Baker v. Baker, Not Reported in F.Supp.3d 2015 WL 249009 (2015) [United Kingdom] [Fed & State Jud Remedies]

In Baker v. Baker, Not Reported in F.Supp.3d 2015 WL 249009 (2015) the district court granted respondent David Baker’s (“Father”) Motion to Amend the Voluntary Return Order. On December 19, 2014, petitioner Lisa Jane Baker (“Mother”) filed her complaint. On December 23, 2014, the court issued a Show Cause Order, setting a hearing on January 6, 2015. At the hearing, the Father voluntarily agreed to return the children to the Mother in England. The parties had been working on a proposed voluntary return order and continued working on that order during the hearing. From the bench, the court ruled on the parties’ remaining disagreements, incorporating most of that proposed order in its ruling. On January 14, 2015, the Father filed a motion requesting that the voluntary return order be modified to reflect the following: Father will be accompanying the minor children on the flight to England.• The airport will now be the Manchester, England Airport, which is apparently 140 miles closer to Mother’s home than London’s Heathrow Airport. According to the Father, the Mother did not oppose these arrangements, but the Mother did request any modified order also include language such as “The Father will deliver the minor children to the Mother as soon as the minor children exit the international arrivals hall.” The Father objected to that language because it addressed the custody of the children, which the Father argued was outside this court’s jurisdiction under the Hague Convention on the Civil Aspect of International Child Abduction.

         The district court observed that the  cornerstone of the Hague Convention is the mandated return of the child to his or her circumstances prior to the abduction....”In this case, the status quo prior to the Father’s alleged “abduction,” was the return of the children to England because all parties—the Father, the Mother, and minor children—lived in England. Because the Father’s proposed modifications did not alter the return of the children to England, the court modified its previous order. The court’s previous order assumed the children would be flying unaccompanied because Father could not afford to fly the kids and him. Therefore, the court’s order stated that the children “shall be returned to [the Mother].” However, that language merely reflected the only option at the time: The Mother would receive the children because the Father was not accompanying them. In other words, the Mother was the only logical person to receive the children upon their arrival in England. The court stated that it did not intend to make findings concerning the minor children’s custody, whether in the United States or England. Additionally, the court’s previous order, as written, limited the Father’s ability to accompany the children to England. The original order directed the Father to take certain actions when dropping the kids at the airport for their return flight. For instance, the Father is to accompany the children to the gate, deliver the children’s United Kingdom passports to the check-in clerk, and wait until the plane has departed before leaving. The previous order’s language made it impossible for the Father to comply with the court’s order and accompany the children. The court could not enforce the status quo, as mandated by the Hague Convention, by denying the Father’s ability to accompany his children back to England. The status quo involved the entire family unit—the Father, the Mother, and the children—in England. In other words, the status quo was not the Mother and the children in England and the Father in the United States. The court amended its previous order because the status quo remained restored even with the modifications below and directed, inter alia, that the Father would accompany the children on the flights to Manchester, England.

Moura v Cunha, --- F.Supp.3d ----, 2014 WL 7251039 (D.Mass.) [Brazil] [Grave Risk of Harm] [Petition granted][Ireland] [Consent] [Petition granted]

In Moura v Cunha, --- F.Supp.3d ----, 2014 WL 7251039 (D.Mass.) the opinion addressed two different cases under the Hague Convention.  In both cases, for different reasons, the Court ordered the return of the children to their country of residence.

