The Role of the Mental Health Professional in Assessing Grave Risk of Harm Under the Hague Convention on the Civil Aspects of Child Abduction

[Source: Journal of Child Custoday]

Christopher C. Melcher, top family law attorney, authored the Role of the Mental Health Professional in Assessing Grave Risk of Harm Under the Hague Convention on the Civil Aspects of Child Abduction in the Jornal of Child Custody.

Published online: 07 Dec 2013.

To cite this article: Christopher C. Melcher (2013) The Role of the Mental Health Professional in Assessing Grave Risk of Harm Under the Hague Convention on the Civil Aspects of Child Abduction, Journal of Child Custody, 10:3·4, 236-251, DOl: 10.1080/15379418.2013.833453

To link to this article: http:/ldx.doi.org/10.1080/15379418.2013.833453

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journal of Child Custody, 10:236-251, 2013

Copyright © Taylor & Francis Group, LLC

ISSN: 1537-9418 print/1537-940X online

DOl: 10.1080/15379418.2013.833453

 

By international treaty between signatory countries, children under the age of 16 who have been wrongfully removed or retained

from their country of habitual residence are to be returned immediately, unless the return of the child would pose a “grave risk” of

harm to the child. Mental health professionals have been called upon by courts to render opinions on whether a grave risk is present,

but this is ultimately a legal question for the court to decide. Experts should not state an opinion whether facts constitute a

“grave risk.” This article discusses the grave risk standard in detail, so mental health professionals understand the legal framework

and the proper areas of inquiry for expert testimony in these cases.

KEYWORDS: Hague Convention, grave risk of harm, role of expert

 

INTRODUCTION

Mental health professionals sometimes forget the limits of their expertise

when a judge asks them to render an opinion in court. By definition, expert

witnesses have special knowledge, training, or experience as to a particular

subject, and, as a result they should not express an opinion outside that

narrow area. Just because a person is appointed as an “expert witness” does

not make the person an expert on any question asked of them while on the

stand. Nevertheless, we continue to see judicial officers and attorneys in

family law actions treat experts as if they can render an opinion on whatever

Address correspondence to Christopher C. Melcher, Esq., Walzer & Melcher LLP, 21700

Oxnard Street, Suite 2080, Woodland Hills, CA 91367. E-mail: [email protected]

236

Assessing Grave Risk of Harm Under the Hague Convention 237

issue happens to be posed in the appointment order-and we see experts

accepting those overly broad assignments. This article addresses the problem

in the context of international child abduction cases, when a parent

wrongfully removes a child from its country of habitual residence and a

mental health professional is asked to render an opinion on whether returning

the child poses a “grave risk of harm” to the child within the meaning of

the Hague Convention on the Civil Aspects of Child Abduction1 (“the Hague

Convention” or “the Convention”).

The temptation to stray from the expert’s area of qualifications is high

in these cases even though the grave risk defense is a legal term of art, not

a mental health concept. Judicial officers and attorneys often ask mental

health experts whether a grave risk is present in these cases, inviting the

mental health expert to render an opinion on a legal question. But the grave

risk assessment requires a thorough understanding of the legal framework

that allows courts, in very limited circumstances, to deny a petition for the

return of an abducted child. As mental health professionals do not make

legal determinations, the ultimate question-whether a particular set of facts

constitutes a grave risk of harm-should be left to courts to decide.

Nonetheless, mental health professionals can play an important role in assisting

the court in making a grave risk assessment. Staying within the lines of

proper expert opinion protects the rights of the parties and maintains the

credibility of the expert. In this article, the factors to be considered in conducting

a grave risk assessment are discussed in detail, with commentary as

to whether it is appropriate for a mental health professional to render an

opinion as to those factors.

THE HAGUE CONVENTION

If a mental health professional is involved as an expert in an international

child abduction or wrongful retention case, it is crucial that the expert understand

the law in this area, because there are strict limitations on what the

court may do in ruling on a petition for the return of the child. If there has

been a wrongful removal of a child from its country of habitual residence,

then any country that is a signatory to the Convention must order the immediate

return of the child except in extremely limited circumstances, such as

when returning the child would pose a grave risk of harm to the child.

