United States Court of Appeals

FOR THE SECOND CIRCUIT

Docket No. 00-6066

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

FELIX BLONDIN,

[Petitioner-Appellant]{.underline},

\- v. -

MARTHE DUBOIS,

[Defendant-Appellee]{.underline}.

**\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--**

**BRIEF FOR [AMICUS CURIAE]{.underline} UNITED STATES OF AMERICA**

**SUPPORTING PETITIONER-APPELLANT AND SUPPORTING REVERSAL**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

**Preliminary Statement**

Pursuant to 28 U.S.C. § 517 and Rule 29 of the Federal Rules of
Appellate Procedure, the United States submits this brief as [amicus
curiae]{.underline} to express its views on the Hague Convention on the
Civil Aspects of International Child Abduction (the \"Hague Convention\"
or the \"Convention\"), Oct. 25, 1980, T.I.A.S. No. 11670, implemented
by the International Child Abduction Remedies Act (the \"ICARA\"), 42
U.S.C. §§ 11601-11610.

**INTEREST OF THE UNITED STATES**

The Hague Convention is designed to "protect children internationally
from the harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the State of their
habitual residence." Hague Convention Preamble. The Department of State
has long been involved in the difficult human, legal, and diplomatic
problems surrounding international parental child abduction. The
Department of State represented the United States at the negotiation of
the Convention, and was instrumental in proposing its implementing
legislation to Congress. (A237). The Department of State has also
attended periodic international meetings to review the operation of the
Convention. (A237-38).

The Hague Convention requires each party State to designate a \"Central
Authority\" to cooperate with its counterparts in other party States to
\"secure the prompt return of children and to achieve the other objects
of this Convention.\" Hague Convention, arts. 6, 7. The Department of
States\' Office of Children\'s Issues is the designated Central
Authority in this country. 22 C.F.R. § 94.2.[^1] To facilitate the
proper functioning of the Convention, the Office of Children\'s Issues
carries out an active program of communications with private applicants,
other Central Authorities, and, where appropriate, courts in the United
States and abroad. (A238).

The Department of State has a strong interest in promoting the proper
operation of the Convention to ensure that the United States complies
with international treaty obligations. ([Id]{.underline}.). To the
extent that other party States consider erroneous the United States
courts' application of exceptions to return under the Convention, the
United States may find its views on questions of Convention
interpretation accorded less weight. [Blondin v. Dubois]{.underline},
189 F.3d 240, 248 & n.7 (2d Cir. 1999) (\"[Blondin II]{.underline}\").
As succinctly stated by the Hague Convention\'s official reporter, in
language adopted by this Court, any \"\'systematic invocation of
\[these\] exceptions, substituting the forum chosen by the abductor for
that of the child\'s residence, would lead to the collapse of the
Convention by depriving it of the spirit of mutual confidence which is
its inspiration.\'\" [Id.]{.underline} at 246 (quoting Elisa Perez-Vera,
[Explanatory Report: Hague Conference on Private International
Law]{.underline}, [in]{.underline} 3 [Acts and Documents of the
Fourteenth Session]{.underline} 426 (1980) (\"Perez-Vera Report\")). The
standards applied in United States courts will thus inevitably influence
the standards we can demand from other countries with respect to
returning children to the United States.[^2] (A238).

In sum, the United States Department of State has a substantial interest
in ensuring that the Convention is interpreted correctly in the courts
of this country. Moreover, in light of the Department of State\'s
involvement in the negotiation and operation of the Convention, the
Department\'s interpretation is entitled to substantial deference.
[See]{.underline} [Sumitomo Shoji Am., Inc. v. Avagliano]{.underline},
457 U.S. 176, 184-85 (1982).

**Issues Presented for Review**

The United States will address the following:

1\. Whether, in refusing to return two abducted children to France, the
district court misconstrued the exception to return under Article 13(b)
of the Hague Convention.

2\. Whether the district court erred in taking into account the views of
one of the children, who is eight years old.

**STATEMENT OF THE CASE**

**A. The Hague Convention**

The Hague Convention was adopted to deter parents from abducting
children across international boundaries in the hope of securing a court
sympathetic to their position regarding custody. H.R. Rep. No. 525,
100th Cong., 2d Sess. 1-2 (1988), [reprinted in]{.underline} 1988
U.S.C.C.A.N. 386, 386-87; [see also]{.underline} [Blondin
II]{.underline}, 189 F.3d at 246. The Convention applies to all children
under sixteen habitually resident in any of the party States. Hague
Convention, art. 4. Both the United States and France are parties to the
Convention. [Blondin II]{.underline}, 189 F.3d at 244.

Under the Convention framework, \"\'a United States District Court has
the authority to determine the merits of an abduction claim, but not the
merits of the underlying custody claim.\'\" [Blondin II]{.underline},
189 F.3d at 245 (quoting [Friedrich v. Friedrich]{.underline}, 983 F.2d
1396 (6th Cir. 1993) (\"[Friedrich I]{.underline}\"), and citing Hague
Convention, arts. 16 and 19); [see also]{.underline} 42 U.S.C. §
11602(b)(4). To obtain return of a child to its country of habitual
residence, the person seeking return must prove only that the abduction
was \"wrongful\" within the meaning of the Convention. [Blondin
II]{.underline}, 189 F.3d at 245 (citing 42 U.S.C. § 11603(e)(1)(A)).
Once wrongful removal is established, the child must be promptly
returned unless one of four narrow exceptions set forth in the
Convention applies. [Id.]{.underline} (citing [Friedrich v.
Friedrich]{.underline}, 78 F.3d 1060, 1067 (6th Cir. 1996) (\"[Friedrich
II]{.underline}\"), and 42 U.S.C. § 11601(a)(4)).

