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Sunday, July 14, 2013

Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375 (C.A.2 (N.Y.)) [Singapore] [Grave Risk of Harm] [Fundamental Freedoms]

In Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375 (C.A.2 (N.Y.)) Lee Jen Fair appealed the grant of a petition brought by her husband Abdollah Naghash Souratgar for repatriation of their son from New York to Singapore. In May 2012, Lee removed the boy to Dutchess County, New York, in direct violation of a Singapore court order. The District Court granted Souratgar's petition pursuant to the Hague Convention.(Souratgar v. Lee Jen Fair, No. 12 CV 7797(PKC), 2012 WL 6700214 (S.D.N.Y. Dec. 26, 2012). The Second Circuit affirmed rejecting her “grave risk of harm” and “fundamental freedoms’ defenses.

Four-year-old Shayan, was born in Singapore in January 2009 to Lee and Souratgar, who were both residents of that country. Souratgar was an Iranian national who has owned a business in Singapore since 1989. Lee was a Malaysian national. She converted to Islam, Souratgar's faith, just prior to their marriage in Singapore in 2007. Shayan was a citizen of Malaysia with Malaysian and Iranian passports. At the district court hearing, the parties traded accusations and denials of domestic abuse. Souratgar accused Lee, among other things, of biting him, repeatedly threatening him with a knife and chopper, having suicidal tendencies, and inflicting injuries on herself. Lee asserted in her testimony more serious allegations-that Souratgar repeatedly slapped, beat, shook, and kicked her, and that he forced her to perform sex acts against her will. The district court found spousal abuse by Souratgar, including "shouting and offensive name-calling," and several incidents of physical abuse in which he "kicked, slapped, grabbed, and hit" . The district court found no credible evidence of any harm directed against the child. Both parties acknowledged the other's love for Shayan, and was not disputed that the boy dearly loves both of his parents. In April 2011, when Shayan was two, Lee filed an ex parte application in the Singapore High Court for sole custody. On May 16, the Subordinate Court of Singapore issued an ex parte order directing Souratgar to hand over Shayan's passports and personal documents to Lee and barring Souratgar from removing the child from Singapore without court approval and Lee's knowledge or consent. Souratgar complied with the order, denied Lee's charges, and cross-applied for sole custody. While the custody proceedings were pending in Singapore, Lee moved out of the marital home with Shayan and refused to disclose their whereabouts to Souratgar. He eventually found them in Malaysia, where Lee denied him access to the boy. Souratgar then filed a custody application in the Syariah Court of Malaysia, which granted joint custody to the couple in early July. Thereafter, Lee succeeded in obtaining a dismissal of that order from the Malaysian Syariah Court for lack of jurisdiction. After Lee and Shayan returned to Singapore, the custody proceedings in Singapore's Subordinate Court resumed. Following a mediation session on July 14, 2011, the Subordinate Court barred either parent from removing Shayan from Singapore without the other's consent and ordered interim supervised visitation for Souratgar at Singapore's Centre for Family Harmony. Following another mediation session on February 16, 2012, both parties agreed to a consent order by the Subordinate Court to have custody decided by the Syariah Court of Singapore. In the meantime, Shayan remained in Lee's care, while Souratgar's visitation time was doubled. In late 2011, Lee had filed for divorce in Singapore's Syariah Court and used that proceeding to dismiss the temporary joint custody order of the Malaysian Syariah Court. On May 20, 2012, Lee removed Shayan from Singapore, in violation of the Singapore Subordinate Court's order.

