USA – FEDERAL – DANAJPOUR – 2002 (Return Ordered) (Undertakings) DANAIPOUR v McLAREY The mother takes the children to the USA in violation of a court order not to remove the children. The mother claims sexual abuse of the girls by the father. The District court found reason to believe that there was some abuse of the younger girl, but ordered the return with a list of 10 undertakings. The mother appealed the court’s order of return. The Court of Appeals for the First Circuit issued a stay of the District Court’s order until they could hear the appeal. The Appeals Court ruled the
District Court erred by issuing undertakings with the expectation that the Swedish courts would simply copy and enforce them. The undertakings that were ordered by the District Court were invalid and there fore the return order cannot stand. “The District courts order for return is reversed and the case is remanded for proceedings consistent with this order”.
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Danaipour v. McLareyNo. 02-1065 (1st Cir. 04/03/2002)
06 International Abduction [USA 2002]
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United States Court of Appeals For the First Circuit
Nos. 02-1065, 02-1070
03 Apr 2002
As amended 12 Apr 2002.
IRAJ DANAIPOUR, PETITIONER, APPELLEE,
v.
KRISTINA MCLAREY, RESPONDENT, APPELLANT.
Elizabeth B. Burnett with whom Beth I.Z. Boland, Jennifer
Sulla, Francine Wachtmann, Meredith Brand Wade, and Mintz
Levin Cohn Ferris Glovsky and Popeo, P.C. were on brief for
appellant.
Stephen J. Cullen with whom Mary A. Azzarito, Nancy J.
Baskin, and Miles & Stockbridge, P.C. were on brief for
appellee.
Barbara F. Berenson, Assistant Attorney General, Thomas F.
Reilly, Attorney General, and Deepa S. Isac, Assistant
Attorney General, on brief for the Commonwealth of
Massachusetts, amicus curiae.
Barry S. Pollack, Anthony L. Bolzan, Amber R. Anderson, and
Dechert Price & Rhoads on brief for Leadership Council for
Mental Health, Justice, & the Media, Massachusetts Society
for the Prevention of Cruelty to Children, Community Legal
Services and Counseling Center, Children’s Law Center of
Massachusetts, Inc., Gloucester Men Against Domestic Abuse,
and Emerge, Inc., amici curiae.
Nora Sjoblom Sanchez and Pauline Quirion on brief for
Massachusetts Citizens for Children, Women’s Bar Association
of Massachusetts, Greater Boston Legal Services, Jane Doe
Inc., Domestic Violence Council, Inc., and Rebecca M. Bolen,
amici curiae.
Before Lynch, Circuit Judge, Campbell and Bownes, Senior
Circuit Judges.
The opinion of the court was delivered by: Lynch, Circuit
Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
001 Among the federal courts’ most difficult and
heart-rending tasks is the decision under the Hague
Convention on the Civil Aspects of International Child
Abduction whether to return an abducted child to the child’s
home country when a parent claims the child will face a
grave risk of physical or psychological harm if returned.
Hague Convention on the Civil Aspects of International Child
Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No.
11,670, 1343 U.N.T.S. 89 [hereinafter Hague Convention].
002 In the Convention’s enabling legislation,
International Child Abduction Remedies Act, 42 U.S.C.
11601-11610 (1994), Congress has assigned the federal courts
jurisdiction over actions arising under the Hague
Convention, including the question of whether return poses a
grave risk of harm to the child. Id. 11603.
003 The district court struggled conscientiously here and
concluded that, though there was reason to believe the
father had sexually abused his three-year old daughter, the
Swedish courts should ultimately decide whether sexual abuse
had occurred and, if so, what steps are necessary to protect
the children. The court held that numerous “undertakings,”
with what the court assumed would be parallel enforcement by
the Swedish courts, would adequately protect the children
until the Swedish courts could decide the matter.
004 Without deciding whether a United States court may
ever defer its responsibility to determine the grave risk of
injury question to a foreign court, we hold on these facts
that the court erred and that it overstepped its authority
in issuing conditions under which it thought the children
could be returned. We reverse and remand for further
proceedings consistent with this opinion.
I.
005 We summarize the facts of this case, as they were
presented to the district court.
006 Kristina McLarey is a dual citizen of Sweden and the
United States; Iraj Danaipour is a Swedish citizen and an
Iranian national. Danaipour is a practicing child
psychologist. The two met in Sweden.
007 McLarey and Danaipour had their first daughter in
1994; shortly thereafter, the two were married in
Massachusetts. Their second daughter was born in 1998. Both
children were born in Sweden and lived there for most of
their lives. In the summer of 1999, during a visit to
Massachusetts, Danaipour announced to McLarey’s parents that
the two would be divorcing. In February 2000, the two filed
for divorce, although they continued to cohabitate in their
condominium in Stockholm.
008 During the first half of 2000, McLarey and
Danaipour’s relationship deteriorated further. McLarey
alleges that Danaipour was abusive and controlling, and that
she began to suspect he was having inappropriate sexual
contact with their daughters. McLarey states that on several
occasions she observed Danaipour pinching the girls’ nipples
and squeezing the older girl’s buttocks. She also reports
that the older daughter began to exhibit sexualized
behavior, such as attempting to kiss her mother hard on the
mouth.
009 In June 2000, McLarey traveled to the United States
with the girls to visit her parents. The following month,
Danaipour also came to the United States to visit the girls.
McLarey alleged that, on two occasions following the girls’
visits with their father, she observed unusual redness in
the younger girl’s vaginal areas. When Danaipour returned to
Sweden, he petitioned for, and received, full custody of the
girls from a Swedish court. McLarey then returned to Sweden,
residing in a women’s shelter in Stockholm, and petitioned
for joint custody. Approximately four weeks later, around
October 2000, the Swedish court granted McLarey possession
of the condominium and joint custody of the children, with
physical custody to alternate between the two parents on a
weekly basis. McLarey promised the Swedish courts she would
not remove the children from Sweden again, and she
surrendered her passport and those of her children to her
Swedish attorney.
010 McLarey alleges that she again began noticing the
vaginal redness after the girls returned from visits with
their father. Upon the advice of a pediatric nurse, McLarey
consulted a child psychologist. After that first visit with
the child psychologist, McLarey says that she asked the
younger child what caused the redness and that the child
answered “Baba [her word for her father] do like this” and
made a masturbatory motion. McLarey also claims she asked
the older child, who had no answer. McLarey says she then
told her older daughter that “no one should ever touch you
anywhere unless you want them to,” to which the girl
responded, “what would you say if I told you they had?” The
girls did not see the psychologist, because that would have
required their father’s consent.
011 On November 21, 2000, the psychologist issued a
report of suspected child sexual abuse and referred the case
to the Swedish social services administration, which then
referred it to the Stockholm police. The police interviewed
the older daughter for a little over one hour, and the
younger daughter for about ten minutes; the younger child
refused to speak with them at all. *fn1 In January, the
younger girl was examined medically, and nothing out of the
ordinary was found. *fn2 The police then terminated their
investigation. *fn3
012 McLarey then returned to the Swedish social services
agency, requesting a full professional sexual abuse
investigation. The agency did initiate a general
investigation, but informed McLarey that it could not
investigate whether sexual abuse had occurred without
consent from Danaipour, which was not forthcoming. McLarey
then turned to the United States embassy and the members of
the Swedish parliament for assistance, but to no avail.
McLarey alleges that, during this time period, the younger
daughter repeatedly stated that “Baba” had hurt her “pee
pee” and that she exhibited symptoms of abuse, including
recurrent nightmares, avoiding bowel movements, and sexually
inappropriate behavior towards McLarey’s fiancé.
013 On March 29, 2001, McLarey filed a motion with the
Stockholm District Court requesting a full sexual abuse
investigation, which Danaipour opposed. McLarey filed
letters from her fiancé and her mother with the Swedish
court. The fiancé reported, among other things, that he
heard the younger girl cry out “Baba . . . ouchy . . . no,
no!” during the night; that he heard her say that Baba
“hammers” her, making a motion between her legs; and that
she had asked him to “play with her pee pee.” The mother’s
letter reported that she had seen unusual vaginal redness in
both girls following visits with their father; that the
older girl had asked her, “what does [her sister] mean when
she says that Baba does this?” making a masturbatory motion
between her legs; and that the younger girl had made other
comments complaining of pain in her vaginal area or
expressing general fear of her father. On June 13, 2001, the
Swedish court denied the motion for a full investigation.
014 Also during this time-frame, the Swedish authorities
concluded the custody evaluation conducted as part of the
divorce proceedings. On May 31, 2001, the Swedish
authorities issued a report, based on home visits, meetings
and visits to the girls’ schools, which found that “nothing
has been established . . . that suggests that either of the
girls have been subjected to sexual molestation. . . . Both
parents are very competent as parents and have a fine, close
and natural contact with the daughters.” *fn4 There was
never a full investigation done in Sweden into the specific
question of whether either girl had been sexually abused,
however.
