[Scotland][Petition granted][Coercion not established][Grave risk of harm not established]
In Harvey v Means, 2024 WL 324980 (W.D. Washington, 2024) the Court granted Petitioner Dale Harvey’s petition for the return of his children, Z.H.M. and E.H.M., to Scotland. Means and Harvey were the parents of Z.H.M. and E.H.M., ages six and four. Harvey was a citizen of Scotland and Means was a United States citizen, born and raised in Washington state. Her parents and extended family continue to reside in the Seattle area. Means and Harvey married on April 12, 2015, in Seattle, Washington. From the early days of their marriage, Harvey and Means experienced troubles in their relationship. In 2017, Harvey and Means moved from Brighton, England to Glasgow, Scotland, and purchased a flat. Later that year, their eldest daughter was born. Their youngest daughter was born two years later in 2019. Means and Harvey split primary caretaking responsibility evenly. Until the events giving rise to the Petition, the children resided at all times in Glasgow, Scotland, where they attended daycare and nursery. In 2019, Means began expressing her desire to relocate to the U.S. to be closer to her family and friends. Harvey objected to resettling in another country. In February 2020, Means initiated custody proceedings in Scotland, seeking to relocate the children to Washington. Harvey opposed the request, but due to COVID-19 lockdowns, the Scottish court delayed a contested hearing on the matter. In April 2020, during the custody proceedings, Means accused Harvey of sexually abusing Z.H.M. On April 7, 2020, Means contacted the National Society for the Prevention of Cruelty to Children (NSPCC). After receiving a referral from NSPCC, a Duty Social Worker, Scott Andrew McCabe, as well as Child Protection officers visited Harvey and Means’s home on April 8, 2020. On April 9, 2020, a consultant pediatrician conducted a medical examination of Z.H.M. The pediatrician told McCabe there were no internal or external injuries and no signs of abuse. Means does not contest the pediatrician’s findings and conceded there was no physical evidence of sexual abuse. Means did not allege other occurrences of sexual abuse after or before April 2020. A couple of weeks later, Means walked in Z.H.M.’s bedroom to find her with Harvey not wearing pants or underwear. Means saw Harvey put something in his pocket and he said, “the last time you accused me of being a pedophile, you said you needed therapy.” Harvey and Means’s relationship continued to deteriorate and they officially separated. In 2021, Z.H.M. told Means that she had taken a bath with Harvey. According to Harvey, this did not happen. It would have been logistically impossible given the size of their bath. On August 12, 2022, Sheriff Charles Lugton issued a judgment in which he denied Means permission to relocate with the children to Washington and awarded each parent 50 percent custody. He found Means made false sexual abuse allegations against Harvey. The judgment was later modified to prevent Means from removing the children from their current school and nursery and enrolling them elsewhere without Harvey’s permission. Means filed for divorce on April 28, 2023. On September 30, 2023, Means left Scotland with the children and moved to Seattle, Washington. At the time Means left with the children, Harvey was exercising his custodial rights. On November 8, 2023, Harvey filed a Petition for Return with this Court as well as a motion seeking an ex parte temporary restraining order transferring the children to his custody. In her sworn petition, Means stated that after her trip to Seattle with the children, she became “suicidal” when the children were with Harvey and she “knew [she] had to go home.” She left Scotland with the children to return to Seattle, knowing that doing so breached the Scottish custody order. She stated that if the children are forced to return to Scotland, “this holiday season will be the only one they ever spend in the US with their family and the last one they spend with me until adulthood.” She did not allege in the petition that the children will face abuse, sexual or otherwise if they are returned to Scotland.