Of the four narrow exceptions to return, the exception relevant to this
action permits a court to refuse return where the abductor demonstrates
by clear and convincing evidence that \"\'there is a grave risk that
\[the child\'s\] return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation.\'\" [Blondin II]{.underline}, 189 F.3d at 245 (quoting Hague
Convention, art. 13(b), and citing 42 U.S.C. § 11603(e)(2)(A) for
\"clear and convincing\" standard). In addition to the four stated
exceptions, the Convention also permits a Court to \"\'refuse to order
the return of the child if it finds that the child objects to being
returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views.\'\" [Id.]{.underline} at 246
n.3 (quoting Hague Convention, art. 13).

Each of the four exceptions to return, as well as the provision for
taking account of an older child\'s objection, must be construed
narrowly to avoid frustration of the Convention\'s purpose.
[Id.]{.underline} Thus, even if an action falls within an exception to
return, the court may nonetheless order return if return is consistent
with the interests represented by that exception, and the court should
look for ways to order return. [Id.]{.underline} at 246 n.4, 249-50.

**B. Prior Proceedings**

> **1. Facts**

As initially found by the district court, the facts regarding the
children\'s lives in France are in substance as follows: Marthe Dubois
and Felix Blondin, French nationals who have never married, began living
together in France after 1990. [Blondin v. Dubois]{.underline}, 19 F.
Supp. 2d 123, 124 (S.D.N.Y. 1998) (\"[Blondin I]{.underline}\").
Marie-Eline was born to them in 1991, [id.]{.underline}, and Francois in
1995, [id.]{.underline} at 125. Both children were born in France and
resided in France with Dubois, her older son, Crispin, and Blondin,
until Dubois brought them to the United States in August 1997 without
the knowledge or consent of Blondin. [Id.]{.underline} at 124-25.

From 1991 through 1993, Blondin beat Dubois on various occasions,
including when she was holding Marie-Eline, and at one point wrapped an
electrical cord around Marie-Eline's neck and threatened to kill
Marie-Eline and Dubois. [Id.]{.underline} at 124. During 1992 and 1993,
Dubois and Marie-Eline periodically lived in a series of battered
women's shelters. [Id.]{.underline} at 124-25. In 1993, apparently
during a separation from Dubois, Blondin applied for custody of
Marie-Eline in a French court. [Id.]{.underline} at 125. In December
1993, Blondin and Dubois reconciled, and the French court terminated the
custody case with an order giving custody rights to both parents, and
indicating that the principal residence of the child would be with the
father, while the mother would have visiting and sheltering rights.
[Id.]{.underline}

After the reconciliation, Dubois started living with Blondin again, the
physical abuse resumed, and Francois was born. [Id.]{.underline} Dubois
once threatened to throw Francois out the window and often threatened to
\"kill everyone.\" [Id.]{.underline} In August 1997, Dubois forged
Blondin's signature on passport applications for the children and
brought the children to the United States without informing Blondin.
[Id.]{.underline}

> **2. Court Proceedings**

On June 19, 1998, Blondin filed a petition under the Convention seeking
the children\'s return to France. [Blondin I]{.underline}, 19 F. Supp.
2d at 126. On August 17, 1998, the district court dismissed Blondin's
petition, denying return of the children to France under Article 13(b)
of the Convention. [Id.]{.underline} at 127-29. The holding denying
return was based primarily on a \"grave risk of harm\" of abuse by
Blondin. [Id.]{.underline} at 127-28. In addition, the district court
noted that the children appeared to be well-settled in the United
States. [Id.]{.underline} at 123. Without making a finding whether
Marie-Eline had reached a sufficient age and maturity to have her views
considered, [see]{.underline} Hague Convention, art. 13, the district
court also noted that the child

expressed a preference for remaining in the United States,
[id.]{.underline} at 128-29.

On August 17, 1999, this Court vacated the district court\'s judgment
and remanded the action with the direction that, in applying the Article
13(b) exception to return based on grave risk of harm, the district
court consider \"the range of remedies that might allow both the return
of the children to their home country and their protection from harm,
pending a custody award in due course by a French court with proper
jurisdiction.\" [Blondin II]{.underline}, 189 F.3d at 249. This
conclusion was premised on the Court\'s review of the Hague
Convention\'s purposes, and, in particular, the Convention\'s goal of
having children returned to their place of habitual residence for
custody determinations. This Court thus held that, in cases under the
Hague Convention, courts should make every effort to explore ways to
protect children from harm \"while still honoring the important treaty
commitment to allow custodial determinations to be made \-- if at all
possible \-- by the court of the child\'s home country.\"
[Id.]{.underline} at 248.

