1, 15 (1st
Cir.2002) (holding "proponent of the undertaking bore the burden of
showing" country of habitual residence could provide adequate evaluation
of alleged abuse); see also Feder v. Evans-Feder, 63 F.3d 217, 226 (3d
Cir.1995). When the petitioner makes such a showing, the district court
must factor the proposed undertakings into its discretionary decision to
grant or deny return. The State Department has recommended any
undertakings ordered pursuant to the Hague Convention be "limited in
scope and further the Convention's goal of ensuring the prompt return of
the child to the jurisdiction of habitual residence, so that the
jurisdiction can resolve the custody dispute." (Danaipour, 286 F.3d at
22 (citing Letter from Catherine W. Brown, Assistant Legal Adviser for
Consular Affairs, United States Dep't of State, to Michael Nicholls,
Lord Chancellor's Dep't, Child Abduction Unit, United Kingdom (Aug. 10,
1995), available at http://hiltonhouse.com/articles/Undertaking_Rpt.txt,
last visited May 2, 2008).
The State Department has explained
"[u]ndertakings that do more than this would appear questionable under
the Convention, particularly when they address in great detail issues of
custody, visitation, and maintenance." Although the State Department
does not oppose the use of undertakings in all circumstances, it has
cautioned:
When grave risk of harm to a child exists as a
result of domestic abuse, however, courts have been increasingly wary of
ordering undertakings to safeguard the child. (Simcox, 511 F.3d at 606;
Danaipour, 286 F.3d at 26; Van De Sande, 431 F.3d at 571-72 (quoting
Danaipour, 286 F.3d at 25).
The Eleventh Circuit held that Baran bore the
burden of proposing undertakings that would ameliorate the grave risk of
harm to which Samuel would be exposed on return to Australia, yet he
adduced no evidence on the question. Under the circumstances, the trial
court reasonably concluded it could not guarantee Samuel's safety should
it order him to be returned to Australia for further custody
proceedings.
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