International Family Law News & Analysis

Abducted child's return blocked due to mental-health effects of abductor's groundless, subjective beliefs?

A couple nice quotations from the English Supreme Court opinion in "In the matter of S (a Child)":

"The father’s messages to the mother on 13 January 2011 to “get f***ed, b***h” and “I’ll ... belt ya” were sent when, in fairness to him, he may not have been fully in control of his faculties."

….

"Nor, for that matter, do we agree with the suggestion … that the judgment in In re E had been no more than a “restatement” of the law of the Convention: it was primarily an exercise in the removal from it of disfiguring excrescence."

 

A much more serious turn of this case, with a great potential effect on "grave risk" case law, is this:

18.             [Trial judge] Charles J was understandably critical of [psychologist] Ms MacKenzie for stating as facts the allegations about the father which the mother had made to her and indeed for venturing even a provisional clinical opinion about him. But Ms MacKenzie’s professional conclusions about the mother, born of extensive attendance upon her, remained of great relevance. She wrote that, from childhood, the mother had had an underlying and chronic anxiety condition; that she was subject to panic attacks; that she had seen the mother unravel; that the mother’s affect of fear overwhelmed her; that fear of the father’s mental instability, added to the stress of isolation in Australia from her family, might well undermine the mother’s capacity to hold herself together; that her likely clinical depression could diminish her secure attachment to W; and that, in that (so Ms MacKenzie said) the father was capable of being impulsive and dangerous towards her, the mother would be in a constant state of hypervigilance, this being the very condition which would trigger an anxiety state.  Ms MacKenzie wrote: “Should [the mother] be forced to return to Australia, I am concerned her anxiety will become crippling.”

 

So, partly because of stuff the mother's mother and father did during her childhood, the mother needs to be in another hemisphere in order to not have crippling hypervigilance and anxiety attacks that will be very bad for the child.

What's so dangerous about this is that every step of it is logical and defensible, and I can think of many cases that we know first-hand and second-hand where there are facts that would fit into that theory. And it raises a defense to return of the child that would affect all kinds of cases. And of course it makes one wonder about the cases where the mother reacts that way based on facts that are either unproveable or even widely believed to be false. The opinion address that concern:

27.              In In re E this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child’s situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court’s clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, “the source of it is irrelevant: eg, where a mother’s subjective perception of events lead to a mental illness which could have intolerable consequences for the child”. Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found “no reason to doubt that the risk to the mother’s mental health, whether it be the result of objective reality or of the mother’s subjective perception of reality, or a combination of the two, is very real”.

The present case, the court points out, is NOT the pure case posed in the title of this post: This is a case with some pretty good evidence of abuse and danger. But it still raises and explores the troubling question of whether children can be permanently taken from their home countries based only on the abductor's subjective perceptions and resulting mental-health problems.

But most such cases, i.e. cases of a "grave risk" defense based principally on the abductor's mental health problems and anxieties with no grounding in fact, would not actually present such a difficult dilemma, because the solution would in fact be simple — return the child to the home country in the care of the left-behind parent, not the abductor. That way, the abductor will have her anxieties but her opportunity to harm the child will be limited, and the family courts of the home country will then do what they can to repair the damage and figure out the "least-worst" place for the children to be.

On the other hand, if a parent really has been abusing a spouse or a child, then that parent may have suffer the consequences of all the damage he has caused, including consequences flowing from other parent's sometimes less-than-perfect reactions and, in some cases, fragile mental state.

(For a further, thorough discussion of this opinion and how it fits into related English and European case law, see the blog post by New York lawyer Jeremy Morley.)

9% of UK households report violence (misquoted as 12% & 60%)

A report by the organization "4Children",  titled "The Enemy Within",  says that in a study of 1,018 UK parents, 9% of families "had had physical fights during family conflict, one third of whom had been injured", 2% reported unwelcome sexual contact during fights, and 9% had had posessions destroyed. 8% reported threatening or intimidating behavior. No telling how many of these were the same 9% and how many were in only partly overlapping groups. It also said 53% had experienced serious or frequent conflict, which "involved arguments, shouting and insults.

 The study emphasizes that this includes violence and other conflict by children; including child-child and child-parent conflict and violence.

The study's figures were modestly inflated in a news story that cited it as its sole source but said, "60 per cent of respondents had experienced serious or frequent conflict." and "Physical violence was mentioned by 12 per cent."- "Sixty per cent of families report serious conflict in the home" By Joe Lepper Monday, 26 March 2012 in

This was instantly repackaged and tweeted around the world as "Sixty per cent of families report serious violence in the home" by the "Family Lore News" blog, which is ordinarily a very valuable resource for family law news in the UK and worldwide. [Update one day later: Family Lore News, at news.familylorefocus.com, still has the erroneous headline, but another Family Lore blog by the same blogger, at www.familylore.co.uk, has a story that reports the study accurately.]

Battered immigrants fear deportation, but law is on their side

"For battered immigrant women, fear of deportation becomes abusers’ weapon, but two laws can overcome that" - By Pamela Constable, Washington Post

Afghan rape victim jailed for adultery, pardoned & freed by Karzai

via Global Justice Initiative:

Afghan Woman Is Pardoned and Freed After Rape Report Put Her in Prison for Adultery

ABA Journal Dec 14, 2011 - By Debra Cassens Weiss

 

Va. upholds approval of child relocation to Japan, child compares family to "screaming monkeys"

Fairfax, Va. lawyer Olivier Long's essay on the recent Gudino case, and the opinion itself, provide a fascinating look into how American courts decide custody cases, and review them on appeal. These loud, violent, mentally disturbed parents faced off in court and the father came off looking better. The best of many choice quotations is probably one from one of the children: "whereas she felt like she lived with 18 screaming monkeys at her mother’s house, at father’s 'we are just three screaming monkeys.'”

Honor Killings, Forced Marriage Happen Here Too

Marry—or Else:

Forced weddings and ‘honor’ killings aren’t just a developing-world issue. New research shows how it happens in England and the United States.

Newsweek via The Daily Beast  9/18/11

Implementing abduction treaty in Japan no piece of cake - will violence issues devour it?

Solving parental child abduction problem no piece of cake | The Japan Times Online. A very thoughtful and insightful article from Prof. Colin P. A. Jones of Doshisha University Law School.

One issue he discusses is domestic violence claims in Hague Convention cases. But those have not even been raised as an issue in 99% of the Hague Convention cases I have handled or know of.  Second, the Convention already has exceptions for situations where return would mean a grave risk of physical or psychological harm to the child. Case law varies on whether this exception applies to cases of spousal abuse. But even when there are abuse allegations, the Convention lets the court  send the child back to the home country with the abductor instead of the petitioner.  So it is a doubly rare case in which return to the home country, by itself, would endanger the child or the abducting parent.

Philippines: bill to allow annulments for adultery, desertion or violence

The Philippine Star reports that Filipino Rep. Neri Colmenares filed House Bill 3952, titled “An Act Recognizing Spousal Violence, Infidelity and Abandonment as Presumptive Psychological Incapacity Constituting a Ground for the Annulment of Marriage." He said the bill is “intended to make Article 36 of the Family Code, which allows the annulment of marriage on the ground of psychological incapacity, accessible to the poor.”

The bill essentially builds on the Catholic tradition of annulment law to provide the equivalent of fault-based divorce. But by including "abandonment" as a ground, it also essentially allows divorce in cases of mutual consent — if one person chooses to leave, the other has the choice to obtain an annulment.

German judge says Koran justifies wife-beating by Moroccan living in Germany

Justifying Marital Violence: A German Judge Cites Koran in Divorce Case - SPIEGEL ONLINE