Blondin v Dubois (2nd Cir 1999)— Fed.App.3d —; No. 98-2834; 17 Aug 1999
10 International Abduction [USA 1999]
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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Docket No. 98-2834
August 17, 1999
FELIX BLONDIN, PETITIONER-APPELLANT,
v.
MARTHE DUBOIS, RESPONDENT-APPELLEE.
Sanford Hausler, Brooklyn, NY (Valerie S. Wolfman, New York,
NY, of counsel), for Petitioner-Appellant.
Howard L. Jacobs, New York, NY, for Respondent-Appellee.
Before: Oakes, Cabranes, and Sack, Circuit Judges.
The opinion of the court was delivered by: Jos‚ A. Cabranes,
Circuit Judge
August Term, 1998
Argued: May 6, 1999
001 Appeal from a judgment of the United States District
Court for the Southern District of New York (Denny Chin,
Judge), denying father’s petition, pursuant to the Hague
Convention on the Civil Aspects of International Child
Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S.
89 (the “Convention”), for return of his children to the
country from which they were abducted. Blondin v. Dubois, 19
F. Supp. 2d 123 (S.D.N.Y. 1998). Although the mother
conceded that the children were “wrongfully abducted,” as
that term is used in the Convention, the District Court
nevertheless ruled that the children would face a “grave
risk” of harm if they were returned. While we agree with the
District Court that the children should not be returned to
their home country in their father’s custody, we
nevertheless conclude that the District Court should be
given a further opportunity to consider the availability of
temporary arrangements that would honor the Convention’s
mandate of delivering abducted children to the jurisdiction
of the courts of their home countries, while still
protecting them from the “grave risk” of harm.
Judgment vacated; cause remanded.
002 This case presents issues of first impression
regarding the application of the Hague Convention on the
Civil Aspects of International Child Abduction, Oct. 25,
1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (the “Hague
Convention” or “Convention”); 42 U.S.C. 11601 et seq.
(domestic implementing legislation). That treaty, which has
been ratified by the United States – and thus shares with
the Constitution and federal statutes the status of “supreme
Law of the Land,” U.S. Const., art. VI – seeks to “secure
the prompt return of children wrongfully removed to or
retained in” any signatory state. Hague Convention, art. 1.
003 As with many Hague Convention cases, this matter
involves a custody dispute between now-separated parents.
The mother, Marthe Dubois, concedes that she “wrongfully
removed” the children-Marie-Eline and Fran‡ois-from France,
and even forged the signature of their father, Felix
Blondin, to obtain passports for the children. However,
Dubois contends that she did so in order to protect the
children from what she alleges was a physically abusive
environment. Blondin, in contrast, denies that he abused the
mother or the children.
004 These issue arise on an appeal by Blondin from a
judgment of the United States District Court for the
Southern District of New York (Denny Chin, Judge), denying
his petition for repatriation of Marie-Eline and Fran‡ois.
See Blondin v. Dubois, 19 F. Supp. 2d 123 (S.D.N.Y. 1998).
Due to Dubois’s allegations of abuse, the District Court
determined, see id. at 127-29, that returning Marie-Eline
and Fran‡ois to Blondin’s custody would place the children
at a “grave risk” of harm – thus qualifying for an exception
to the Convention’s presumption that abducted children
should be returned to their home country. See Hague
Convention, art. 13(b). The Court held that return of the
children to France other than in Blondin’s custody was
impracticable, because Blondin’s means were limited and he
presumably could not support Dubois and the children other
than in his home. See id. at 128. The Court also rejected
Blondin’s suggestion that the children could be returned to
France in the custody of some third party, ruling that the
children would be returned, if at all, only in their
mother’s custody.
005 On this appeal, we conclude that the Hague Convention
requires a more complete analysis of the full panoply of
arrangements that might allow the children to be returned to
the country from which they were (concededly) wrongfully
abducted, in order to allow the courts of that nation an
opportunity to adjudicate custody. Courts considering Hague
Convention petitions should make every effort to honor
simultaneously the Convention’s commitments (1) to the
return of wrongfully abducted children to their home
countries, for custody adjudication by courts there with
proper jurisdiction, and (2) to safeguarding the children
from “grave risk” of harm. The careful and thorough
fulfillment of our treaty obligations stands not only to
protect children abducted to the United States, but also to
protect American children abducted to other nations-whose
courts, under the legal regime created by this treaty, are
expected to offer reciprocal protection.
