Grave Risk | Objection of the Child

In this case, the Second Circuit granted a motion for summary judgment ordering return of three children to Israel. Issues involved included (1) grave risk of harm, (2) the court’s discretion regarding application of the mature child objection, and (3) the court’s reliance on psychologist affidavits in lieu of live testimony from the children.

Holding

The Second Circuit affirmed the district court’s decision to deny return; the evidence failed to establish grave risk to the children; the court properly exercised its discretion to apply the mature child exception to keep the siblings together.

Facts

The mother removed the three children to the United States from Israel. The father filed a Hague petition for their return. The children were interviewed by psychologists regarding their feelings about returning to Israel and the psychologists submitted affidavits to the court.

The parties agreed that their youngest child was not mature enough to express a valid opinion. One child preferred to remain in the United States but did not object to returning to Israel. The third child’s opinion possibly amounted to an objection to return to Israel.

Discussion

The parties did not dispute that the father established a prima facie case for the return of the children to Israel. On appeal, the mother argued that the district court erred by not permitting live testimony from the children and rejecting her defenses: the Article 13 “grave risk” and mature child exceptions.

The court of appeals affirmed the district court’s decision to refuse the mother’s request for in camera proceedings to interview the children. The court concluded that sufficient evidence was presented in the experts’ affidavits, and it was not necessary to subject the children to court testimony.

The Second Circuit also affirmed the district court’s finding that the mother failed to provide “clear and convincing evidence” that the children’s return to Israel would result in a “grave risk” of harm, as required by the Convention. Courts apply this exception to return narrowly, to avoid undermining the purpose of the Convention: maintaining the status quo and discouraging child abduction. The district court relied upon evidence that before the mother removed the children from Israel, she permitted them to travel to Israel to spend time alone with their father. It concluded that the alleged risks the mother presented—drug use, spousal abuse, and emotional or physical abuse of the children—did not warrant application of the grave risk exception. The mother could pursue ameliorative measures while divorce and custody proceedings were pending in Israel, including living with the children apart from the father and seeking a court order protecting the welfare of the children.

Finally, the Second Circuit agreed with the district court’s denial of mother’s “mature child” defense. Article 13 of the Convention empowers courts to deny a petition for return if a “mature” child expresses a “considered objection.” This defense must be established by a preponderance of the evidence. The district court found that only one child expressed what could possibly be construed as an objection to return. This equivocal opinion did not overcome the importance of keeping the siblings together. The court’s decision not to apply the mature child defense was “well within the district court’s discretion in Hague Convention Proceedings.”^[1]