Souratgar, through a private investigator, eventually located Lee and Shayan in Dutchess County, and on October 18, 2012 filed an ex parte application in the district court under the Convention for Shayan's return to Singapore. The district court heard testimony from nine witnesses over a nine-day evidentiary hearing, and on December 26, granted Souratgar's petition. The Court of Appeals for the Second Circuit affirmed. The parties did not dispute either that Singapore was the country of Shayan's habitual residence or that his removal from Singapore was wrongful under the Convention. The issue on appeal was whether the two affirmative defenses that Lee raised under Articles 13(b) and 20 of the Convention precluded repatriation. Under Article 13(b), the judicial or administrative authority of the requested State is not bound to order the return of the child if [the party opposing repatriation] establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Under Article 20, repatriation also "may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." The respondent parent opposing the return of the child has the burden of establishing "by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies." 42 U.S.C.§ 11603(e)(2)(A). Subsidiary facts may be proven by a preponderance of the evidence.. The Second Circuit observed that it reviews the district court's interpretation of the Convention de novo and its factual determinations for clear error. Its "review under the 'clearly erroneous' standard is significantly deferential." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 623 (1993). It must accept the trial court's findings unless it has a "definite and firm conviction that a mistake has been committed."

The Second Circuit rejected Lee’s argument that returning Shayan to Singapore would expose him to "a grave risk" of "physical or psychological harm" or "otherwise place him in an intolerable situation" and that the district court's finding to the contrary was error. The harms he could face upon return, she asserted, were (1) exposure to spousal abuse; (2) direct abuse from his father; or (3) the loss of his mother. The Court found that Lee's arguments were permeated with conjecture and speculation and that there was no error in the district court's determination that Lee had failed to meet her burden to establish the Article 13(b) defense.

The Second Circuit held that under Article 13(b), a grave risk of harm from repatriation arises in two situations: "(1) where returning the child means sending him to a zone of war, famine, or disease; or (2) 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." Blondin IV, 238 F.3d at 162. The potential harm to the child must be severe, and the the level of risk and danger required to trigger this exception has consistently been held to be very high. The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize. This grave risk' exception is to be interpreted narrowly, lest it swallow the rule. The Second Circuit indicated that while many cases for relief under the Convention arise from a backdrop of domestic strife spousal abuse is only relevant under Article 13(b) if it seriously endangers the child. The Article 13(b) inquiry is not whether repatriation would place the respondent parent's safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm. 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. 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. Evidence of this kind, however, is not dispositive in these fact-intensive cases. Sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk. In this case, the district court found that, while Lee was subjected to domestic abuse on certain occasions, albeit less than she claimed, at no time was Shayan harmed or targeted. The Court noted that it has held that Article 13(b) relief could be granted if repatriation posed a grave risk of causing unavoidable psychological harm to the child. See Blondin IV, 238 F.3d at 160-61 (affirming denial of petition to repatriate after an expert psychologist opined that returning the boy and girl to France, where they had been abused by their father, would likely trigger recurrence of PTSD, and that no arrangement could mitigate this risk). The holding in Blondin IV depended on the fact, due to the nature of the potential harm at issue, recurrence of PTSD that would occur as soon as the children entered France, there was nothing the courts could do to prevent it. In this case, there was nothing in the record beyond speculation that Shayan would suffer unavoidable psychological harm if returned to Singapore. Neither party nor the guardian ad litem requested a psychological evaluation of the boy, and the guardian ad litem reported, after observing Shayan's interactions with both parents and interviewing him separately, that the boy appeared to be an active and happy child, who seemed distressed about the difficulties between his parents. Shayan expressed unqualified love for both parents and indicated that he was never physically disciplined and never saw or heard either parent hit the other or try to hurt the other parent. In contrast, the girl in Blondin IV had herself been abused and expressed fear of her father. The circuit court cases affirming denial of repatriation cited by Lee were distinguishable in that the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.

The Court emphasized that it on held “ that in this case, the evidence, which did not match the showing in those cases, did not establish that the child faced a grave risk of physical or psychological harm upon repatriation. Lee contended that the district court erred in discounting the likelihood that Shayan would be exposed to renewed domestic strife and suffer grievous psychological harm upon his return to Singapore. She also faulted the district court for refusing to credit expert testimony characterizing Souratgar as having a coercive and controlling personality type with a tendency to hurt women and children. At the hearing, the district court heard a psychological expert describe abusive spouses of the "coercive control" type and of the "situational" type and placed Souratgar in the former category. The coercive control type is said to demand domination and control and grows more dangerous upon separation from the victim. On this basis, the expert concluded that Souratgar still posed an "extreme danger" to Lee even though they had been estranged for more than a year. The experts assessment of Souratgar was based entirely on Lee's answers to a survey, which the district court found to contain inaccuracies. The district court therefore discredited the experts conclusions. There was no basis in the record for disagreement with the district court's finding.