Family courts and child custody evaluators are used to handling custody

cases, so they tend to look at international abduction matters in the

same way. However, the goal of the Convention is the immediate return of

abducted children to their country of habitual residence so that country

can decide custody according to its law. A Hague Convention action is not

a custody case. We cannot use a best interest of the child standard or consider

where we think the child would be better off living. To do so would

238 c. c. Melcher

violate our treaty obligations with the country of habitual residence and

reward the abducting parent by allowing that parent to unilaterally remove

the child from the other parent and force that left-behind parent to litigate

over custody in a court on the other side of the world. To ensure that children

are returned promptly and to discourage forum shopping, the

Convention requires that, absent extraordinary circumstances, abducted

children should be returned. Domestic violence or child abuse are often

raised as defenses to enforcement of the Convention, but such factors are

not sufficient to block the return of a child unless it is shown by clear and

convincing evidence that the country of habitual residence is unable or

unwilling to protect the child.

For example, if one parent alleges that the other parent abused their

child while the parties and child were living in California, would it be proper

for the parent making the accusation to unilaterally move that child to Italy

and require the left-behind parent to litigate over custody in Italy? California

has extensive legal protections for children who have suffered abuse, so why

is a move to Italy necessary to protect the child further? Legally, there is no

justification for the unilateral removal of the child, because custody rights

need to be determined in California in this example, and California is capable

of making custody orders to protect the child as necessary. Taking the

child to a faraway place may seem to be a protective measure, but parents

may not take the law into their own hands. This may seem like an easy

example, but we have trouble maintaining the same logic when the countries

are reversed. We want children who are abducted from our country to

be returned immediately, but we are not so quick to act when returning

children to other countries. We have a natural desire to protect children, and,

therefore, we focus on the abuse allegations instead of the legal requirements

of the Convention.

The Hague Convention is a multilateral treaty among 89 countries that

requires the immediate return of a child under the age of 16 who has been

wrongfully removed from his or her country of habitual residence in violation

of a parent’s right of custody. 2 There is a narrow exception when clear

and convincing evidence shows that the return of the child would pose a

grave risk to the child or otherwise place the child in an intolerable situation.

3 The U.S. Congress made the following findings when adopting the

Convention:

1. The international abduction or wrongful retention of children is harmful

to their well-being.

2. Persons should not be permitted to obtain custody of children by virtue

of their wrongful removal or retention.

3. International abductions and retentions of children are increasing, and

only concerted cooperation pursuant to an international agreement can

effectively combat this problem.

Assessing Grave Risk of Harm Under the Hague Convention 239

4. [ ] Children who are wrongfully removed or retained within the meaning

of the Convention are to be promptly returned unless one of the narrow

exceptions set forth in the Convention applies. The Convention provides

a sound treaty framework to help resolve the problem of international

abduction and retention of children and will deter such wrongful removals

and retentions. 4

The Convention was adopted in 1980 in response to the problem of

international child abductions during domestic disputes. “The Convention

seeks ‘to secure the prompt return of children wrongfully removed to or

retained in any Contracting State,’ and ‘to ensure that rights of custody and

of access under the law of one Contracting State are effectively respected in

the other Contracting States.”‘5

As the U.S. Supreme Court stated in Abbott v. Abbott:

Custody decisions are often difficult. Judges must strive always to avoid

a common tendency to prefer their own sodety and culture, a tendency

that ought not interfere with objective consideration of all the factors that

should be weighed in determining the best interests of the child. Tbis

judicial neutrality is presumed from the mandate of the Convention,

which affinns that the contracting states are “[f]irmly convinced that the

interests of children are of paramount importance in matters relating to

their custody.” Convention Preamble, Treaty Doc., at 7. International law

serves a high purpose when it underwrites the determination by nations

to rely upon their domestic courts to enforce just laws by legitimate and

fair proceedings6

MAKING A PRIMA FACIE CASE FOR RETURN OF THE

CHILD UNDER THE CONVENTION

The petitioner in an action for the return of a child under the Convention

“shall establish by a preponderance of the evidence … that the child has

been wrongfully removed or retained within the meaning of the Convention.”7

The Convention provides as follows:

The removal or the retention of a child is to be considered wrongful

where:

a. it is in breach of rights of custody attributed to a person, an institution or

any other body, either jointly or alone, under the law of the State in which

the child was habitually resident immediately before the removal or retention;

and

b. at the time of removal or retention those rights were actually exercised,

either jointly or alone, or would have been so exercised but for the

removal or retention.8

240 c. c. Melcher

The child shall be returned “forthwith” if an action for the return of the child

is commenced within one year of the wrongful removal or retention.9 The

Convention ceases to apply when the child turns 16, even if the child was

under the age of 16 when the petition was commenced.10

The parent who is petitioning the court for the return of the child has the

initial burden of proof to show, by a preponderance of evidence, that there

has been a wrongful removal or retention of the child from the child’s country

of habitual residence in violation of the left-behind parent’s rights of custody.