015 On June 25, 2001, McLarey left Sweden with the girls
and returned to the U.S. The parties agree that this
violated a Swedish court order. Upon arrival, she arranged
for a sexual abuse evaluation, but the three-year-old
refused to speak with the evaluator. McLarey also filed, on
July 3, 2001, a declaratory action under the Hague
Convention (which was later dismissed by agreement of the
parties). On August 22, 2001, Danaipour filed a petition in
the Family Court division of the Massachusetts state court
seeking return of the children under the Hague Convention.
On September 5, 2001, upon McLarey’s motion, the action was
removed to the federal district court.
016 In September 2001, McLarey began taking the girls to
therapy sessions with Dr. Toni Luxenberg, a clinical
psychologist. Over the course of several months of weekly
sessions with Dr. Luxenberg, the younger girl made various
statements that could be taken as indicating that her father
had her masturbate him and that he had masturbated himself
in her presence. She also told the doctor that she did not
ever want to go to Sweden to see her father. The older girl
did not make any statements indicating that she had been
sexually abused, but did tell Dr. Luxenberg that her sister
had told her about the abuse, that she thought her father
did it, and that she was worried and frightened she would
have to go back to Sweden.
017 The district court held an initial scheduling hearing
on November 1, 2001. At that time, the court stated that
I’m not necessarily being asked in this case
to decide whether the allegations of child
abuse are proven by clear and convincing
evidence, but I’m being asked to decide
whether there are feasible conditions under
which the children can be returned to Sweden
so the Swedish authorities can decide those
issues.
018 On the following day, the district court appointed a
guardian ad litem (“GAL”) for the children and entered a
scheduling order requiring that discovery be completed by
December 17, 2001.
019 On November 21, Danaipour, along with his retained
expert, proposed that the district court issue an order
pursuant to Federal Rule of Evidence 706, *fn5 ordering that
the children be given an independent sexual abuse
evaluation. Also on that date, the GAL filed her preliminary
report, which emphasized the need for a “prompt resolution,”
preferably before the Swedish school term began in January.
On December 3, McLarey filed a motion requesting a forensic
sexual abuse evaluation prior to trial. McLarey stated that
she believed that the evidence in the record was sufficient
to meet her burden of proof under the Hague Convention, but
that the judge should order an evaluation if he thought it
would be helpful or necessary for him to make a finding on
whether sexual abuse had occurred. McLarey’s motion argued
that a finding of sexual abuse would constitute a per se
“intolerable situation” under the Hague Convention; that any
evaluations performed in Sweden would not be effective; and
that the results of an evaluation here could inform the
court’s consideration of the possibility of using
undertakings in the event of a return order. Along with her
motion, McLarey submitted expert affidavits from two medical
doctors indicating that the children’s willingness and
ability to disclose information relating to any sexual abuse
would be markedly diminished if they were returned to
Sweden. Thus, as of December 3, both parties agreed to the
need for a full evaluation and contemplated it would be done
here under the court’s supervision. When the GAL made her
November 21 recommendation urging prompt disposition of the
case, the GAL did not then know that both parties would be
seeking a full evaluation.
020 On December 4, 2001, the court held a preliminary
hearing, at which it expressed a preference to conclude the
trial in December, in accordance with the GAL’s
recommendation, and inquired whether a full evaluation could
be done in Sweden. At that point, Danaipour’s counsel
expressed an absolute opposition to the possibility of any
examination taking place in this country. The GAL stated
that she did believe that an evaluation needed to be done,
but she expressed no opinion as to whether it should be done
in the U.S. or in Sweden.
021 On December 7, the court held a second hearing. At
the hearing, Danaipour filed a written objection to an
evaluation being done in the United States. However, he
submitted no expert affidavits and thus did not controvert
the expert testimony submitted by McLarey that an evaluation
in Sweden was unlikely to succeed. The court held:
Contrary to what the respondent is contending,
I’m not persuaded that evaluations of the
children in Sweden will not be effective,
given the additional information that’s been
generated in this case, and I think it’s
neither feasible nor appropriate, given the
mandate of the Hague Convention to decide
these matters promptly, and given the fact
with the agreement of all the parties I’ve set
a December 19 trial date, [I] . . . deny the
motion for a court ordered sexual abuse
evaluation.
022 When the court made this holding, the only expert
testimony before it was that it was extremely doubtful, at
least, that an evaluation could be successfully performed if
the children were returned; further, the GAL took no
position as to where the evaluation should be performed,
saying it was beyond her expertise. The court further noted
that McLarey should have submitted her motion for an
evaluation earlier. *fn6 It does not appear that the court
relied on this rationale, however, as it noted that it had
“grave doubts” as to whether it would have been allowed even
if filed earlier.
023 Prior to trial, Danaipour submitted proposed
“undertakings” to which he would agree if the court ordered
the children returned to Sweden. These included an agreement
that the children could reside with McLarey in Sweden; an
agreement that he would have limited or no visitation
pending judgment of the Swedish court; and an agreement that
he would participate in a forensic evaluation to determine
if sexual abuse had occurred.
024 On December 14, 2001, shortly before the trial here
began, the Stockholm County Court entered an order
specifying that McLarey and Danaipour would continue to have
joint custody; the children would have supervised visitation
rights with their father every Saturday; *fn7 and “[w]hen
the children have been returned to Sweden, the court will
consider the question of a child psychiatric evaluation.”
(emphasis added). Thus, although the father had removed his
earlier objection to a forensic examination of the children,
the Swedish court reserved the issue of whether it would
require one.
025 The GAL’s final report, filed on December 17, 2001,
recommended that, if the girls were returned to Sweden, the
younger child have only telephone contact with her father
until a full sexual abuse evaluation was performed, or at
least substantially underway, and a counselor was in place
for her. Her recommendation was therefore in conflict with
the order entered by the Swedish court three days
previously.
026 Trial was conducted as scheduled from December 19 to
December 21. The court limited each side to about nine
hours of time to put in its case, without objection from the
parties. At trial, Dr. Luxenberg testified that based on her
treatment of the children, she believed that Danaipour had
sexually abused his younger child. She testified
specifically that she did not believe the girl had been
coached to make a false accusation, as the revelation was
made in age-appropriate language, it was accompanied by a
distressed emotional reaction, and it contained new
information, rather than a repetition of a rote script. Dr.
Luxenberg also testified that she could not, at this stage,
answer whether Danaipour had sexually abused his older
daughter. She also testified that, in her medical opinion,
the younger girl suffers from Post-Traumatic Stress Disorder
(“PTSD”). *fn8
027 McLarey also presented the expert testimony of Dr.
Bessel van der Kolk, an expert in the field of child trauma.
He concurred, based on his review of Dr. Luxenberg’s notes
and a short videotape of the younger child, that the younger
girl suffers from PTSD. He testified that he did not agree
that the older child suffers from PTSD at this time, but he
testified that returning either child to her father at this
time would be “devastating.” A third expert, Dr. Carole
Jenny, a professor of pediatrics at Brown University Medical
School and an expert in sexual abuse evaluations, also
testified for McLarey. Dr. Jenny testified that, in her
opinion, to a reasonable degree of medical certainty, the
younger girl had been sexually abused. She specified that
she did not believe the child had been coached. She based
her opinion on a review of Dr. Luxenberg’s treatment notes
and reports, a review of the Swedish social services and
police reports, an interview with McLarey, and observation
of the trial testimony. Dr. Jenny also testified that she
did not believe an effective investigation could be
conducted in Sweden, because the children would be unlikely
to talk if returned. A Swedish lawyer, specializing in child
abuse cases, also testified for McLarey as an expert on the
Swedish legal system and on the feasibility of
“undertakings” as a way to cabin the district court’s order.
The expert testimony is discussed in more detail in the
pertinent sections below.
027 Danaipour’s expert, Dr. Carlton Munson, a Ph.D. in
clinical social work, but not an M.D., testified that in his
opinion neither child suffered from PTSD. He also testified
that one could not predict whether a return to Sweden would
negatively affect the children, and suggested it might
improve their outlook. Dr. Munson further testified that it
was preferable that any evaluation take place in Sweden,
“the jurisdiction where the abuse is alleged to have
occurred,” because of “the familiarity with the system,
familiarity with all of the factors in the locale, the area,
what kind of services are available, and even in terms of
the culture of the person that has been abused, as well as
the culture of the abuser.” He did not explain this further.
028 Danaipour also testified, denying all allegations of
sexual abuse and denying that he had been abusive toward
McLarey. He testified that his daughters have seen him and
other men naked, which he says is common in Sweden, but that
he has never touched them, nor had them touch him, in a
sexual way. He testified that he had also observed redness
in the girls’ vaginal areas when he and his wife lived
together, and that they had consulted health care
professionals and were told that this was not out of the
ordinary and could be treated with a simple ointment. His
explanation for his wife’s accusations is that his wife left
him to be with another man, an American, and is now trying
to take the children with her, in violation of a Swedish
custody order.