This Court did not disturb the factual findings regarding Blondin\'s
abuse, and acknowledged the district court\'s conclusion that returning
Marie-Eline and Francois to Blondin\'s custody would expose the children
to a \"grave risk of harm\" under the Convention. [Id.]{.underline}
However, this Court made clear that the \"other two ancillary
considerations\" articulated by the district court, namely, that
Marie-Eline expressed a preference to remain here, and that both
children appeared well-settled, were [not]{.underline} appropriately
relied upon under Article 13(b). [Id.]{.underline} at 247. With respect
to Marie-Eline\'s views, this Court held that consideration of a
child\'s views on return was a separate matter that was not part of a
\"grave risk\" analysis, and stated that, before considering such views,
a court would have to make a finding that the child had obtained an
appropriate degree of age and maturity. [Id.]{.underline} Similarly,
this Court found that a child\'s becoming \"well-settled\" was a
separate exception, governed by Article 12 of the Convention and
requiring as a predicate that the children be in the receiving State
more than one year before the filing of a petition for return.
[Id.]{.underline} The Court commented that it would not rule out the
possibility that a child could become so deeply rooted in the United
States that return would then pose a \"grave risk\" of harm within the
meaning of Article 13. [Id.]{.underline} However, the Court also noted
that the record before it did not present such a case. [Id.]{.underline}

The case was then remanded to the district court with instructions to
explore ways in which the children could be returned to France yet still
be protected from abuse. [Id.]{.underline} at 250. In its concluding
paragraph, this Court made plain that the district court should deny the
petition for return of the children to France only if there were no
reasonable means of repatriation that would not effectively place the
children in Blondin\'s immediate custody. [Id.]{.underline}

Following remand, the district court sought information on available
options in France if the children were returned there. (A60-61). In
addition, the district court determined that it would receive evidence
on whether the children in this case had now become so \"deeply rooted\"
in the United States that return would subject them to a \"grave risk of
harm\" under Article 13(b), and on whether Marie-Eline had now obtained
an age and degree of maturity such that it would be appropriate to take
account of her views. (A69-71). On December 20, 1999, the district court
held a hearing during which it received evidence as to all of these
issues. (A270-409).

On January 12, 2000, the district court issued its opinion. [Blondin v.
Dubois]{.underline}, 78 F. Supp. 2d 283 (S.D.N.Y. 2000) (\"[Blondin
III]{.underline}\"). The district court acknowledged that Blondin, in
enforceable undertakings, had agreed not to enforce his right to custody
pending new proceedings in France (which could take between one and
three months), and had offered to pay for the return of the children and
their mother. [Blondin III]{.underline}, 78 F. Supp. 2d at 288-89. In
addition, Blondin undertook to absorb the cost of temporary lodgings
while the mother and children applied to the French government for more
permanent housing, financial support, and other social services, and for
free legal assistance (all of which Dubois is eligible for).
[Id.]{.underline} The district court also found that, if there were
immediate danger to the children, Dubois could seek an immediate
protective order from a juvenile justice in France, granting her
temporary custody. [Id.]{.underline} at 288 n.5. In addition, the
district court noted an agreement by the French government that, if
Dubois returns to France, she will not be criminally prosecuted for the
abduction. [Id.]{.underline} Based on these facts, the district court
stated that it had \"every confidence in the ability of the French
administrative and judicial systems to protect and support \[the
children\] pending the adjudication of the custody case.\"
[Id.]{.underline} at 299.

Nonetheless, the district court again refused return based on the
\"grave risk\" exception in Article 13(b). The district court openly
ques­tioned the wisdom of the narrow reading given to the \"grave risk\"
provision in this Court\'s prior opinion. [Id.]{.underline} at 297-98.
The district court then concluded that, even if it were to apply that
narrow interpretation, the standard would be satisfied here because
\"any repatriation arrangements, including even the return of the
children in their mother\'s temporary custody with financial support by
Blondin and French social services, would expose Marie-Eline and
Francois to a \'grave risk\' of psychological harm.\" [Id.]{.underline}
at 285. This conclusion was based on the testimony and report of
psychiatrist Dr. Albert Solnit \-- accepted by the court in full,
[id.]{.underline} at 290 \-- that separation from their new home and
extended family, and return to a country where they were abused, amidst
the uncertainties of custody proceedings, would exacerbate the trauma
suffered by the children due to the abuse, and would interfere with
their psychological healing. [Id.]{.underline} at 291-92, 295-96. In
addition, \"as one of the several reasons why I am invoking Article
13(b),\" [id.]{.underline} at 296, the district court found that
Marie-Eline, at age eight, \"\'has attained an appropriate age and
degree of maturity at which it is appropriate to take account of her
views,\'\" [id.]{.underline} at 296 (quoting Article 13 of the
Convention). The court added that, \"\[a\]lthough her views are by no
means dispositive,\" Marie-Eline did not want to return to France
\"because she does not want to be subjected to further physical and
emotional abuse at the hands of her father,\" [id.]{.underline}