The child must be under the age of 16 at the time the return is ordered for the

court to have jurisdiction under the Convention. Finally, there must be a showing

that the action was commenced within one year of the wrongful removal

or retention. If all of these facts are established, the court will be mandated by

the treaty obligations under the Convention to order the immediate return of

the child to its country of habitual residence, unless the other parent proves

that one of the exceptions to the return requirement applies.11

There is no need for opinion testimony by a mental health expert as to

these prima facie elements. The points to be established by the petitioner are

purely factual questions (e.g., place of habitual residence, age of child, date

action commenced) or pure legal questions (e.g., rights of custody under the

law of the country from which the child was removed).

EXCEPTIONS TO lBE RETURN REQUIREMENT

There are several defenses and affirmative defenses available against a petition

for return of a child under the Convention. This article is not a comprehensive

guide on the Convention; the focus of this article is on the aspects

of the Convention that might require testimony from a mental health professional.

The grave risk defense is commonly made in Hague Convention

cases, and mental health experts have been appointed to express an opinion

relative to grave risk. Therefore, this article focuses solely on that defense.

THE GRAVE RISK DEFENSE

A respondent who opposes the return of the child has the burden of establishing

“by clear and convincing evidence that one of the exceptions set forth

in article 13b or 20 of the Convention applies.”12 Article 13b of the Convention

may relieve a country from its obligation to return the child if the respondent

establishes that “there is a grave risk that his or her return would expose the

child to physical or psychological harm or otherwise place the child in an

intolerable situation.”13

This broad language encompasses situations involving child abuse,

domestic violence, return to a war zone, or circumstances where there is

Assessing Grave Risk of Harm Under the Hague Convention

an unacceptable risk to the child’s safety. This defense is not meant to

trigger an examination of issues relating to the custody of the child, i.e.,

whether the welfare of the child would be better served in the custody

of the left-behind parent or the abducting parent. Neither does the grave

risk defense envision that a court will simply compare the benefits of the

living conditions of a child in one country versus anotherH

241

Whether the circumstances an1ount to a grave risk is a legal determination.

A mental health expert should not render an opinion on that ultimate

question. Although a grave risk may be present due to the psychological

harm that would result from the return of the child, the expert must be careful

not to engage in a legal analysis by using words such as grave risk of

harm. That term has a special legal meaning under the Convention; it is not

a mental health construct. Instead, the expert should testify as to his or her

opinion regarding what the expert observed or was told to assume. It is for

the court to consider that opinion along with the other evidence in the case

and determine whether, as a matter of law, those facts and circumstances are

clear and convincing evidence of a grave risk.

InMaurizoR. v. L.C., the court-appointed evaluator rendered an opinion

that the return of the child “would pose a grave risk of psychological harm to

the minor cllild.”15 Although the California Court of Appeal found that there

was substantial evidence to support such a finding, the court nevertheless

ordered the cllild to be returned to his country of habitual residence because

the grave risk exception was not properly applied in that case. An expert

treads in dangerous waters by expressing an opinion as to whether there is a

grave risk, because petitioner’s counsel is likely to cross-examine the expert

as to the legal definition of that term. If the expert does not understand the

intricacies of the grave risk exception, petitioner’s counsel will be able to

expose those failings. The expert’s conclusion that a grave risk is present will

be undermined, if not destroyed, if the expert makes any error in defining

grave risk under the Convention. It is better to leave the law to the lawyers.

“The ‘grave risk of harm’ defense is raised in almost every Hague case,

but it is successful in only a handful.”16 One of the reasons why the grave

risk defense is difficult to establish is that it requires proof that the country

of habitual residence is unwilling or unable to protect the child from further

abuse, as will be discussed later in this article. If the home country has a

system of protections for cllildren similar to that of the United States, then

the child should ordinarily be returned to the country of habitual residence

for custody proceedings there.

The Grave Risk Exception Is Narrowly Construed

The grave risk exception is narrowly drawn to avoid frustrating the purpose

of the Convention, which is to assure the prompt return of abducted children

242 c. c. Melcher

to their place of habitual residence.U In keeping with the strong presumption

that the child subject to proceedings under the Convention should be

returned to her country of habitual residence, the grave risk exception is

narrow and does not give license for a court in the abducted-to country to

speculate on where the child would be happiest.”18 The intention is for children

to be returned under the Convention except in the most extreme cases.

