Walsh v. Walsh

United States Court of Appeals
For the First Circuit
____________________

No. 99-1747

JOHN WALSH,

Petitioner, Appellee,

v.

JACQUELINE WALSH,

Respondent, Appellant,

and

MARTHA MILLER,

Intervenor, Appellant.

____________________

No. 99-1878

JOHN WALSH,

Petitioner, Appellant,

v.

JACQUELINE WALSH,

Respondent, Appellee,

and

MARTHA MILLER,

Intervenor, Appellee.
____________________

-2-
 APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

____________________

Before

Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.

____________________

Barry S. Pollack, with whom Bernard J. Bonn III and Dechert Price
& Rhoads were on brief, for appellant Martha Miller.
Robert Najarian for appellant Jacqueline Walsh.
E. Chouteau Merrill, with whom Amanda Buck Varella and Brown
Rudnick Freed & Gesmer were on brief, for appellee.
Susan M. Basham, Colleen Brunnick McElhinney, and Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. for amici curiae National Network
to End Domestic Violence, National Network to End Domestic Violence
Fund, Massachusetts Citizens for Children, Massachusetts Society for
the Prevention of Cruelty to Children, and Women Against Abuse, Inc.

____________________

July 25, 2000
____________________

-3-
 LYNCH, Circuit Judge. From Ireland, John Walsh petitions for

the return of his two children, "M.W." and "E.W.,"1 to that country,

pursuant to the Hague Convention on the Civil Aspects of International

Child Abduction. See Hague Convention on the Civil Aspects of

International Child Abduction, T.I.A.S. No. 11,670, 19 I.L.M. 1501

(1980) (Hague Convention). His estranged wife, Jacqueline Walsh, now

living with the children in Massachusetts, says that John's petition

should be denied and the children should not be sent back to Ireland

because: 1) John is precluded from petitioning the district court under

the fugitive disentitlement doctrine; and 2) the Hague Convention does

not require children to be returned to their country of habitual

residence when there is a "grave risk" that they will be exposed to

"physical or psychological harm" or an "intolerable situation." Hague

Convention, art. 13(b).

The district court rejected both of Jacqueline's contentions

and granted John's petition, provided he agreed to certain important

undertakings pertaining to the safe return of the children. See In re

Walsh, 53 F. Supp. 2d 91 (D. Mass. 1999) ( Walsh II); In re Walsh, 31 F.

Supp. 2d 200 (D. Mass. 1998) ( Walsh I ). Jacqueline and Martha Miller,

Jacqueline's sister and a belated intervenor on behalf of the children,

appeal.2 We affirm in part and reverse in part, and we remand with

1 We use initials in place of the children's full names. For
the adult participants, we use first names after the initial reference.
2 Jacqueline and Martha also appeal the district court's
refusal to adjudicate all the claims presented in Martha's Declaration
by Intervenor of Claims and Defenses. John appeals the district
court's decisions to allow Martha to intervene and to enter a stay of

-4-
instructions to dismiss the petition.

I.

John, an Irish national, and Jacqueline, a U.S. national, met

at an Irish pub in Malden, Massachusetts, in June 1988. On August 24,

1989, a daughter, M.W., was born to them in Massachusetts. On May 3,

1992, John and Jacqueline were married in New York State. They lived

in Malden during these years, though John spent a good part of his time

in Ireland until M.W. was about two years old in 1991.

The events of the following five years evidence John's

violent behavior toward his wife and others. In August 1992, John beat

Jacqueline after he became enraged that he was not asked to be a

pallbearer at Jacqueline's aunt's funeral. On December 31, 1992, after

a New Year's Eve party, John abused Jacqueline again.

On October 31, 1993, a wake was held for a neighborhood child

in Malden who had apparently died of a drug overdose. John took the

death badly and drank heavily at a pub following the wake. Upon

returning home, he became enraged at a young man, who lived in the

house next door, because John thought that the man had provided the

dead child with drugs. John ran next door, banged on the door,

breaking the door's glass, and yelled that he was going to kill the

man. He did this repeatedly until the police arrived, at which point

he was handcuffed and arrested. On November 1, 1993, a two-count

execution of its order pending appeal.

-5-
criminal complaint was filed against John in the Malden District Court,

which charged him with: 1) attempting to break and enter, in violation

of Mass. Gen. Laws ch. 274, § 6; and 2) threatening to kill another

person, in violation of Mass. Gen. Laws ch. 275, § 2.

John was arraigned, but not tried, as he absconded to Ireland

on January 11, 1994. See Walsh II, 53 F. Supp. 2d at 92. A default

warrant exists for his arrest.3 Michael Walsh, his twenty-year-old son

from a previous relationship who had been living with John and

Jacqueline in Malden since they were married, returned to Ireland with

him.

On March 31, 1994, Jacqueline and M.W. followed John to

Ireland. Jacqueline was pregnant at the time. The family first lived

in Waterford City and later moved to the nearby town of Tramore. As

the district court found, Jacqueline was the "victim of random

beatings." Walsh I, 31 F. Supp. 2d at 202.

On June 23, 1994, Jacqueline went to see Dr. Anne Marie

Burke, her Irish physician, for her pregnancy. She was seven months

pregnant at the time. Dr. Burke noticed that Jacqueline was losing

weight and was concerned about bruises she noticed on Jacqueline's

body. The day before John had beaten Jacqueline and had only stopped

3 On March 10, 1999, a second criminal complaint was issued
against John, this time in the U.S. District Court for the District of
Massachusetts, for unlawful flight to avoid prosecution, in violation
of 18 U.S.C. § 1073.

-6-
when Andrea Walsh, John's fourteen-year-old daughter from a previous

marriage, intervened. A son, E.W., was born soon thereafter, on August

25, 1994.

On October 11, 1996, Jacqueline saw Dr. Burke again.

Jacqueline said she had been assaulted by John the previous day. Her

face, chest, and knees all were swollen and bruised, her arms were

marked by hard gripping, and she had suffered a broken tooth. Dr.