029 On January 2, 2002, the district court issued its
decision. Danaipour v. McLarey, 183 F. Supp. 2d 311 (D.
Mass. 2002). The court found Dr. Luxenberg’s testimony
regarding the younger child’s statements to her to be
credible and that “[t]hose statements provide good reason to
be concerned that Danaipour may have masturbated in front of
C.D. and, on one occasion, engaged her in that conduct. If
that occurred it was, as another of McLarey’s experts, Dr.
Carole Jenny, opined, a form of sexual abuse.” Id. at 322.
However, the court also found that “a forensic evaluation is
necessary to determine with a reasonable degree of
reliability whether any form of sexual abuse has occurred
and, if so, who the abuser was.” *fn9 Id. The court further
found that there was no evidence that the older child had
been sexually abused in any way, *fn10 and that neither
child suffered from PTSD or would suffer from PTSD or any
unusual psychological harm if returned with her mother to
Sweden. Id. at 313. It concluded that “McLarey [has not]
proven by clear and convincing evidence that the children’s
return to Sweden on the conditions being ordered in . . .
this Memorandum will create the grave risk of psychological
harm to them that would permit the court to deny Danaipour’s
petition.” Id.
030 The court ordered McLarey to return the children to
Sweden at her own expense by January 16, 2002, with a list
of twelve conditions, including: that the children reside
with McLarey unless ordered otherwise by a Swedish court;
that a forensic evaluation be conducted in Sweden and that
both parents participate fully in the evaluation; that a
Swedish court decide the implications of the forensic
evaluation for the custody of the children; that Danaipour
have no contact with the younger daughter, unless ordered
otherwise by a Swedish court; that Danaipour have only
telephone contact three times a week with the older daughter
unless the Swedish courts order otherwise; and that
Danaipour request that a court of Sweden enter the terms of
the order as a “mirror order” enforceable in Sweden. Id. at
327-28. In denying McLarey’s motion for additional time to
seek leave to amend or to seek relief from the court’s
order, the district court noted that “[t]his court expects
that [the Swedish court] will enter a virtually verbatim
Swedish counterpart of [the January 2, 2000,] Order.”
031 On January 3, 2002, Danaipour submitted a required
mirror order motion to the Stockholm District Court. As the
District of Massachusetts did not supply a translated order
to the Swedish court, Danaipour filed his own translation,
which McLarey challenged as inaccurate.
032 On January 9, 2002, the federal district court
amended its order to extend the return date, if McLarey
filed an appeal with this court by January 14, until this
court could consider her motion for a stay pending appeal.
On January 25, this court granted her motion for a stay,
staying the order for return of the children pending the
outcome of this appeal, and granted the parties an expedited
appeal. Argument was heard on March 6, 2002. The last filing
from the parties was received on March 29, 2002.
033 After oral argument, we permitted both parties to
supplement the record to provide information regarding later
events in Sweden. This supplemental information, as it turns
out, tends to weaken further the district court’s
assumptions that an equivalent sexual abuse evaluation would
occur in Sweden. Even absent the post-hearing information,
however, we would reverse the district court. The
supplemental information simply confirms for us the errors
in the district court’s analysis. On February 14, the
Stockholm City Court entered an interim order in this case,
which follows some, but not all, of the undertakings ordered
by the district court. Danaipour v. McLarey, No. T 3165-00
(Stockholm City Court, Dept. 2, Div. 6, Feb. 14, 2002)
(translation). The order stated that “the majority of the
conditions imposed by Federal Court for a return of the
children under the Hague Convention cannot for formal reason
be confirmed.” Id. The City Court noted that in cases such
as this one, it was bound to follow the Parental Code and
could not lawfully issue an order containing provisions not
specified by the relevant provisions of that Code.
034 Specifically, it confirmed the orders that the
children should continue to reside with McLarey; that the
Child and Youth Psychiatric Service conduct an investigation
to “clarify whether [the children] have been exposed to
sexual molestation and in that case by whom” (specifying
that the Service should report to it on this investigation
by May 17, 2002); that the parents will participate in the
investigation; and that the results of the investigation
“shall be taken into account when the issue of future
custody of the children is determined.” Id. It stated that
it had no legal authority to confirm the portions of the
order requiring McLarey to return the children to Sweden at
her own cost, limiting Danaipour’s contact with the
children, requiring McLarey to surrender her passport and
not leave Sweden without court permission, and requiring
that Danaipour not initiate proceedings against McLarey or
attempt to enforce custody rights until the court decides
otherwise. Id. The Swedish court did, however, revoke the
December 14, 2001, order, which had granted Danaipour access
to the children.
035 Pursuant to the Swedish court’s February 14 order,
the case was referred to the Child and Youth Psychiatric
Service (“BUP”). On March 2, 2002, the BUP informed the
Swedish court that it “cannot accept this assignment,
whereby we would investigate whether the above-mentioned
children have been subjected to sexual abuse and by whom.
According to our understanding, whether a crime has been
committed and thus a criminal investigation should take
place is a question for the police to investigate.”
036 Following this, Danaipour’s Swedish attorney informed
us by affidavit *fn11 that he contacted the BUP. On March
28, the BUP informed the Swedish attorney that “[w]e
undertake . . . to investigate whether the above-named
children show signs of Post Traumatic Stress Disorder (PTSD)
and also, if possible, to explain the underlying reasons.
The investigation will be performed at an Open Care Child
Psychiatric Clinic within our area of operations.” The
letter provided no additional information on the parameters
of the proposed evaluation. Further, the evaluation was not
to be of whether there was sexual abuse, but rather of the
different question of whether the children suffered from
PTSD. The letter did not disclaim the statement in the BUP’s
March 12 letter to the Swedish court that the BUP would not
perform a sexual abuse evaluation.
037 Danaipour’s Swedish attorney has suggested,
apparently as an alterative to a court supervised
evaluation, a private evaluation to be done by a child
psychiatrist and a Professor of Psychology at Uppsala
University. A letter from them states that they have agreed
to perform the evaluation at “Hasselby Nya Gard,” to begin
at the earliest at the end of April. The letter states that
the “questions to be dealt with” are “Have the two girls
been traumatized, and what injuries, deficiencies have
occurred?” Again, the proposed evaluation was not an
evaluation of whether there had been sexual abuse, but
rather of whether the children had been traumatized. No
information is provided as to the expertise of the proposed
evaluators or of the protocols to be followed. Nor is it a
court supervised evaluation. There is no evidence that
either letter was submitted to the Swedish court.
II.
038 We review the district court’s interpretation of the
Hague Convention de novo. Whallon v. Lynn, 230 F.3d 450, 454
(1st Cir. 2000). We review the district court’s factual
findings for clear error, id., and review its application of
the Convention to the facts de novo, Blondin v. Dubois, 238
F.3d 153, 158 (2d Cir. 2001); Feder v. Evans- Feder, 63 F.3d
217, 222 n.9 (3d Cir. 1995).
039 Under the Hague Convention, children who have been
wrongfully removed from their country of habitual residence
must be returned, unless the abductor can prove one of the
defenses allowed by the Convention. Hague Convention, arts.
12-13, T.I.A.S. No. 11,670, at 7-8; see also Von Kennel
Gaudin v. Remis, No. 01-15096, 2002 WL 372844, *2 (9th Cir.
Mar. 11, 2002). All parties agree that Sweden is the country
of habitual residence for purposes of the Hague Convention
and that McLarey wrongfully removed the children from Sweden
within the meaning of the Convention. See Hague Convention,
art. 3, T.I.A.S. No. 11,670, at 4-5 (defining wrongful
removal).
040 McLarey invoked three defenses before the district
court: 1) “there is a grave risk that . . . return would
expose the child[ren] to physical or psychological harm or
otherwise place the child[ren] in an intolerable situation,”
id. art. 13(b), T.I.A.S. No. 11,670, at 8; 2) that return
would be contrary to “fundamental principles of the
requested State relating to the protection of human rights
and fundamental freedoms,” id. art. 20, T.I.A.S. No. 11,670,
at 9; and 3) that the children object to being returned and
have “attained an age and degree of maturity at which it is
appropriate to take account of [their] views,” id. art. 13,
T.I.A.S. No. 11,670, at 8. The district court found that
McLarey had failed to meet her burden on all three defenses;
McLarey did not pursue the latter two defenses before this
court. It is the Article 13(b) grave risk defense on which
we decide the appeal.
041 Under the United States’s legislation implementing
the Hague Convention, a party opposing return based on an
Article 13(b) exception bears the burden of establishing
that exception by clear and convincing evidence. 42 U.S.C.