Therefore, courts should narrowly construe the grave risk exception in favor

of finding that the child should be returned to his or her country of habitual

residence for a custody determination in that country.

Grave Risk Falls Into Two Categories

A grave risk of harm can exist in two situations: first, when the return of the

child puts the child in imminent danger prior to the resolution of the custody

dispute, such as returning the child to a zone of war, famine, or disease;

second, when the return of the child will subject the child to serious abuse

or neglect, and the country of habitual residence, for whatever reason, is

incapable of giving or unwilling to give the child adequate protection prior

to making a custody deterrnination.19 “Absent extreme circumstances in the

country of habitual residence (such as war or famine), the grave risk of harm

exception is established only if there is clear and convincing evidence that

the child would suffer ‘serious abuse’ as a result of being returned.”20

The Degree of Risk Must Be a “Grave” Risk

“The risk must be ‘grave, not merely serious,’ …. “21 In Walsh v. Walsh, the

First Circuit Court of Appeals explained:

Not any harm will do nor may the level of risk of harm be low. The risk

must be “grave,” and when determining whether a grave risk of harm exists,

courts must be attentive to the purposes of the Convention. For example,

the harm must be “something greater than would normally be expected on

taking a child away from one parent and passing him to another”; otherwise,

the goals of the Convention could be easily circumvented. Courts are

not to engage in a custody determination, so “[i]t is not relevant … who is

the better parent in the long run, or whether [the absconding parent] had

good reason to leave her home … and terminate her marriage.”22

Examples of “Grave Risk”

Although it is difficult to characterize abuse in terms of degree, “there are

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.”23 Sexual abuse of the child by

Assessing Grave Risk of Harm Under the Hague Convention 243

the parent who is seeking the child’s return is a clear example of grave

risk.24

The facts in the following cases were sufficient to support a fmding of

grave risk:

• “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). Importantly,

these were not isolated or sporadic incidents.”25

• The father repeatedly beat the mother over a seven-year period, during and

after her pregnancy with his children. The father also beat the children and

threatened their lives. The mother and children spent eight or nine months

in shelters because of the abuse. The father twisted a piece of electrical

cord around the mother’s neck, threatening to kill both the mother and one

of their children who she was holding at the time. The mother sought

medical attention for her injuries on at least two occasions.26

• The husband “beat his wife severely and repeatedly in [the children’s]

presence,” and also threatened to kill them.27 The wife suffered “frequent

and serious” beatings, including while she was seven months pregnant.

The assaults on the wife occurred several times per week. Their son was

not hit at all. The daughter was “spanked and hit repeatedly, but not

injured.”28 The husband struck the daughter sharply in the side of the

head. When the wife tried to stop the husband from hitting their daughter,

he grabbed the wife by the throat and threw her out of the room. “[G]iven

Davy’s propensity for violence, and the grotesque disregard for the children’s

welfare that he displayed by beating his wife severely and repeatedly

in their presence and hurling obscene epithets at her also in their

presence, it would be irresponsible to think the risk to the children less

than grave.”29

• The father beat the children’s mother in their presence over many years in

“bloody and severe” assaults. The father hit his daughter and spit in her

face. The assaults continued even after restraining orders were issued. The

father broke into and ransacked the family residence twice in violation of

restraining orders. 30

• The father masturbated in front of the child and had the child masturbate

h. 31

lffi.

Cases Where “Grave Risk” Did Not Exist

“[T]here are cases in which the abuse 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.”32 Abuse directed solely against a parent, rather

244 c. c. Melcher

than the child, is generally not enough to pose a grave risk to the child.33

For example, the facts in the following cases were not sufficient to qualify

as a grave risk:

• A husband’s verbal abuse and an incident of shoving directed towards his

wife, “while regrettable, was insufficient to establish a grave risk of harm

to the child.” There was no evidence of physical or psychological abuse of

the child, nor any evidence that the husband would disregard court

orders.34

• A psychologist testified “that returning [the child] to Germany would be

traumatic and difficult for the child, who was currently happy and healthy

in America with his mother.”35

• Evidence that the wife had been physically, sexually, and verbally abused

by her husband was not sufficient to pose a grave risk to child when there

was no evidence of abuse against the child. The wife testified that she was

not allowed to leave the family home without her husband or father-inlaw.