The Second Circuit held that for it “to hold evidence of spousal conflict alone, without a clear and convincing showing of grave risk of harm to the child, to be sufficient to decline repatriation, would unduly broaden the Article 13(b) defense and undermine the central premise of the Convention: that wrongfully removed children be repatriated so that questions over their custody can be decided by courts in the country where they habitually reside. Our holding today is not that abuse of the kind described by Lee can never entitle a respondent to an Article 13(b) defense; rather it depends on the district court's finding that Shayan would not be in danger of being exposed to a grave risk of physical or psychological harm and that the Singapore court system has demonstrated its ability to adjudicate the dispute over his custody.” It found no clear error in the district court's finding that the facts did not indicate a grave risk of harm to the child in this particular instance.

Lee also contended that Shayan faced a direct risk of harm from his father, who, having been abusive to Lee, was also likely to turn on Shayan, citing the description of the "coercive control" type in the social science literature that draws certain correlations between perpetrators of spousal abuse and child abuse. However, given the problems with the experts methodology in type-casting Souratgar, the lack of any indicia of ill-will on the part of Souratgar toward Shayan, and contrary credited evidence of a loving father-son relationship, there was no clear and convincing showing that the boy faced a grave risk of harm from his father. Lee also posited various scenarios in which the boy would be deprived of his mother post-repatriation. She claimed Souratgar may (a) resort to Syariah court proceedings in Singapore or Malaysia to win custody outright; (b) abscond with Shayan to Iran; or (c) expose her to the charge of apostasy (leaving the Muslim faith), a religious crime punishable by death in her home country of Malaysia. The district court dismissed these claims as lacking factual support. As an initial matter, the Second Circuit held that the court could not conclude that the prospect that one parent may lose custody of the child, post-repatriation, necessarily constitutes a grave risk to the child under the Convention. Since the Convention defers the determination of custody to courts in the country where the child habitually resides, it is quite conceivable that in some cases one or the other parent may lose legal custody after repatriation and be deprived of access to the child. Thus, the possible loss of access by a parent to the child does not constitute a grave risk of harm per se for Article 13(b) purposes. Even assuming that the prospect of the child losing his mother posed a grave risk to the child's well-being, there was no basis to disturb the district court's finding that Lee had not made a clear and convincing showing that any of the scenarios that she raised was likely to occur.

The Second Circuit pointed out that the Article 20 defense allows repatriation to be denied when it "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." This defense is to be "restrictively interpreted and applied." Article 20 is a unique formulation that embodies a political compromise among the states that negotiated the Convention, which might never have been adopted otherwise.. The defense is to be invoked only on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process. It is not to be used as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed. This defense has yet to be used by a federal court to deny a petition for repatriation. Lee argued that Syariah Courts are incompatible with the principles "relating to the protection of human rights and fundamental freedoms" of this country. The Second Circuit declined to make this categorical ruling as a legal matter. Moreover, Lee failed to show that the issue of custody was likely to be litigated before Singapore's Syariah Court. Given that failure, it was not inclined to conclude simply that the presence of a Syariah Court in a foreign state whose accession to the Convention has been recognized by the United States is per se violative of "all notions of due process.” It noted that such a holding would contradict the State Department's view expressed upon Singapore's accession as a bilateral partner under the Convention, that Singapore is a "role model" among states in the region. It was also mindful of the need for comity, as the careful and thorough fulfillment of our treaty obligations stands not only to protect children abducted to the United States, but also to protect American children abducted to other nations-whose courts, under the legal regime created by this treaty, are expected to offer reciprocal protection. In the exercise of comity, we are required to place our trust in the court of the home country to issue whatever orders may be necessary to safeguard children who come before it. For all of the above reasons, it concluded that the district court did not err in rejecting Lee's Article 20 defense.

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