you're on a morning hours may please the court there's two central questions in this matter which have been addressed by the circuit before but i do believe that this case raises new issues of legal interpretation the first question is whether or not the court aerator in determining that there is a grave risk to the child to be returned to france the child to betray a residence and the second question is whether or not france's in a position to protect the child if there is such a grave risk of harm in returning the child now i do want to start off by pointing out that the goals of the convention support were a return of the child where abuse towards the child in this case the most important fact is that the child has expressed no fear of the father the child had supervised visitation with the father while he was in new it was a lot of days a lot of testimony for the district work about incidents involving direct fear of for the child to just against the mode well i would agree that there was fear for the child on behalf of the mother but whether it was on behalf of the mother the mother expressed fear for the child i would concur with that however the i think the question is whether the child expressed fear of the father and the mother's own testimony calling him the great father talking how the child wanted to spend time with the father the ten days before the mother abducted the child the child spent five unsupervised overnights with the father the mother allowed it to mother didn't fight against it the mother supported it so at no point is it your key findings of fact that were clearly erroneous i think the biggest one of course which i spent a lot of time with in my brief is the april fifteenth incident that the court credited the testimony of the mother even though her sworn now i would state just on that one particular incident because there are other findings of fact that i would argue are clearly erroneous but he found basically that your client was just simply party disputed that someone got injured on that night the question is why how did the father get injured and was their intent or abuse connected with that injury because it's possible for the father to get injured with no malice attached to that the testimony of the mother and the car prior sworn statements are very important because she stated that the father intentionally cut his foot on the door slammed his foot into the door and then followed her around the room menacing her work at it kicked the door yes yes and then menaced her around the house then the photos in the video show that there's a clear line from the door to the from the patio door to the entrance not following her around the mean how how do we reject that conclusion the district were i think that the court can reject that conclusion because the testimony of the parties cannot support that conclusion when the testimony and evidence put forward  that she gave a prior inconsistent statement under oath i can't count the number of cases in which i have presided over trials at which a witness had given a prior inconsistent statement under oath and either has the finder of fact or the jury as a finder of fact as the case may be credited the trial testimony notwithstanding the prior inconsistent statement that's that happens every day you have to make a decision about whether the prior statement sufficiently undermines the credibility you have to make a decision about whether the circumstantial evidence in the form of these pictures and where the blood is and where the glasses and whether this means that he could conceivably have been reaching for a glass and dropped it or whether the glass must have risen there some other way whether that supports one version or the other these are decisions for effect finders i would generally agree with your honor i would note that it wasn't just prior sworn affidavits that contradicted the mother says to many it was also her testimony in the same proceedings on cross examination where during direct examination she would say something like the father threw the wine glass and then stood up and then on cross she said the father was standing over by the television when he threw the wine glass so and every police officer who has ever testified at a suppression hearing has had contradictions like that and the judge decides whether those contradictions which happen whenever somebody tells the same story twice or in this case sufficiently significant that the testimony is not to be believed or in this case are just minor inconsistency is variations in recollection that's the essence of fact finding isn't it yes your honor i think that in this case the contradictions were so severe that it cannot possibly lead to the court's findings of fact but i do want to just because i am this was a primarily psychological abuse finding that the district court found that france as a legal system did not have the ability to protect a child in these circumstances a child  behind parent is from a small town in upstate new york and not from new york city and request i want the child returned to the small town in new york and the court has the ability to say you know what the small town is small you might die you might run into the person in the grocery store but we have the ability to send the child back to the country of the bitter residents that's what the language says in the treaty the country of bitter residents here is friends or you are asking us to direct the trial be sent to bordeaux i'm asking that the court must investigate and has an a duty to invest and ask the district court did mr davies ever ask the district court to return the child to any place other than french st maarten no you're on but the language of the statute and the treaty is clear that the return of the child has to be to the to countries have been residence not to a particular town or our home or with a particular parent you're asking us to send the child to britain i'm asking that at the very least at this that the district court erred in not investigating whether or not france was able to protect the child by limiting its is an argument that you concede was never made to the district court that that was the way the district court should consider this question i do concede that the request in the district court was for the child to be returned to france and i'm not only saying that you said that i understand that but is it also the case that no argument was ever made to the district court that the proper way to consider the case encompassed whether there was a way of satisfying the treaty and the paramount of legation to see to the safety of the child was to send the child to some other part of france where he and the family have never lived was that good morning your honor is me please the court this court should affirm the district court's findings in this case for two separate reasons first the district court correctly found based on overwhelming evidence that this child has victim of direct abuse by his father and has witnessed a tremendous abuse of his mother and the impact of that is the same on the young child as being the direct victim of that abuse based on those findings the district court correctly found that there is a near certainty of this abuse continuing if the child is returned to st maarten and the second independent reason you're on theirs is that s martin the french st martin is not able to adequately protect this child from the continuing abuse and that is for four separate reasons first your honour's st martin the french st martin is a very very small place and as mr men just acknowledged it's impossible for the child or ms davies to even go to the grocery store without running into mr davies second year and there's the evidence showed that in the case such as this without clear broken bones and bruises the