Burke advised her to seek protection and to get a barring order from a

court, which would "establish and govern the rights of each spouse to

be in the presence of the other and to have access to their children."

Id. at 203. She also advised Jacqueline to get photographs taken of

herself at Phelan's Pharmacy, which Jacqueline did that same day. The

photographs show bad cuts and bruises on her face.

In December of 1996, John pushed Jacqueline down so that she

hurt her coccyx bone in her lower spine. Soon thereafter, Paul Walsh,

another of John's sons from a previous relationship, invited Jacqueline

over to his house, which was across the street, for coffee. He asked

Jacqueline about her bruises. She told him that John had beaten her.

Angry with his father, Paul called the police. The police arrived and

John denied beating Jacqueline. Jacqueline was frightened and declined

to press charges. She decided to stay in the house because Michael

Walsh (who had been thrown out of the house by his father) said he

would stay there and protect her.

-7-
 On May 24, 1997, the night before M.W.'s communion, John,

Michael, and Jacqueline's sister Martha, who had come to Ireland for

the event, went out to a number of local pubs. On the way home, where

Jacqueline and the children were asleep, John attacked Michael, fists

flying, simply because Michael had broken a beer bottle. This was not

their first fight, or their last. Indeed, they immediately fought

again when they arrived back at the house. When all was over, both

John and Michael were bleeding and the room was splattered with blood.

John hauled his daughter M.W. down to the bloodied room where her half-

brother was and told her to look at her bloodied half-brother and to

tell him to leave. M.W. was very frightened -- she was about eight

years old at the time. Jacqueline intervened and took M.W. back to her

room and then Jacqueline went to her own bedroom. John followed

Jacqueline in and hit her with an open hand about the head, causing a

swollen and bloodied ear. The next day, John refused to go to the

communion because it was obvious he had been in a fight.

The day after the communion, May 26, 1997, John again

assaulted Jacqueline and she fled the house, without the children. He

had repeatedly punched her in the head and kicked her. Fearing for her

life, Jacqueline went to her friend Anne Phelan's pharmacy. Phelan's

daughter took Jacqueline to the police station, where the police told

her that domestic abuse was not uncommon in Tramore, and that she

should seek help at the legal aid office in Waterford City, the county

-8-
seat. Jacqueline filed a report and, accompanied by the police, she

returned to the house for her things, only to find John throwing her

bags into the street.

The next day, May 27, 1997, Jacqueline saw Dr. Burke. The

doctor noted extensive bruises and scratch marks and concluded that

Jacqueline's life and health were at risk. A few days later, on May

30, 1997, Jacqueline sought a "protection order," similar to an

American temporary restraining order. One was issued that same day by

the Waterford District Court. The order required that John "not use or

threaten to use violence against, molest or put in fear" Jacqueline and

that he "not watch or beset the place where [she] . . . resides." By

the same order, a July 25th date was set for a hearing on the issuance

of a "barring order."

For the first few weeks after she had fled her home,

Jacqueline stayed at Paul's house. It was during this period that

Jacqueline began a relationship with another man, Michael Murphy.

On July 15, 1997, John assaulted Jacqueline despite the clear

terms of the protective order. On July 25th, at the first court date

on the barring order, John agreed that he would vacate their house and

let Jacqueline and the children stay there.

The application for a barring order was adjourned several

times to November 28, 1997, "on the undertaking of Mrs. Walsh not to

take the children out of the jurisdiction and on Mr. Walsh's

-9-
undertaking to stay away from the family home." On September 26, 1997,

and again a few weeks later in October, the house in which Jacqueline

and the children lived was broken into and ransacked. Jacqueline

believed that John was responsible and so told the police. Though the

case against John was never pursued in Ireland, the district court

concluded the same. See Walsh I, 31 F. Supp. 2d at 204 n.3. On

October 3, 1997, John came to the house and threatened harm toward

Jacqueline, despite the protective order, which forbade him to do so.

It is about this time, apparently, that Jacqueline began

preparations to return to the United States. She contacted Harry

Murphy, a licensed social worker and the director of the Arbour Mental

Health Clinic in Malden, and applied to the U.S. State Department for

American passports for the children. On November 15, 1997, the house

was broken into and ransacked once more, again apparently by John. He

smashed everything breakable and threw turf around the house. Afraid

for the safety of the children and herself, Jacqueline called her

father. He told her to go to Dublin and fly home to the United States

and he would pay for it. On November 17, 1997, she did so, taking the

children, her father having forwarded her the money to pay for the

tickets. Several weeks later, Michael Murphy joined them in the United

States. Jacqueline thus violated her undertaking to the Irish court

that she would not remove the children from Ireland.

Jacqueline and her children began counseling in January

-10-
1998.4 On January 19th, M.W. told Murphy, the social worker, that she

had nightmares about being kidnaped, that she had flashbacks of her

father's violent acts, that she had a feeling of isolation, that she

was terrified of returning to Ireland, and that she had trouble eating.

In particular, Murphy reported that M.W. had memories about her mother

being abused and one episode specifically involving herself. She said

that her mother was hit and hurt by her father, and that her father

pushed her mother down stairs. She also said that her father once

became enraged at her -- M.W. herself -- over dirty shoes, spitting in

her face and calling her stupid, and that he spanked her brother, E.W.,

very hard for getting into a cookie jar. She said, as well, that when

John had severe headaches he would become angry, scream, and lock the

children in their rooms. She said she was terrified of phone calls

from her father.

Murphy suggested, as a form of therapy, that M.W. write

letters to her father. In her letters she wrote that she would like

her father to stop calling because it frightened her, that she did not

want to see him, and that she did not want him to hurt her mother,

E.W., or herself. M.W. drew pictures of a hiding place where she felt

safe at her grandfather's house here in the United States.

Murphy diagnosed M.W. as having post-traumatic stress

4 Also in January 1998, Jacqueline filed a complaint for
separate support and child custody in Middlesex Probate Court in
Massachusetts.

