thank you judge carney may please the court charles do we call for the appellate down in moree item the difficulty with the procedure followed in the district court was that having tried the case using declarations as a substitute for the direct evidence that after the trial had concluded the district court in a perfectly responsible way of following what had been going on particularly with the oldest child and it up relying on a lot of the material that was sent to the court that was never subject to cross examination was simply out of court statements in reaching the decision in the case the motivating issue in the case and what was really at trial in the district court was whether the children and particularly the oldest child t e who had this yes true and yes true intestinal disease called her springs disease would be under a grave risk of harm either physical or psychological if returned to effort at all at the time of the trial to prefer to take care of the oldest child's medical needs not having investigated what might be available there we know that he had been subject to a surgery that had failed in norway for his st borns disease he was of course not getting treatment here in the states but he had not followed up on that nor had he followed up on any sort of  psychotherapy in both children were at least here in the states under the care of a psychotherapist he was your client's burden to establish grave risk of harm right exactly right and it's a big burden because it's and convincing evidence that's right so it's a very heavy burden to carry and looking at the evidence that was a deuced even without regard to the post trial submissions i had difficulty identifying the evidence that showed that the children would be at such a grave risk that they could not get adequate medical care but psychological and other kinds related to her sprogs to seize in norway could you could you show me how your client established that well let me let me suggest this that there were her pres will prove was that he had the oldest child he had already undergone surgery for her springs disease and it had failed and that he still wasn't was a cure and that was i although really didn't come out i think that was the motivating reason why she brought the children to new york certainly from that fact alone having tried to get treatment ever her strange these and not being successful that was a part of it but then understand are with the district court said because the district court has the yeah right now i've already asked the petitioner do you have any plans for the children's medical care well i haven't made a give any plans for therapy i haven't done that either he says a precipitous returns he was looking at are they going to morrow clans return of course and again i'm i'm having difficulty looking at the record and seeing how your client showed by clear and convincing evidence that there would be such a grave risk in in our  a talian case we had to mess to violence that was established and that was shown by clear and convincing evidence and as to which there is little doubt that that would continue were the children returned to italy  and again i'm not i don't see evidence here that the norwegian medical system is unable to deliver adequate care and doesn't have to be maybe as fine as some of the finest hospitals in new york but  show a grave risk that's why a an exception to the strong principle under the hague convention that the place of the bitch will residence is the place where the children belong so i need to know i'm interested in hearing  that the hospitals in norway are unable to provide adequate care then there was the expert proof that she brought in which was dr paul who basically said look you know he's getting the care here this is where he should stay if he goes back now it would most likely be a problem mind you i will grant you that dr paul doesn't practice in norway i appreciate that and that's one of the difficulties here she can say well he didn't get good care there when he was there he's getting good care here there's no reason to think that that situation would change and the district court's view was at least at the conclusion of the trial that if you returned then it would be a problem now i grant you your honor that the district court might have room to say well all right now the year has gone by or some other period of time has gone by that maybe you wouldn't be able to prove up your case now but at least when the case was tried the point that the district court made was well you can't go back now because now you've certainly proved your your  could remain in the united states until after surgery and a period of recuperation exactly right your honor but my point is and and this is probably kind of my truck a footnote is that you know that still becomes a disputed issue a fact which is entitle to be tried and what becomes disputed whether at some later point the grave risk goes away district court said i've been reading these letters that i've gotten from the people in norway i got a letter from a doctor says the care here is adequate i'll rely on that our point is that well you can do that but that would have to be after an evidentiary hearing after a trial not just well let's collect some stuff and rely on what evidence did you do so that norwegian hospitals can't treat this disease in child they had one complicated surgery that happens here all the time as well of course and then what do you want to point to and the the only proof they had was was dr paul's prove who said he's getting good care here i  grave risk of harm i'm not suggesting for a moment your honor that the situation might not change but it least at the end of the trial the district court had no doubt that there was a great risk of harm with the children  father who children have been retained wrongfully in the united states for approximately nine hundred and sixty days since they're supposed to be returned in july of two thousand and eighteen i think your honor has a correct there was has a serious gastrointestinal condition that requires daily care and repeated surgeries and so on both of the children here are young and have acute psychological needs if they were to receive no care because no plans had been made what would that put them at grave risk of harm first when they when they left norway the child was diagnosed almost immediately after both birth with this condition when the children came here which i believe was in july two thousand and sixteen ok they receive no care here for months on that the condition became apparent or we became aware of the condition upon the filing of the compl matter and all the surgeries that were going to be taking that and we didn't even know that there was an additional pole through surgery in till some point in time in the litigation side what about the allegation that the st surgery that was done in norway failed that was well we don't know whether it failed or not there was testimony from dr ross that there was a problem with the surgery i don't members exact wordings that he utilized i don't know if i could say that it failed there was  time that that could have caused something there was no definitive determination by anyone let alone one of the experts and that was actually a comment by dr fisher who wasn't called to testify at the time of trial that that is a possibility it's still with the father saying that he had made no plans what wouldn't be reasonable to conclude based on the you know excluding the post submission post trial submissions that it would put the children at