006 While we understand the District Court’s reluctance to
place the children directly into Blondin’s custody, we
believe the District Court should be given another
opportunity to consider, under the clarified standard,
whether other options are indeed available under French law
– options that may allow the courts of the United States to
comply both with the Convention’s mandate to deliver
abducted children to the jurisdiction of the courts of their
home countries and with the Convention’s command that
children be protected from the “grave risk” of harm.
Accordingly, we vacate the judgment of the District Court,
and we remand the cause for further appropriate proceedings.
We stress, however, that whatever the outcome of those
proceedings may be, we do not disturb the District Court’s
conclusion that the children should not be released from the
United States into the custody of their father. At most,
they could return to France in the temporary care of some
other person; a court in that country would then be
empowered – unlike the federal courts of the United States –
to make plenary determinations regarding the children’s
long-term custody.
Background
007 Blondin and Dubois met in the summer of 1990 and soon
began living together in France, though they never wed. A
daughter, Marie-Eline, was born in May 1991; a son,
Fran‡ois, in August 1995. There is evidence in the record to
suggest, however, that family life was turbulent. Dubois
testified that Blondin began beating her in 1991; in some
instances, he would do so while she was holding Marie-Eline,
with the result that some of Blondin’s blows would fall on
Marie-Eline. She also testified that on one occasion in
1992, Blondin twisted a piece of electrical cord around
Marie-Eline’s neck, threatening to kill both the mother and
the child. After this incident, Dubois left the home for two
weeks, living with Marie-Eline in a shelter for battered
women before returning to Blondin. The following year,
Dubois again took Marie-Eline with her to a series of
shelters, living in them over a period of approximately nine
months.
008 In April 1993, Blondin commenced an action in France
to obtain custody of Marie-Eline. That proceeding was
resolved in December 1993, when Blondin and Dubois
reconciled, agreeing to live together with Marie-Eline at
Blondin’s residence. Pursuant to their agreement, the French
court terminated the proceedings, and issued an order
declaring that “the parental rights over the child will be
exercised in common by both parents” and that “the child
will have its usual residence at the fathers’ [sic].” The
court’s order also provided for regular visitation by
Dubois, in the event that she should choose to live outside
Blondin’s home.
009 Dubois testified that despite their reconciliation,
Blondin continued his abuse. She testified that both during
and after her pregnancy with Fran‡ois, Blondin repeatedly
beat her and threatened her life, as well as the lives of
the children. Dubois sought medical attention for her
injuries on at least two occasions, and once summoned the
French law enforcement authorities.
010 In August 1997, when Marie-Eline was six years-old and
Fran‡ois was days short of his second birthday, Dubois and
the children left France for the United States without
notifying Blondin, let alone obtaining his consent. Earlier
in 1997, Dubois had forged Blondin’s signature in order to
obtain passports for the children.
011 Within days of discovering that Dubois and the
chilcldren had left the home, Blondin sought and obtained a
preliminary order from a French court, directing that the
children not leave “the metropolitan territory without the
previous authorization of the father.” It thus appears that
Blondin was not immediately aware that they had departed the
country, and that they were living with Dubois and her
relatives in New York City. However, Blondin had discovered
their whereabouts by June 1998, when he filed the instant
petition, seeking the children’s return to France under the
Hague Convention.
012 In keeping with the Convention’s explicit emphasis on
expeditious judicial resolution, see Hague Convention, art.
11 (“The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings
for the return of children.”), the District Court conducted
a prompt evidentiary hearing on Blondin’s petition. In that
hearing, Dubois testified to the factual allegations set
forth in the foregoing paragraphs; Blondin, for his part,
denied that he had ever “hit” Dubois or the children, but
admitted to having spanked Marie-Eline on infrequent
occasions, and equivocated as to whether he may have
“slapped” Dubois in the “heat of a dispute.” Judge Chin also
interviewed Marie-Eline, outside the presence of her parents
or their attorneys. She told him that Blondin had hit her
and her mother, and that this is why they had left France.
She also explained that she did not want to return to France
because she didn’t “want Daddy to hit me.” In addition, she
also told Judge Chin that both parents beat her, but that
Blondin did so more than Dubois.