-11-
disorder (PTSD). See Diagnostic and Statistical Manual of Mental

Disorders 424-25 (4th ed. 1994) (DSM-IV). In his opinion, M.W. had

begun remission since being brought to the United States, but, if she

were to be returned to Ireland, she would suffer a relapse. Murphy

recommended that M.W. see Dr. Martin Hart, a psychiatrist who works at

the clinic, to determine if medication was in order. On January 22nd,

she saw Dr. Hart.5 Dr. Hart concluded that M.W. had adjustment reaction

with features of anxiety.6 See DSM-IV at 623-24. M.W.'s physician at

the Malden Hospital Family Health Center, Dr. Jill M. Schmidtlein,

reported later in 1998 that M.W. said that "I don't want to go with my

father because he'll hit me again." The district court concluded that

M.W. "does not wish to return to Ireland or to have anything further to

do with her father." Walsh I, 31 F. Supp. 2d at 204.

On August 5, 1998, John filed a petition in the United States

District Court for the District of Massachusetts for the return of M.W.

and E.W. to Ireland, pursuant to the Hague Convention. He remained in

Ireland. Acting expeditiously, as is proper in Convention cases, the

5 Dr. Hart also expressed concern that the mother had come to
him only to obtain reports that would assist her in her legal battles.
Despite his wariness over being used, he still made the diagnosis
described.
6 These diagnoses are not incompatible. See DSM-IV at 427
(noting that the "diagnosis of Adjustment Disorder is appropriate both
for situations in which the response to an extreme stressor does not
meet the criteria for Posttraumatic Stress Disorder . . . and for
situations in which the symptom pattern of Posttraumatic Stress
Disorder occurs in response to a stressor that is not extreme").

-12-
district court conducted a three-day bench trial, on September 29th and

30th and October 2nd, to resolve the only contested legal issue:

whether returning the children to Ireland would pose a grave risk of

physical or psychological harm. See Hague Convention, art. 13(b).

Jacqueline presented three witnesses: herself, Martha, and Harry

Murphy. John presented no witnesses, though his lawyers introduced

some documents during cross-examination. In addition to testimony

describing the events related above, Jacqueline testified that John

slapped, hit, berated, and spit at M.W. She also said that he would

lock the children in their rooms, and that M.W. was often present when

he abused her. In papers filed with the district court, John has

denied that he was abusive and says that Jacqueline's injuries were

caused as a result of her drinking or in other ways. On October 2nd,

the district court entered an order in John's favor, with an opinion to

follow, ordering the children to be returned to Ireland. On December

18, 1998, the district court formally entered judgment for John and

granted his petition, subject to a number of undertakings. See Walsh

I, 31 F. Supp. 2d at 208.

On January 12, 1999, while preparations were being made for

the return of the children to Ireland pursuant to the court order,

Martha filed a motion to intervene on behalf of the children, and both

Jacqueline and Martha filed motions to dismiss or vacate the district

court's December 18, 1998, Judgment and Findings of Fact and

-13-
Conclusions of Law. Martha contended that the fugitive disentitlement

doctrine barred John, a fugitive from justice in Massachusetts, from

petitioning the federal courts. She also claimed that the United

States -- and not Ireland -- was the children's place of habitual

residence, and, consequently, their return to the United States was not

wrongful under the Convention. Martha, finally, renewed the claim that

the children would face a grave risk of physical or psychological harm

if they were returned to Ireland and submitted additional affidavits to

support this contention.

At a hearing that same day, the district court allowed Martha

to intervene, but limited her intervention to the issue of whether the

fugitive disentitlement doctrine barred John's petition. The court

held argument on this issue on January 20, 1999, and on June 11, 1999,

the district court denied Jacqueline and Martha's motion. See Walsh

II, 53 F. Supp. 2d at 95. In light of the many issues of first

impression posed by this case, the district court stayed execution of

its order pending appeal. See id.

Jacqueline and Martha appeal the grant of John's petition.

They also appeal the district court's decision to limit Martha's

intervention. John appeals the court's decision to allow intervention.

He also appeals the court's issuance of a stay pending appeal.

II.

We deal first with the procedural appeals. Martha and

-14-
Jacqueline say that the district court erred when it refused to hear

all of Martha's arguments in her Declaration by Intervenor of Claims

and Defenses. John says that the district court erred when it allowed

Martha to intervene because Martha did not satisfy Fed. R. Civ. P. 24,

as the children's interests were adequately represented by their mother

and the intervention was untimely, and because the Convention does not

provide for intervention on behalf of children. John also says that

the district court erred when it stayed the execution of its order

because a stay is contrary to the language and purpose of the

Convention and because Fed. R. Civ. P. 62(d) "does not address the

situation of the parties to this case."

Though "it is commonly said that review of the district court

decision is for 'abuse of discretion,' . . . this may be a misleading

phrase. Decisions on abstract issues of law are always reviewed de

novo; and the extent of deference on 'law application' issues tends to

vary with the circumstances." Cotter v. Massachusetts Ass'n of

Minority Law Enforcement Officers, No. 00-1056, 2000 WL 964656, at *2

(1st Cir. July 17, 2000). We review the district court's issuance of

a stay order also for abuse of discretion. See Pravin Banker Assocs.,

Ltd. v. Banco Popular del Peru, 109 F.3d 850, 856 (2d Cir. 1997).

Intervention is governed by Fed. R. Civ. P. 24.7

7 The rule provides, in pertinent part:

(a) Intervention of Right. Upon timely application anyone shall

-15-
 It was well within the district court's discretion to limit

Martha's intervention, which took place long after trial and judgment,

to a distinct legal issue that required no additional factfinding. In

this way, the court balanced the interests of the intervenor with the

interests of the petitioner, particularly taking into consideration the

timing of the intervention and any potential prejudice to the opposing

party. The court did not abuse its discretion either by limiting

intervention or by allowing intervention despite the advanced state of

the litigation. See generally Banco Popular de Puerto Rico v.