In Moura v Cunha, the mother allowed a friend, Cunha, allegedly, the child's godmother, to bring the child, Luana, from Brazil, her country of residence, to the United States. After the child's authorization to travel had expired, the purported godmother refused to take the child back to Brazil, despite the mother's attempts to have her back. The mother decided to pursue the return of the child to Brazil under the Hague Convention.  The parties agreed that Luana's habitual residence was Brazil and that her retention was illegal after the authorization to travel expired in October 2012. Therefore, the threshold inquiry was met by Moura, and the presumption of return applied.  During trial, Cunha asserted a mix of two exceptions. While the core of Cunha's contention seemed to be that the return to Brazil would place Luana in grave risk, Cunha also attempted to establish that Luana was well-settled in the United States.   According to Cunha, Luana's older siblings were aggressive towards her, often screaming at her. Cunha also testified that Luana's development in Brazil was hindered by the complete lack of care by those surrounding her. Cunha affirmed that she witnessed Luana not being properly fed, and that she saw that Moura's refrigerator was frequently empty because Moura did not have money to buy food-or even water. Cunha clarified that Luana was receiving psychological support and was enrolled in an individualized education program. Cunha mentioned that Luana was well-settled in this country, getting along well with the people surrounding her.  The Court held that even assuming that Cunha's rendition of the facts was precise and truthful, they were not sufficient to overcome the presumption of return. The grave risk exception demands clear and convincing evidence. The fact that Luana's siblings were aggressive toward her did does not lead to a conclusion of grave risk. As expressed by Cunha, the aggression shown Luana by her brothers strikes the Court as more akin to typical sibling disputes than to something more deeply troubling that might counsel more strongly in favor of return.    Regarding the health risk, there was not enough evidence that Luana's return to Brazil would endanger her. As the Second Circuit explained in Blondin, the fact that the return might cause hardship or even eliminate certain educational or economic opportunities do not constitute a grave risk of harm under the Hague Convention.  As to the well-settled exception the first prong of the exception applied in this case. The petition was filed on November 8, 2013, more than one year after October 20, 2012, when Cunha's authorization to travel with Luana had expired,  Cunha failed on the exception's second prong, by not proving that Luana was well-settled in the United States within the meaning of the Convention. Nothing less than substantial evidence of the child's significant connections to the new country will suffice to meet the respondent's burden of proof. Here, there was no evidence whatsoever regarding Luana's social networks and relationships. The Court could not find that Luana was well-settled here.

         In Gallagher v. Gallagher the mother, Mary Gallagher, brought her children from Ireland to the United States and failed to return to Ireland on the round trip tickets' return date. The father, Brendan,  then pursued the return of the children to Ireland under the Hague Convention.  During trial,  Mary all but conceded that Ireland was the country of habitual residence, focusing instead in the argument that the children's retention in the United States was not illegal because Brendan consented to it.  According to Mary, she and the children came to this country "with the written blessing and consent of [Brendan] including a job recommendation." The district court found that Mary and Brendan's relationship soured around 2009, coinciding with the economic crisis in Ireland.  At that time, the family came to the United States with the intent of starting a life here. Although Brendan found sporadic work, he and Mary returned to Ireland in December 2009 after deciding that this work was not sufficient to support the family. The relationship between Mary and Brendan worsened over time and, by February of 2012, the two were no longer intimate and lived in separate parts of the family's house. The Court found that, at some point  Mary made an entry in her journal setting forth her goal of getting divorced and moving with the children in May or June (though the Court did not explicitly note which year Mary was referring to) to the United States, whereupon she planned to remarry Steve. In order to accomplish that plan, Mary broached the goal of visiting her sister, who lived in Massachusetts, to see her newborn baby.  Mary and Brendan discussed her coming to the United States at least for a visit. Although Mary testified that she made it clear to Brendan that she was moving to the United States, the Court did not so find. The Court found that to any objective observer it would have been clear that she thought that the marital relationship was at an end. Brendan had other plans, and not only wanted the relationship to continue, but also wanted to have his children in close proximity to himself.  Brendan agreed  to execute a document drafted by Mary, with the purpose of allowing her to seek emergency medical care for the children while in the United States.  This document said the authorization's scope was "traveling/moving to United States of America."  At the same time, Mary acquired round-trip airline tickets, with the return set for August 19, 2013. The Court found that Mary explained to Brendan that she was going to actively look for  work in the United States and that Brendan provided her a letter of  recommendation.. It thus inferred that Brendan or any reasonable person would have  understood that she was going to the United States, perhaps on a visit, but if  she had obtained work it was her intention to stay there. It further found that  his desire to be close to his children led him to ask Mary to see about his  immigration status so that he could return to the United States. He had, in  these earlier years, been in possession of a green card, but so much time had  passed since last he was in the United States that it had lapsed. And  they had agreed that she would go to the Irish Pastoral Center in Boston to  see if they couldn't get advice about her, as she was an American citizen  sponsoring him in the United States. The Court did not credit her testimony that she made it clear that she was never coming  back, that there was no hope for them to reconcile. It found that Brendan  agreed to their travel to the United States for a visit and that he, fearing  that she might not come back, was prepared to move to the United States. She and the children left for the United States on May 19th. Within a week,  by May 28th, Mary had enrolled the school-aged children in schools on the Cape and had indicated that only she was to have any notice of that school enrollment  and other school matters, in other words she excluded Brendan from knowing that the children had been enrolled. The Court also found that by July 11 Mary had found work as an  administrative assistant and that her salary, together with social welfare  money, would suffice for the maintenance of the children and herself. On that same day, Mary met with an attorney. After Mary explained to him that she  and Brendan were deeply estranged, the attorney "advised her that it would not  make sense for her to seek to sponsor [Brendan] on a visa, as they were not a  marital unit, [and] were not in any way planning to live together." Afterwards, Mary informed Brendan that she was going to stay in the  United States with the children, which led him to become "extremely upset."  The Court found that Brendan "went to the airport hoping against hope that  the children would return on the August 19 flight, but they did not. 

