Recent Hague Convention District Court Cases - Nisbet v Bridger, 2023 WL 6998081 (D. Oregon, 2023) [Scotland][Petition denied[Habitual residence][Grave risk of harm]

 

 

 

In Nisbet v Bridger, 2023 WL 6998081 (D. Oregon, 2023)  the district court denied the petition for the return to Scotland of the two children, five-year-old ACN and three-year-old KRN.

 In June 2022, the children and their mother, Respondent Spirit Rose Bridger, left Scotland for the United States, and have lived in Oregon ever since. The children’s father, Petitioner Andrew Nisbet, argued that Respondent took their children in violation of the Hague Convention. The evidence compelled two conclusions. First, Petitioner failed to prove by a preponderance of the evidence that the children’s habitual residence was Scotland. The evidence showed that the children did not have a settled permanent home in Scotland before arriving in the United States. The facts proved that the children lacked a meaningful connection to Scotland, that their caregiving parent had long intended to move to Oregon, and that their absentee parent had coerced their caregiver into remaining longer than she wished. They were unsettled largely because Petitioner killed his mother in August 2019 and then was detained and committed to St. Andrew’s a secure psychiatric facility in England. One of the children was not yet born at the time of those events. The petitioner had been sentenced to an indefinite period of psychiatric confinement. The petitioner has not lived in Scotland since 2017.  The petitioner continued to display behaviors like those he showed in Jersey. On May 18, 2023, a month before filing his Hague Petition, Petitioner threatened to attack staff when he was moved between wards. The petitioner refused treatment recommended by St. Andrew’s, insisting that he receive therapy from his personal therapist, Jane Pointon, whom he has seen since 2017. Petitioner has also decided that mindfulness methods, not intensive therapy, suffice as treatment. This is so although even Petitioner’s expert did not see any document recommending Petitioner go without therapeutic treatment. Finally, in confinement, Petitioner has apparently at times barricaded himself from hospital staff, punched walls, banged his head against a window, and had physical altercations with the staff. The children did not have a habitual residence on June 17, 2022; the Court therefore denied the Petition.

 

Assuming the children’s habitual residence was Scotland before they moved to Oregon, the Convention did not require a return of the children because Respondent had shown by clear and convincing evidence that a return to Scotland would present a grave risk of harm or otherwise place the children in an intolerable situation. The children had no familial support network there. Their father, Petitioner, remained indefinitely committed to a secure in-patient psychiatric health facility. And Petitioner had a history of violent and coercive behaviors that constitute major risk factors for domestic abuse. Although there was no evidence that Petitioner physically abused Respondent or the children, there was evidence of coercive, manipulative, violent, and threatening behavior directed at Respondent and Petitioner’s family. Such long-standing behavior constituted a grave risk of harm to ACN and KRN if they were returned., Petitioner here had a broader history of familial abuse against his mother, father, and brother as well as Respondent. Finally, the grave risk of displacing the children is starker still when juxtaposed with depriving the children of their mother and their support network in Oregon. As the Second Circuit has explained, “the fact that a child is settled may form part of a broader analysis of whether repatriation will create a grave risk of harm,” though it cannot be categorically dispositive. Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001), abrogated on other grounds by Golan, 142 S. Ct. 1880. Because of the isolation of COVID-19 and Petitioner’s absence from the children’s lives, they developed an especially strong bond with their mother. And in Oregon, the children have family, friends, and social benefits that, if returned to Scotland, they would lose in an extremely short time frame. As Dr. Poppleton testified, losing their mother, family, and support network so quickly could have cascading effects on the children’s development and health. Coupled with the risk posed by Petitioner, this clearly presents an intolerable situation and grave risk to the children. In sum, the children’s return to Scotland posed a grave risk of harm and intolerable situation to them. For this reason, as well as the children’s lack of a habitual residence on June 17, 2022, the Court would not order that the children be returned to Scotland.

 

Petitioner argued that the Court should order the children’s return to Scotland so that he can visit them while they live under the supervision of either a live-in nanny or Petitioner’s friend, Mr. Harper (who testified). This Court found these ameliorative measures unworkable. Golan, 142 S. Ct. at 1892–94 (giving district courts broad discretion to consider such measures).