Greenblatt, 964 F.2d 1227, 1230-31 (1st Cir. 1992).

We also refuse to endorse a blanket rule, as John would have

us do, that intervention is impermissible in Hague Convention cases.

Though, as Jacqueline and Martha admit, not every Hague Convention case

requires intervention on behalf of the children, there may be such

be permitted to intervene in an action: . . . (2) when the
applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant
is so situated that the disposition of the action may as a
practical matter impair or impede the applicant's ability to
protect that interest, unless the applicant's interest is
adequately represented by existing parties.

(b) Permissive Intervention. Upon timely application anyone may
be permitted to intervene in an action: . . . (2) when an
applicant's claim or defense and the main action have a question
of law or fact in common. . . . In exercising its discretion the
court shall consider whether the intervention will unduly delay
or prejudice the adjudication of the rights of the original
parties.

Fed. R. Civ. P. 24.

-16-
cases (though we doubt very many). Given the circumstances, the court

did not abuse its discretion in determining that intervention was

warranted here.

The district court also did not abuse its discretion when it

issued a stay pending appeal. John says that stays should not be

allowed in Convention cases because the Convention envisions an

expeditious procedure for the determination of claims. He also notes

that other countries provide for the execution of an order for the

return of a child during the pendency of a Hague Convention appeal.

See Report of the Second Special Commission Meeting to Review the

Operation of the Hague Convention on the Civil Aspects of International

Child Abduction, Held 18-21 January 1993, 33 I.L.M. 225, 232 (1994)

(noting that an order may be enforced pending an appeal in Austria,

France, Germany, Luxembourg, and the Netherlands). Finally, he points

to a footnote in Friedrich v. Friedrich, 78 F.3d 1060, 1063 n.1 (6th

Cir. 1996), in which the Sixth Circuit, in dicta, noted that "[s]taying

the return of a child in an action under the Convention should hardly

be a matter of course." While it is true that the process for the

adjudication of Hague Convention petitions should be as quick as

possible, see Hague Convention, art. 11, neither the Convention nor the

U.S. implementing legislation restricts the appellate process. And so

while we can imagine cases where a stay pending appeal would be

improvident, John has offered no reason particular to this case why the

-17-
district court's stay was an abuse of discretion.

III.

Jacqueline and Martha also contend that the district court

should not have heard John's petition because he is a fugitive from

justice. The district court declined to apply the fugitive

disentitlement doctrine because: 1) there was no nexus between John's

Hague Convention petition and his fugitive status; and 2) John has yet

to be convicted. See Walsh II, 53 F. Supp. 2d at 94. Further, the

court said it would be reluctant to apply the doctrine, even if it felt

itself able, because the Massachusetts authorities had not initiated

extradition proceedings against John. See id. at 95. We review the

district court's legal conclusions de novo and its factual conclusions

for clear error.

Jacqueline and Martha rely on Prevot v. Prevot, 59 F.3d 556

(6th Cir. 1995), in which the Sixth Circuit found that the district

court should have dismissed a Hague Convention petition under the

fugitive disentitlement doctrine. The Prevot court found that there

was a nexus between the petitioner's fugitive status and his petition

and concluded that the petitioner's "fugitivity, and his actions,

constitute abuses to which a court should not accede." Id. at 567. To

the extent Prevot turns on a per se rule, we disagree.

Fugitive disentitlement cases arise in three distinct

procedural postures: 1) criminal and civil appeals brought by the

-18-
fugitive; 2) civil suits brought against the fugitive (e.g., civil

forfeitures); 3) civil suits brought by the fugitive (e.g., § 1983

suits). The Supreme Court has considered cases in the first two

categories; ours is in the third.

Generally, courts will dismiss the civil or criminal appeal

of a fugitive who is still on the lam. See, e.g., Molinaro v. New

Jersey, 396 U.S. 365, 365-66 (1970); United States v. Hanzlicek, 187

F.3d 1219, 1221 (10th Cir. 1999) (dismissing the criminal appeal of a

defendant who failed to complete her term of supervised release);

Parretti v. United States, 143 F.3d 508, 511 (9th Cir. 1998) (en banc)

(dismissing the appeal of fugitive in a criminal case); United States

v. Barnette, 129 F.3d 1179, 1186 (11th Cir. 1997) (dismissing the

appeal of a fugitive couple who were found in civil contempt); Empire

Blue Cross & Blue Shield v. Finkelstein, 111 F.3d 278, 282 (2d Cir.

1997) (dismissing the appeal of a fugitive in a civil RICO case);

United States v. Latigua-Bonilla, 83 F.3d 541, 542 (1st Cir. 1996)

(dismissing the appeal of a defendant who failed to complete his term

of supervised release). Courts have also dismissed the appeals of

fugitives who have not voluntarily surrendered after a certain period.

See, e.g., Estelle v. Dorrough, 420 U.S. 534, 539 (1975) (upholding the

constitutionality of a Texas statute that provided for automatic

appellate dismissal when a defendant escapes during the pendency of the

appeal, unless the fugitive returns voluntarily within ten days);

-19-
United States v. Puzzanghera, 820 F.2d 25, 27 (1st Cir. 1987) (holding

that a fugitive who escaped while the appeal of his conviction was

pending and was involuntarily returned to custody more than thirty days

after his escape forfeited his right to appellate review). In Ortega-

Rodriguez, the Supreme Court vacated the dismissal of a criminal appeal

because the fugitive was recaptured before the appeal was made. See

Ortega-Rodriguez v. United States, 507 U.S. 234, 251-52 (1993).

In Degen, the Supreme Court unanimously held that the

disentitlement doctrine does not allow "a court in a civil forfeiture

suit to enter judgment against a claimant because he is a fugitive

from, or otherwise is resisting, a related criminal prosecution."