  Upon this set of facts, the Court concluded that the children's habitual
residence was Ireland and that the children were not wrongfully removed, because
Brendan gave consent to their travel to the United States for the purpose of this
visit up to August 19th. The Court observed, however, that the inquiry does not end there, and went on to analyze whether the children were "wrongfully retained in the United States .  Relying on the First Circuit's decision in Nicolson, and also on case law from other Circuits, the Court concluded that Mary did not meet her burden of proving Brendan's consent, and that accordingly the children's retention was wrongful. It noted that the First Circuit has observed that consent is a fact-intensive inquiry "that focuses on [the petitioner]'s intent prior to the child's retention," and which "may be evinced by the petitioner's statements or conduct, which can be rather informal." Nicolson, 605 F.3d at 105. The district court concluded that this case fell closer to the disputes where consent was not present, such as the First Circuit precedent in Nicolson. The Court found particularly compelling the notion that Brendan may have consented to the children moving to the United States so long as he would also be able to join them. It ultimately became clear, however, that his joining the family would not be possible, especially considering that Mary would not sponsor a visa for him because their marriage had fallen apart. As a result, and taking into consideration that Brendan's consent was limited to that specific set of circumstances (i.e. his being able to join the children in the United States), the Court concluded that Mary had not carried her burden of proof for the consent exception. He consented to their visiting in the United States. His consent went so far as  their remaining in the United States if he could be in the United States with  them. But it did not find, by a fair preponderance of the evidence, that he ever  consented to the situation that had arisen, that the children are here in the  United States, but given the immigration laws of the United States, he could not be  here with them.

De Souza v Negri, 2014 WL 7330770 (D. Mass) [Brazil] [Grave Risk of Harm] [Petition Granted]

In De Souza v Negri, 2014 WL 7330770 (D. Mass) on October 7, 2014, de Souza filed an emergency petition for the return of his five-year-old son, G.N.S., to Brazil. G.N.S. was the son of de Souza and Negri. They never married, but lived together and were in a relationship when G.N.S. was born in Brazil on January 20, 2009. According to de Souza, de Souza and Negri separated when G.N.S. was nine months old.  Negri testified that de Souza struck her when she was three months pregnant with G.N.S. and, from that point forward during their relationship, he was abusive toward her. Negri also claimed that when G.N.S. was around three years old, she left the child in de Souza’s care while she went to the pharmacy and that when she returned she noticed bumps and bruises on G.N.S.’s legs. When she inquired about what happened, Negri claimed that de Souza told her that it was her responsibility to take care of the child, not his, because he had no patience. Negri also claimed that de Souza became more aggressive toward her and that she called the police on one occasion. According to her account, after the police returned de Souza to his house, a short time later he returned and assaulted her.. Negri also claimed that the child, G.N.S., observed de Souza assaulting her. Although she never filed for a protective order from de Souza in Brazil, in October 2014 she sought asylum here, on the basis of this abuse. De Souza still lived in Águia Branca.  Negri lived in the same city. Both parents played a role in his care and upbringing. While at de Souza’s, G.N.S. lived with his father, his father’s parents and two sisters. While de Souza was working, de Souza’s mother would take care of him and G.N.S. would be in the care of de Souza’s aunt after school.. De Souza denied hitting G.N.S. or ever physically disciplining the child. De Souza’s aunt, who helped care for G.N .S., never observed any abuse or violence by de Souza. 

