United States Court of Appeals
For the First Circuit
____________________
Nos. 02-1065, 02-1070
IRAJ DANAIPOUR,
Petitioner, Appellee,
v.
KRISTINA McLAREY,
Respondent, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
____________________
Before
Lynch, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
____________________
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.
____________________
April 3, 2002
____________________
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LYNCH, Circuit Judge. 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].
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.
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.
Without deciding whether a United States court may ever defer
its responsibility to determine the grave risk of injury question to a
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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.
We summarize the facts of this case, as they were presented
to the district court.
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.
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.
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
-4-
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.
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.
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
-5-
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.
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.1 In January, the younger girl
was examined medically, and nothing out of the ordinary was found.2 The
police then terminated their investigation.3
1 Amici the 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.
2 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.
3 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
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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.
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.
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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.
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
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natural contact with the daughters." 4 There was never a full
investigation done in Sweden into the specific question of whether
either girl had been sexually abused, however.
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.
4 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.
-9-
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.
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.
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.
On November 21, Danaipour, along with his retained expert,
proposed that the district court issue an order pursuant to Federal
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Rule of Evidence 706,5 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
5 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.
-11-
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.
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.
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
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December 19 trial date, [I] . . . deny the motion for a
court ordered sexual abuse evaluation.
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.6
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.
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.
6 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.
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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;7 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.
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.
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
7 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.
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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").8
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
8 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.
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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.
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.
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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.
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
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was."9 Id. The court further found that there was no evidence that
the older child had been sexually abused in any way,10 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.
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
9 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.
10 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.
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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."
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.
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.
After oral argument, we permitted both parties to supplement
the record to provide information regarding later events in Sweden.
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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.
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
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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.
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 a
police to investigate."
Following this, Danaipour's Swedish attorney informed us by
affidavit11 that he contacted the BUP. On March 28, the BUP informed
the Swedish attorney that "[w]e undertake . . . to investigate whether
11 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.
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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 fromp 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.
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.
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II.
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).
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).
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
-23-
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.
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.
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
-24-
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].
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:
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.
-25-
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.
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.
-26-
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:
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.
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
-27-
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.
Third, it has been made clear by later events that the
district court erred in deciding that a forensic sexual abuse
evaluation could and 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
-28-
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.
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.
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.
Fourth, the district court's use of conditions went beyond
its authority by essentially imposing requirements on a foreign court.
-29-
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
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.
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:
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.
-30-
Id. 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.
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.
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
-31-
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.
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.
-32-
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.
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.12 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
12 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."
-33-
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.
B. Referral of Sexual Abuse/Grave Risk Determination to Swedish
Courts
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.
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;
-34-
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)).
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
-35-
ordering."13 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.
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
13 The court's erroneous reliance on its conditions as a
necessary prerequisite for safe return is discussed below.
-36-
have made a determination on the underlying question, whether sexual
abuse occurred.14
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.
14 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.
-37-
C. Location of Forensic Evaluation
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,15 as
discussed in the next section.
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.
15 Had the district court ordered the evaluation both parties
had requested by December 3, 2000, the evaluation would now be complete
and the interests of the Hague Convention in a speedy resolution would
have been better served.
-38-
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:
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.
At trial, Dr. Jenny was asked her opinion as to whether an evaluation
in Sweden could be viable.16 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
16 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.
-39-
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."17
In contrast, Danaipour's expert, Dr. Munson, testified only
that evaluations are typically done in the child's home country.18 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
17 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 is reasons for
discounting this testimony at 183 F. Supp. 2d. at 323, n.7.
18 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.
-40-
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.
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.
D. Undertakings
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
-41-
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).
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.
This court has previously described the utility of
undertakings in Hague Convention Article 13(b) cases:
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).
-42-
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.
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.
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:
[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.
Letter from Catherine W. Brown, Assistant Legal Advisor 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].
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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.
1. International Comity
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:
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. 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
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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.
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:
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.
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.
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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].")
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
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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).
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
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.
. . .
. . . [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.
. . .
. . . [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.
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
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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.
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).
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
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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.19 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.
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
19 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.
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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.
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.
2. Undertakings in Context of Abuse Allegations
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:
If the requested state court is presented with unequivocal
evidence that return would cause the child a "grave risk" of
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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.
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.
Leading commentators on the Convention also agree that
undertakings should be applied cautiously in these cases:
[T]he imposition of undertakings, albeit rare, does not rest
easily with assertions made in relation to Article 13(1)(b)
. . . .
. . .
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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.
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.")
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
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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.
III.
Conclusion
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.
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.
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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.
The district court decision ordering return is reversed, and
the case is remanded for proceedings consistent with this opinion.
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Danaipour v. McLarey
Court: Court of Appeals for the First Circuit
Date filed: 2002-04-03
Citations: 286 F.3d 1
Copy CitationsCombined Opinion