child and ms davis will not be able to receive an order of protection and without an order of protection mr davies will be free to continue to abuse and harass this child not only directly by all but also through continuing to abuse his mother and your honor is the evidence is also clear that this father is not going to abide by any court orders he he lied to the district court he lied to the police he lied to the prosecutor in st maarten he told his employees that no one's going to get paid until they give him a good quote unquote character reference for the hague proceeding your honor this is not a father who going to comply with any court orders as is further evidence by the by his violation of the new york order of protection which ms davies obtained after the date of the district court's decision and we have a motion presently to support the grave risk of harm defense that there has to be a finding by a three year old child that he is afraid of his father and moreover your honor that argument completely ignores the overwhelming evidence in the record both from the testify experts psychiatry's but also from the mother that this child has repeatedly exhibit symptoms which are very common for a child for children victims of domestic abuse they try to appease their abuser they try to align themselves with the abuser in order to protect themselves and also to protect his mother that's it you're on it to using that argument this really turning the law on its head the relevant question here is whether there is a grave risk of harm to the child from the virtue of being returned to the french st maarten that argument is no different from petitioners claim now that the court should have investigated whether the families or th child should be quote unquote returned to france the place the child has never set foot in this family just to be clear this family has no connection to france they have never lived in france they don't have territory it's not a part of the republic being in new york is being in one of the states of the united states being in st martin is being on the french territory is it's not the same thing with you honor practically speaking i also have a legal i have a legal basis for why that argument is is is truly preposterous but practically speaking how can a child who has never been to a bar go to use your to return the child to the place of his or her have been she will state because the courts of that state are presumed to be in the best position to make the necessary determinations your honor clearly returning the child to continental fr will not further that goal any more than the allowing the child to remain here in new york in fact the district court has already learned a lot about this family returning the child to a place he has never been before will not in any way advance that particular goal your honor and and if i may just take a moment then there is another important argument for why it saint martin is not able to protect the child and that is the finding by the district court that the mere fact of return to the place where the abuse had occurred while further harm and severely traumatized the child and that is essentially similar to this court your honor if i may respond to one other argument mr men and petitioner have claimed throughout these for city of these proceedings that risk of psychological harm is somehow less dangerous less harmful somehow should be recognized and there are by the court well less because precisely because there are no broken bones or bruises and that of course here on theirs is contravention of the hague convention which on its face recognizes harms psychological and physical as equal evils from which children should be protected and this court has recognized before that exactly the same fact so again petition there is asking this court to rewrite the statute strike out and the sensual part of the statute and of course in this case here and there the child has also been victim of physical abuse he has been pushed he has been grabbed he has been shot a car has been stopped causing him fear certainly his puppy was ripped away and thrown against the wall this child has suffered not only psychological harm but also physical harm and the evidence is clear here on there is that he will continue to do so if he is returned to st martin you know i just want to respond directly to a few points in the shack this made first the father did offer to provide said a million measures if the child were to be to return to french said martin first he agreed to be two orders o protection so that goes against mr act this is a point that he couldn't you should get an order of protection he agreed to pay for another apartment for her to live in even on the dutch side if she felt safer there in a gated community there were testimony from four experts in france st martin law and french law that talked about the civil and criminal procedures in france and said wanted to protect victims of domestic abuse now the district court in its findings said that discredited mr to have an a because he was an expert in criminal law not civil law and he found that not to be particularly relevant i believe that's an erroneous finding because both criminal and civil procedures do protect victims of domestic abuse and that should be credited furthermore neither of the mother's experts talked about protecting a child they simply talked about protecting a spouse in this court the circuit and other circuits have repeatedly said it's about grave risk of harm to the child not to the to the parents in this case the only uncontroverted testimony regarding friends in money law to protect child came from the fathers to st maarten experts that was not credited by the court  the court also did not go into the custody arrangements that could be made by french family courts that was testified to by the father's french experts the court could grant supervised visitation the courts could order psychological evaluations the district court owes a responsibility to investigate every mechanism in order to further the goals of the convention which is to overturn children to the country of a vigil residents where the exception finding of likelihood of harm yes which are to be drawn there's not there's not you know there that there's a presumption and then there's an exception and then there's fact finding with respect to with the exception  honor so i mean it's and it's not the case that the convention has a goal of returning the child always has a goal of returning the child whenever it's possible consistent with the various exceptions your honor is completely right i will note that the state department and all the very circuits have said the exception in this case should be drawn very narrowly lest it swallow the intent of the convention so the exception has to be looked at in the context of what the goals of the convention are which is to return one last point mr agnes incorrectly talked about that the factors in this case are the standard to be applied about children being afraid of their parents it's not a determine if factor on its own but it is an important factor in  circular case this circuit specifically noted that the child was and did not demonstrate fear of the parent when finding that there was no grave risk what about dr branson testimony that she concluded that there was and psychological harm to the child i would you want to correct that the dr brant specifically said she could not because of the time she spent with the child conclusively diagnose a child with p t s d which different differentiates this case from the blo she said the child exhibited symptoms of p t s d but she did not have enough time with the child to make such a diagnosis and i do believe that's an important distinction especially with the social science literature discussing