Child Abuse and the HCCAICA

by Roger Alford

What happens if a mother wrongfully removes a child from his habitual residence because of fears that the child will be abused by his father? In such circumstances can the mother flee the country with the child consistent with the Hague Convention on the Civil Aspects of International Child Abduction (HCCAICA). Those are the questions raised by the Eleventh Circuit case of Baran v. Beaty.

Here are the key facts regarding abuse:

Baran abuses alcohol on a daily or near-daily basis, that he is susceptible to lengthy drinking and gambling binges that in no way abated during the five months that Sam habitually resided with him, that he is only marginally able to care for his own basic needs, that he has no close family members or friends that could reasonably be expected to have meaningful involvement in Sam’s day-to-day care and protection, that he is emotionally unstable and prone to uncontrolled destructive outbursts of rage, that he was physically and verbally abusive toward Beaty in Sam’s presence, that he physically endangered Sam (both intentionally and unintentionally) when Sam lived under his roof, and that Baran repeatedly and pointedly stated to Beaty after Sam’s birth that he did not want Sam, that Sam should have been aborted, that Sam would die if Sam “became an American,” and that Beaty could not blame him if “something happened to” Sam.


So in response, the mother fled with Sam to the United States when he was only a few months old. The father filed an application in Australia and the United States for the child’s return. The parties do not dispute that the mother “wrongfully removed” the child within the meaning of HCCAICA, but they disagree as to whether the father’s behavior constituted a “grave risk of harm” within the meaning of Article 13(b) of the HCCAICA. That provision provides that:

Notwithstanding the provisions [providing a remedy of return for wrongfully removed children], the judicial or administrative authority of the requested State is not bound to order the return of the child if the person … wh[o] opposes [the child's] 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.


The Eleventh Circuit agreed that returning Sam to the father would pose a “grave risk of harm.”

Although it is true there was no evidence to suggest Baran intentionally harmed Samuel, the district court was presented with evidence Baran had threatened to do so both before and after Samuel’s birth. Moreover, the court heard testimony that Baran had placed Samuel in harm’s way by abusing Beaty while she was pregnant, verbally berating Beaty for hours on end while she held Samuel in her arms, and handling newborn Samuel irresponsibly while drunk. To deny return, the district court was not required to find Samuel had previously been physically or psychologically harmed; it was required to find returning him to Australia would expose him to a present grave risk of physical or psychological harm, or otherwise place him in an intolerable situation. Convention, art. 13(b). The evidence presented was sufficient to support the court’s conclusion that Baran’s violent temper and abuse of alcohol would expose Samuel to a grave risk of harm were he to be returned to Australia.


The father’s second argument was that even if the child could not be returned to him directly, he should be returned to Australia and placed under the care of social services. Other circuits have followed this approach, requiring a showing that the country of habitual residence is incapable or unwilling to give the child adequate protection. The Eleventh Circuit declined to follow this approach.


Although a court is not barred from considering evidence that a home country can protect an at-risk child, neither the Convention nor ICARA require it to do so…. To require a respondent to adduce evidence regarding the condition of the legal and social service systems in a country she has fled creates difficult problems of proof, and appears not to have been contemplated by the Convention. Although we are cognizant of the Convention’s goal of quickly returning abducted children to their countries of habitual residence, the text of the Convention and the commentaries on it place a higher premium on children’s safety than on their return. Consequently, we decline to impose on a responding parent a duty to prove that her child’s country of habitual residence is unable or unwilling to ameliorate the grave risk of harm which would otherwise accompany the child’s return.


My gut reaction is that the Eleventh Circuit reached the correct result. Given the choice of returning the child to their home of habitual residence to be cared for by the state, versus the option of allowing the child to live with the mother in another country, I would think the latter option is in the best interest of the child. This is particularly so given that Sam was only a few months old when he was taken from Australia and had yet to form any connection with his home country.

http://opiniojuris.org/2008/05/20/child-abuse-and-the-hccaica/

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