International Family Law News & Analysis

US cuts way back on asylum for domestic violence, gang violence

Matter of A-B-, Respondent

Decided by Attorney General June 11, 2018

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

Court orders Hague return in face of grossly grave risk, but conditioned on major "undertakings" to disregard custody order

A mother who exposed the child to her long and hard drug use, her physical abuse of the father, boyfriends' physical abuse of her, and boyfriends who had been charged with molesting their own children and ordered to have no contact with them, nonetheless got the child returned from Virginia to Ontario under the Hague Convention, conditioned on agreeing to, and following through with, "undertakings" to (1) have a consent order that gave her joint custody vacated, thus returning to the previous order that gave the father physical custody, and (2) get criminal charges and investigations against the abductor dropped.

The couple had a long history of litigation, and other involvement with courts and social services, in Ontario, and the Virginia federal court noted that those courts and agencies were the proper and competent place for all that to continue.

The abductor also apparently raised issues of habitual residence, breach and exercise of custody rights, and acquiescence, but these were easily disposed of and should have been obvious in the first place.

Wertz v. Wertz, 2018 WL 1575830 (W.D. Virginia, 2018)

Russian appeals court totally flouts Hague Convention, lets abductor create "grave risk" by refusing to return with 3-year-old

An appeals court for the city of Saint Petersburg held in Thompson v. Thompson (12/21/16) that

return would expose the child to a grave risk of harm within the meaning of Art. 13(1)(b) because a child of the age of three needs to be cared for by her mother. The Court relied on Principle 6 of the UN Declaration on the Rights of the Child of 20 November 1959, which states that "a child of tender years" should not be separated from her mother other than in exceptional circumstances, and on the fact that the mother did not intend to return to Spain.

The Court added that since the minor was now settled in the Russian Federation, her retention there was not unlawful. [Even though the Hague case was filed only four months after the abduction.]

Furthermore, the Court referred to Art. 65 of the Family Code of the Russian Federation, which requires that parents exercise their rights in a way which is consistent with the best interests of the child. In its written decision, no reference was made to the foreign case law presented by the father, but during the hearing, one of the judges commented that the arguments based on the case law of the ECtHR were not relevant because the Russian Federation does not have a precedent-based legal system.

The father even offered "undertakings to provide separate accommodation and support for the mother and the child in Spain".

Stuff like this may be why the U.S. has not brought the Convention into force between itself and Russia.

The father has appealed to the European Court of Human Rights.

From English synopsis on Incadat database

Custody rights exercised if no "clear and unequivocal abandonment"; Grave risk from extreme psychological abuse; return ordered subject to "undertakings"

A Maryland federal court says that even though an abducting mother had recently gotten temporary custody in a pending case in Peru, the father had custody rights and was exercising them. After the father kept the children after a visitation, the mother had gotten an order from a criminal court, ordering the father to stop preventing the mother from exercising her parental authority; she also filed a custody case and got a temporary order preserving the status quo, after getting the children back from the father. She then left Peru for the U.S. In the Hague case, she argued that the Peruvian court orders extinguished the father's rights of custody, and that he was not exercising custody rights. 

That may not have reflected Peruvian law, though, because after she left, the father went back to court and got custody. The U.S. court said that the father had had custody rights at the time of the abduction, as the status-quo order "only effectively granted her temporary custody and that it was not a final determination of parental authority. The father furthermore had the right to require the mother to secure his consent to their children's removal under Peruvian law, which was an additional basis for his custody rights under the Convention."

But the U.S. court found grave risk of harm:

The Court noted that there was little evidence of physical abuse of the mother or children, but that the level of psychological abuse went "beyond what is typically seen in grave risk cases". It was signifcant that the father's verbal abuse of the mother had often been directed against the children, and that they had frequently been forced to verbally abuse and make sexually explicit insults against her.

The Court highlighted that the father had frequently threatened to kill the mother, noting that threats to kill a spouse, child or third parties are significant factors when making a grave risk determination. The risk, on the facts, was compounded by the credibility of the father's threats (including his ownership of a gun), his history of psychological problems and substance abuse, and the fact that he regularly told the children of his plans to kill their mother. The father had also threatened to kill the children "if things go wrong".

It was noted that both children had been diagnosed with separation anxiety disorder, and that one of them had and the other was likely to have post traumatic stress disorder and presistent depressive disorder. Taking all the facts together, the Court concluded that the magnitude of the psychological abuse in the case was unique, despite there being little to no evidence of physical abuse.

However, this would NOT pose a grave risk if the children would be with the mother when returned to Peru. So the court ordered return, but only "if the father were to arrange for the criminal charges or investigation against the mother dismissed or closed, and to have the temporary custody order in his favour vacated (in order for the underlying temporary custody order in favour of the mother to effectively be reinstated)."

Sabogal v. Velarde, 106 F.Supp.3d 689 (2015)

From synopsis on Incadat database

Return refused for mature-child objection with sibling bootstrapping, grave risk from spousal violence, local conditions

A Dutch appeals court held on Feb. 14, 2018:

In cases in which the children's objections go farther than expressing a mere preference not to return, and in which the children's testimony is consistent and there is evidence of severe insecurity, instability and uncertainty in the environment to which they are to be returned, return may be refused under Art. 13(2) of the 1980 Hague Child Abduction Convention, provided the children have attained the appropriate age and degree of maturity - Ordering the return of only some of the children will result in separation, which could place the returned children in an intolerable situation.