She feared for her baby’s safety. The court held: “The evidence is

general and concerns the problems between [the wife], her husband and

father-in-law …. The district court incorrectly factored the possible separation

of the child from his mother in assessing whether the return of the

child to Mexico constitutes a grave risk that his return would expose him

to physical or psychological harm or otherwise place him in an intolerable

situation.”36

• Two incidents of a mother striking two of her four children and a generally

chaotic home environment did not establish a “sustained pattern of

physical abuse” necessary for the grave risk exception to apply.37

• A father’s verbal abuse of his children did not qualify as a grave risk when

there was “no credible evidence that [the father] has ever physically harmed

either of the two children.”38

Parent Versus Parent Abuse

No court has held that emotional abuse against a parent, in the absence of

violence against the child or against the parent in the presence of the child,

can satisfy the grave risk exception. There are cases where abuse against a

parent will suffice under the grave risk exception, but only when there were

repeated acts of violence against the parent in the presence of the child. 39

Causal Link Between Child’s Symptoms and

Parental Abuse

There must be a causal connection between the child’s symptoms and any

abuse perpetrated by the parent, or those symptoms are not relevant in

assessing whether returning the child would pose a grave risk of harm. For

Assessing Grave Risk of Harm Under the Hague Convention 245

example, in Marriage of Forrest & Eaddy, the court held that evidence of the

child’s self-mutilation and suicidal ideation were not sufficient to establish a

grave risk of harm because there was no clear and convincing evidence linking

the source of that behavior to the parent who was seeking the child’s

return. The court explained:

Although there was some evidence suggesting that Ashlee had engaged

in self-mutilation and once contemplated suicide while she was living in

Australia, … no evidence was presented to establish that any such conduct

on Ashlee’s part resulted from the fact that she was living in Australia

rather than California or, put another way, that she would have refrained

from engaging in similar conduct if she had been in her father’s care.40

The purpose of the grave risk exception in cases of child abuse is to

protect the child from being further victimized by an abusive parent who

is seeking the child’s return.41 In Blondin II there was a grave risk to the

children because they suffered abuse at the hand of their father, and they

witnessed violence against their mother, over many years in France. The

evidence showed that returning the children to France would cause a recurrence

of their post-traumatic stress disorder. In affirming the denial of the

Hague Convention petition under the grave risk exception, the Second

Circuit Court of Appeals noted:

Our interpretation of Article 13(b) by no means intplies that a court must

refuse to send a child back to its home country in any case involving

allegations of abuse, on the theory that a return to the home country

poses a grave risk of psychological harm. Rather, we reach our conclusion

on the basis of the specific facts presented in this case and, in particular,

on the absence of testimony contradicting Dr. Solnit’s

conclusions. 42

When assessing the cause of the child’s symptoms, courts and mental

health professionals must consider the effect the wrongful removal from

the child’s country of habitual residence has had on the child and the

impact that removal has had on the parent-child relationship. It may be

likely that the child is experiencing problems as a result of being separated

from the left-behind parent. As the U.S. Supreme Court stated in

Abbott v. Abbott:

An abduction can have devastating consequences for a child. “Some

child psychologists believe that the trauma children suffer from these

abductions is one of the worst forms of child abuse.” A child abducted by

one parent is separated from the second parent and the child’s support

system. Studies have shown that separation by abduction can cause

psychological problems ranging from depression and acute stress disorder

to posttraumatic stress disorder and identity-formation issues. A child

246 c. c. Melcher

abducted at an early age can experience loss of community and stability,

leading to loneliness, anger, and fear of abandonment. Abductions may

prevent the child from fanning a relationship with the left-behind parent,

impairing the child’s ability to mature.43

If the evidence supports more than one potential cause for the child’s

symptoms, the court cannot make a finding under the clear and convincing

standard that the left-behind parent caused those symptoms. Moreover, if a

parent causes distress to a child by wrongfully removing the child, that

parent cannot use those symptoms as evidence to prevent the child from

being returned.