# Summary of Argument

The standard of review to be applied on this appeal should be plenary,
as the issues present mixed questions of fact and law, and there is no
dispute with regard to the district court\'s findings of historical and
narrative fact. Moreover, appellate clarification not only of the legal
standards, but also of their application to the facts, is appropriate.
[See]{.underline} Point I.A., [infra]{.underline}. However, regardless
of whether the Court considers the issues to be pure questions of law or
mixed questions of fact and law, the result should be reversal of the
district court\'s decision, as it contravenes the purposes of the Hague
Convention and the specific direction of this Court. Instead of
following this Court\'s mandate to seek to facilitate return, and in
contravention of its own finding that the French authorities could
protect the children from future abuse upon their return, the district
court adopted testimony to the effect that the children\'s \"best
interests\" and long-term psychological well-being counseled against
their return to the country of France (as distinguished from return to
the custody of their father). On that basis, the district court again
incorrectly applied Article 13(b) and refused to order the children
returned to France. [See]{.underline} Point I.B., [infra]{.underline}.
Moreover, the district court included in its Article 13(b) analysis an
erroneous interpretation of the separate Convention provision allowing a
court to refuse return based on an explicit objection to return by a
child of \"appropriate age and maturity.\" That provision does not make
a child\'s objection part of a \"grave risk\" analysis, but provides a
separate basis to deny return if the requirements of the \"objection\"
provision are met. Those requirements were not met here, as the child
did not state an objection to return to France distinct from return to
her father\'s custody. Moreover, the child was not of sufficient age and
maturity independently to interpret her own interests and make the sort
of determinative decision to which a court might give conclusive effect
under Article 13. [See]{.underline} Point I.C., [infra]{.underline}.

**ARGUMENT**

**THE DISTRICT COURT'S FINDINGS REGARDING THE**

**FRENCH SYSTEM\'S ABILITY TO PROTECT THE CHILDREN**

**FROM FUTURE ABUSE SHOULD HAVE LED TO AN ORDER OF RETURN**

**A.** **Standard of Review**

In [Blondin II]{.underline}, this Court did not address the standard of
review to be applied in a case such as this, brought under the Hague
Convention. In the United States\' view, the appropriate standard of
review is that applied by the Third Circuit in such cases: \"plenary
review of the \[district\] court\'s choice of legal precepts and its
application of those precepts to the facts,\" with the clearly erroneous
standard applied only to \"the district court\'s historical or narrative
facts.\" [Feder]{.underline}, 63 F.3d at 222 n.9. Application of this
standard would comport with this Circuit\'s practice in other types of
cases raising mixed questions of fact and law.

Ordinarily, this Court reviews the factual findings of the district
court under the \"clearly erroneous\" standard, [see]{.underline} Fed.
R. Civ. P. 52(a), while legal conclusions are reviewed [de
novo]{.underline}, [see]{.underline} [United States v.
McCombs]{.underline}, 30 F.3d 310, 316-17 (2d Cir. 1994). This has been
the approach of all the courts of appeals to address the standard of
review in Hague Convention cases, other than the Third Circuit.
[See]{.underline} [Shalit v. Coppe]{.underline}, 182 F.3d 1124, 1127
(9th Cir. 1999); [Lops v. Lops]{.underline}, 140 F.3d 927, 935 n.6 (11th
Cir. 1998); [Friedrich II]{.underline}, 78 F.3d at 1064.[^3] However,
\"\[i\]n a bench trial, . . . \'where the functions of fact-finding and
exposition of law are performed by the same person, the line between the
functions is not always distinct.\'\" [McCombs]{.underline}, 30 F.3d at
317 (quoting [American Society of Composers, Authors and Publishers v.
Showtime/The Movie Channel]{.underline}, 912 F.2d 563, 569 (2d Cir.
1990)). Moreover, \"\'findings made in the context of a bench trial
might be derived from legally impermissible factors, the failure to
consider legally relevant factors, the application of incorrect legal
standards, or the misapplication of correct legal standards.\'\"
[Id.]{.underline} (quoting [American Society of Composers, Authors and
Publishers]{.underline}, 912 F.2d at 569). Thus, while the reviewing
court \"\'must respect findings of the trial judge as to what in fact
happened and in addition . . . give due weight to his superior
opportunity to acquire the true feel of the case,\'\" [id.]{.underline}
(quoting [In re Hygrade Envelope Corp.]{.underline}, 366 F.2d 584, 588
(2d Cir. 1966) (emphasis added in [McCombs]{.underline})), \"\'when the
issue is \[the trial court\'s\] application of a legal standard to facts
undisputed or reasonably found,\'\" [id.]{.underline} (quoting [In re
Hygrade]{.underline}, 366 F.2d at 588 (brackets added in
[McCombs]{.underline})), the reviewing court \"will not shy away from
plenary review\" to ensure that the result is consistent with the
applicable rule of law, [id.]{.underline}; [see also]{.underline}
[Muller v. Committee on Special Educ.]{.underline}, 145 F.3d 95, 102 (2d
Cir. 1998) (application of statutory and regulatory definitions to
particular facts of case is mixed question warranting [de
novo]{.underline} review).

Moreover, plenary, or [de novo]{.underline}, review of mixed questions
is particularly appropriate in cases brought under the Hague Convention,
because of the need for uniform interpretation, [see]{.underline} 42
U.S.C. § 11601(b)(2)(B), and the importance of properly applying the
Convention in the spirit of trust and cooperation between States
necessary for the Convention\'s proper functioning, [see]{.underline}
[Blondin II]{.underline}, 198 F.3d at 248 n.7. Where, as here, a court
of appeals is as well positioned as the district court to assess whether
the facts satisfy the standards of the Convention, and the Court\'s
decision on these issues may have value in clarifying the law, plenary
review of mixed questions should be applied. [See]{.underline} [Ornelas
v. United States]{.underline}, 517 U.S. 690, 696-97 (1996) (independent
appellate review necessary where appellate court in at least as good
position as district court and decision may clarify law).