         The district court found that De Souza never gave Negri permission to remove G.N.S. from Brazil,. On or about December 11, 2013, Negri took G.N.S. after school one day and first went to another part of Brazil, Curitiba. Negri’s return was expected on January 24, 2014, but she did not return, and instead traveled to the United States. De Souza never gave Negri permission to travel with G.N.S. to the United States or, once here, to remain here. Once in the United States, de Souza had limited contact with G.N.S., having spoken to him only two or three times since his arrival here. 

The district court found that G.N.S.’s place of habitual residence was Brazil. The child was born in Brazil and both his parents, who had custody of him, lived there in separate districts in Águia Branca until Negri brought him to this country. Moreover, G.N.S.’s removal from his habitual residence, without the consent of his father, de Souza, was in violation of de Souza’s custody rights. There was no serious dispute that both parents, Negri and de Souza had custodial rights over G.N.S. The Court found that de Souza was exercising his custodial rights at the time that Negri removed their child from Brazil. The Court credited the testimony that de Souza gave no consent to G.N.S.’s removal and that de Souza was exercising his custodial rights as evidenced by his regular care of the child in Brazil The Court also credited de Souza’s testimony that he did not give consent to Negri to remove G.N.S. from Brazil to the United States. This lack of consent was corroborated by the nature of Negri’s removal of the child, without advance notice to de Souza, and also by the fact that Negri traveled to the U.S. with G.N.S. under a passport that was not in his name. The court concluded that de Souza had shown, by a preponderance of the evidence, that Negri’s removal of G.N.S. from Brazil was wrongful.

The Court found that Respondents had not satisfied their burden of proving, by clear and convincing evidence, either an Article 13 or 20 defense. Addressing the issue of grave risk of harm, the Court concluded that the Respondents had failed to show credible evidence that G.N.S. was in grave risk of harm if he is returned to Brazil. The only proffered evidence offered regarding any risk of harm to G.N.S. was the testimony of Negri, his mother and one of the Respondents. She alleged that G.N.S. observed de Souza’s abuse of her and that, on one occasion, when he was a few months old, she returned to find G.N.S. with bruises and bumps and that de Souza had expressed frustration with caring for the child in her absence. She had no corroboration of this allegation. Her husband, Sinoura, testified that he had observed bruises on G.N.S., but did not provide a time frame for these observations and noted that he did not know how these bruises got there.  There was credible and unrebutted evidence suggesting that G.N.S. has shown no signs of abuse. Whatever the state of de Souza and Negri’s relationship may have become, Respondents did not show that G.N.S., who spent a fair amount of time in the custody of de Souza and de Souza’s relatives before his removal from Brazil, was in grave risk of harm.

Similarly, the Respondents  failed to meet their burden of proving an Article 20 defense that returning G.N.S. to Brazil would violate fundamental principles relating to the protection of human rights and fundamental freedoms. This defense requires a similarly high burden, which is appropriate  where the Article 20 proffer arises out of the same nucleus of facts (i.e., that it would be inhumane to return G.N.S. where he has been subject to abuse by de Souza and witness to abuse of his mother by de Souza).  Moreover, although Negri filed for asylum here on largely the same basis, (i.e., alleged abuse by de Souza), she did so, not when she first arrived in the United States with G.N.S. in January 2014, but soon after de Souza initiated this Hague Convention case. Accordingly, the petition for return was granted.