England v. England

• Decision Date: 27 November 2000
• Docket Number: No. 00-20008,00-20008
• Citation: 234 F.3d 268
• Parties: (5th Cir. 2000) WILLIAM EDWARD ENGLAND, Plaintiff-Appellant, v. DEBORAH CAROL ENGLAND, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 268

234 F.3d 268 (5th Cir. 2000)

WILLIAM EDWARD ENGLAND, Plaintiff-Appellant, v. DEBORAH CAROL ENGLAND, Defendant-Appellee.

No. 00-20008

UNITED STATES COURT OF APPEALS, Fifth Circuit

November 27, 2000

Appeal from the United States District Court for the Southern District of Texas

Before DUHE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DUHE, Circuit Judge:

This is an expedited appeal of the District Court's denial of a Petition for Return of Children under the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or "the Convention"). The District Court held that even though two children were wrongfully removed by their mother from Australia, their country of habitual residence, to the United States in violation of the Hague Convention, they need not be returned to Australia because return would expose them to grave risks of psychological harm and because the older child objects to being returned. For the following reasons we reverse and remand.

BACKGROUND

William and Deborah England ("William" and "Deborah") have two children: Karina, age thirteen, and Victoria, age four. All parties are American citizens. The England family lived in Texas until 1997, when they moved to Australia incident to William's job transfer there. In June 1999, the Englands left Australia for an extended overseas vacation. They arrived in the United States in July 1999 for the last leg of their vacation. Their itinerary scheduled their return to Australia for July 15, 1999. As planned, William returned to Australia that day. Ostensibly concerned for the health of her cancer-stricken father, Deborah remained in the United States. Since, Deborah told her husband, the England girls' last chance to see their grandfather was perhaps at hand, Karina and Victoria remained in the United States with her instead of returning to Australia with William as planned.

A few weeks later, Deborah filed for divorce from William in Texas. Shortly thereafter, she phoned William and advised him that neither she nor their daughters would be returning to Australia. After Deborah refused William's various requests to return the children, William filed in the District Court a Petition for Return of Children Under the Hague Convention. After an Australian court determined that Australia was the "habitual residence" of Karina and Victoria and that their removal from Australia was "wrongful," the District Court heard and denied William's Hague Convention petition.

The Convention requires that a child wrongfully removed from her country of habitual residence be returned there upon petition unless, among other reasons not relevant here, clear and convincing evidence establishes that a grave risk of psychological harm attends her return or unless a court elects to heed the wishes of a sufficiently old and mature child who desires not to return. The District Court, agreeing with the Australian court, held that, within the meaning of the Convention, Karina and Victoria were wrongfully removed from their place of habitual residence. The Court, however, determined that Karina, an adopted child who prior to her adoption by the Englands had a "turbulent" history in orphanages and foster care and endured "difficult" adoption proceedings, would face a grave risk of psychological harm if separated from her mother or forced to move so soon after re-settling in Texas. See England v. England, No. H-99-2715 (S.D. Tex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition for Return of Children Under the Hague Convention). The District Court also found that - notwithstanding her Attention Deficit Disorder, learning disabilities, Ritalin use, and emotional itinerancy (she has had four mothers in her thirteen years of life) - Karina was sufficiently mature for the Court to credit her desire to remain with her mother and not return to Australia. The Court declined to separate Victoria from her older sister because "it would be psychologically damaging to both girls to be separated from each other during the pendency of the [Englands'] custody proceedings." Id. Accordingly, the Court allowed Karina and Victoria to remain in the United States with their mother.

William argues that the District Court erroneously held that Karina and Victoria's return to Australia pending the outcome of custody proceedings would subject them to grave risks of psychological harm. He also argues that Karina is not mature enough for a court appropriately to consider her wishes under the Hague convention.

DISCUSSION

We review the District Court's factual findings for clear error and its legal conclusions de novo. Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 600 (5th Cir. 1994).

I. Grave Risk

The District Court's holding that Karina and Victoria need not return to Australia under the terms of the Convention because return would expose them to grave risks of psychological harm was clearly erroneous because the evidence of these psychological risks is neither clear nor convincing.

Under Article 12 of the Convention,¹ when a child has been "wrongfully removed or retained," the "judicial or administrative authority of the Contracting State where the child is . . . shall order the return of the child forthwith." Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 12, 51 Fed.Reg. 10493, 10498 (emphasis supplied). Article 13 of the Convention provides an exception to Article 12's rule of mandatory return in the event of "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." Id., art. 13b, 51 Fed.Reg. at 10499. The Convention's implementing legislation, the International Child Abduction and Remedies Act ("ICARA"), requires that a party opposing a child's return prove the existence of such a grave risk by clear and convincing evidence. 42 U.S.C. § 11603 (e)(2)(A) (1994). Even if this "narrow" exception² applies though, a federal court has "and should use when appropriate" the discretion to return a child to his or her place of habitual residence "if return would further the aims of the Convention." Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996). The Convention's primary aims are to "restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court." Id. at 1063. Accordingly, the Convention prohibits courts considering Convention petitions from "adjudicating the merits of [the] underlying custody dispute[s]." Nunez-Escudero, 58 F. 3d at 376 (citations omitted).

While admittedly the District Court and not this Court is the fact-finder, we nonetheless discern nothing in the record constituting clear and convincing evidence that return to Australia pending the outcome of custody proceedings there³ would expose Karina to grave risks of psychological harm. The following is the whole of the District Court's findings regarding "grave risk" in this context:

"Through Karina's testimony, however, Ms. England has established that given Karina's turbulent history in orphanages, foster care, and difficult adoption proceedings there is a grave risk of psychological harm if she should be separated from her mother or have to endure another move so soon after re-settling in Houston. There are two custody proceedings pending, one divorce proceeding in the United States and one in Australia, both of which have been temporarily abated pending the outcome of this proceeding. If the Court should send Karina back to Australia, one court or the other may well send her back to the United States after a full examination of her best interests. The Court finds that such movement back and forth poses a serious threat to her psychological welfare."

England v. England, No. H-99-2715 (S.D. Tex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition for Return of Children Under the Hague Convention).

Courts considering this issue have uniformly found considerations such as those articulated by the District Court inapposite to the "grave risk" determination. See, for example, Nunez-Escudero, 58 F.3d at 377 ("The district court incorrectly factored the possible separation of the child from his mother in assessing whether the return of the child to Mexico constitutes a grave risk that his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation"); Friedrich, 78 F.3d at 1067-68 ("Mrs. Friedrich alleges that she proved by clear and convincing evidence in the proceedings below that the return of Thomas to Germany would cause him grave psychological harm. Mrs. Friedrich testified that Thomas has grown attached to family and friends in Ohio. She also hired an expert psychologist who testified that returning Thomas to Germany would be traumatic and difficult for the child, who was currently happy and healthy in America with his mother. . . . If we are to take the international obligations of American courts with any degree of seriousness, the exception to the Hague Convention for grave harm to the child requires far more evidence than Mrs. Friedrich provides. Mrs. Friedrich alleges nothing more than adjustment problems that would attend the relocation of most children"); Walsh v. Walsh, 221 F.3d 204, 220 n.14 (1st Cir. 2000) ("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"). The District Court's finding that return to Australia would expose Karina to a grave risk of psychological harm, then, was clearly erroneous.

Since the District Court found that the evidence of grave risk to Victoria was even less clear and convincing than the evidence of grave risk to Karina, see England v. England, No. H-99-2715 (S.D. Tex. Dec. 20, 1999) (order denying Motion Re-Urging the...