**B. Article 13(b) Was Not Appropriately**

**Invoked to Deny Return**

Article 13(b) of the Convention permits, but does not require,
non-return where "there is a grave risk that \[a child's\] return would
expose the child to physical or psychological harm or otherwise place
the child in an intolerable situation." Hague Convention, art. 13(b).
This exception is to be construed narrowly, and must be harmonized with
the Convention's central purpose of, wherever possible, deterring
abductions by returning abducted children promptly, and honoring the
treaty commitment to allow custodial determinations to be made by the
court of the child's habitual residence. [Blondin II]{.underline}, 189
F.3d at 248. Thus, it is important that a court consider not only
whether return would subject the child to a grave risk of harm, but also
whether the State to which the child would be returned can and will take
steps to ameliorate any potential harms. [Id.]{.underline} at 248-49.

Consistent with the above, this Court explicitly directed the district
court to consider on remand whether the abducted children could be
reasonably protected from the \"grave risk\" posed by Blondin\'s abusive
behavior \"while still honoring the important treaty commitment to allow
custodial determinations to be made \-- if at all possible \-- by the
court of the child\'s home country.\" [Blondin II]{.underline}, 189 F.3d
at 248. Because the district court on remand found that the children
would not have to stay with their father pending the new determination,
that the French system could support Marie-Eline and Francois pending
the adjudication of the custody case, and that the French system could
protect the children from further abuse, [Blondin III]{.underline}, 78
F. Supp. 2d at 288-89, 299, the type of \"grave risk\" contemplated by
the Convention was ameliorated, and return to France should have been
ordered, [see]{.underline} [Blondin II]{.underline}, 189 F.3d at 249-50.

Instead of following this mandate, the district court refused return on
the ground that France could not \"protect \[the children\] from the
trauma of being separated from their home and family and returned to a
place where they were seriously abused, amidst the uncertainties of
court proceedings and being on public assistance.\" [Id.]{.underline} at
298. This conclusion was based on testimony from a psychiatrist that any
return of the children to France, even for a one-to-three-month period
during which a French court would determine custody, would cause them to
experience post-traumatic stress disorder due to the prior abuse.
[Id.]{.underline} at 295. The psychiatrist was of the opinion that
psychological harm would be caused by \"return\[ing\] them to the scene
of their original trauma\" and by placing them in an insecure position
based on the uncertainties surrounding a custody proceeding in France.
[Id.]{.underline}[^4]

As this Court held in [Blondin II]{.underline}, issues of past abuse
should not constitute a grave risk of future harm under Article 13(b)
without the additional finding that there is a likelihood of, and no
adequate option to prevent, future abuse upon return. [Blondin
II]{.underline}, 189 F.3d at 248-49; [see also]{.underline} [Tabacchi v.
Harrison]{.underline}, No. 99 C 4130, 2000 WL 190576, at \*12-13 (N.D.
Ill. Feb. 10, 2000) (return ordered where Italy can protect child from
alleged abuse); [Croll v. Croll]{.underline}, 66 F. Supp. 2d 554, 561
(S.D.N.Y. 1999) (same with respect to Hong Kong), [appeal
pending]{.underline}, No. 99-9341 (2d Cir.); [In re Walsh]{.underline},
31 F. Supp. 2d 200, 206-07 (D. Mass. 1998) (same with respect to
Ireland); [compare]{.underline} [Turner v. Frowein]{.underline}, FA
970084450, 1998 Conn. Super. LEXIS 3781, at \*17-21 (Sup. Ct. Conn. June
25, 1998) (refusing return where court found sexual abuse of child by
father, and Dutch authorities were not responsive to mother).

The district court criticized this Court\'s interpretation of Article
13(b) as \"unduly narrow\" and \"unwarranted.\" [Blondin
III]{.underline}, 78 F. Supp. 2d at 298. In support of this criticism,
the district court analogized this case to a portion of a State
Department legal analysis that was published when the Convention was
first adopted here. [Id.]{.underline} at 298 (citing 51 Fed. Reg.
10,494, 10,510 (1986)). Under that analysis, sexual abuse of a child by
one parent is an example of an \"intolerable situation\" permitting a
court to deny a petition for return. This analogy was flawed. The
Department of State has confirmed to us that the example assumes (as did
the district court in its initial ruling in this case, 19 F. Supp. 2d at
127-29) that the return would be to the custody of the abusive
\"custodial parent.\" 51 Fed. Reg. at 10,510. The example did not
consider the additional possibility of return in the custody of the
non-abusive parent, or of other alternative arrangements to protect the
child in that situation.