 Return may be refused under Art. 13(1)(b) of the Convention for all children where there is a history of repeated domestic violence, intervention of the courts and social workers, and where the children have suffered from frequent changes of residence and school; and where the care provided in the requested State is restoring continuity to their lives and enabling them to process their trauma, such that it is in their best interests to remain there.

From English synopsis on Incadat database

Case Name: [father] tegen [mother]

Hof Den Haag 14 februari 2018, ECLI:NL:GHDHA:2018:296

Gerechtshof Den Haag [Appellate Court]

 

Singapore shows how wrong "undertakings" are in its first Hague Convention child abduction case

- Donna Goddard at The International Academy of Matrimonial Lawyers reports.

In this case the mother kept the child in her native Singapore after a holiday visit to her family. She complained that the husband and his parents, who the couple lived with in Germany, had been psychologically abusive to her. She had a psychlogist who claimed that the child's only feelings of security were from having his mother physically present, and therefore, being in Germany was impossible for the mother and being in Germany without the mother would be psychologically harmful for the child. The psychologist based this on observing the mother and child, not the father. The psychologist also added, after the trial court decision, that the mother was depressed, could not deal with Germany, and might kill herself there. However, she refused to take antidepressants because she chose to breastfeed her second child and she worried that they might harm that child. There was also some violence in the marriage, in which it was impossible to determine which parent was the aggressor, and the mother's reactions to it were "inconsistent."

The trial court ordered the child returned to Germany and the intermediate appeal court, after a year and a half, agreed. Neither court was very impressed with the mother's claims. However, the intermediate appeal court required the father to give an "Undertaking" that the child could visit with the mother every day while the mother was in Germany.

Singapore's highest court likewise ordered the child returned, after appointing its own mental health expert whose views differed radically from the mother's expert. It imposed "Undertakings" on both parties, ordering the mother to get psychiatric treatment in both countries and to cooperate with the father's "undertakings". It ordered the father to rent a home in Germany for the mother and children to live in, to pay a periodic amount of spousal and child support, to pay all her legal, medical, and psychiatric expenses in Germany, and to ask a German court to make all of this a binding German court order.

Essentially, the court did the right thing in the Hague case, but only on condition that the abduction victim give the abduction country complete power over many of the issues in the divorce, power which properly belonged to the country where the couple had lived, and that those issues be decided in favor of the abductor. This ensures that child abduction is still very rewarding for the abductor, and completely frustrates the Convention's purpose of having child custody disputes decided in the child's home country.

Courts in the UK and Commonwealth countries frequently impose these "undertakings" in Hague cases, and there is much criticism of the practice as going beyond what the Convention authorizes, and putting conditions on legal relief that is supposed to be unconditional and a matter of right. However, those "undertakings" are generally temporary arrangements, not final decisions on custody and economic issues.

The Court carefully reconsidered, and discusses some of the best arguments worldwide that have made the above points. The opinion is an encyclopedic collection of the best things written on the subject. But ultimately it reaffirmed its decision to impose the extensive undertakings, emphasizing that they ARE temporary, they impose substantive duties on BOTH parties, and that they are only for extreme cases where a risk of psychological harm to the child is alleged. (The flaw in that last argument is that that claim is made in a great many cases, and most cases are like this one where the claim is pretty obviously insubstantial.)

BDU v. BDT, [2014] SGCA 12

Newborn "returned" to parents' country under Hague Convention, "unclean hands" irrelevant

An Illinois federal court "returned" a newborn to a country he had never been to, but where his parents undisputedly lived when he was born, in Uzoh v. Uzoh (N.D. Ill. 5/2/12 & 5/3/12). It said the parents' joint actions and intent were that the boy would be born in the U.S. to gain citizenship, but would reside in the family's home in England. 

The court also rejected a request to bar the petitioner from seeking any relief because he had "unclean hands", i.e., he had done something wrong himself. While there is a traditional rule in "equity" cases that someone who asks a court for relief must have "clean hands", there is no such rule in the Hague Convention:

"it is not appropriate to consider the details of the parties' messy domestic disputes beyond their relevance to those defenses explicitly provided by the Hague Convention".

Personally, I have long been bothered by attempts to raise "unclean hands" defenses for another reason, too: They are usually about things done in another country, the evidence about them is not convenient to collect in a Hague case in the country the child was taken to, and since the treaty does not make them relevant, the petitioner and attorney should not have to take the time and expense of preparing to defend against every possible allegation about the history of the marriage or, in many cases, the many years since the separation and divorce.

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 to 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.)

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.

Czech court reverses autistic boy's return to US

Czech Republic Rules Against Return of Autistic Boy to US in Part Because of His So-Called Mental Illness.

This Czech newspaper article's tone is disturbing: It sounds like the most of the sources the reporter talked to do not take the Hague Convention seriously.

Czech news article: Czech woman need not return ill son to father in USA — court.

Czech woman need not return ill son to father in USA -- court

http://www.ceskenoviny.cz/
04.04.2007

Brno- Czech woman Eva Macready need not return her mentally ill son Aiden Thomas, whom she brought to the Czech Republic as a little baby, to his father in the USA, and the boy can stay in his mother's care, the Czech Supreme Court has ruled, its spokesman Petr Knoetig confirmed to CTK today.