013 By Memorandum Decision dated August 17, 1998, the
District Court denied Blondin’s petition. For reasons
discussed in detail below, the Court determined that the
children would face a “grave risk” of harm if returned to
Blondin’s custody. See Blondin, 19 F. Supp. 2d at 127-29.
The opinion also noted that if the children were to return
to France in Dubois’s custody, Blondin would be financially
unable to support them outside his home. See id. at 128.
Although the opinion did not explicitly consider any
alternative temporary custodial arrangement, the District
Court had earlier rejected (in a ruling from the bench) the
one such arrangement suggested by Blondin – namely,
placement of the children in France with Marie-Eline’s
godmother, Noelle Gouillou, pending a final decision by the
French courts. Nonetheless, the District Court stated that
“if I am going to send the children back, I am probably
going to do it with Ms. Dubois.”
014 Following entry of judgment, Blondin filed a timely
notice of appeal. In light of the importance of deciding
matters affecting children as expeditiously as possible, see
Hague Convention, art. 11; Joseph Goldstein, Albert J.
Solnit, Sonja Goldstein, & Anna Freud, The Best Interests of
the Child 9, 42-43 (1996), *fn1 it is unfortunate that
neither party requested that this matter be briefed and
argued on an expedited basis. At oral argument on May 6,
1999, it became clear that supplemental briefing was needed
regarding the availability of remedies that might allow the
children to be repatriated, while assuring their safety. In
addition to directing the parties to file supplemental
briefs on the subject, this Court asked the Department of
State to contact the government of France and, if possible,
to submit to this Court that government’s position on the
return of the children as well as on the availability of
temporary care for them pending final adjudication of
custody, in the event they should be returned.
015 By letter dated July 16, 1999, the government of
France responded to the inquiries made by the State
Department. That letter, signed by Ms. B. Biondi of the
French Ministry of Justice, Office of Mutual Legal
Assistance in Civil and Commercial Matters – which
apparently functions as France’s “Central Authority” under
the Convention – stated that her agency had “undertaken to
ensure that measures are taken to provide the children, in
the event that they are returned to France, with the
necessary care pending a decision on custody rights by the
French court of competent jurisdiction.” In particular, she
stated that the government had initiated a review of the
“procedural means” by which a temporary placement might be
made. She made no concrete proposal as to how this might be
accomplished. Although the French Government is apparently
still in the process of considering a temporary placement
decision, we decide this appeal now in order to afford the
District Court – the court best equipped to expeditiously
develop a more complete record and to fashion appropriate
relief – an opportunity to proceed with dispatch. We hope
that any temporary custodial order forthcoming from France
will be available by the time the District Court renders its
decision on remand. In any event, we recognize the District
Court’s broad equitable discretion to develop the factual
record, and in so doing to inform itself – through the
United States Department of State – as to the views of the
Government of France, as well as to the efforts that have
been made by that government to facilitate repatriation
under the Convention.
Discussion
I. The Framework of the Convention
016 The Hague Convention, to which both France and the
United States are signatories, seeks to “protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual
residence.” Hague Convention, preamble. Under the
Convention, removal or retention of a child is deemed
“wrongful” when
“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.” Id., art. 3.
017 The parent (or other individual or institution) who
claims that his child has been wrongfully removed may apply
to the “Central Authority” of his country, or to the
“Central Authority” of the country to which the children
have been taken. See id., art. 8. In either case, the
Central Authorities of each country will attempt to
communicate with each other and with the parties, both to
exchange helpful information and, where possible, to achieve
voluntary return. See id., arts. 8, 9, 10. Alternatively –
especially in those instances where voluntary resolution is
not possible – the parent may file a judicial proceeding in
the country to which the child has been removed. See id.,
arts. 8, 11, 29; see also 42 U.S.C. 11601 et seq.
(legislation implementing the Hague lConvention).