11603(e)(2)(A) (1994). The district court held that
subsidiary facts must be proved by a preponderance of the
evidence, a standard we accept. Danaipour, 183 F. Supp. 2d
at 314.
042 The Convention establishes a strong presumption
favoring return of a wrongfully removed child. Whallon, 230
F.3d at 460; see also Turner v. Frowein, 752 A.2d 955, 970
(Conn. 2000) (“[T]he Hague Convention generally favors
repatriation as a means of restoring the preabduction status
quo and of deterring parents from crossing international
boundaries in search of a more sympathetic forum.”).
Exceptions to the general rule of expedient return,
including Article 13(b), are to be construed narrowly. See
Permanent Bureau, Hague Conference on Private Int’l Law,
Conclusions and Recommendations of the Fourth Meeting of the
Special Commission to Review the Operation of the Hague
Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction 4.3 (2001), available at
http://www.hcch.net/e/ conventions/reports28e.html; E.
Pérez-Vera, Explanatory Report, ¶ 34, at 434 in 3 Hague
Conference on Private Int’l Law, Acts and Documents of the
Fourteenth Session (1982) (translation of the Permanent
Bureau), available at http://www.hcch.net/e/conventions/
menu28e.html [hereinafter Pérez-Vera Report].
043 The Article 13(b) defense may not be used “as a
vehicle to litigate (or relitigate) the child’s best
interests.” Hague International Child Abduction Convention:
Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Dep’t
of State Mar. 26, 1986); see also Whallon, 230 F.3d at 460.
Under Article 13(b), “grave” means a more than serious risk.
See Hague International Child Abduction Convention:
044 Text and Legal Analysis, 51 Fed. Reg. at 10,510. And
even if the conditions for an Article 13(b) exception are
met, the Hague Convention gives the court discretion to
return the child to the country of habitual residence. Hague
Convention, arts. 13, 18, T.I.A.S. No. 11,670, at 8-9;
Walsh v. Walsh, 221 F.3d 204, 221 n.17 (1st Cir. 2000);
Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996);
Hague International Child Abduction Convention: Text and
Legal Analysis, 51 Fed. Reg. at 10,509.
045 The district court here concluded that it required a
full independent sexual abuse evaluation in order to make a
finding on whether sexual abuse had occurred, and thus
whether grave risk of harm would preclude return. Danaipour,
183 F. Supp. 2d at 317. It declined to order such an
evaluation, however, believing that the determination could
be made in Sweden without putting the children at grave
risk, so long as certain conditions were met. Id. at 313,
323, 327-28. The district court’s decision that it could
defer the ultimate issue of whether sexual abuse had
occurred is best evidenced by its statement at the November
1, 2001, scheduling conference:
I’m not necessarily being asked in this case
to decide whether the allegations of child
abuse are proven by clear and convincing
evidence, but I’m being asked to decide
whether there are feasible conditions under
which the children can be returned to Sweden
so the Swedish authorities can decide those
issues.
046 The district court concluded the evaluation could be
done as well in Sweden as here. Danaipour, 183 F. Supp. 2d
at 313, 327. Implicit in this conclusion is a determination
that, even if the children had been sexually abused, they
could be returned, and the onus would fall upon the Swedish
authorities to protect them. Without deciding that there
could never be a situation in which a district court could
properly decline to make a finding on sexual abuse
allegations or defer such a finding to the courts of the
country of habitual residence, we hold on the facts and
applicable law here that the district court violated the
terms of the Hague Convention.
047 First, we start with the context in which the grave
risk analysis must take place. Of great significance to us
is the policy of this country in enforcing the Hague
Convention with regard to the type of risk alleged: sexual
abuse of a young child. The policy, as articulated by the
Department of State, is to view sexual abuse as an
intolerable situation. Hague International Child Abduction
Convention:
048 Text and Legal Analysis, 51 Fed. Reg. at 10,494,
10,510. The district court failed to consider this
sufficiently when making its determinations regarding the
grave risk analysis and the use of undertakings. Certain
statements by the court about what type of conduct and what
type of psychological evidence were needed to show grave
risk arising out of sexual abuse are inconsistent with
United States policy.
049 Second, the Convention assigns the task of making the
“grave risk” determination to the court of the receiving
country; here, this task includes the obligation to make any
subsidiary factual findings needed to determine the nature
and extent of any risk asserted as a defense to returning
the child. The treaty does not give the courts of the
country of habitual residence jurisdiction to answer the
grave risk question; their jurisdiction is determined by the
law of their own country. The district court’s implicit
determination that, in the circumstances of this case, the
children could be returned without first determining whether
they had been sexually abused was inconsistent with United
States policy with regard to the Hague Convention, which
holds that sexual abuse by a parent constitutes an
intolerable situation and subjects the child to grave risk.
Given the significant evidence of sexual abuse presented
here, we believe that it is only after the district court
has resolved the sexual abuse issue that the court will be
in a position to proceed intelligently down the next avenue
of inquiry — whether the children can be returned safely to
the country of habitual residence. That is not to say that
there may never be a case where it may be proper to defer to
the courts of the country of habitual residence a finding on
a key factual issue underlying a grave risk determination,
but this is not that case: the evidence of sexual abuse so
far presented is too serious, and, if the children have in
fact been sexually abused, the problem of safeguarding them
once they are returned is too great. We hold that the
district court erred in determining that the Convention did
not require it to determine the issue of sexual abuse.
050 Third, it has been made clear by later events that
the district court erred in deciding that a forensic sexual
abuse evaluation could and ordinarily would be done under
the supervision of the Swedish courts. We discuss this more
fully in the next section. Nonetheless, and independently of
the events in Sweden, we disapprove of the district court’s
analytical methodology for two reasons. First, what was at
issue was not simply whether the Swedish procedures for
conducting a forensic evaluation were adequate, but also the
effect of the return on undermining the validity of a sexual
abuse evaluation of the children. The district court focused
primarily on the first question. The question under the
Convention is the effect of return on these particular
children, and therefore the focus properly also should have
been on whether a forensic evaluation would be viable given
these children’s circumstances.
051 Next, a sexual abuse evaluation in these
circumstances would be done under the supervision of the
court making the grave risk analysis, here the United States
court. If, as the father here sought, there is a request
that the evaluation be performed in the country of habitual
residence, we think that is in the nature of an undertaking.
052 As such, the proponent of the undertaking bore the
burden of showing that an equivalent evaluation could be
done as well in Sweden. The district court appears, however,
to have required McLarey to show that there was a grave risk
that an evaluation could not be done in Sweden; that was
error in the allocation of evidentiary burdens. We need not
decide whether the father met the burden, in light of the
developments. We do caution district courts that they must
be careful not to prejudice the process of proving grave
risk.
053 Fourth, the district court’s use of conditions went
beyond its authority by essentially imposing requirements on
a foreign court. That was error. In addition, it also made
incorrect assumptions that its own order could and would be
enforced by a foreign court.
A. Sexual Abuse as a Grave Risk of Harm
054 The Article 13(b) exceptions are narrow, and should
be construed narrowly by the courts. In this instance,
however, some of the district court’s statements evidence an
overly restrictive approach to the type of conduct that
constitutes sexual abuse, and to the relationship between
sexual abuse of a child and grave risk. The policy under the
Convention of both the United States government and the
Commonwealth of Massachusetts is weighted towards protection
of the child when there is credible evidence of sexual
abuse, particularly when the child is so young and when the
allegations involve abuse by a parent. This policy informs
the grave risk analysis.
055 The United States Department of State’s guidelines on
the Hague Convention state that sexual abuse by a parent is
an example of an Article 13(b) defense justifying
non-return. Hague International Child Abduction Convention:
Text and Legal Analysis, 51 Fed. Reg. at 10,510. In fact, it
is the only example so provided by the Department. The
Department of State’s legal analysis states that:
056 An example of an “intolerable situation” is one in
which a custodial parent sexually abuses the child. If the
other parent removes or retains the child to safeguard it
against further victimization, and the abusive parent then
petitions for the child’s return under the Convention, the
court may deny the petition. Such action would protect the
child from being returned to an “intolerable situation” and
subjected to a grave risk of psychological harm. Id.
057 American policy thus equates sexual abuse with both
prongs of the Article 13(b) defense to return of the child:
intolerable situation and grave risk. The Department of
State’s interpretation of the Convention is entitled to
great weight. See Blondin, 238 F.3d at 162 n.10.
058 Although its ruling on this point is not entirely
clear, the district court seemingly placed too much emphasis
on physical assault as an element of sexual abuse, finding
that “[t]he credible evidence does not prove that C.D. has
been sexually abused physically,” Danaipour, 183 F. Supp. 2d
at 321 (emphasis added), and that “[a]lthough returning a
child who had been raped to the parent who molested her
could reasonably be regarded per se as an intolerable
situation, this is not such a case,” id. at 325-26.
