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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).