018 By operation of the Convention, “a United States
District Court has the authority to determine the merits of
an abduction claim, but not the merits of the underlying
custody claim.” Friedrich v. Friedrich, 983 F.2d 1396, 1400
(6th Cir. 1993) (“Friedrich I”); Hague Convention, art. 19
(“A decision under this Convention concerning the return of
the child shall not be taken to be a determination on the
merits of any custody issue.”); see also id., art. 16. *fn2
The abduction claim is limited, initially, to a
determination of whether the defendant has “wrongfully
removed or retained” the child; on this issue, the plaintiff
bears the burden of proof. See 42 U.S.C. 11603(e)(1)(A)
(domestic legislation implementing Hague Convention, and
addressing, inter alia, burdens of proof). However, “[o]nce
a plaintiff establishes that removal was wrongful, the child
must be returned unless the defendant can establish one of
four defenses.” Friedrich v. Friedrich, 78 F.3d 1060, 1067
(6th Cir. 1996) (“Friedrich II”) (emphasis added); see 42
U.S.C. 11601(a)(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.”).
019 Two of those exceptions may be established only by
“clear and convincing evidence” – either that “there is a
grave risk that [the child’s] return would expose the child
to physical or psychological harm or otherwise place the
child in an intolerable situation,” pursuant to Article
13(b) of the Convention, or that return of the child “would
not be permitted by the fundamental principles . . .
relating to the protection of human rights and fundamental
freedoms,” pursuant to Article 20. See 42 U.S.C.
11603(e)(2)(A) (setting forth standard of proof for defenses
pursuant to Articles 13(b) and 20). In contrast, the other
two exceptions to the presumption of repatriation need only
be established by a preponderance of the evidence – either
that judicial proceedings were not commenced within one year
of the child’s abduction and the child is well-settled in
the new environment, pursuant to Article 12 of the
Convention, or that the plaintiff was not actually
exercising custody rights at the time of the removal,
pursuant to Article 13(a) of the Convention. See 42 U.S.C.
11603(e)(2)(B) (setting forth standard of proof for defenses
pursuant to Articles 12 and 13(a)). *fn3
020 As the federal statute implementing the Convention
makes clear, these four exceptions are meant to be “narrow.”
42 U.S.C. 11601(a)(4). *fn4 They do not authorize a court
to exceed its Hague Convention function by making
determinations, such as who is the better parent, that
remain within the purview of the court with plenary
jurisdiction over the question of custody. See Friedrich I,
983 F.3d at 1400 (noting that court deciding Hague
Convention petition “has the authority to determine the
merits of an abduction claim, but not the merits of the
underlying custody claim.”); see also Nunez-Escudero v.
Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995) (considering
asserted exception under Article 13(b), and stating that
“[i]t is not relevant to this Convention exception who is
the better parent in the long run.”). Were a court to give
an overly broad construction to its authority to grant
exceptions under the Convention, it would frustrate a
paramount purpose of that international agreement – namely,
to “preserve the status quo and to deter parents from
crossing international boundaries in search of a more
sympathetic court.” Friedrich I, 983 F.2d at 1400; accord
Shalit v. Coppe, __ F.3d __, 1999 WL 519334, at * 2 (9th
Cir. July 23, 1999); Nunez-Escudero, 58 F.3d at 376; Rydder
v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995). And as the
Hague Convention’s Reporter has explained, “a systematic
invocation of [these] exceptions, substituting the forum
chosen by the abductor for that of the child’s residence,
would lead to the collapse of the whole structure of the
Convention by depriving it of the spirit of mutual
confidence which is its inspiration.” Elisa Perez-Vera,
Explanatory Report: Hague Conference on Private
International Law, in 3 Acts and Documents of the Fourteenth
Session 426 (1980) (“Perez-Vera Report”), 34. *fn5
II. Application of the Convention
021 Dubois concedes that she “wrongfully abducted” the
children from France, as that term is used in the
Convention. Thus, she acknowledges, the children must be
returned to France unless she can establish one of the
exceptions provided by the Convention. See generally
Friedrich II, 78 F.3d at 1067; 42 U.S.C. 11601(a)(4). The
single exception she asserts is that provided for in Article
13(b), which permits the court to withhold the child’s
return if the defendant shows by clear and convincing
evidence “that there is a grave risk that [the child’s]
return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable
situation.” Hague Convention, art. 13(b).
022 The District Court agreed with Dubois that returning
Marie-Eline and Fran‡ois to Blondin would place them at
“grave risk” of a “physical or psychological harm.” The
District Court relied principally upon the record evidence
tending to show that Blondin had physically abused Dubois,
often in the children’s presence, and that he also had
beaten Marie-Eline. See Blondin, 19 F. Supp. 2d at 127-28.