Degen v. United States, 517 U.S. 820, 823-24 (1996); see also FDIC v.

Pharaon, 178 F.3d 1159, 1162 (11th Cir. 1999) (reversing the trial

court's striking of a defendant-fugitive's answer, citing Degen, and

noting the absence of cases "applying or upholding the application of

the . . . doctrine in a civil case to strike a defendant's answer and

enter judgment against him"); United States v. Pole No. 3172,

Hopkinton, 852 F.2d 636, 643-44 (1st Cir. 1988).

In Degen, where a civil suit was brought against a fugitive,

the Court focused on the common underlying justifications for

disentitlement, recognizing that their applicability will vary on a

case-by-case basis. Thus, in Degen, the Supreme Court noted five

asserted rationales for disentitlement in civil cases against a

-20-
fugitive: 1) the risk of delay or frustration in determining the merits

of the claim; 2) the unenforceability of the judgment; 3) the

compromising of a criminal case by the use of civil discovery

mechanisms; 4) the indignity visited on the court; and 5) deterrence.

See Degen, 517 U.S. at 825-28. Of these, the Court discounted

rationale three (compromising a pending criminal case) because the

district courts have methods less extreme than disentitlement for

preventing this type of harm. The Degen Court also dismissed grounds

four and five (indignity and deterrence) because "disentitlement is too

blunt an instrument for advancing [those 'substantial' interests]."

Id. at 828. As the Seventh Circuit concluded recently, Degen

"shift[ed] the emphasis from considerations of dignity, deterrence,

respect, propriety, and symmetry found in a number of earlier [fugitive

disentitlement] cases to the kind of practical considerations that

inform the decision whether to dismiss a suit with prejudice as a

sanction for mistakes, omissions, or misconduct." Sarlund v. Anderson,

205 F.3d 973, 974 (7th Cir. 2000). Although the Supreme Court has not

yet decided the issue, we think the same factors apply to civil cases

where the fugitive is the plaintiff.

Thus, the Eleventh Circuit has held that "the dismissal of

a civil action on fugitive disentitlement grounds requires that (1) the

plaintiff is a fugitive; (2) his fugitive status has a connection to

his civil action; and (3) the sanction employed by the district court,

-21-
dismissal, is necessary to effectuate the concerns underlying the

fugitive disentitlement doctrine." Magluta v. Samples, 162 F.3d 662,

664 (11th Cir. 1998) (per curiam). As we have seen, the relevant

concerns underlying the doctrine include prejudice to the opponent,

delay, frustration, and unenforceability.

We apply this test. First, John is plainly a fugitive.

Second, it is arguable that there is some connection between John's

fugitive status and his petition. While the petition is, of course,

not connected in the classic sense of being part of the same criminal

proceeding as to which the petitioner is a defendant, it is arguable

that, but for John's having fled the United States, the pregnant

Jacqueline would not have gone to Ireland with M.W. or given birth

there to E.W., and thus there would have been no occasion to apply the

treaty.8 See Prevot, 59 F.3d at 566-67. That, though, may be too slim

a reed to support so weighty a doctrine. Third, an appreciation of the

pragmatic concerns requires a case-by-case analysis. In the usual

civil case, the plaintiff or petitioner bears the burden of proof and

his failure to appear may hamper his ability to meet his burden. This

case, however, turns largely on an issue as to which Jacqueline bears

the burden of proof. In such instances, it may be easier to find that

8 We disagree with the district court's conclusion that
disentitlement cannot be applied in cases when the fugitive has yet to
be convicted or when extradition has yet to be sought. See Walsh II,
53 F. Supp. 2d at 94-95. The concerns that underlie the doctrine may
have force even in these circumstances.

-22-
the fugitive has prejudiced the opposing party. Still, here, the fact

that John was unavailable to testify may have hurt both sides, but, as

John's counsel noted, it worked more to his disadvantage.9 See Oretega-

Rodriquez, 507 U.S. at 249 (leaving open the possibility of applying

the fugitive disentitlement doctrine on appeal to prevent actual

prejudice to the government); Sarlund, 205 F.3d at 974 (applying the

doctrine where the plaintiff's fugitive status created a situation

severely prejudicial to his adversaries).

There are questions of enforceability of any potential

judgment against John, as return orders under the Convention are often

imposed with conditions, as was true here. But all cases under the

Convention raise similar problems since, by definition, one of the

parties lives in a foreign jurisdiction. Neither was the petition

brought to harass Jacqueline. The practical considerations, on these

facts, are not strong enough alone to warrant application of the

doctrine.

More importantly, applying the fugitive disentitlement

doctrine would impose too severe a sanction in a case involving

parental rights. Parenthood is one of the greatest joys and privileges

9 Prejudice may take many forms. While depositions of persons
in foreign nations may be available by legal process, the costs of such
a procedure may be beyond the financial ability of the parties. Here,
neither John nor Jacqueline are persons of means and counsel in this
litigation have largely acted pro bono publico. Counsel here conducted
discovery by agreement, and we see no prejudice.

-23-
of life, and, under the Constitution, parents have a fundamental

interest in their relationships with their children. See generally

Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000) (plurality opinion)

("The liberty interest . . . of parents in the care, custody, and

control of their children . . . is perhaps the oldest of the

fundamental liberty interests recognized by this Court."). To bar a

parent who has lost a child from even arguing that the child was

wrongfully removed to another country is too harsh. It is too harsh

particularly in the absence of any showing that the fugitive status has

impaired the rights of the other parent.

As the Supreme Court noted in Degen, while "[t]here would be

a measure of rough justice in saying [that the fugitive] must take the

bitter with the sweet, and participate in the District Court either for

all purposes or none[, such] justice would be too rough." Degen, 517

U.S. at 829. It would be particularly rough when, as here, parental

rights are at stake. To the extent this is a pure question of law, we

hold that the fugitive disentitlement doctrine does not per se bar the

petition and, on the facts here, we find that the doctrine does not

apply.

IV.

