Davies v Davies, 2017 WL 361556 (SDNY, 2017)[French St. Martin] [Grave Risk of Harm] [Petition denied]

In Davies v Davies, 2017 WL 361556 (SDNY, 2017) Respondent Sally K. Davies was a citizen of the United States and the United Kingdom. Petitioner Christopher E. Davies was born in and is a citizen of the United Kingdom. They were married in 2006., In June 2008, they moved to the Caribbean island of St. Martin, where they purchased a scuba diving center. Ms. Davies gave birth to K.D in 2012. The parties lived together with K.D. in Grand Case, French St. Martin, until July 8, 2016. On July 18, 2016, Ms. Davies left St. Martin with K.D. for New York, without Mr. Davies’s knowledge or consent. Prior to this, K.D. never resided anywhere other than French St. Martin. Ms. Davies and K.D. currently reside at Ms. Davies’s parents’ house in Croton-on-Hudson. The district court found that the child’s habitual residence was French St. Martin, but if the child were returned to French St. Martin  Mr. Davies’s extreme psychological abuse of Ms. Davies and K.D. would continue and escalate and there was a grave risk that K.D. would be exposed to severe psychological harm. It also found that the procedures in place in French St. Martin would be insufficient to protect K.D., and there were no ameliorative measures that could reduce the grave risk of harm. It declined to order the return of K.D. to French St. Martin.       

During trial, the Court found Ms. Davies to be a credible witness. The Court found that very little of what Mr. Davies said was believable, primarily because it was completely contradicted by the testimony of numerous other witnesses called by Ms. Davies, and lacked any support from disinterested witnesses. The Court found Mr. Davies’s testimony on every significant contested issue to lack credibility.

The court observed that under Article 13(b), a grave risk of harm from repatriation arises in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar v. Lee, 720 F.3d at 103  The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” “The exception to repatriation has been found where the petitioner showed a sustained pattern of physical abuse and/or a propensity for violent abuse that presented an intolerably grave risk to the child.” Souratgar v. Lee, 720 F.3d at 104. Evidence of “prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse. 

        Dr. Stephanie A. Brandt, a psychiatrist testified as an expert at trial. She concluded that this was a very severe case of domestic violence. She concluded that the mother was a victim of a particularly severe kind of domestic violence, which included strangulation, and concluded that the child was witness to a great deal of violence and was also subject to a certain amount of violence himself. In addition, she diagnosed Ms. Davies with “a quite severe case of Post-Traumatic Stress Disorder of a certain type called dissociative type.” She  also testified that domestic violence often escalates after a separation. She explained this is because when the victim of abuse leaves, “the abuser has then lost control, and controlling the victim is an essential part” of the pattern of abuse. Dr. Brandt further testified that the escalation after a separation can continue weeks, months, or longer after the separation, “often ... through the child or through the legal system or through various financial threats.” Dr. Brandt  testified there is a consensus in the scientific community that the effects of abuse are essentially the same whether the abuse is directed at the child or whether the child is witnessing the abuse. Based on her observations, Dr. Brandt concluded that returning K.D. “to a place where this [abuse] occurred and to the care of somebody who has abused the mother would set off a tremendous traumatic reaction in” K.D.. She testified that there would be “a very high risk that [K.D.] would become very symptomatic, and that would mean a delay ... or change in his developmental trajectory and not [in a] good direction.”. She also testified that her opinion would not change if K.D. resided part-time with Mr. Davies upon his return to St. Martin, and that her opinion would be the same even if K.D. did not reside with Mr. Davies at all. The Court credited and fully accepted these conclusions. In light of the overwhelming evidence ( as set forth in the courts findings) of Mr. Davies’s extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by K.D., and the fact that Mr. Davies frequently screamed and yelled at K.D. for no legitimate reason, the Court concluded that both Ms. Davies and K.D. were  victims of severe domestic violence and that K.D. was at serious risk of trauma and developmental delay if he were permitted to continue to experience and witness the abuse.

The Court noted that in cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin v. Dubois, 238 F.3d at 163, n.11. It found that  Mr. Davies repeatedly lied at trial, and the evidence showed he had tried to circumvent the law in St. Martin when he does not agree with its application to him. Therefore, Mr. Davies could not be trusted to honor any agreements or commitments he might make and that Mr. Davies would not abide by a stay away agreement if K.D. were returned to St. Martin. Second, several experts in St. Martin testified regarding the extremely small size of the island and its community, and the resulting inability to hide or avoid one’s abuser there.  St. Martin is a very small island, different from the big French territory ... where a victim of psychological violence can hide. Hiding is not possible in St. Martin.  Third, the legal system in St. Martin was inadequate to protect Ms. Davies and K.D. from Mr. Davies’s abuse. In French St. Martin it is not possible to get an immediate order of protection in cases of psychological abuse. Under normal circumstances, to obtain an order of protection, one must send a written request to a clerk in Guadeloupe (there are no clerks in St. Martin), who issues a summons to the accused abuser. This process takes at least fifteen days, and it can take more than a month before the parties are notified that they must appear in court. If an order of protection is eventually granted, it expires after six months. It can only be extended for one additional six month period, and only if divorce proceedings have commenced. An order of protection issued in French St. Martin is not effective in Dutch Sint Maarten.  

The court concluded that because of the nature and extent of the allegations here, the procedures in place in St. Martin were insufficient to protect Ms. Davies and K.D. The found there were no ameliorative measures that would protect K.D. from harm if K.D. were returned to St. Martin even during custody proceedings.