Parental Attachment May Not Be Considered

The effect of returning a child might have on the parent-child attachment

“is a determination pertinent only to the merits of the underlying custody

dispute which must be resolved not b.{:; a Hague court, but rather the

courts of the child’s habitual residence.” 4 In Asvesta, a one-year-old child

had been twice spirited between the United States and Greece. Both parents

filed petitions under the Convention for the return of the child. A

conflict arose between the courts of both counties. The court in the

United States held that the court in Greece erred when it refused to return

the child to the United States on the basis that there was “a severe danger

that [his] return to the USA to [sic] expose him to mental tribulation, since

he will be deprived of his mother’s presence, affection, love and care at

the delicate age of 12 months, he will be deprived of the security and

stability that he feels near his mother and his mental bond with her will

be broken.”45 The Ninth Circuit Court of Appeals held that “the Greek

court stepped out of its role as a Hague Convention tribunal by inquiring

into the best interests of the child.”46 The court explained that “allowing

an exception to return in cases involving young children wrongfully

removed or retained by their mothers would swallow the Convention’s

rule of return.”47

The logic in Asvesta was also applied Friedrich v. Friedrich, where the

court noted that “a parent cannot ‘be allowed to abduct a child and thenwhen

brought to court-complain that the child has grown used to the surroundings

to which [she was] abducted.”48 Refusing to return an abducted

child to his or her country of habitual residence because the child is attached

to the abducted parent (who refused to go back to that country) or because

the child has become situated in the new country would allow the abducting

parent to benefit from his or her own wrongdoing. Since the goal of the

Convention is to deter abductions, attachment to the parent or new surroundings

is not as a legitimate factor in determining whether to return the

child pursuant to the Convention.49

Assessing Grave Risk of Harm Under the Hague Convention

Whether the Home Country Can Protect the Child

Pending a Custody Determination

247

In making the risk assessment, the inquiry is whether a grave risk of harm

exists from the time the child is returned to his or her country of habitual

residence until the time that country can make a custody determination.50

The question is not whether the child would be at risk of harm over the

course of his or her childhood if returned.51 The Sixth Circuit Court of

Appeals interpreted the grave risk exception in the same manner in Simcox

v. Simcox. In Simcox, the court highlighted the need for courts to limit the

grave risk inquiry, lest they delve into matters of custody:

[I]n considering whether a “grave risk” exists and whether any undertakings

can ameliorate it, a court should primarily focus on the tinle period

between repatriation and the determination of custody by the courts in

the child’s homeland …. [A]n inquiry that focuses on too lengthy a period

of tinle runs the risk of turning into a “child’s best interests” analysis,

which is not the proper standard under the Convention.52

Therefore, the following rule has been developed: Even in cases of serious

abuse or neglect, a court may not deny a petition for the return of a child

under the Convention unless it is shown that (1) the country of habitual residence

cannot or will not adequately protect the child against the risk posed

to the child, and (2) there are no alternative remedies or conditions that can

be imposed to avoid or reduce the risk that would otherwise exist by returning

the child. 53 In Maurzio R., the mother wrongfully removed the child from

Parma, Italy, to California. Even though the court found a grave risk of harm

to the child based on the evidence presented, the mother failed to show that

Italy was unable to protect the child against any future abuse. Therefore, the

court ordered the child to be returned to Italy for a custody determination in

Italy. The court said:

We are confident the trial court [in California] can fashion such undertakings

[for the return of the child to Italy], and that the courts in Italy are

fully able to make arrangements to protect Leo’s mental health pending

the outcome of custody proceedings there. Indeed, by issuing a stay

away order and retaining jurisdiction to make additional orders necessary,

the Italian family court has already demonstrated its willingness and

likely ability to protect the child pending custody proceedings there. In

the event that Mother decides not to return to Italy with Leo the trial

court shall appoint a guardian or a “child welfare escort” (our term), to

escort Leo back to Italy for further custody proceedings there. Once Leo

has been presented to appropriate Italian authorities, the work and

responsibility of the California courts shall be completed. We must at all

tinles be cognizant that just as there are California governmental agencies

with expertise in addressing the needs of at risk children, so too there are

248 c. c. Melcher

agencies in the Italian government fully capable of addressing such

needs. The fact that Leo might suffer severe stress and anxiety based on

separation from Mother makes him no different from many children in

similar positions vis-a-vis one parent or another in our own state, where

an international abduction was not the trigger. In those cases, we look to

the courts and agencies like DCFS to provide the child with the counseling,

support, and environment to ensure that potential psychological

harms are averted. Likewise, we must acknowledge that the Italian

government has the same capacity to address the needs, physical and

psychological, of children under its jurisdiction. 54

Whether Conditions Should be Imposed on the

Return of the Child

The court noted in Simcox v. Simcox, that the imposition of conditions on

the return of a child that do not further the purposes of the Convention are

questionable, “particularly when they address in great detail issues of custody,

visitation, and maintenance.”55 The court in Simcox classified abusive

situations into three broad categories and explained how conditions should,

or should not be, imposed in each case.