The district court also erroneously concluded that, even under what it
regarded as this Court\'s \"unduly narrow\" standard, a grave risk of
harm had been established. [Blondin III]{.underline}, 78 F. Supp. 2d at
299. The district court believed that its findings of past abuse made
this case exceptional, and warranted its acceptance of expert testimony
regarding the children\'s emotional ability to adjust to a return to
France. [Id.]{.underline} at 297. Both portions of this conclusion were
incorrect. First, while allegations of abuse are not always made,
invocation of such allegations is becoming more ordinary as \"parents
attempt to stave off return orders in the name of the child\'s
welfare.\" Linda Silberman, [Hague International Child Abduction
Convention: A Progress Report]{.underline}, 57 LAW & CONTEMP. PROBS.
210, 267 (Summer 1994). Moreover, much of the testimony credited by the
district court was primarily addressed to the psychological harm that
may flow to the children based on the uncertainties of custody
proceedings in France. [See]{.underline} 78 F. Supp. at 295-96. The
district court acknowledged that uncertainties are inherent in any
custody proceeding, [id.]{.underline}, but then failed to appreciate
that crediting such uncertainties, even those existing against a
background of past abuse, as a basis for non-return under the Convention
expands the \"grave harm\" exception to the point where it threatens to
undermine the central goal of the Convention, namely, the prompt return
of abducted children to their country of habitual residence.

While expert testimony addressing whether grave psychological harm might
follow from return to a particular custodian or specific living
situation may be relevant under Article 13(b), the type of testimony
credited by the district court in this case was addressed to which
country the children would fare better in for purposes of their
long-term psychological health, even on the assumption that the French
courts would protect them from future abuse by their father. Indeed, the
psychiatrist giving this testimony described his own view of his role as
follows: "We were here to deal with the children's best interests at the
Court's request." (A367). Such evidence is addressed to the issue of
custody, and is for the courts of the country of the children\'s
habitual residence. It has little relevance to the question of whether
children should be returned under the Convention, even where allegations
of abuse are present. [See]{.underline} [Friedrich II]{.underline}, 78
F.3d at 1067, 1069; [In re Walsh]{.underline}, 31 F. Supp. at 206;
[Janakakis-Kostun v. Janakakis]{.underline}, 6 S.W.3d 843, 850-51 (Ky.
Ct. App. 1999), [petition for cert. pending]{.underline}, No. 99-1496
(U.S.)[^5]; [Tahan v. Duquette]{.underline}, 259 N.J. Super. 328, 333-35
(N.J. Super. 1992); [compare]{.underline} [Rodriguez v.
Rodriguez]{.underline}, 33 F. Supp. 2d 456, 461-62 (D. Md. 1999)
(relying on similar type of psychological evidence to find exception to
return, but relying on now-vacated opinion in [Blondin I]{.underline});
[Krishna v. Krishna]{.underline}, No. C 97-0021, 1997 U.S. Dist. LEXIS
4706, at \*9-10 (N.D. Ca. Apr. 11, 1997) (refusing return that would put
child back into psychologically damaging environment of prior abuse, but
also finding that removal was not \"wrongful\" where father acquiesced
in child\'s leaving country).

In sum, the district court relied on testimony that the children would
suffer grave psychological harm not from return to any specific abusive
or otherwise intolerable situation, but merely from return to the
country of France, where past abuse had occurred, and from custody
proceedings there. 78 F. Supp. 2d at 296-97. Such a finding cannot alone
justify relief under the narrow exception to return contemplated by
Article 13(b).[^6]

In comparable circumstances, the United States would expect the French
courts to return children to our system for an appropriate custody
determination in our courts. The district court's failure to return the
children to France in this action erodes the system of trust and
cooperation essential to the functioning of the Hague Convention and
potentially opens the door to unregulated and uncontrollable
international abductions in child custody matters.^\*^[^7]

**C. The District Court Incorrectly Analyzed, as a Legal Matter,**

**Whether Marie-Eline Objected to Return and Whether**

**She Has Attained a Sufficient Age or Degree of Maturity**

**to Have Any Such Objection Given Effect**

At the December 20, 1999 hearing, the district court heard evidence to
determine whether Marie-Eline had, at age eight, attained an age and
degree of maturity such that it would be appropriate to take account of
her objection to return. The district court then played with Marie-Eline
and Francois in Chambers. Based on that playtime, the district court
reported: "Marie-Eline explicitly stated that she does not want to
return to France because she does not want to be subjected to further
physical and emotional abuse at the hands of her father." [Blondin
III]{.underline}, 78 F. Supp. 2d at 296. The district court considered
this an "objection to being returned to France." [Id.]{.underline} The
court then noted that it considered the child\'s \"views\" as only one
of several reasons why it was invoking Article 13(b). [Id.]{.underline}
This was an erroneous application of the standard for taking account of
an older child\'s objection to return.

> **1. Marie-Eline Did Not Express an "Objection to Return" Within the
> Meaning of the Convention**

As this Court stated in its initial opinion, that Marie-Eline may have
expressed a preference to remain in the United States is not
appropriately relied upon by a court when applying the exception to
return under Article 13(b) of the Convention. [Blondin II]{.underline},
189 F.3d at 247. Rather, \"\[t\]he Convention includes a
[separate]{.underline} provision allowing the court to take into account
a child\'s [objection]{.underline} to being returned \'if \[the court\]
finds that the child . . . has obtained an age and degree of maturity at
which it is appropriate to take account of its views.\'\"
[Id.]{.underline} (quoting Hague Convention, art. 13) (emphases added).
This provision does not contemplate a general airing of a child\'s
\"views\" as part of an Article 13(b) analysis of \"grave risk\";
rather, it permits, although does not require, a court to refuse return
based on the separate ground of an older child\'s maturely considered
objection to return. The district court correctly recognized that
Marie-Eline\'s views were not sufficiently \"dispositive\" to permit
non-return under that provision alone. [Id.]{.underline} at 296.