059 Sexual abuse other than rape may create an
intolerable situation or a grave risk under Article 13(b),
particularly when such abuse occurs at the hand of a parent.
The Commonwealth of Massachusetts, acting as amicus curiae,
has urged us, in light of the district court’s language, to
clarify that penetration is simply not a prerequisite to a
finding of sexual abuse posing a grave risk of harm to a
child. We agree. The Commonwealth states that this is
particularly true when the abuser is a parent, stating that
“[e]xperts recognize that sexual abuse committed by a parent
and unaccompanied by penetration often results in
significant trauma,” given the violation of trust inherent
in parental sexual abuse. The Commonwealth also notes that
its own policy is to prosecute the act of forcing a child to
sexually touch an adult as criminal sexual assault. The
district court apparently applied a different standard to
the significance of this type of abuse; for instance, the
court stated in its opinion that the younger child “may have
touched [her father’s] penis on one . . . occasion.” Id. at
317. The child’s statement to Dr. Luxenberg, however, was
that she “squeezed” her father’s penis “and it was very
hard,” surely a far more serious occurrence. The district
court found Dr. Luxenberg’s testimony credible. Id. at 322.
Moreover, there was no evidence that this only happened on
one occasion, as the district court said, id. at 317, nor
was there evidence that it had happened more than once.
060 The district court’s language concerning “rape” may
also reflect an improper standard. It would be inappropriate
to apply any standard that vaginal penetration, but not
other types of sexual abuse, would automatically qualify as
a grave risk or an intolerable situation. The proper focus
is on the effect on the child and whether there is “grave
risk of physical or psychological harm or otherwise . . .
intolerable situation” to which the child would be exposed
upon return. This conclusion is supported by the Department
of State’s guidance, which refers to sexual abuse, not
limited to rape or forcible intercourse, in discussing
“grave risk.” See Hague International Child Abduction
Convention: Text and Legal Analysis, 51 Fed. Reg. at 10,510.
061 In addition, the district court’s opinion placed a
great deal of emphasis on its finding that neither child
suffered from PTSD, Danaipour, 183 F. Supp. 2d at 313,
321-22, 325, which was a major subject of expert testimony
at the trial. Although a finding that a child suffers from
PTSD and would deteriorate if returned to the country of
habitual residence could be evidence tending to support a
finding of grave risk under Article 13(b), see, e.g.,
Blondin, 238 F.3d at 163, a risk of harm arising out of the
return to a locale where abuse occurred is a factor that a
district court may properly consider in its overall grave
risk analysis regardless of the label it bears.
062 A finding that a child is currently not experiencing
severe psychological effects of sexual abuse is not
necessarily dispositive; for example, there was significant
testimony that sexually abused children often function well
as small children, only to experience significant
psychological deterioration as they reach puberty. *fn12 The
diagnostic criteria for PTSD, after all, were not developed
to reflect children’s psyches. Dr. van der Kolk, who served
on the committee to define the diagnostic criteria for PTSD
for the most recent edition of the leading psychiatric
diagnostic manual (the “DSM-IV”), felt it necessary to “warn
the court that [a diagnosis of PTSD] is not a be all and end
all in determining whether [the younger child] was seriously
harmed by the life circumstances.” He also testified that
return to Sweden would be harmful for both girls, although
he only diagnosed the younger child with PTSD. This type of
evidence has a direct bearing on grave risk determinations
in cases where sexual abuse is alleged.
063 B. Referral of Sexual Abuse/Grave Risk Determination
to Swedish Courts
064 McLarey argues the district court “punted” on its
Hague Convention obligations by not deciding the issue of
sexual abuse, the basis for her grave risk claim. McLarey
also says that the only reason that the children were not
properly evaluated in Sweden prior to their wrongful removal
was that Danaipour did not give his permission for or
cooperate in any such evaluation. Danaipour denies that he
stymied the Swedish investigations, but the record supports
McLarey’s argument on this point.
065 Under the text of the Convention, the question for a
U.S. court confronted with an Article 13(b) defense is
whether “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), T.I.A.S. No. 11,670, at 8. It
is clear that “a court in the abducted-to nation has
jurisdiction to decide the merits of an abduction claim, but
not the merits of the underlying custody dispute.”
Friedrich, 78 F.3d at 1063; see also 42 U.S.C. 11601(b)(4)
(1994); Hague Convention, art. 19, T.I.A.S. No. 11,670, at
9. The Convention assigns the duty of the grave risk
determination to the country to which the child has been
removed. It is not a derogation of the authority of the
habitual residence country for the receiving U.S. courts to
adjudicate the grave risk question. Rather, it is their
obligation to do so under the Convention and its enabling
legislation. Generally speaking, where a party makes a
substantial allegation that, if true, would justify
application of the Article 13(b) exception, the court should
make the necessary predicate findings. Cf. Whallon, 230 F.3d
at 460 (1st Cir. 2000) (upholding district court’s findings
that father had not verbally abused daughter and that any
psychological harm resulting from abuse of mother in that
case did not rise to level required by 13(b)).
066 Implicit in the district court’s decision is a
determination that, even if the evaluation requested by
McLarey led to a finding that sexual abuse had occurred,
McLarey would not be able to meet her burden of showing
grave risk upon return. The court found that “[i]n these
circumstances, McLarey has not proven by clear and
convincing evidence that [either of the children] will be
exposed to a grave risk of physical or psychological harm,
or otherwise be placed in an intolerable situation, if
returned on the conditions the court is ordering.” *fn13
Danaipour, 183 F. Supp. 2d at 325 (emphasis added). The
district court did not make a decision on whether Danaipour
had sexually abused the children, or take the steps to
obtain the evidence it thought necessary to make a reliable
finding.
067 We think there are several errors in the district
court’s approach. It is one thing to evaluate whether to
return a child once the grave risk occasioned by sexual
abuse has been shown. It is another to say, as the district
court did, that the child could be returned before it knew
whether there was sexual abuse, despite credible evidence
that there had been sexual abuse. Secondly, even on its own
terms, the court order is based on improper assumptions. As
discussed below, the imposition of many of those conditions
was erroneous, as was the court’s finding that the Swedish
courts would undertake a forensic evaluation. It was based
on these errors that the court declined to order the
forensic evaluation that it found “would be necessary to
determine in a medically reliable manner whether either
child was sexually abused in any way.” Id. at 317. The court
declined to gather the very information that it found was
necessary to make a determination on the key issue. In this
case, the trial judge should have made a determination on
the underlying question, whether sexual abuse occurred.
*fn14
068 The district court’s approach here cuts the inquiry
short, in a way that is inconsistent with Hague Convention
obligations and United States policy on the Convention, as
expressed in the Department of State analysis of grave risk.
Hague International Child Abduction Convention: Text and
Legal Analysis, 51 Fed. Reg. at 10,510. The trial judge
should have taken the steps available to him to determine if
sexual abuse occurred; only once he had made such a finding
could he ask the right questions about whether the children
could be returned to the locale of the abuse, where the
abuser still resided and where the district court could not
guarantee the outcome of future determinations regarding the
safety of the children. Similarly, if the evaluation
exonerated Danaipour, or even if it was inconclusive, that
would also be relevant information to deciding the level of
risk, if any, that the girls would face if returned.
xxx
[86] C. Location of Forensic Evaluation
[87] The district court accepted the need for further
investigation into whether sexual abuse occurred. Danaipour,
183 F. Supp. 2d. at 313. The GAL also found that “an
evaluation is necessary . . . for the protection of the
children.” The district court then concluded that such an
evaluation could be properly done in Sweden. Id. at 327. We
now know the district court was wrong in concluding that a
forensic sexual abuse evaluation would be done in Sweden,
*fn15 as discussed in the next
section.
[88] We are also concerned about how the district court
approached the problem. The focus of the district court’s
inquiry was on the adequacy of the Swedish procedures for
conducting forensic sexual abuse evaluations. If these
procedures had not been adequate, that, of course, would be
significant. But even if the procedures were adequate, there
still remained the highly relevant question of whether the
effect of the return on the children would nonetheless
undermine the validity of any examination by making it more
likely that the children would not talk to those charged
with determining whether or not abuse had occurred.
[89] We give an example from the testimony. In a written
report submitted to the court, Dr. Jenny had concluded that
the children “should be allowed to stay in the United States
for further evaluation. Returning the children to Sweden . .
. would significantly decrease the likelihood of an
effective evaluation of the girls, and would place their
safety at risk.” In an affidavit, Dr. Jenny stated:
[90] Given this delay [of four to six months before an
evaluation could be performed], given the interruption of
what appears to be a trusting therapeutic relationship, and
given that during such process [the children] may be
returned to both the geographic and physical source of prior
trauma, there is a significant likelihood that a dependable,
accurate sexual abuse evaluation will not occur and any
investigative and/or therapeutic benefits to these children
will be jeopardized. This would be true even if any access
to their father upon their return were supervised.