The District Court found that Harvey established a prima facie case for the return of the children. Both children were born in Scotland and resided there exclusively until Means took them to the U.S. on September 30, 2023. At the hearing, Means argued that the children were born and remained in Scotland because of Harvey’s coercion. Means testified that she was unhappy in Glasgow and wanted to continue living in Brighton rather than move before Z.H.M.’s birth. Means also testified that she felt dependent on Harvey for her continued immigration status. Harvey testified he never threatened to revoke Means’s immigration status, and Means does not dispute this testimony. Means did not raise coercion as an issue in the Scottish court relocation proceedings. The Court found that Means’s claims about coercion lack credibility. The Court held that even if the Court accepted Means’s testimony as true, it failed to rise to the level of coercion because nothing suggested Means did not voluntarily move to and remain in Scotland with Harvey for the birth of their children. See Tsuruta v. Tsuruta, 76 F.4th 1107, 1110-11 (8th Cir. 2023) Moreover, coercion cannot be established simply because Harvey did not agree to allow Means to relocate to the United States with their children. See Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir. 2003) (finding a respondent’s “subsequent, post-move desire to return to the United States,...d[id] not change the legal conclusion that the habitual residence of the children changed[.]”). Means grew to dislike Glasgow as her marriage and mental health worsened, but a change of heart cannot override the clear conclusion that Scotland was the children’s habitual residence.
The District Court found that Means failed to establish the children will be at risk of grave danger if returned to Scotland. Means testified that the children would suffer harm if returned to Scotland because they would effectively lose their mother. She claimed she cannot return to Scotland because she felt suicidal there and when in Washington, she no longer experiences suicidal ideations. Means offered her medical records to argue this point. She also testified she would be unable to find employment or housing in Scotland and she could be subject to criminal prosecution for taking the children away in violation of the Scottish court order. The possible loss of access by a parent to the child—and vice versa—does not constitute a grave risk of harm per se under Article 13(b). Souratgar v. Lee, 720 F.3d 96, 106 (2d Cir. 2013); see also Charalambous v. Charalambous, 627 F.3d 462, 469 (1st Cir. 2010) (“[T]he impact of any loss of contact with the [parent] is something that must be resolved by the courts of the Children’s habitual residence.”). The Court found no unique harm posed by separating the children from Means beyond that “expected on taking a child away from one parent and passing the child to another.” See Nunez-Escudero, 58 F.3d at 377. As one Court observed, “[i]f the difficulty caused by such separation were deemed sufficient to satisfy the grave risk exception, the purposes of the Convention would be largely frustrated.” Aguilera v. De Lara, No. CV14-1209 PHX DGC, 2014 WL 3427548, at *5 (D. Ariz. July 15, 2014). It also found that the alleged abuse suffered by Means did not establish a grave danger to the children. Means also testified Harvey emotionally abused her during their marriage by surveilling her email account, physically blocking the door when she tried to take one of her daughters to lunch one time, and threatening to leave her. A grave risk to the respondent parent, however, does not automatically qualify as a grave risk to the children. See Charalambous, 627 F.3d at 468 (finding that the respondent parent “failed to draw a connection establishing, by clear and convincing evidence, that any risk to her constituted a grave risk to the children” even though she had endured some verbal and emotional abuse as well as one incident of physical abuse given that the children did not witness it). Courts may find a grave risk of harm if a respondent demonstrates “[s]pousal violence ...particularly when it occurs in the presence of the child.” Colchester, 16 F.4th at 718 (listing authority). Means and Harvey had a tumultuous marriage, but it was not until their divorce proceedings that Means would begin to characterize Harvey’s conduct as emotionally abusive. And while Means claims that Harvey emotionally abused her, she did not allege that he emotionally abused the children. Means could not link the conduct she allegedly suffered to any potential risk posed to the children. Whatever the dynamic was between Means and Harvey, it appears limited to their private interactions, and now that they are separated, the risk of the children suffering as collateral damage to their fighting is greatly diminished.
Means raised the same allegation she raised in the Scottish court— that Harvey sexually abused Z.H.M. in April 2020 based on blood found in her underwear. Means also testified about two other incidents involving Harvey and the children that gave her pause. Means admitted, however, that she has no physical evidence of sexual abuse and that she does not suspect Harvey sexually abused the children on any other occasion. Harvey offered a plausible alternative explanation for the blood in Z.H.M.’s underwear. A doctor examined Z.H.M. two days after the injury and found no external or internal signs of sexual abuse. A social worker also investigated and found no abuse. The Scottish court dismissed these allegations as false. The Court found Means’s testimony less than credible and that the evidence—or her speculation about the cause of the blood—does not meet the clear and convincing standard. Means admitted that she did not have strong evidence to support her sexual abuse allegation.
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