Moreover, Marie-Eline did not express an \"objection\" to return within
the meaning of the \"age and maturity\" provision. The district court
concluded that Marie-Eline did not want to return to France "because she
does not want to be subjected to further physical and emotional abuse at
the hands of her father." [Id.]{.underline} This is not an objection to
returning to France; rather, it is an objection to returning to the
custody of her father. Indeed, the record contains ample evidence that
Marie-Eline may want to return to France if she is not with her father.
For example, the psychiatrist stated that Marie-Eline "loved France and
if she could go back to France safely someday, she would love to do so .
. . ." (A328). When asked to elaborate on that comment, he stated, "She
loves France, but she separates it from the France with her father and
the France without her father." (A335). Similarly, when Marie-Eline was
herself asked, "And would you mind going back to France if you did not
have to live with your daddy," she responded, "Yes, I wouldn't mind."
(A383). When asked if she preferred New Jersey or France, she replied
New Jersey, but when asked why, she stated, "because I don't want to
live with my daddy." ([Id.]{.underline}) Again, her focus was on
avoiding her father, not France. This is simply not the type of
"objection" envisioned by the Convention.

**2. The District Court Incorrectly Applied the**

**"Age and Maturity" Standard**

Even if a child articulates a firm objection to return, a court should
nonetheless proceed with extreme caution, and carefully consider whether
the child actually has reached the age and maturity threshold required
by the Convention. That threshold can be satisfied only where the child
has attained sufficient maturity independently to express her own
interests in the manner necessary to make a determinative decision for
herself. Perez-Vera Report at 433.

In this case, Marie-Eline, now eight years old, was abducted to the
United States at the age of six, and has been in the exclusive care of
her abducting parent since that time. The Convention applies to children
up to sixteen years of age, and Marie-Eline therefore was far below the
age of the older children that the drafters of the Convention had
principally in mind in drafting this provision. [Id.]{.underline}
(citing fifteen-year-old as example). At the outset, therefore, there is
substantial reason to doubt whether any eight-year-old could satisfy the
\"age and maturity\" standard. Indeed, at least one court has found that
this standard "does not apply to a 9-year-old child."
[Tahan]{.underline}, 259 N.J. Super. at 335.

This substantial doubt is reinforced in this case by the testifying
psychiatrist, who described Marie-Eline's ability to testify as follows:

> I believe that her view can be given great weight when it emerges in a
> clinical play situation. I believe that the French are correct
> formally. If you put her on the stand and say do you swear to tell the
> truth, the whole truth and nothing but the truth, her concept of truth
> is not as fully developed yet as it will be when she is 12 or 13. . .
> . \[I\]n a spontaneous clinical interview I believe you can get valid
> impressions . . . . Usually what I advise is to do it at the child's
> home where the child feels safe, and to take with them some crayons .
> . . and then to either sit on the floor or sit on a little chair or
> stool like I do now . . . and to ask them what they would like to play
> with. As they are playing find out \-- for example, one of my favorite
> ways of doing it is to pretend.

(A336). Similarly, in his report, the psychiatrist stated:

> Though we could, and at times did, raise direct questions with
> Marie-Eline, we were aware that an interview limited to questions and
> answers could easily go beyond Francois\'s and Marie-Eline\'s
> expected, age-appropriate cognitive capacity. Furthermore, from our
> clinical experiences, and from published literature, we were aware
> that direct questions from friendly strangers can be experienced by
> young children as a test for which the interviewer has a correct
> answer in mind. The child then tries to please the adult interviewer
> by providing the \"correct\" answer . . . .

(A121-22). In sum, her own expert testified that Marie-Eline is not old
enough to testify under oath, or even in a question-and-answer format. A
fortiori, the child could not be viewed as having a "sufficient age and
maturity" under the Convention.

In addition, in weighing the testimony of a younger child, a court
should consider carefully whether it reflects the child's views, or an
attenuated version of the abducting parent's. 51 Fed. Reg. at 10,510.
Applying this standard, courts have found that children aged nine and
ten have been sufficiently influenced by their abductors that their
views on return should not be taken into account. [See]{.underline}
[Sheikh v. Cahill]{.underline}, 546 N.Y.S.2d 517, 521-22 (Sup. Ct. Kings
County 1989); [In re Robinson]{.underline}, 983 F. Supp. 1339, 1343-44
(D. Colo. 1997).

In August 1998, the district court concluded that Marie-Eline, then
seven, had been "prepared, to a degree," for a conversation with the
court concerning her views on return. [Blondin I]{.underline}, 19 F.
Supp. 2d at 128. Moreover, in December 1999, the psychiatrist readily
admitted that some of Marie-Eline's "spontaneous" expressions of abuse,
such as a fear of her father strangling her, or living in a shelter,
could have come only from descriptions of abuse given to her by her
mother, since such incidents occurred when Marie-Eline was too young to
remember them. (A348-50). Notwithstanding this testimony, the district
court summarily concluded that it did not believe Marie-Eline\'s
statements were influenced by her mother. Given the circumstances, it is
extremely unlikely that Marie-Eline\'s views could have been
sufficiently free of her abducting parent's influence to amount to an
objection properly cognizable under the Convention.