The Court also relied, to a lesser extent, upon two other
factors: That Marie-Eline had expressed her desire not to
return to France, see id. at 128-29, and that Dubois and the
children “appear to have settled in well in the United
States . . . , [and] returning the children to France now
for custody proceedings would be extremely disruptive,” Id.
at 128. As to the latter point, the Court noted that Dubois
has no financial resources of her own and was supported by
relatives while in the United States. See id. The Court
continued,
023 “In France, Dubois and the children would be dependent
upon Blondin. Under the circumstances, I would be extremely
wary of requiring Dubois and the children to live in his
home. Although one possibility would be to require Blondin
to pay for their housing elsewhere, he represented to the
Court, during discussions about scheduling a hearing, that
he had “no more money” and could not afford the cost even of
airfare . . . . Under these circumstances, requiring Dubois
and the children to return to France for legal proceedings
would present a grave risk of psychological harm or an
intolerable situation.” Id.
024 Ample record evidence supported the District Court’s
factual determination regarding the risk of physical abuse
that the children would face upon return to Blondin’s
custody. And the parties do not dispute that such a
determination will normally provide the basis for an
exception under Article 13(b). In contrast, the other two
ancillary considerations articulated by the District Court –
that Marie-Eline expressed a preference to remain in the
United States and that the children “have settled in well”
in this country – were not appropriately relied upon in
granting the exception pursuant to Article 13(b). The
Convention includes a separate provision allowing the court
to take into account a child’s objection to being returned
“if [the court] finds that the child . . . has obtained an
age and degree of maturity at which it is appropriate to
take account of its views.” Hague Convention, art. 13. The
Court did not, however, determine that Marie-Eline was of
such an age. Instead, the Court explicitly noted her young
age and that she was “prepared, to a degree, for her
appearance.” Blondin, 19 F. Supp. 2d at 128. Similarly, the
circumstance of a child having become “well settled” is
governed by a separate exception, which does not apply on
the facts presented. Under Article 12, this exception does
not apply unless the other parent waited more than one year
before filing a petition for the child’s return. *fn6 In the
instant case, Blondin filed his petition in June of 1998 –
that is, approximately 10 months after the children’s August
1997 abduction. We do not rule out the possibility of a case
in which a petition seeking a child’s return is filed less
than a year after the child’s abduction, but it is
nevertheless established “by clear and convincing evidence”
on the child’s behalf that he or she is so deeply rooted in
the United States that “there is a grave risk that [the
child’s] return would expose the child to . . .
psychological harm.” The child might then be excepted from
return under Article 13(b). The record as now constituted
does not present such a case.
025 In any event, it appears that the District Court
placed little emphasis on these two inapplicable
considerations, instead predicating the Article 13(b)
exception primarily on the danger that Blondin would
physically harm the children – a consideration that lies at
the core of the interests this Article was designed to
protect. The question remaining before us, however, is
whether the District Court could have protected the children
from the “grave risk” of harm that it found, while still
honoring the important treaty commitment to allow custodial
determinations to be made – if at all possible – by the
court of the child’s home country. As the Hague Convention’s
Reporter has explained,
“it would be advisable to underline the fact
that . . . the Convention does not seek to
regulate the problem of the award of custody
rights. On this matter, the Convention rests
implicitly upon the principle that any debate on
the merits of the question, i.e. of custody
rights, should take place before the competent
authorities in the State where the child had its
habitual residence prior to its removal . . . .”
Perez-Vera Report, supra, 19.
026 The Reporter further offered the view, drawn from the
proceedings underlying the Convention, that the “whole
structure of the Convention” depended on the institutions of
the abducted-to state generally deferring to the forum of
the child’s home state. See id. 34. As noted above, such
deference is necessary to preserve “the spirit of mutual
confidence which is [the Convention’s] inspiration.” Id.;
accord Currier v. Currier, 845 F. Supp. 916, 923 (D.N.H.