First, there are cases in which the abuse is relatively minor. In sucb 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. 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. Second, at the other end of the spectrum, there are

cases in whicb 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. 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. [}Third, there are

those 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. 56

The question of undertakings (i.e., whether to place conditions on

return of the child) is a very difficult aspect of the case. A mental health professional

can provide suggestions to the court as to how to minimize the

Assessing Grave Risk of Harm Under the Hague Convention 249

impact of the return on the child. This may include a recommendation for

some limited counseling prior to the return, or even a guardian to accompany

the child during the return trip. 5

7

Proper Areas of Inquiry for Mental Health Expert

As can be seen, the grave risk analysis is a multi-faceted legal question. A

mental health expert can properly contribute an opinion regarding some of

the issues that make up the grave risk analysis. For example:

• How has the child been affected as a result of any abuse perpetrated

against the child by the left-behind parent?

• How long has the child been experiencing symptoms relating to any abuse

perpetrated against the child by the left-behind parent?

• What was the extent, severity, and frequency of any abuse perpetrated

against the child by the left-behind parent?

• How has the child been affected as a result of any abuse the child witnessed

against the fleeing parent by the left-behind parent?

• How has the child been affected as a result of any abuse the child witnessed

by the left-behind parent against any siblings?

• How would the child be affected if the child were ordered to be immediately

returned to his or her country of habitual residence?

• What orders are recommended to protect the child or reduce the risk of

harm to the child between the time the child is returned to the child’s

country of habitual residence and the time custody orders are made in that

country?

This is not meant to be an exhaustive list. It is merely an example of how a

mental health expert should ask the court to define the questions the expert

is to investigate regarding the grave risk analysis. The mental health expert

should take steps to ensure that the scope of the appointment is properly

limited and that the expert’s role is clearly defined. 5

8

CONCLUSION

A child who is at the center of an international custody dispute will no doubt

be greatly affected by the conflict between the parents and the resulting move

from the child’s country of habitual residence to another country. Returning

the child can result in additional stress and uncertainty to the child, especially

when the fleeing parent has cut off all contact between the child and the leftbehind

parent after the removal or interfered with the parent-child relationship.

These cases are supposed to be handled quickly, but delays occur and

this further affects the child.

250 c. c. Melcher

Family law courts and child custody evaluators are used to handling

custody cases and may slip into comfortable ways of analyzing these issues

by applying the best interest standard or by favoring their own country over

the child’s country of habitual residence. It is important to remember that

Hague Convention actions are not custody cases. When a mental health professional

is asked to render an opinion as to grave risk, the expert should

express an opinion as to the matters within his or her expertise and avoid

testifying as to whether the facts constitute a grave risk.

NOTES

1. Hague Convention on the Civil Aspects of International Child Abduction art. 4, Oct. 25, 1980,

T.I.A.S. No. 11670, 1343 U.N.T.S. 89 [hereinafter Hague Abduction Convention].

2. A list of signatories can be found at www.hcch.net, by going to the Child Abduction section, then

to Contracting States.

3. Speculation cannot support a fmding under the clear and convincing evidence standard. Proof is

clear and convincing when it is “[c]lear, explidt, and unequivocal; [s]o clear as to leave no substantial

doubt; or [s]ufficiently strong to demand the unhesitating assent of every ntlnd. [Citations].” 2 CIIRISTOPHER

R. AI’IKEN ET AL.,]EFFERSON’S CALIFORNIA EviDENCE BENCHROOK §47.4 (4th Ed. 2010); seeCopp v. Paxton, 45

cal. App. 4th 829, 846 (1996).

4. 42 U.S.C. §11601(a)(4) (2006).

S. Abbott v. Abbott, 130 S. Ci. 1983, 1989 (2010) (quoting Hague Abduction Convention, supra note

1, at art. 1).

6. Id. at 1996 (quoting Hague Abduction Convention, supra note 1, at Convention Preamble).

7. 42 U.S.C. §11603(e)(l)(A) (2006).

