ICARA
Case Analysis
Dec.
14, 2005
The
question the decision raises is whether a petition for return under ICARA should
always be denied if the abducting parent makes a clear and convincing showing
that the other parent has sexually abused or physically abused the child. A strong
case can be made that such a petition should never be granted.
The
court held that summary judgment was improperly granted. The court found that,
if the allegations are true, then returning the children to the father would pose
a grave risk to the children. This is self-evident, but does not answer the question
whether return to the jurisdiction would pose a grave risk.
The
court notes, “Maybe we should be asking not what the risk to the children
might be in a jurisdiction that had no laws for the protection of children, but
merely whether the jurisdiction of residence has adequate laws; Belgium, we can
assume, does.”
However,
the signatories, at least at the time they entered the Convention, are all states
where the rule of law exists, and which have laws to protect children.
Nevertheless,
stable countries can become unstable. The states of the former Yugoslav Republic
are signatories. Certainly, during the war there in the 1990s, any court considering
a petition for return to that area could only reasonably conclude that returning
the children would pose a grave risk to them. Today, the same would be true of
Zimbabwe, which is also a signatory.
It
could be that this is all that the Convention contemplates — that children
not be returned to states that have become dangerous since the state joined the
convention.
However,
no circuit has adopted such an interpretation.
Consider
the dicta of the Sixth Circuit in Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th
Cir.1996), which other courts have adopted, but which the Seventh Circuit rejects:
“We
believe that a grave risk of harm for the purposes of the Convention can exist
in only two situations. First, there is a grave risk of harm when return of the
child puts the child in imminent danger prior to the resolution of the custody
dispute — e.g., returning the child to a zone of war, famine, or disease.
Second, there is a grave risk of harm in cases of serious abuse or neglect, or
extraordinary emotional dependence, when the court in the country of habitual
residence, for whatever reason, may be incapable or unwilling to give the child
adequate protection (emphasis in original).”
Zimbabwe
or the states of former Yugoslav Republic in the 1990s would fall into the first
situation.
A
good example of the second situation is found in Danaipour v. McLarey, 286 F.3d
1 (1st Cir. 2002). The court there reversed a district court order returning two
daughters who were removed from Sweden to the United States.
In
Danaipour, there was evidence that Swedish authorities are shockingly indifferent
to allegations of sexual abuse by fathers, generally, and were in that case, specifically.
Danaipour, 286 F.3d at 6-7. If the requesting state is unwilling to protect children
from abuse, this would be grounds for denying the petition in any U.S. court.
The
Seventh Circuit, however, goes further, making it easier for the abducting parent
to prevent return. In the case at bar, the court suggests that the mother declined
to cooperate with police investigation by having injuries verified by a doctor;
the court assumes that Belgian courts could protect the children.
Thus,
had the court adopted the Sixth Circuit’s dicta, it would have held that
there has been no showing that Belgian authorities would be unwilling to protect
the children, and affirmed the order that the children be returned to that jurisdiction.
Instead,
the court held, “To give a father custody of children who are at great risk
of harm from him, on the ground that they will be protected by the police of the
father’s country, would be to act on an unrealistic premise. The rendering
court must 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 could have written that the rendering court must satisfy itself that the
children will in fact be protected if returned to “the jurisdiction of the
state of habitual residence.” But it did not. If clear and convincing evidence
of abuse by the father is shown, it necessarily follows that the children cannot
be protected if returned to “their abuser’s custody.”
Effectively,
the court has decreed that, if the abducting parent can show past physical abuse
of the children, the district court should deny a petition by the abuser, regardless
of the state of the law in the other state. As the court noted, “most abuse
of children by a parent goes undetected.” Thus, no court can ever satisfy
itself that the children will be protected if returned.
The
Seventh Circuit has also adopted a more skeptical attitude than other jurisdictions
to the theory that requiring various “undertakings,” as a condition
to return, can protect children. The court cited with approval a passage by the
First Circuit in Danaipour that such undertakings are inappropriate in cases of
physical harm from the parent.
When addressing
the issue of “undertakings,” attorneys fighting a petition for return
should also be familiar with the Danaipour court’s conclusion that undertakings
are not themselves binding on foreign courts. Danaipour, 286 F.3d at 23. The court
in Danaipour noted instances where American courts have refused to enforce undertakings
entered by foreign courts. Id.
Theoretically,
a court could always order the children be returned, but with the condition that
they reside with the mother pending the custody dispute, and that the father have
no visitation rights, on the theory that the jurisdiction where the abuse occurred
is the proper forum, and that the children will be protected pending resolution
of the custody issue.
Because
foreign courts are not bound by such an order, however, any attorney representing
an abducting mother should argue that, even if a court were to issue such an order,
it is insufficient to guarantee that the children will be protected, citing Danaipour,
and the Seventh Circuit’s citation to that passage.
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David Ziemer
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David
Ziemer can be reached by email.