1994). *fn7
027 For this reason, it is important that a court
considering an exception under Article 13(b) take into
account any ameliorative measures (by the parents and by the
authorities of the state having jurisdiction over the
question of custody) that can reduce whatever risk might
otherwise be associated with a child’s repatriation. In the
exercise of comity that is at the heart of the Convention
(an international agreement, we recall, that is an integral
part of the “supreme Law of the Land,” U.S. Const., art.
VI), we are required to place our trust in the court of the
home country to issue whatever orders may be necessary to
safeguard children who come before it. See, e.g., Friedrich
II, 78 F.3d at 1068.
028 As the District Court properly recognized here, see
Blondin, 19 F. Supp. 2d at 128, granting Blondin’s petition
would not – as a legal matter – invariably entail turning
the children over to his custody. In fact, other
arrangements might be available that would allow the
children to return to France in some other person’s care,
pending a long-term custody adjudication – thus reducing or
eliminating the risk of harm that might otherwise be
associated with granting Blondin’s petition. One possible
remedy was suggested by Blondin – namely, the temporary
placement (with the parties’ consent) of Marie-Eline and
Fran‡ois with their godmother, pending a final adjudication
of custody by the courts of France. The District Court
rejected this suggestion, stating “if I am going to send the
children back, I am probably going to do it with Ms.
Dubois.” Having determined that the children would be
returned, if at all, in their mother’s care, the District
Court subsequently determined in its written opinion that
this arrangement would also be impracticable; the Court
based this determination on its belief that the family’s
straitened circumstances would force Dubois and the children
to live with Blondin. See Blondin, 19 F. Supp. 2d at 128.
029 As stated above, we find merit in the District Court’s
reasons for avoiding a remedy that would effectively
transfer the children directly into Blondin’s custody.
However, that concern appears to justify only the Court’s
decision that the children not be returned in their mother’s
care, and thereby forced to live in their father’s home. It
does not explain the Court’s determination that the children
should not be returned in the temporary custody of some
appropriate and suitable third party, with adequate
guarantees of child protection. The District Court did not
offer any basis in the Convention or any other legal
authority for its determination that a temporary third-party
placement would be unacceptable, and no such basis is
readily apparent to us.
030 Under the circumstances presented, we think it
appropriate to remand this matter to the District Court for
further consideration of the range of remedies that might
allow both the return of the children to their home country
and their protection from harm, pending a custody award in
due course by a French court with proper jurisdiction. *fn8
In conducting that inquiry, the District Court should not
limit itself to the single alternative placement initially
suggested by Blondin. On remand, the Court will have the
opportunity to exercise its broad equitable discretion to
develop a thorough record to facilitate its decision. In so
doing, the District Court should feel free to make any
appropriate or necessary inquiries of the government of
France – especially regarding the availability of
ameliorative placement options in France – and to do so,
inter alia, by requesting the aid of the United States
Department of State, which can communicate directly with
that foreign government. We trust that the District Court
will conduct these proceedings on remand with the same
dispatch that properly characterized its initial
consideration of Blondin’s Hague Convention petition. See
Hague Convention, art. 11; Goldstein et al., supra, at 9,
42-43.
031 We emphasize, however, that we do not disturb or
modify the District Court’s finding that returning
Marie-Eline and Fran‡ois to Blondin’s custody (either
expressly or de facto) would expose them to a “grave risk”
of harm, within the meaning of Article 13(b). Accordingly,
if the District Court remains unable to find any reasonable
means of repatriation that would not effectively place the
children in Blondin’s immediate custody, it should deny
Blondin’s petition under the Convention.
Conclusion
032 For the foregoing reasons, we vacate the judgment of
the District Court and remand the cause for further
proceedings consistent with this opinion, including the
further consideration of remedies that would allow the
children’s safety to be protected pending a final
adjudication of custody in France.
Opinion Footnotes
———————————————————–
*fn1 As Professor Goldstein et al. explain: [A] child may
experience a given time period not according to its
actual duration, measured objectively by calendar and
clock, but according to her subjective feelings of
impatience, frustration, and loss. . . . Procedural
and substantive decision-making should not exceed the
time that the child-to-be- placed can endure loss and
uncertainty. . . . As a matter of normal procedure, a
child’s placement must be treated by legislatures,
courts, and administrative agencies as a matter of
urgency that comports with the child’s sense of time.
Goldstein et al., supra, at 42-43 (paragraphing
suppressed).