We do not suggest that the testimony of a younger child cannot be
considered as evidence that abuse has occurred or that return to the
immediate custody of an abusive parent would pose a grave risk of harm.
That is different, however, from giving effect to a carefully considered
"objection" by an older child to returning to her former country of
residence, based on her independent and mature assessment of her own
interests.

**CONCLUSION**

T**he judgment of the district court should be reversed.**

Dated: New York, New York

May 8, 2000

Respectfully submitted,

MARY JO WHITE,

[United States Attorney for the]{.underline}

[Southern District of New York]{.underline},

[Attorney for]{.underline} Amicus Curiae

> [United States of America]{.underline}.

WENDY H. SCHWARTZ,

GIDEON A. SCHOR,

[Assistant United States Attorneys]{.underline},

> [Of Counsel]{.underline}.

**Certificate of Compliance**

> Pursuant to Rules 29(c), (d), and 32(a)(7)(C) of the Federal Rules of
> Appellate Procedure, the undersigned counsel for the United States
> hereby certifies that this brief complies with the type-volume
> limitation of Rule 32(a)(7)(B). As measured by the word processing
> system used to prepare this brief, there are 6964 words in the brief.
>
> MARY JO WHITE,

[United States Attorney for the]{.underline}

[Southern District of New York]{.underline},

> By: WENDY H. SCHWARTZ,
>
> [Assistant United States Attorney]{.underline}

[^1]:
    > \* The Office of Children\'s Issues has, through a cooperative
    > agreement, assigned to the National Center for Missing and
    > Exploited Children many of the casework functions of the United
    > States Central Authority in cases where children are abducted into
    > the United States. (A238).

[^2]:
    > \* Indeed, when Congress implemented the Convention in the ICARA,
    > it expressly recognized the Convention's "international character"
    > and the "need for uniform international interpretation" of its
    > provisions. 42 U.S.C. § 11601(b)(2)(B); [see]{.underline} [Feder
    > v. Evans-Feder]{.underline}, 63 F.3d 217, 220 (3d Cir. 1995).

[^3]:
    > \* If the Court were to adopt this approach, plenary
    > ([i.e.]{.underline}, [de]{.underline} [novo]{.underline}) review
    > would still be warranted, as the district court\'s errors
    > discussed herein are primarily errors of law.

[^4]:
    > \* The district court acknowledged that, given his young age at
    > the time of the abuse, Francois would not be expected to remember
    > it, and that there was thus little evidence of potential harm to
    > Francois if returned to France. [See]{.underline} [Blondin
    > III]{.underline}, 78 F. Supp. 2d at 290 n.9. In refusing to return
    > Francois as well as Marie-Eline, the district court decided the
    > issue of whether the children should remain together, which is
    > again a matter for the court determining custody.

[^5]:
    > \* By order dated May 1, 2000, the Supreme Court invited the
    > United States to file a brief expressing its views in this case.

[^6]:
    > \* The district court also expressed \"concern\[\]\" about what it
    > perceived as \"attempted intimidation\" by French authorities, who
    > suggested that they might seek to extradite Dubois for a criminal
    > prosecution if the children were not returned to France for
    > resolution of the custody case. [Blondin III]{.underline}, 78 F.
    > Supp. 2d at 299. This was inappropriately considered, as a
    > country\'s pursuit of criminal justice is a separate matter from
    > civil proceedings under the Hague Convention. Indeed, in this
    > country, since 1993, the Justice Department has indicted 62
    > parents under the International Parental Kidnapping Crime Act, 18
    > U.S.C. § 1204, and 13 parents have been convicted. GAO Report to
    > the Chairman, Committee on International Relations, House of
    > Representatives, [Specific Action Plan Needed to Improve Response
    > to Parental Child Abductions]{.underline} 14 (March 2000). While,
    > as with France in this case, United States prosecutors often will
    > not indict abducting parents until and unless civil remedies have
    > been exhausted under the Hague Convention, [id.]{.underline}, the
    > United States has pursued criminal remedies where Hague
    > proceedings have been unsuccessful. [See, e.g.]{.underline},
    > [Father Telling Congress of Quest For His Child]{.underline},
    > Cincinnati Post, Oct. 14, 1999, at 1B, 1999 WL 21781679.

[^7]:
    > \*^\*^ [Steffen F. v. Severina P.]{.underline}, 966 F. Supp. 922
    > (D. Ariz. 1997), demonstrates the difficulties that flow from an
    > overly broad application of an exception to return under the
    > Convention. In that case, the district court found an exception to
    > returning a child to Germany under Article 13(b) on the basis of
    > testimony from a psychologist that the child had bonded with his
    > mother and would suffer detachment and unbonding should he be
    > removed from her. [Id.]{.underline} at 927. This holding \-- which
    > is antithetical to the Convention and contrary to the teaching of
    > both this Court in [Blondin II]{.underline} and the Sixth Circuit
    > in [Friedrich II]{.underline} \-- was supported in part by the
    > court's observation there that, in a \"mirror case to the instant
    > matter,\" a German court had denied return of an American child to
    > the United States on similar grounds. [Id.]{.underline} at 927.