grave risk of harm because they both needed care that was that was one clear that was clear that they both needed care it was an aid they needed some form of care but whether that horror quote has gravity to satisfy a thirteen b exception we mean the courts have determined that returning to a war torn country returning to a physical or abusive environment or returning to essentially the scene of the crime that was going to exacerbate trouble that was experienced to a trial really satisfies the th exception we don't have that here your honor reference or many verses vittoria which was precedential seminal child you also had in that case the daughter testifying about the domestic violence you had one case the petitioner father admitting before a new york state court in an order of protection about the domestic violence and then you had autism and p essentially not more than regression the child wasn't advancing at a steady pace in this case we have none of those facts there's no water there's no domestic violence  the kids have some learning disabilities and we have a medical condition if we look at the medical condition alone you know there's very there's a dearth of law out there with regards to can a medical condition alone respondent proves by clear and convincing evidence that the home country is incapable of caring for the children i think the one case and that in the country really that sets out an actual test for it is joyce and quality joyce sets out a test with regards to a medical condition whether the children return would disrupt an ongoing course of treatment and severely impact the child's health there was testimony that it would affect the course of treatment and it seems to have influenced the district court in his decision not to move very quickly and entering his order and requiring the children be returned the research we on the horizon there was this testimony about  general disruption and mean and the procedure that was followed as was a little unusual i guess that perhaps tailored to the family circumstances could you address that was weren't what's your adversary present prejudice by having hearing and then the district court relying on these post trial submissions that maybe they didn't have a chance to rebut adequately i don't think babs there is precious and i really don't think that being there at the time of trial i don't think that the trial court relied upon that post them some missions the judge didn't want to pursue precipitously return the children i think at the time of trial if there was a finding or at if you were to measure it in time frames you know from the point of trial prior i don't think the court was determined that there was a grave risk of harm i believe that the judge was compassionate i think that he was concerned he even me notes that our client agreed to it at the time of trial to do the surgery here rather than returning the child home because everyone cared for these children one number two is concerned about their well being now whether that harm of having the surgery done here versus having the surgery done in norway would rise to the level of a grave risk of harm exception under thirteen different story right now we're all we're talking about is after care and the judge without explicitly stating it i believe was putting forth certain undertakings without finding a thirteen b exception which he's allowed to do which is basically ensuring that aggrieved risk of harm will not occur based upon a perception that return could there be could have there  harm to the child returning immediately yes did it rise to the level of a grave risk of harm as in vision by the drafters of the convention and as outlined in the official comments for other name ha precipitous return to norway had to be prevented and i think the judge did that also by extending the delay or making a delay to return after the school year with regards to the school and getting them settled etc the fact of the matter is that there was no evidence presented by the respondent with regards to any care of treatment in norway in fact their own expert when asked in cross examination d did he review and i believe it was dr ross also did you review any documentation from norway answer was no and dr paul was asked what do you think about dr george and her team in norway and she said if she's accomplished she's competent  so being competent doesn't correlate to being incapable of doing it and i think that joe and i think judge sullivan was very astute to this i think that he also  issue perfectly which is it's not the question is not whether we think new york is the best or the united states the best care it's whether that norway's facilities or capabilities are so in adequate as to cause a convincing evidence a grave risk of harm if anything the judge really relied upon dr fischer's if he relied upon anything letter where it says oh no the surgery went well he's safe to fly i don't think that they were prejudiced in any shape manner form and they never i don't think in any of the papers or any of the pleadings or any of the testimony there was anything advanced that norway was incapable of caring for these children you have two minutes i know and they go very quickly your honor let me try to look at it another way in that is if as you say you are wrong or that there was no proof then of it being a grave risk of harm then it follows i think that the district court would have pre term it of the case right that you know the trial made its findings on the record and the judgment and that's the end of it the point of it was that the district court obviously had this concern that saying the children in no way certainly right away and maybe forever would in fact be a grave risk to them and think about it this way if that finding comes up here i had the district court having made that that comes up under rule fifty two dollars stand we'd have to say the district court was clearly erroneous you know it's a definite firm conviction a mistake was made and i don't think the record fairly you can say that considering that the district court is the one heard the evidence and of course there's the other issue too and that was that when it concerned the district court was at the hospital the hospital and tried on which was the closest hospital care was some four hours away and judge fisher  modest about the case kind of our minds about the one that judge park had last week that came out about the l l c corporations and whether the diversity you know what happens with district court is sometimes we forget to follow the rules as carefully as we should and we say oh sure there must be diversity here well you know there are rules that govern the way we're supposed to try cases we don't just send in a bunch of stuff it's fair enough to send in that stuff or the disc or ever since position is that the  district court was inclined to rule the way it did and didn't on at persepolis lee and therefore solicit and post hearing submissions to make sure that it was acting prudently but let's response to and if the district court hadn't cited that material in its decision and had relied on it you could say as i think i said in reply brief it's all harmless it doesn't make a difference the point of it is it did rely on we think about it this way imagine you're a trial and the question comes up well is the medical care adequate so the lawyer reaches into his bag and pulls out a letter from the physician in norway and says oh we have adequate medical care i'll put this letter in evidence we don't do it that way that's the vice here you