In Danipour v. McLarey, 286 F.3d 1 (1st Cir.,
2002) the father sought return of his eight and three year-old daughters
who were removed from Sweden by the mother, in alleged violation of the
Hague Convention . The District Court held that the children would be
returned to Sweden, where they would reside with the mother pending a
full forensic investigation of claims that the father sexually abused
the children, and the mother appealed. It reviewed a district court's
factual findings for clear error, and reviews its application of the
Hague Convention to the facts de novo.
The court held that for purposes of
the grave risk
defense, A grave risk
means more than a serious risk.
Even if the conditions for a grave risk defense are met,
as would permit the court to not order the return of a child to the
country from which the child was wrongfully taken, the Hague Convention
gives the court discretion to return the child to the country of
habitual residence. The Department of State's interpretation of the
Hague Convention is entitled to great weight. Sexual abuse, including
abuse other than rape, particularly when such abuse occurs at the hand
of a parent, is an "intolerable situation" for purpose of the grave risk
defense. Penetration is not a prerequisite to a finding of sexual abuse
posing a grave risk of harm to a child. A finding that a child is
currently not experiencing severe psychological effects of sexual abuse
is not necessarily dispositive.
The district court's determination that the children
could be returned to the country from which they were wrongfully taken
by mother, who alleged that children should not be returned pursuant to
the grave risk defense, without first determining whether the children
had been sexually abused was error; the court should have ordered a
forensic evaluation to determine whether sexual abuse occurred and then
determine whether the children could be returned to the locale of the
alleged abuse. The court erred by ruling that a forensic sexual abuse
evaluation be done in Sweden. There remained the question of whether the
effect of the return on the children would undermine the validity of any
examination by making it more likely that the children would not talk to
those charged with determining whether or not abuse had occurred. The
district court did not have authority to order a forensic sexual abuse
evaluation to be done in Sweden or to order the Swedish courts to
adjudicate the implications of the evaluation for the custody dispute.
Thus the undertakings that required such actions were invalid, because
such orders offended notions of international comity and were inadequate
to protect the children. Under the Hague Convention , court-ordered
undertakings that will allegedly protect a child from grave risk for
only a very limited time are insufficient to defeat the grave risk
defense.