Jacqueline and Martha also appeal the district court's grant

of John's Hague Convention petition. Jacqueline, initially, conceded

-24-
that Ireland was the "habitual residence" of the children10 and that her

taking of them was "wrongful" under the Convention. See Hague

Convention, arts. 3, 4; Toren v. Toren, 191 F.3d 23, 27 (1st Cir.

1999). The wrongful taking of a child from his or her country of

habitual residence normally requires the child's return. See id. art.

12. The Convention, however, provides four exceptions to this general

rule. See id. arts. 12, 13(a), 13(b), 20. Jacqueline relies on one of

these: the Article 13(b) exception.11

Article 13(b) provides:

Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State
is not bound to order the return of the child if the person,
institution or other body which opposes its return
establishes that there is a grave risk that his or her
return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable
situation.

Hague Convention, art. 13(b). The International Child Abduction

Remedies Act, 42 U.S.C. §§ 11601-11610, the Convention's implementing

legislation, provides that a respondent who opposes the return of the

child by asserting the article 13(b) exception has the burden of

proving this by clear and convincing evidence. See id.

10 Martha belatedly attempted to challenge this claim, but was
denied intervention as to it. We do not examine it further.
11 Amici curiae National Network to End Domestic Violence,
National Network to End Domestic Violence Fund, Massachusetts Citizens
for Children, Massachusetts Society for the Prevention of Cruelty to
Children, and Women Against Abuse, Inc. also raise a claim under
article 20 of the Convention. We do not address the issue.

-25-
§ 11603(e)(2)(A). The exception is narrow. See id. § 11601(a)(4); see

also Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private

International Law, in 3 Acts and Documents of the Fourteenth Session

426, at ¶ 34 (1980) (noting that "a systematic invocation of the

[Convention's] 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").

A. Background

The district court concluded that "the evidence does not

reveal an immediate, serious threat to the children's physical safety

that cannot be dealt with by the proper Irish authorities." Walsh I ,

31 F. Supp. 2d at 206. As for article 13(b)'s psychological prong, the

court found that "[e]ven if the various anxiety and stress related

conditions with which [M.W.] has been diagnosed approach the severe

harm contemplated by article 13b, to the extent that the children may

be spared both separation from their mother and exposure to their

parents' fighting, concerns for their psychological well being are

largely mitigated." Id. The court concluded that "[d]espite the truly

deplorable circumstances in which Jackie now finds herself, and in the

face of her laudable concerns for her children, she has not established

by clear and convincing evidence that her children face a grave risk of

exposure to serious physical or psychological harm, nor that their

-26-
situation upon returning to Ireland will be intolerable." Id. at 207.

The petition, the district court determined, must be granted and the

children returned to Ireland.

Still, in order "to ensure that the children [would] be cared

for properly during transit and that no harm will come to [them]

pending disposition" of the custody proceedings in Ireland, the

district court commendably "requested and received" a number of

undertakings from John and Jacqueline:

John is to provide for the transportation and escort of the
children back to Ireland. Once the children reach Ireland,
John is to provide adequate housing, clothing, medical care
and serve as a parental figure for the children. If John
cannot provide adequate housing and provisions then he must
provide the Court a detailed description of how the Social
Services authorities in Ireland will make these provisions.
In either event, the Court is to be informed specifically
what provisions are in place before the children will be
ordered returned to Ireland.

If Jackie determines to return to Ireland with the children,
she must do so at her own expense. If she does return to
Ireland, however, John must have no contact with her nor
come within 10 miles of her residence, wherever she chooses
to take up residence. Moreover, if Jackie returns to
Ireland, John will have no contact with the children unless
ordered by the authorities in Ireland. Each of these
undertakings are conditions of this Court's order, and if
any is violated, the order will be of no force and effect.

Id. (footnote omitted).

Relying on the district court's rulings, John's position on

appeal is that the court correctly found there to be no grave risk of

harm, for even if he may have beaten his wife (which he denies), he has

-27-
not beaten his children and any concerns on that point should be

alleviated by his undertakings. Jacqueline's position is that the

court applied too stringent a measure of harm, that the children have

been and will be harmed by witnessing the assaults on their mother,

that they are at grave risk of being assaulted themselves, and that

John has already disregarded Irish court orders to stay away from the

marital home and flouted the law, thereby making his undertakings

worthless.

B. Analysis

We review the district court's factual findings for clear

error and its interpretation of the Convention de novo. See Friedrich,

78 F.3d at 1064.

The district court's legal interpretations were in error,

which led to error in its application of the law to the facts. The

court raised the article 13(b) bar higher than the Convention requires.

We set the bar at its proper height and find that Jacqueline has proven

by clear and convincing evidence that the children face a grave risk of

exposure to physical or psychological harm should they be returned to

Ireland.

To begin, the district court erroneously required a showing

of an "immediate, serious threat." Id. at 206; see also id. at 208

(concluding that "the Court [only] may act [under article 13(b)] to

avert truly extraordinary threats to [the children's] health and

-28-
safety"). Article 13(b) of the Convention requires a showing that

there be a "grave risk that his or her return would expose the child to

physical or psychological harm or otherwise place the child in an

intolerable situation." The Convention does not require that the risk

be "immediate"; only that it be grave.

The text of the article requires only that the harm be

"physical or psychological," but context makes it clear that the harm

must be a great deal more than minimal. See Nunez-Escudero v. Tice-

Menley, 58 F.3d 374, 377 (8th Cir. 1995).12 Not any harm will do nor

may the level of risk of harm be low. The risk must be "grave," and

when determining whether a grave risk of harm exists, courts must be

attentive to the purposes of the Convention. See Hague Convention,

art. 1. For example, the harm must be "something greater than would

normally be expected on taking a child away from one parent and passing

him to another"; otherwise, the goals of the Convention could be easily

circumvented. Re A. (a Minor) (Abduction) [1988] 1 F.L.R. 365, 372

(Eng. C.A.); see also Friedrich, 78 F.3d at 1067-68; Re C. (Abduction:

Grave Risk of Psychological Harm) [1999] 1 F.L.R. 1145 (Eng. C.A.); C.

v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 F.L.R. 403,

410 (Eng. C.A.). Courts are not to engage in a custody determination,

12 There is disagreement as to whether the "the physical or
psychological harm contemplated by the first clause of Article 13(b) is
harm to a degree that also amounts to an intolerable situation."
Thomson v. Thomson [1994] 3 S.C.R. 551, 596 (Can.). The Supreme Court
of Canada has said that it does. See id. We are doubtful about this.

