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In Blondin v Dubois 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. 19 F. Supp. 2d 123, 124-26 (S.D.N.Y. 1998) ("Blondin I")
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, 189 F3d 240 (Ct App 2nd Cir 1999)
("Blondin II") 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 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. 78 F. Supp. 2d
283, 288-93 (S.D.N.Y. 2000) ("Blondin III") 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 __ F2d __, Decided Jan. 4, 2001 QDS:04119706 ("Blondin IV") 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, "arguing 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 "grave
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). |