[91] At trial, Dr. Jenny was asked her opinion as to
whether an evaluation in Sweden could be viable. *fn16 The
court, however, sustained Danaipour’s objection, holding
that it lacked foundation as to Dr. Jenny’s “knowledge of
circumstances in Sweden, among other things.” McLarey’s
counsel attempted to convince the court that the testimony
did not go to the situation in Sweden, but rather to the
children’s likelihood of disclosure if returned to Sweden.
The court then asked whether, given the proposed
undertakings, a valid evaluation could be done in Sweden.
Dr. Jenny responded that return to Sweden “would set the
children back and that they would be given the message that
disclosing . . . leads to chaos. And . . . just being in the
environment where abuse may have occurred could certainly
affect their perceptions and their ability to communicate
what happened to them.” *fn17
[92] In contrast, Danaipour’s expert, Dr. Munson,
testified only that evaluations are typically done in the
child’s home country. *fn18 He testified that there are some
benefits to doing an evaluation there, including
“familiarity with the system, familiarity with all of the
factors in the locale, the area, what kind of services are
available, and even in terms of the culture of the person
that has been abused, as well as the culture of the abuser.”
However, this testimony goes only to what is generally done,
not to what is a reasonable option for these particular
children. Moreover, he did not specifically respond to the
numerous expert witnesses who had testified that these
children would be extremely unlikely to discuss any abuse if
they were returned to Sweden. Thus, plaintiff’s experts were
largely unrebutted on this very material point.
[93] Next, the district court improperly allocated the
burdens. The father’s argument that the evaluation be done
in Sweden was essentially an undertakings proffer, as to
which he bore the burden. We do not know what the district
court would have concluded had it properly allocated the
evidentiary burdens. In the present posture of the case, we
need not decide whether the father met his burden. We
further discuss undertakings in the next section.
[94] D. Undertakings
[95] The district court’s findings that the children could
be safely
returned and that a valid forensic evaluation could be
conducted in Sweden relied heavily on its assumption that it
could impose enforceable “undertakings,” most notably a
requirement that the father not have any contact with his
younger daughter unless otherwise ordered by a Swedish court
and a requirement that a proper forensic evaluation be
conducted in Sweden. Danaipour, 183 F. Supp. 2d at 327. The
court stated that “McLarey [has not] proven by clear and
convincing evidence that the children’s return to Sweden on
the conditions being ordered . . . will create the grave
risk of psychological harm to them that would permit the
court to deny Danaipour’s petition,” id. at 313 (emphasis
added), and, later, that “[the children] can, on certain
conditions, be returned to Sweden without being exposed to a
grave risk of physical or psychological harm, or any other
intolerable situation,” id. at 327 (emphasis added).
[96] The concept of “undertakings” is based neither in the
Convention
nor in the implementing legislation of any nation. See P.R.
Beaumont & P.E. McEleavy, The Hague Convention on
International Child Abduction 156-59 & n.183 (1999). Rather,
it is a judicial construct, developed in the context of
British family law. Id.
[97] This court has previously described the utility of
undertakings in
Hague Convention Article 13(b) cases:
[98] A potential grave risk of harm can, at times, be
mitigated
sufficiently by the acceptance of undertakings and
sufficient guarantees of performance of those undertakings.
Necessarily, the “grave risk” exception considers, inter
alia, where and how a child is to be returned. The
undertakings approach allows courts to conduct an evaluation
of the placement options and legal safeguards in the country
of habitual residence to preserve the child’s safety while
the courts of that country have the opportunity to determine
custody of the children within the physical boundaries of
their jurisdiction. Walsh, 221 F.3d at 219 (footnote
omitted); see also Feder, 63 F.3d at 226 (noting that court
sometimes use undertakings to ensure that the child does not
suffer from “short-term harm” if returned).
[99] Undertakings can be an important tool for courts to
comply with
the Convention’s strong presumption of a safe and speedy
return of the wrongfully removed child.
[100] At the same time, there are some limits to a court’s
ability to
use undertakings to avoid an Article 13(b) defense. The
court entertaining the petition must recognize the limits on
its authority and must focus on the particular situation of
the child in question in order to determine if the
undertakings will suffice to protect the child.
[101] The Department of State’s view of undertakings, to
which we accord
great weight, is that they should be limited in scope. The
Department’s view of undertakings is expressed in a letter
to the British government, written in response to British
concerns about American courts’ failure to enforce
consistently British undertakings:
[102] [U]ndertakings should be limited in scope and further
the
Convention’s goal of ensuring the prompt return of the child
to the jurisdiction of habitual residence, so that the
jurisdiction can resolve the custody dispute. Undertakings
that do more than this would appear questionable under the
Convention, particularly when they address in great detail
issues of custody, visitation, and maintenance.
[103] Letter from Catherine W. Brown, Assistant Legal
Adviser for
Consular Affairs, United States Dep’t of State, to Michael
Nicholls, Lord Chancellor’s Dep’t, Child Abduction Unit,
United Kingdom (Aug. 10, 1995), at
http://www.hiltonhouse.com/articles/ Undertaking_Rpt.txt
[hereinafter Department of State Comment on Undertakings].
[104] There are two basic interrelated issues: 1)
international comity;
and 2) the appropriateness of undertakings when the
abducting parent claims to be protecting the child from
abuse.
[105] 1. International Comity
[106] When considering possible undertakings, American
courts must be
sensitive to the need for comity under the Convention
between the courts of different nations. The U.S. Department
of State, in a legal memorandum attached to the above-cited
letter, explained:
[107] Undertakings would appear most consistent with the
Convention when
designed primarily to restore the status quo ante, or when
they impose reciprocal obligations on both the left- behind
and the taking parent. . . . The approach taken by [some]
courts, whereby undertakings are reasonably tailored to
expedite the return of the child, impose reciprocal
obligations on both parents, and explicitly terminate upon
action by the court of appropriate jurisdiction, seems
entirely appropriate. Id., attached Legal Memorandum.
[108] In the letter, the Department of State listed
examples of
appropriate undertakings: an agreement that the abducting
parents return to the country of habitual residence with the
child; assignment of costs for the return flight; and
interim custody until a court in the country of habitual
residence can arrive at a decision. Department of State
Comment on Undertakings, supra. As an alternative to
undertakings, the Department of State has suggested “safe
harbor” orders, entered by a court in the country of
habitual residence at the behest of the left-behind parent,
prior to the entry of the return order. Id. Such an approach
would avoid the unseemliness of a U.S. court issuing orders
for a foreign court to enforce, and the foreign court’s
possible noncompliance, both of which occurred here.
[109] There is controversy in the international community
as to the use
of undertakings. The Special Commission studying the
operation of the Hague Convention had this to say with
regard to undertakings and safe harbor orders:
[110] On the one hand, “undertakings” are seen as mere
proposals agreed
upon by the parties and submitted to the requested judge.
They are limited in scope to the protection of the child for
a limited time and allow the child to be returned sooner,
and should therefore be enforced by requesting States as
valid under the Convention on the basis of comity. On the
other hand, . . . undertakings are used too broadly and
allow abducting parents to gain significant advantages from
the abduction. Furthermore, if such undertakings are mere
agreements between the parties, they can be entered into
before a judge in the requesting State and thus be
incorporated into a “safe harbour” order, which is more
readily enforceable. According to some, undertakings
incorporated in the return order cannot be enforced as such
in the country of habitual residence, short of additional
proceedings normally required to recognise foreign
judgments.
[111] Permanent Bureau, Hague Conference on Private Int’l
Law, Report of
the Third Special Commission Meeting to Review the Operation
of the Hague Convention on the Civil Aspects of
International Child Abduction ¶ 64 (1997), available at
http://www.hcch.net/e/ conventions/reports28e.html. This
confirms that undertakings should be limited, and are not
themselves binding on foreign courts.
[112] Conditioning a return order on a foreign court’s
entry of an
order, as the district court did here, raises serious comity
concerns. The Department of State has stated that it “does
not support conditioning the issuance of a return order on
the acquisition of [an] order from a court in the requesting
state,” presumably because such a practice would smack of
coercion of the foreign court. State Department Comment on
Undertakings, supra, attached Legal Memorandum; see also
Pérez-Vera Report, supra, ¶ 120 (“[T]he return of the child
cannot be made conditional upon [a] decision or other
determination being provided [by the court of the country of
habitual residence].”)
[113] There are also serious concerns about whether
undertakings or safe
harbor orders that go beyond the conditions of return are
enforceable in the home country. For instance, at least one
Massachusetts state court has declined to enforce
undertakings entered by a foreign court. See, e.g., Roberts
v. Roberts, No. 95-12029-RGS, 1998 U.S. Dist. LEXIS 4089 (D.