*fn2 Article 16 provides as follows: After receiving
notice of a wrongful removal or retention of a child
in the sense of Article 3, the judicial or
administrative authorities of the Contracting State
to which the child has been removed or in which it
has been retained shall not decide on the merits of
rights of custody until it has been determined that
the child is not to be returned under this Convention
or unless an application under this Convention is not
lodged within a reasonable time following receipt of
the notice. Hague Convention, art. 16.
*fn3 In addition to these four exceptions, the Convention
allows a court to take into account the preference of
an older child. The court may “refuse to order the
return of the child if it finds that the child
objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take
account of its views.” Hague Convention, art. 13; see
generally Friedrich II, 78 F.3d at 1067 & n.8.
*fn4 And even where the grounds for one of these “narrow”
exceptions have been established, the district court
is not necessarily bound to allow the child to remain
with the abducting parent. See Friedrich II, 78 F.3d
at 1067 (“[A] federal district court retains, and
should use when appropriate, the discretion to return
a child, despite the existence of a defense, if
return would further the aims of the Convention.”)
(citations omitted).
*fn5 In its “Legal Analysis” of the Hague Convention,
reported at 51 Fed. Reg. 10494, 10503, the State
Department explains that Perez-Vera served as “the
official Hague Conference reporter for the
Convention” and that “[h]er explanatory report is
recognized by the Conference as the official history
and commentary on the Convention and is a source of
background on the meaning of the provisions of the
Convention.” Id; accord Shalit, __ F.3d at __, 1999
WL 519334, at *2-*3. As the Supreme Court has noted,
“[b]ecause a treaty ratified by the United States is
not only the law of this land . . ., but also an
agreement among sovereign powers, we have
traditionally considered as aids to its
interpretation the negotiating and drafting history
(travaux pr‚paratoires) and the postratification
understanding of the contracting parties.” Zicherman
v. Korean Air Lines Co., 516 U.S. 217, 226 (1996)
(Scalia, J.) (citation omitted). In a similar vein,
three decades earlier Professor Myres S. McDougal and
his associates explained that “[i]n some contexts,
competent examination shows, the most reliable clue
to the shared expectations of the parties comes from
the travaux; in other contexts it may come from
subsequent conduct.” Myres S. McDougal, Harold D.
Lasswell & James C. Miller, The Interpretation of
Agreements and World Public Order 365 (1967).
*fn6 The Hague Convention’s Reporter has explained the
considerations that led the drafters to select a
one-year time limitation: The problem is an important
one since, in so far as the return of the child is
regarded as being in its interests, it is clear that
after a child has become settled in its new
environment, its return should take place only after
an examination of the merits of the custody rights
exercised over it – something which is outside the
scope of the Convention. Now, the difficulties
encountered in any attempt to state this test of
`integration of the child’ as an objective rule
resulted in a time-limit being fixed which, although
perhaps arbitrary, nevertheless proved to be the
`least bad’ answer to the concerns which were voiced
in this regard. Perez-Vere Report, 107; see also
Goldstein et al., supra at 105-06 (defending the
utility of time periods in child custody statutes,
despite their element of arbitrariness; citing
Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32,
41 (1928) (Holmes, J., dissenting)).
*fn7 As Professor Reisman has observed, the interpretation
of a treaty given by the institutions of the United
States will likely affect the other signatories’
pattern of interpreting that treaty in cases
involving the United States or its interests: All
other treaty parties engage in
performance-interpretation when they perform or when
they react to other parties’
performance-interpretations and then themselves
decide whether to protest, insist on a modification,
declare the treaty void, or acquiesce. W. Michael
Reisman, Necessary and Proper: Executive Competence
to Interpret Treaties, 15 Yale. J. Int’l L. 316, 325
(1990).
*fn8 We note that Dubois’s supplemental brief, and
accompanying affirmation of counsel, mentioned the
possibility that she could be criminally prosecuted
for abducting the children, should she return to
France to litigate custody. She cites no authority
regarding the significance, if any, of this asserted
possibility under the Convention. Dubois is free,
however, to make any argument on remand that she
believes follows from the asserted possibility of
criminal liability on her part, and, if she does so,
the District Court should obtain whatever
clarification of French law may be appropriate in the
circumstances, including testimony by experts and
submissions by French authorities.