In Jacquety v Baptista, 2021 WL 1885263 (S.D. N.Y., 2021) the district court denied the Petition of Guillaume Jacquety against Respondent Geraldine Helena Tena Baptista (“Geraldine”) seeking return of their daughter E.J. to Guillaume’s custody in Morocco.
The parties were formerly husband and wife under French law. They had a young daughter, referred to as “E.J.” In early November 2018, Geraldine traveled with E.J. from the family’s home in Morocco to Geraldine’s mother’s home in Switzerland and then a few days later to Portugal, where they were joined by Respondent Dr. Yousseff Zaim Wadghiri (“Wadghiri”). From there, Geraldine, E.J., and Wadghiri traveled to New York City, where they have since lived in Wadghiri’s home.
The trial of this matter took place by remote means over twelve days between January 25, 2021 and February 9, 2021. The parties stipulated to Petitioner’s prima facie case. The issues for trial were whether E.J. faced a grave risk of physical or psychological harm if she were repatriated to Morocco and, if so, whether arrangements could be implemented in Morocco that would adequately protect E.J. from that grave risk of harm.
The district court observed that “The grave-risk exception is found in Article 13 of the Hague Convention, which states that: the judicial ... authority of the requested State is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Convention, art. 13(b). The Second Circuit has explained the high bar required to meet the exception: [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. 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 grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize. Souratgar, 720 F.3d at 103 (internal quotation marks, citations, and emphasis omitted); see also Norden-Powers v. Beveridge, 125 F. Supp.2d 634, 640 (E.D.N.Y. 2000) (collecting cases). The exception is to be interpreted narrowly, “lest it swallow the rule.” Souratgar, 720 F.3d at 103; see also 22 U.S.C. § 9001(a)(4) (referring to the Convention’s “narrow exceptions”).
The grave-risk 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.” Souratgar, 720 F.3d at 104. “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.” Id. (collecting cases). In contrast, “[t]he 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.”. As the Second Circuit has explained: [A]t one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do. Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001) (“Blondin IV”)
“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,” though “[e]vidence of this kind ... is not dispositive in these fact-intensive cases.” Souratgar, 720 F.3d at 104 (internal quotation marks, brackets, and citations omitted); see also Davies v. Davies, 717 F. App’x 43, 49 (2d Cir. 2017) (summary order) (finding no error in district court’s grave risk finding “premised on overwhelming evidence 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 [the child]”); Ermini, 758 F.3d at 164 (“Spousal violence ... can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child”); Mohácsi v. Rippa, 346 F. Supp.3d 295, 320, 322 (E.D.N.Y. 2018) (“witnessing the abuse of [one’s] mother is enough to establish the applicability of the defense”), aff’d sub. nom. In re NIR, 797 F. App’x 23 (2d Cir. 2019) (summary order affirming denial of petition).
Even if the requirements of the grave risk of harm exception are met, principles of comity require the court to “determine whether there exist alternative ameliorative measures that are either enforceable by the District Court or, if not directly enforceable, are supported by other sufficient guarantees of performance.” Saada v. Golan, 930 F.3d 533, 541-42 (2d Cir. 2019). The Court may consider, among other things, “whether [the other country’s] courts will enforce key conditions” to protect the child. Id. at 541.
The Convention’s grave-risk exception is an affirmative defense that the respondent must prove “by clear and convincing evidence,” although “subsidiary facts need only be proven by a preponderance of the evidence.” Elyashiv v. Elyashiv, 353 F. Supp.2d 394, 404 & n.10 (E.D.N.Y. 2005); see 22 U.S.C. § 9003(e)(2)(A).
The court found that Respondent has proven by clear and convincing evidence that E.J. faces a grave risk of harm if she is repatriated to Morocco. Petitioners expert, Dr. Goslin determined that there was “clear and compelling evidence” that E.J. suffers from PTSD resulting from domestic violence by Guillaume toward Geraldine, and that E.J. was at serious risk of an increase in her PTSD symptoms and negative impact on her development if she were to return to Morocco. Dr. Goslin predicted “with a great deal of certainty” that if returned to Morocco, E.J.’s PTSD symptoms would increase and her developmental functioning would regress. In short, E.J. would not be able to recover from her PTSD if returned to Morocco.
E.J.’s plight had been made even more precarious as a result of the recent Moroccan Judgment awarding physical and residential custody of E.J. to Guillaume based on a one-sided record. Dr. Goslin testified that if left in an unsupervised setting with her father, E.J.’s PTSD symptoms would intensify and she therefore would neither feel safe nor be safe. Making matters worse, the Moroccan Judgment imposed extreme restrictions on Geraldine’s visitation rights, limiting her to only day time visits on the weekends. As a result, E.J. would be deprived of her primary caregiver, further exacerbating her PTSD.
Dr. Goslin was the only expert who evaluated E.J. Petitioner provided no expert testimony. Courts have denied petitions under the Convention in such circumstances. For instance, in Blondin IV, the Second Circuit affirmed the denial of a petition to return two children to France. The district court found that petitioner had beaten his wife, the respondent, often in the child’s presence and that he had also beaten one of the children. The district court also accepted the expert testimony of an expert child psychiatrist, Dr. Solnit. Like Dr. Goslin here, Dr. Solnit opined that the children were recovering from PTSD and that “if the children were returned to France with or without their mother and even if they could avoid being in the same domicile as the father ... they would almost certainly suffer a recurrence of their [PTSD] that would impair their physical, emotional, intellectual and social development.” 238 F.3d at 160. The petitioner in Blondin IV did not provide any contrary expert testimony to rebut Dr. Solnit’s opinions.