-29-
so "[i]t is not relevant . . . who is the better parent in the long

run, or whether [the absconding parent] had good reason to leave her

home . . . and terminate her marriage." Nunez-Escudero, 58 F.3d at

377; see also Department of State, Hague International Child Abduction

Convention: Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (1986)

("[Article 13(b)] was not intended to be used by defendants as a

vehicle to litigate . . . the child's best interests."). We return to

the issue of risk and harm, and how it applies to this case, below, but

we first discuss the role that undertakings play in article 13(b)

determinations.

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.13 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. Given

13 For example, it may pose a grave risk to send the child
directly into the exclusive care of the other parent or to return to
the child to the precise status quo ante, but it may not pose a grave
risk to return the child to the country of habitual residence if the
potential risks attendant upon a child's return are lessened or
eliminated by the trustworthy undertakings of the parties.

-30-
the strong presumption that a child should be returned, many courts,

both here and in other countries, have determined that the reception of

undertakings best allows for the achievement of the goals set out in

the Convention while, at the same time, protecting children from

exposure to grave risk of harm. See, e.g., Blondin v. Dubois, 189 F.3d

240, 248 (2d Cir. 1999) ( Blondin II); Turner v. Frowein, 752 A.2d 955

(Conn. 2000); Thomson v. Thomson [1994] 3 S.C.R. 551, 599 (Can.); P. v.

B. [1994] 3 I.R. 507, 521 (Ir. S.C.). See generally Paul R. Beaumont

& Peter E. McEleavy, The Hague Convention on International Child

Abduction 156-72 (1999).

A good example of this approach is the Second Circuit's

recent decision in Blondin II. The district court had denied the

father's petition to return the children to France because the mother

had established that returning the children to their father's custody

would pose a grave risk of harm. See Blondin v. Dubois, 19 F. Supp. 2d

123, 127-29 (S.D.N.Y. 1998) ( Blondin I). The Court of Appeals vacated

the district court's judgment and remanded the case to allow the

district court to consider "remedies that would allow the children's

safety to be protected [in France] pending a final adjudication of

custody." Blondin II, 189 F.3d at 250.

Yet, there may be times when there is no way to return a

child, even with undertakings, without exposing him or her to grave

risk. Thus, on remand in Blondin, the district court found that the

-31-
"return of [the children] to France, under any arrangement, would

present a 'grave risk'" because "removal . . . from their presently

secure environment would interfere with their recovery from the trauma

they suffered in France; . . . returning them to France, where they

would encounter the uncertainties and pressures of custody proceedings,

would cause them psychological harm; and . . . [one of the children]

objects to being returned to France." Blondin v. Dubois, 78 F. Supp.

2d 283, 294 (S.D.N.Y. 2000) ( Blondin III), appeal filed, No. 00-6066

(2d Cir. Jan. 20, 2000) (emphasis added).

Against this background, we consider this case. In our view,

the district court committed several fundamental errors: it

inappropriately discounted the grave risk of physical and psychological

harm to children in cases of spousal abuse; it failed to credit John's

more generalized pattern of violence, including violence directed at

his own children; and it gave insufficient weight to John's chronic

disobedience of court orders. The quantum here of risked harm, both

physical and psychological, is high. There is ample evidence that John

has been and can be extremely violent and that he cannot control his

temper. There is a clear and long history of spousal abuse, and of

fights with and threats against persons other than his wife. These

include John's threat to kill his neighbor in Malden, for which he was

criminally charged, and his fight with his son Michael.

The district court distinguished these acts of violence

-32-
because they were not directed at M.W. and E.W. See Walsh I, 31 F.

Supp. 2d at 206-07. Setting aside, for now, Jacqueline's allegations

of John's direct physical and psychological abuse of the children, the

district court's conclusions are in error, whatever the initial

validity of the distinction. First, John has demonstrated an

uncontrollably violent temper, and his assaults have been bloody and

severe. His temper and assaults are not in the least lessened by the

presence of his two youngest children, who have witnessed his assaults

-- indeed, M.W. was forced by him to witness the aftermath of his

assault on Michael. Second, John has demonstrated that his violence

knows not the bonds between parent and child or husband and wife, which

should restrain such behavior. Third, John has gotten into fights with

persons much younger than he, as when he attempted to assault the young

man in Malden. Fourth, credible social science literature establishes

that serial spousal abusers are also likely to be child abusers. See,

e.g., Jeffrey L. Edleson, The Overlap Between Child Maltreatment and

Woman Battering, 5 Violence Against Women 134 (1999); Anne E. Appel &

George W. Holden, The Co-Occurrence of Spouse and Physical Child Abuse:

A Review and Appraisal, 12 J. Fam. Psychol. 578 (1998); Lee H. Bowker

et al., On the Relationship Between Wife Beating and Child Abuse, in

Kersti Yllo & Michele Bograd, Feminist Perspectives on Wife Abuse 158

(1988); Susan M. Ross, Risk of Physical Abuse to Children of Spouse

Abusing Parents, 20 Child Abuse & Neglect 589 (1996). But cf. Nunez-

-33-
Escudero, 58 F.3d at 376-77; K. v. K. [1997] 3 F.C.R. 207 (Eng. Fam.).