8. Hague Abduction Convention, supra note 1, at art. 3.

9. Id., at art. 12.

10. Id. at art. 4.

11. Bardales, 181 Cal. App. 4th at 1270; 42 U.S.C. §11601(a)(4).

12. 42 U.S.C. §116o3(e)(2)(A); In re Marriage of Witherspoon, 155 Cal. App. 4th 963, 974 (2007).

13. Hague Abduction Convention, supra note 1, at art. 13.

14. ]AMES D. GARBOLINO, FEDERAL jUDICIAL CENTER, ‘THE 1980 HAGUE CONVENTION ON THE CML Asi’ECI’S

OF lNTERNATIONAL CHILD ABDUCTION’ A GUIDE FOR JUDGES XV (2012).

15. Maurizio R. v. L.C., 201 cal. App. 4th 627, 627 (2011).

16. JEREMY D. MORLEY, THE HAGUE ABDUCI10N CoNVENTION: PRACTICAL ISSUES AND PROCEDURES FOR THE

FAMILY LAWYER (2012).

17. Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir. 2009).

18. In re Marriage of Forrest & Eaddy, 144 Cal. App. 4th 1202, 1211 (2006) (internal quotes

omitted).

19. Frieddch v. Friedrich. 78 F.3d 106o, 1069 (6th Cir. 1996).

20. Marriage ofForrest&Eaddy 144 cal. App. 4th at 1211 (citing Blondin v. Dubois (Blondin IID, 238

F.3d 153, 163 n.11 (2nd Cir. 2001); Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000)).

21. Gaudin v. Remis, 415 F.3d 1028, 1037 (9th Cir. 2005) (quoting Hague International Child Abduction

Convention; Text and Legal Analysis, 51 Fed. Reg. 10494, 10,510 (Mar. 26, 1986) [hereinafter Hague

Convention Text and Analysis]).

22. Walsh, 221 F.3d at 21B–19 (internal citations omitted).

23. Simcox v. Simcox, 511 F.3d 594, 607-08 (6th Cir. 2007).

24. Id. at 603.

25. Id. at 608.

26. Blondin v. Dubois (Blondin II), 189 F.3d 240, 243 (2nd Cir. 1999).

27. Van De Sande v. Van De Sande, 431 F.3d 567, 569 (7th Cir. 2005).

28. Id. at 570.

29.Id.

Assessing Grave Risk of Harm Under the Hague Convention

30. Walsh, 221 F.3d at 210-11, 219–20.

31. Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002).

32. Simcox, 511 F.3d at 608.

33. See, e.g., Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000).

34./d.

35. Friedrich, 78 F.3d at 1o69.

36. Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376-77 (8th Cir. 1995).

37. McManus v. McManus, 354 F. Supp. 2d 62, 69–70 (D. Mass. 2005).

38. In re D.D., 440 F. Supp. 2d 1283, 1299 (M.D. Fla. 2006).

39. See, e.g., Whal/on, 230 F.3d at 46o.

40. Marriage of Forrest&Eaddy, 144 Cal. App. 4th at 1219.

41. Hague Convention Text and Anaiysis, supra note 22, at 10,510.

42. Blondin m, 238 F. 3d at 163 n. 12.

43. Abbott, 130 S. a. at 1989 (internal citations ontitted).

44. Asvesta, 580 F. 3d at 1020.

45./d.

46. Id. at 1021.

47./d.

48. Friedrich, 78 F.3d at 1o69.

49. Maurizto R., 201 Cal. App. 4th at 640

50. Gaudin, 415 F.3d at 1037; Cuellar, 596 F.3d at 510.

51. Gaudin, 415 F.3d at 1037.

251

52. Simcox, 511 F.3d at 607 (citing Hague Convention Text and Analysis, supra note 22, at 10,510).

53. Marriage of Forrest& Eaddy, 144 Cal. App. 4th at 1212 (citing Friedrich, 78 F.3d at 1o69; Gaudin,

415 F.3d at 1037; Blondin II, 189 F.3d at 248-50).

54. Maurizto R., 201 Cal. App. 4th at 641-42.

55. Simcox, 511 F.3d at 606.

56. Id. at 608–09 (footnote and internal citation ontitted).

57. Maurizto R., 201 Cal. App. 4th at 644.

58. AsS’N OF FAMILY & CONClllATION COURTS, MODEL STANDARDS OF PRAcTICE FOR CHrr.o CUSTODY

EvALUATION (2006), available at http:/ /www.afccnet.org/Portals/0/ModelStdsChildCustodyEvalSept

2006.pdf.