The U.S. Court of Appeals for the Sixth Circuit has issued a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition. Simcox v. Simcox, File No. 07a0502p.06; decision dated December 28, 2007. The decision speaks to the role that undertakings should play in rulings that concern the defense.
The Sixth Circuit held that Hague cases concerning abuse should be categorized into three broad categories.
The first category is that of cases in which the abuse to the minor is relatively minor. In such cases “it is unlikely that the risk of harm caused by return of the child will rise to the level of a “grave risk” or otherwise place the child in an “intolerable situation” under Article 13b.” The Court held that, “In these cases, undertakings designed to protect the child are largely irrelevant; since the Article 13b threshold has not been met, the court has no discretion to refuse to order return, with or without undertakings.”
The second category is that of cases in which the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. The Court held that in these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the likelihood that a serially abusive petitioner will not be deterred by a foreign court's orders. The Court cited Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005) for the proposition that unless “the rendering court [can] satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser's custody,” the court should refuse to grant the Hague petition.
The third category is that of cases “that fall somewhere in the middle, where the abuse is substantially more than minor, but is less obviously intolerable.” Whether, in these cases, the return of the child would subject it to a “grave risk” of harm or otherwise place it in an “intolerable situation” is “a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.”
The Court held that in this middle category, “undertakings should be adopted only where the court satisfies itself that the parties are likely to obey them.” Thus, undertakings would be particularly inappropriate if the petitioner has a history of ignoring court orders. It stated that, “Where a grave risk of harm has been established, ordering return with feckless undertakings is worse than not ordering it at all.”
The Court found that the case at bar fell into the middle category. Although it was a close question, the mother had met her burden of establishing a grave risk of harm. The nature of abuse was both physical (repeated beatings, hair pulling, ear pulling, and belt-whipping) and psychological (the father's profane outbursts and abuse of the children's mother in their presence). They were not isolated or sporadic incidents. A psychologist had found that all but the youngest child were suffering from some level of post-traumatic stress disorder. Such psychological trauma could be exacerbated if a child is returned to Mexico and comes again into contact with his father. Although the youngest child appears to have largely escaped the physical and psychological injuries suffered by her older siblings, “nothing in the Convention requires that a child must first be traumatized by abuse before the Article 13b exception applies.”
The Court then examined the district court's undertakings. That court had conditioned the return of the children to Mexico on (a) their remaining in the custody of the mother in the family's residence in Mexico until the Mexican Courtheard and determined whether a protective order would be appropriate; and (b) the father having no contact with the mother until the Mexican Court determined access and visitation rights.
The Sixth Circuit found two problems with the undertakings. The first problem was that the court ordered the mother herself, not just the children, to return to Mexico. The mother could defeat the order of return by simply refusing to accompany her children to Mexico. Assuming that the district court could not compel the mother to return to Mexico, the court must provide for a contingency to assure the children's safety and care should she choose to remain in the United States.
The second problem was that “there may be doubts as to the enforceability of these undertakings.” The reason for such doubts was that the district court had already found that the father had exhibited “an arrogance, a need to be in control and a tendency to act out violently.” The Sixth Circuit ruled that “such traits raise questions as to [the father's] willingness to abide by the court's undertakings, as do his threats to have his wife arrested upon her return to Mexico. However, the latter claim may well be mere bravado, based on [the father] claiming a power he does not possess.”
Accordingly, the Court remanded the case to the district court to determine what undertakings, if any, will be sufficient to ensure the safety of the children upon their return to Mexico pending the outcome of custody proceedings.
The Sixth Circuit provided some guidance to the court below by stating that,
- “Any order on remand should be explicit as to the appropriate and efficacious undertakings that will apply should [the mother] decline to accompany her children;” that
- “One possibility may be for [the father] —who, like [the mother], is a U.S. citizen and passport holder— to remain in the United States and surrender his passport for a period of time” and that
- if the district court “determines that no such arrangement is feasible, or that the only way in which the children may be protected from harm is for them to remain in the custody of their mother, then it may be necessary to deny the petition. We reiterate that the burden for establishing the appropriateness and efficacy of any proposed undertakings rests with the petitioner.”