Mass. Feb. 27, 1998) (discussing Massachusetts state court’s
refusal to enforce undertakings entered by court in the
United Kingdom), adopted by No. 95-12029-RGS, 1998 U.S.
Dist. LEXIS 4087 (D. Mass. Mar. 17, 1998). Moreover, their
utility in countries where courts lack contempt or
injunctive power is somewhat questionable. See Beaumont &
McEleavy, supra, at 166-70. Cf. Blondin, 238 F.3d at 160
(court heard testimony from French law expert that French
court would enforce undertakings if they were not contrary
to public policy); Panazatou v. Panazatos, No. 960713571S,
1997 WL 614519, *3 (Conn. Super. Ct. Sept. 24, 1997) (court
arranged a conference call to a Greek judge to discuss
whether undertakings would be honored in Greece).
[114] In this case, there was evidence presented that not
all of the
proposed undertakings would be enforceable in Sweden, nor
would a mirror order suggested by a United States court
necessarily be entered by a Swedish court, or be enforceable
even if so entered. McLarey’s Swedish legal expert testified
that
[115] As a rule, we do not [implement orders entered in
foreign
jurisdictions]. The Swedish court needs its own basis, its
own evidence, its own decision . . . . And I think in the
last court order in this case, the court clearly stated that
it will wait for what happened when the children come back
to Sweden, and then they will rule again.
[116] . . . [I]f both parties consent to do [an
evaluation], there’s a
high probability, but no guarantee, that the court will
order such an evaluation.
[117] . . . [But y]ou can always go back to the court and
ask for
something else, that you do not consent anymore, and you
think its detrimental to the child. . . . [A]n interim
decision can always be turned over. . . .
There is no limit to interim positions in Sweden. And you
can
also appeal each interim decision by the court.
[118] The expert further opined that, if a parent withdrew
from an evaluation, the court would not then have the power
to order the parent to participate. McLarey also submitted a
report by the U.S. Department of State, indicating that
Swedish courts do not have authority to issue contempt
orders for violations of visitation orders. See Dep’t of
State, Report on Compliance with the Hague Convention on the
Civil Aspects of International Child Abduction (2001), at
http://travel.state.gov/2000_Hague_Compliance _Report.html.
[119] The district court noted that the parties “have
agreed to request that the Swedish court enter a ‘mirror
order’ imposing any conditions ordered by this court. This
court concludes that a Swedish court would do so.”
Danaipour, 183 F. Supp. 2d at 321. However, the district
court’s order is belied both by the expert testimony,
described above, and by subsequent events. The day after the
United States district court issued its order, Danaipour
submitted a motion to the Stockholm District Court stating
that “[t]he Swedish court is not acquainted with the concept
‘mirror order.’ Decisions in foreign courts can be directly
carried out in Sweden if they concern custody issues and are
put forth in the Nordic countries or in [certain other
European] countries.” The Swedish court itself, in its
February 14 order, stated that it did not have such
authority. Danaipour v. McLarey, No. T 3165- 00 (Stockholm
City Court, Dept. 2, Div. 6, Feb. 14, 2002) (translation).
[120] Indeed, it now appears that the Swedish court lacked
the authority to order a full forensic sexual abuse
evaluation conducted in keeping with the established
protocols for such evaluations, which was a key component of
the district court’s order, and there appears to be no
mechanism for making such an evaluation a reality. The
Swedish agency that the Swedish court charged with
conducting the evaluation first stated that it “cannot
accept this assignment,” and suggested that the matter
should be referred to the Swedish police. *fn19 The agency
has now agreed to conduct an evaluation into whether the
children have PTSD, which is different from the evaluation
for sexual abuse according to established protocols
contemplated by the United States district court’s order.
The agency has not disavowed its position that it cannot do
a sexual abuse evaluation.
[121] As Danaipour’s expert emphasized in his initial
report and in his testimony, there are established protocols
within the psychiatric community for investigating whether
sexual abuse has occurred. The Child and Youth Psychiatric
Service’s proposed evaluation does not directly address the
question of sexual abuse — the key issue for our purposes
— nor would it follow the protocols devised for
investigating that question. It is open to debate, moreover,
whether the categorization of PTSD is useful in a child less
than four years old, and there was much testimony at trial
that children who have been sexually abused often do not
exhibit signs of trauma until they are older. Therefore, it
appears that there is now little, if any, chance that the
district court’s order that a forensic sexual abuse
evaluation be done in Sweden will be carried out.
[122] In sum, the district court offended notions of
international comity under the Convention by issuing orders
with the expectation that the Swedish courts would simply
copy and enforce them. The district court had no authority
to order a forensic evaluation done in Sweden, or to order
the Swedish courts to adjudicate the implications of the
evaluation for the custody dispute. See Beaumont & McEleavy,
supra, at 161 (“[W]hile a court may find it relatively easy
to extract undertakings from an applicant there can be no
guarantee that such orders will be enforced in the State of
the child’s habitual residence.”). Moreover, its assumption
that Swedish courts would enforce the undertakings was both
legally and factually erroneous. These undertakings, which
the district court believed
necessary to protect the children from grave risk, were
invalid, and therefore the return order cannot stand for
these reasons as well.
[123] 2. Undertakings in Context of Abuse Allegations
[124] There is also authority indicating that undertakings
should be
used more sparingly when there is evidence that the
abducting parent is attempting to protect the child from
abuse. The Department of State has indicated that:
[125] If the requested state court is presented with
unequivocal
evidence that return would cause the child a “grave risk” of
physical or psychological harm, however, then it would seem
less appropriate for the court to enter extensive
undertakings than to deny the return request. The
development of extensive undertakings in such a context
could embroil the court in the merits of the underlying
custody issues and would tend to dilute the force of the
Article 13(b) exception.
[126] Department of State Comment on Undertakings, supra,
attached Legal
Memorandum. The Department of State’s guidance on the
Convention also supports the conclusion that a court need
not consider extensive undertakings when dealing with an
Article 13(b) defense based on sexual abuse; the Department
says that “[i]f the other parent removes or retains the
child to safeguard it against further victimization . . .
the court may deny the petition.” Hague International Child
Abduction Convention: Text and Legal Analysis, 51 Fed. Reg.
at 10,510. This analysis implies that the court may deny the
return petition on that basis alone, and is not necessarily
required to consider ameliorative undertakings. As the
Department of State comment on undertakings notes,
undertakings are most effective when the goal is to preserve
the status quo of the parties prior to the wrongful removal.
This, of course, is not the goal in cases where there is
evidence that the status quo was abusive.
[127] Leading commentators on the Convention also agree
that
undertakings should be applied cautiously in these cases:
[128] [T]he imposition of undertakings, albeit rare, does
not rest
easily with assertions made in relation to Article 13(1)(b)
.
[129] Therefore it is submitted that if one of the Article
12 or 13
exceptions is applicable the court should not exercise its
discretion to return the child unless enforcement of the
undertakings can be guaranteed. See Beaumont & McEleavy,
supra, at 162, 165.
[130] Under the Convention and its implementing
legislation, the
American courts have a duty to ensure that a child is not
returned to a situation of grave risk or an intolerable
situation. See Pérez-Vera Report, supra, ¶ 29 (“[T]he
interest of the child in not being removed from its place of
habitual residence . . . gives way before the primary
interest of any person in not being exposed to physical or
psychological danger or being placed in an intolerable
situation.”). Where substantial allegations are made and a
credible threat exists, a court should be particularly wary
about using potentially unenforceable undertakings to try to
protect the child. Undertakings that will protect the child
from grave risk for only a very limited time are
insufficient to defeat an Article 13(b) claim. See Walsh,
221 F.3d at 218 (“The Convention does not require that the
risk be ‘immediate’; only that it be grave.”)
[131] The determination of whether any valid undertakings
can be crafted
in such a situation is inherently fact-bound. See, e.g.,
Turner v. Frowein, 752 A.2d 955 (Conn. 2000) (remanding for
further consideration of alternative care arrangements and
legal safeguards for repatriation of child, where evidence
established that father sexually abused child and physically
abused mother, home country authorities had failed to
respond to mother’s complaints, and home country had no
mechanism for a no contact order); Walsh, 221 F.3d 204
(holding district court’s order with undertakings would not
sufficiently protect child from violent father who abused
mother and regularly ignored court orders). However, the
terms of the Convention, as well as the Department of
State’s guidance, indicate that the protection of the child
must remain paramount.
[132] III. Conclusion
[133] The district court ultimately did not decide whether
the father
had sexually abused his younger daughter. Neither do we.
Danaipour may be innocent of these accusations.