Sixteen years later, the Second Circuit in Davies reached a similar conclusion in affirming the district court’s denial of a petition to return a child to French St. Martin. Davies v. Davies, No. 16-CV-6542, 2017 WL 361556, at *17 (S.D.N.Y. Jan. 25, 2017).See also Elyashiv, 353 F. Supp.2d at 408-09 (denying repatriation where there was uncontroverted expert testimony that the children would suffer relapse of their PTSD symptoms upon returning to Israel, even if they had no contact with petitioner); Reyes Olguin v. Cruz Santana, No. 03-CV-6299, 2005 WL 67094, at *2-4, 7, 11-12 (E.D.N.Y. Jan. 13, 2005) (denying repatriation where there was uncontroverted expert testimony that return to Mexico would exacerbate child’s PTSD).
The Court found by clear and convincing evidence, based on Dr. Goslin’s opinion (Respondents’ expert child psychologist), Dr. Cling’s opinion (he was retained by Respondents to evaluate Geraldine) regarding Geraldine, and the parties’ testimony to the extent deemed credible, that E.J. experienced PTSD due to domestic violence, that returning her to Morocco would exacerbate her PTSD, and that she faced grave risk of harm if returned to Morocco. Those findings were supported by E.J. herself in what she reported to Dr. Goslin, including that her dad “smacked” her mother many times, used bad language, yelled, was verbally abusive, and broke things in the home; that incidents of that nature happened a lot; that “[her father] kept smacking [her mother]” even though “she never does something”; that E.J. felt “bad” and worried for her mother’s safety, “because she’s my mom and no one can touch her like that”; that she “didn’t trust [her] dad at all”; and that she “was afraid [her dad] would smack [her] mom again.” And although E.J. has tried to stop thinking of the violence, “like 100 times,” “it didn’t work” and she “tr[ies] to forget all day long but it always comes back.” In short, E.J. was exposed to sustained and serious violence that continues to haunt her.
The Court observed that even where there is a grave risk of harm from repatriation, the Court must consider whether there are “any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with [the] child’s repatriation.” Blondin II, 189 F.3d at 248. The Court considered means of mitigating E.J.’s grave risk of harm upon repatriation and found that there are no ameliorative measures sufficient to prevent exacerbation of E.J.’s PTSD.
Petitioner offered expert testimony that Morocco has laws to protect persons who are abused. Respondent has offered expert testimony explaining that despite having laws on the books, domestic violence remains prevalent and women remain unprotected. The Court noted that the extent to which those propositions are true need not be resolved. As the Second Circuit has recognized, even when a country’s authorities “are both willing and able to make numerous arrangements and accommodations to facilitate repatriation,” there may be circumstances where they still “cannot provide the necessary protection.” Blondin IV, 238 F.3d at 162. This case presented such circumstances because to provide the necessary protection, Moroccan authorities “would [be] require[d] ... to fulfill the impossible task of ensuring that a return to [Morocco] would not trigger a recurrence of traumatic stress disorder in the children.” In Blondin II, the Second Circuit remanded the district court’s initial decision finding a grave risk of harm specifically for the purpose of evaluating potential ameliorative measures. On remand, the district court found that there were no arrangements at all that would mitigate the grave risk of harm posed to the children, “because returning to France under any circumstances would cause them psychological harm, as France was the scene of their trauma. The court based this determination on uncontested expert testimony that the children would suffer from post-traumatic stress disorder upon repatriation.” Blondin IV, 238 F.3d at 157; see also Souratgar, 720 F.3d at 104 (explaining that “[t]he holding in Blondin IV depended on the fact that 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”). The situation here was the same. The recent Moroccan Judgment only underscored the point.
In his post-trial reply brief, Petitioner requested for the first time that he be given the opportunity to propose undertakings he would take in the event the Court were otherwise to deny the Petition. The court held that his belated request was too little too late. And the Court found that there were no undertakings that Petitioner could offer to sufficiently address the problem. Undertakings are of limited efficacy in that the court imposing the conditions “retain[s] no power to enforce those orders across national borders.” Baran, 526 F.3d at 1350. “Because the court granting or denying a petition for return lacks jurisdiction to enforce any undertakings it may order, even the most carefully crafted conditions of return may prove ineffective in protecting a child from [grave] risk of harm.” Accordingly, “in cases in which a district court has determined that repatriating a child will expose him or her to a grave risk of harm, unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other sufficient guarantees of performance.” Saada, 930 F.3d at 540; see also Davies, 2017 WL 361556 at *20 (concluding that petitioner could not be trusted to honor agreements or commitments he might make).
The Court did not believe that Petitioner could be relied on to make the requisite effort to abide whatever undertakings he may propose. Nor were there potential undertakings that would sufficiently ameliorate the grave risk of psychological harm to E.J. for the same reason that there were no potential Moroccan legal remedies or services that would do so: returning to Morocco would trigger E.J.’s PTSD. The Court found that there were no undertakings or other ameliorative measures that could sufficiently protect against the grave risk of harm E.J. would face upon return to Morocco.
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