Fifth, both state and federal law have recognized that children are at

increased risk of physical and psychological injury themselves when

they are in contact with a spousal abuser. Thus, a congressional

resolution, passed in 1990, specifically found that:

Whereas the effects of physical abuse of a spouse on
children include . . . the potential for future harm where
contact with the batterer continues;

. . . .

Whereas children often become targets of physical abuse
themselves or are injured when they attempt to intervene on
behalf of a parent;

H.R. Con. Res. 172, 101st Cong., 104 Stat. 5182, 5182 (1990); see also

Opinion of the Justices to the Senate, 691 N.E.2d 911, 917 n.5 (Mass.

1998); Custody of Vaughn, 664 N.E.2d 434, 439 (Mass. 1996). These

factors are sufficient to make a threshold showing of grave risk of

exposure to physical or psychological harm.14

The question remains whether John's undertakings, or even a

potential barring order from the Irish courts, are sufficient to render

any risk less than grave. John's undertakings require him to obey the

orders of the district court and the courts of Ireland. We do not

14 We disregard the arguments that grave risk of harm may be
established by the mere fact that removal would unsettle the children
who have now settled in the United States. That is an inevitable
consequence of removal.

-34-
believe the undertakings received by the district court,15 or even a

potential barring order, are sufficient to protect the children from

the exposure to grave risk in this case. We have no doubt that the

Irish courts would issue appropriate protective orders. That is not

the issue. The issue is John's history of violating orders issued by

any court, Irish or American.

Courts, when confronted with a grave risk of physical harm,

have allowed the return of a child to the country of habitual

residence, provided sufficient protection was afforded. See, e.g., Re

K. (Abduction: Child's Objections) [1995] 1 F.L.R. 977 (Eng. Fam.); N.

v. N. (Abduction: Article 13 Defence) [1995] 1 F.L.R. 107 (Eng. Fam.);

cf. Friedrich, 78 F.3d at 1069 (finding that the grave risk exception

only applies when the child is in "danger prior to the resolution of

the custody dispute -- e.g., returning the child to a zone of war,

famine, or disease . . . [or when] there is a grave risk of harm in

cases of serious abuse or neglect, or extraordinary emotional

dependence, when the court in the country of habitual residence, for

whatever reason, may be incapable . . . to give the child adequate

protection"). Such an approach has little chance of working here.

15 The district court attempted to reduce the potential harm by
making its order self-executing. Thus, the court's order provided that
it would be of no force and effect if any of the undertakings were
violated. See Walsh I, 31 F. Supp. 2d at 207. As laudable as the
attempt was, it necessarily falls short in this case, because the
undertakings themselves are unlikely to be obeyed.

-35-
John's past acts clearly show that he thinks little of court orders.

He has violated the orders of the courts of Massachusetts, and he has

violated the orders of the courts of Ireland. There is every reason to

believe that he will violate the undertakings he made to the district

court in this case and any barring orders from the Irish courts.

Our conclusion here is similar to that of the English Court

of Appeal in Re F. (a Minor) (Abduction: Rights of Custody Abroad)

[1995] 3 All E.R. 641 (Eng. C.A.). In that case, the father, an

American citizen, petitioned for the return of his son. See id. at

341. The father had abused the mother and was harsh with the son,

including pinching his legs so hard as to leave bruises and other forms

of abuse. See id. at 347. After the mother obtained a temporary

restraining order, the father "engaged in a campaign of intimidation

and harassment directed at the mother." Id. Granting the father's

petition, the lower court held that the mother did not make out a case

under article 13(b). See id. at 342. The Court of Appeal allowed the

appeal (thus reversing the lower court). See id. at 352. The Court of

Appeal was particularly concerned that the child would have been

returned to the "very same surroundings and potentially the very same

situation as that which has had such a serious effect upon him," and

noted, in particular, that "[t]here has to be concern as to whether the

father would take any notice of future orders of the court or comply

with the undertakings he has given to the judge." Id. at 347-48.

-36-
 While this case is not entirely one-sided,16 we believe that

the district court underestimated the risks to the children and

overestimated the strength of the undertakings in this case. The

article 13(b) exception must be applied and the petition must be

dismissed.17

V.

We do not come to this conclusion lightly. International

child abduction is a serious problem. See H.R. Con. Res. 293, 106th

Cong. (2000). Further, a court's interpretation of a treaty will have

consequences not only for the family immediately involved but also for

the way in which other courts -- both here and abroad -- interpret the

treaty. See United States v. Kin Hong, 110 F.3d 103, 106 (1st Cir.

1997); W. Michael Reisman, Necessary and Proper: Executive Competence

to Interpret Treaties, 15 Yale J. Int'l L. 316, 325 (1990). In the

United States, the vast majority of Hague Convention petitions result

16 The district court also found significant lapses on
Jacqueline's part. See Walsh I, 31 F. Supp. 2d at 204.
17 The Convention says that the return of the child is not
mandatory if grave risk is shown. John correctly urges that the
district court nonetheless has discretion to order the return. See
Hague Convention, art. 18; Friedrich, 78 F.3d at 1067; Feder v. Evans-
Feder, 63 F.3d 217, 226 (3d Cir. 1995). From this, John argues that
the order should be upheld as a reasonable exercise of the district
court's discretion. Plainly, though, this misdescribes the basis for
the court's order. We have no reason to think that the district court
would have ordered the return of the children had it found that
Jacqueline had made an article 13(b) showing. Moreover, even if it
had, on these facts, such an order would have been an abuse of
discretion.

-37-
in the return of children to their country of habitual residence, and

rightly so. But the Convention provides for certain limited exceptions

to this general rule. The clearly established facts of this case --

including the father's flight after indictment for threatening to kill

another person in a separate case and a documented history of violence

and disregard for court orders going well beyond what one usually

encounters even in bitter divorce and custody contexts -- lead us to

conclude that this case fits within one of these.

The judgments of the district court are affirmed in part and

reversed in part and the case is remanded with instructions that John's

petition be dismissed.

So ordered. No costs are awarded.

-38-