[134] Accusations that a parent has sexually abused a young
child in
private are difficult to prove. They are also difficult to
disprove. And claims of abuse, whether brought in good faith
or for other reasons, are sometimes used as weapons in
divorce and custody battles. The trial courts must make
nuanced judgments. Still, the evidence here raises, at
least, a clear and substantial claim: the treating child
psychologist was found to be credible in her recounting of
the child’s activities and statements, those activities and
statements are evidence of sexual abuse by the father, and
the psychologist found no evidence of coaching of the child.
Further, there is considerable supporting expert testimony.
[135] On these facts, the district court must adjudicate
the issue of
whether sexual abuse occurred, ordering further evaluations
if necessary in order to determine whether the children are
at a grave risk of physical or psychological harm, or of
otherwise being placed in an intolerable situation if
returned.
[136] The district court decision ordering return is
reversed, and the case is remanded for proceedings
consistent with this opinion.
Opinion Footnotes
*fn1 Amici Massachusetts Citizens for Children, et al.,
state that
in one study of children who had been sexually abused, only
43% initially made a verbal disclosure of sexual abuse, even
to trained sexual abuse investigators.
[138] *fn2 According to an expert report submitted by
McLarey, 75- 85%
of children who have been sexually abused have normal
physical examinations. Amici Massachusetts Citizens for
Children, et al., also presented studies indicating that, in
most cases of sexual abuse, there is no medical evidence.
[139] *fn3 McLarey submitted expert testimony concerning
the Swedish procedures for investigating allegations of
child sexual abuse. One expert report, from a Swedish police
officer, stated that it is typical in Sweden for the social
services agency to perform a general investigation into the
welfare of the child and refer any specific criminal
allegations to the police, as was done here. If the police
investigation is closed without criminal charges, the social
services “ordinarily will not remove the child from a
parent’s custody, and will often close their own
investigations.” The expert further stated that police
investigations frequently consist of only one interview of
the child in a room at the police station, conducted by an
officer with no medical or psychiatric degrees, despite the
fact that, in her experience, “children will not make
disclosures in this setting, especially at a first meeting.”
Another report, submitted by a Swedish lawyer specializing
in family law with an emphasis on child sexual abuse cases,
concurred that the police investigation in this case,
consisting of a single short interview of the children
conducted by police officers with little training in this
area, was typical. The legal expert also stated that social
services’ investigation “is not geared toward determining
whether sexual abuse has actually occurred,” and that social
services often closes its investigation once the police
investigation is closed. Moreover, the legal expert stated
that “[i]t is not uncommon for a [Swedish] court to refuse
to grant a request to issue an order that a sexual abuse
investigation occur [without the consent of one parent];
typically, such investigations are seen as within the
province of police authorities.” Danaipour did not submit
any evidence contrary to this.
[140] *fn4 McLarey argues that the Swedish authority’s
report is not conclusive on the issue of sexual abuse. Prior
to the trial in the United States district court, McLarey
submitted expert reports by Dr. Bessel van der Kolk and Dr.
Carole Jenny indicating that it is not unusual for young
children who have been sexually abused to continue to
function normally in school and day care. Dr. Jenny also
testified at trial that some children attempt to compensate
for the abuse by being extremely well behaved, and that
there is no research to indicate that abused children react
negatively to an abusive parent. McLarey also submitted
several expert reports suggesting that an investigation’s
failure to disclose sexual abuse does not necessarily mean
that abuse did not occur. One report, prepared by Drs. Glenn
Saxe and Wanda Grant Knight, experts in childhood trauma,
stated that “it is unusual for traumatized children to
disclose abuse to unfamiliar adults.” Danaipour’s expert,
Dr. Carlton Munson, testified, however, that children who
have been sexually abused typically engage in sexualized
behavior, have interpersonal problems, fight with other
children, become socially withdrawn, and exhibit
developmental regression.
[141] *fn5 Federal Rule of Evidence 706(a) provides, in
relevant part, that: The court may on its own motion or on
the motion of any party enter an order to show cause why
expert witnesses should not be appointed, and may request
the parties to submit nominations. The court may appoint any
expert witnesses agreed upon by the parties, and may appoint
expert witnesses of its own selection.
[142] *fn6 McLarey submitted the motion two weeks before
the end of discovery. Although it would have been helpful if
McLarey had made the motion earlier, it appears McLarey
believed that, given the disclosures to the treating
therapist, she already had sufficient evidence to meet her
burden. The December 3 motion for a court-ordered evaluation
appears, in part, to have been a response to Danaipour’s
November 21 initial expert report from Dr. Munson, who
expressed concern that Dr. Luxenberg was a treating doctor,
not an independent evaluator, and that Dr. Luxenberg had
not, in his view, followed established protocols for
investigating sexual abuse allegations.
[143] *fn7 From the translation provided, it is not clear
whether this
is the child’s right to exercise (or decline to exercise),
or whether it is the father’s right.
[144] *fn8 Upon questioning by the court, Dr. Luxenberg
testified that
the older girl suffers from PTSD, as well. Danaipour’s
counsel objected to this question and it appears that the
court sustained the objection.
[145] *fn9 The court also stated that “sexual abuse has not
been
proven,” Danaipour, 183 F. Supp. 2d at 325, which seems to
be in tension with its finding that Dr. Luxenberg’s
testimony was credible.
[146] *fn10 The district court noted that “[t]he parties
have implicitly agreed that [the children] should not be
separated.” Danaipour, 183 F. Supp. 2d at 324 n.8.
*fn11 The affidavit from Swedish counsel mischaracterizes
the contents of the attached communications from both the
Child and Youth Psychiatric Services and from the
University. Further, the affidavit asserts that the “court
ordered evaluation will be conducted in Sweden either by the
BUP (as originally requested by Ms. McLarey) or by the
professionals at Uppsala University.” That statement is not
supported by the record.
[148] *fn12 For instance, amici the Leadership Council for
Mental
Health, Justice & the Media, et al., stated the generally
accepted medical conclusion that “some children may not have
immediate and specific reactions that meet the clinical
definition of PTSD, yet these children can still be impacted
by long-term psychological, personality and somatic
disorders.”
[149] *fn13 The court’s erroneous reliance on its
conditions as a
necessary prerequisite for safe return is discussed below.
[150] *fn14 This is not to say that a full evaluation must
take place
whenever an Article 13(b) defense is raised, or even that an
inconclusive evaluation by itself would defeat an Article
13(b) claim if there was sufficient other proof of sexual
abuse. There may be cases where a trial court is able to
find that sexual abuse did or did not occur without the
benefit of a full forensic evaluation. On the record here,
the court could have concluded that, given the children’s
repeated disclosures to the treating therapist and others
and the other evidence presented suggestive of sexual abuse,
this is such a case. Amici Massachusetts Citizens for
Children, et al., agree that a forensic evaluation is not
always necessary to establish abuse, and posit that the
evidence was sufficient in this case to establish sexual
abuse without a forensic evaluation.
[151] *fn15 Had the district court ordered the evaluation
both parties
had requested by December 3, 2001, the evaluation would now
be complete and the interests of the Hague Convention in a
speedy resolution would have been better served.
[152] *fn16 The children’s expressed opposition and anxiety
regarding
the proposed return to Sweden tends to support the expert
testimony indicating that they would view any such return as
punishment for
disclosures, and would be unlikely to cooperate in any
further investigation if returned. Courts may consider the
views of a child as evidence in making an Article 13(b)
determination as to whether grave risk exists, even if the
child is not yet old enough to justify Article 13’s defense
for children who “ha[ve] attained an age and degree of
maturity at which it is appropriate to take account of
[their] views.” See Blondin, 238 F.3d at 166.
[153] *fn17 The opinion was shared by Dr. van der Kolk,
whose report indicated that switching therapists at this
point “could have a marked impact on their ability and
willingness to communicate the source of their trauma.” At
trial, Dr. van der Kolk testified that the likelihood, if
the children were returned, is that “they will clam up and
will not say anything.” The GAL, referring to the younger
daughter, also noted that “it is going to be a challenge for
any evaluator or counselor to effectively work with the
child in the coming several weeks or months.” The trial
court expressed its reasons for discounting this testimony
at 183 F. Supp. 2d at 323, n.7.
*fn18 In this case, Danaipour’s objections prevented the
Swedish authorities from conducting a full evaluation.
McLarey requested an investigation twice from the Swedish
social services, then from the Swedish Child and Youth
Psychiatric Service, and then from the Swedish court. On
each of these occasions, Danaipour did not agree to allow a
sexual abuse investigation.
*fn19 A referral to the police is not the type of
evaluation required or contemplated by the United States
district court. The testimony at trial was that the Swedish
police conducted an investigation in the winter of
2000-2001, an investigation which all experts agreed did not
comport with established protocols for sexual abuse
evaluations. Moreover, McLarey’s experts on the Swedish
police and legal system indicated that Swedish police
investigations do not typically follow established sexual
abuse protocols, testimony that Danaipour did not refute at
trial.