IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

________________________

No. 12‐1692

NASIRUDDIN KHAN,

Petitioner‐Appellee,

    v.

TARFA FATIMA,

Respondent‐Appellant.

__________________________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 12 C 1270—Harry D. Leinenweber, Judge.

__________________________

Argued April 30, 2012—Decided May 4, 2012*

__________________________

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. The International Child Abduction

Remedies Act, 42 U.S.C. §§ 11601 et seq., which implements the

Hague Convention on the Civil Aspects of International Child

Abduction, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980),

entitles a person whose child has been removed from his cus‐

 

* This opinion and the dissent are being released in typescript. A print copy

will follow.
No. 12‐1692                                                                                        2

tody (sole or joint) to the United States (usually by the other

parent) to petition in federal or state court for the return of the

child. 42 U.S.C. §§ 11603(a), (b). The petitioner in this case is the

father, and the respondent, his wife, is the mother. She removed

the child from their joint custody and is thus the “abductor.”

The child is a girl not yet 4 years old, who in consideration of

her privacy is referred to in the briefs and record only as ZFK.

The father, an optometrist in Edmonton, Alberta (Canada),

wants to take the child back to Edmonton. He has filed for di‐

vorce in Canada on the ground of the mother’s “physical or

mental cruelty” to him, and seeks sole custody of the children.

The mother, a U.S. citizen living in Illinois, wants to keep the

children with her in the United States. The district court or‐

dered ZFK returned to Canada with her father, and the mother

appeals. The child was taken from her mother on March 9 of

this year by U.S. Marshals, pursuant to an ex parte order by the

district judge upon the claim of the father’s lawyer that the wife

is a flight risk because India, which the family was visiting

when the mother flew to the United States with ZFK, is not a

signatory of the Hague Convention, and so she might decide to

fly back to India, taking the child with her. (Both parties are of

Indian ethnicity.) Until our order of May 1, discussed below,

was executed, the child was living with her father in a hotel in

Chicago. The order (which was carried out on May 3) directed

that she be returned to her mother’s custody pending the final

disposition of the appeal.

“The [Hague] Convention was created to discourage abduc‐

tions by parents who either lost, or would lose, a custody con‐

test.... The Convention drafters adopted a ‘remedy of re‐

turn’...to discourage abductions, reconnect children with their

primary caretakers, and locate each custody contest in the fo‐

rum where most of the relevant evidence existed. [But] while

the remedy of return works well if the abductor is a non‐

custodial parent, it is inappropriate when the abductor is a pri‐
No. 12‐1692                                                                                        3

mary caretaker who is seeking to protect herself and the chil‐

dren from the other parent’s violence.” Merle H. Weiner, “Nav‐

igating the Road Between Uniformity and Progress: The Need

for Purposive Analysis of the Hague Convention on the Civil

Aspects of International Child Abduction,” 33 Colum. Human

Rts. L. Rev. 275, 278–79 (2002) (citations omitted), quoted in Van

De Sande v. Van De Sande, 431 F.3d 567, 568 (7th Cir. 2005). See

also Karen Brown Williams, “Fleeing Domestic Violence: A

Proposal to Change the Inadequacies of the Hague Convention

on the Civil Aspects of International Child Abduction in Do‐

mestic Violence Cases,” 4 John Marshall L.J. 39, 42–45 (2011);

Noah L. Browne, Note, “Relevance and Fairness: Protecting the

Rights of Domestic‐Violence Victims and Left‐Behind Fathers

Under the Hague Convention on International Child Abduc‐

tion,” 60 Duke L.J. 1193, 1202–05 (2011); Roxanne Hoegger,

“What If She Leaves? Domestic Violence Cases Under the

Hague Convention and the Insufficiency of the Undertakings

Remedy,” 18 Berkeley Women’s L.J. 181, 187–88 (2003); Merle H.

Weiner, “International Child Abduction and the Escape from

Domestic Violence,” 69 Fordham L. Rev. 593, 634 (2000). As these

articles explain, domestic violence is a common inciter to “ab‐

duction”—the abused spouse flees and takes her children with

her. Accusations of domestic violence figure in the present case,

as we are about to see.

Article 13(b) of the Convention provides a defense to the re‐

turn of the “abducted” child if “there is a grave risk that [the

child’s] return would expose the child to physical or psycho‐

logical harm or otherwise place the child in an intolerable situa‐

tion.” The respondent (the abductor) must prove this defense

by clear and convincing evidence, 42 U.S.C. § 11603(e)(2)(A),

and Hague Convention proceedings must be conducted with

dispatch. Art. 11; March v. Levine, 249 F.3d 462, 474 (6th Cir.

2001). (The articles that we cited explain that the framers of the

Convention believed that abductors would mainly be abusive
No. 12‐1692                                                                                        4

fathers rather than abused mothers. This may explain the

heightened burden of proof that Congress imposed in the stat‐

ute implementing the Convention.) The dispatch in this case

may have been excessive—the procedural adequacy of the pro‐

ceedings in the district court is the principal issue presented by

this appeal. The only other issue is whether the father aban‐

doned his custodial rights during the family’s trip to India; we

think it clear he did not.

The parties became husband and wife in an arranged mar‐

riage two years before the birth of ZFK, their first child. During

the family’s visit to India that we mentioned the wife com‐

plained to the Indian police of domestic abuse. The police inves‐

tigated, charged the husband, and took away his passport; and

it was in April of last year, while he was thus marooned in In‐

dia that the wife (pregnant at the time with a second child), flew

to the United States with ZFK. Eventually the husband’s pass‐

port was returned and he flew back to Canada and some

months later, in February of this year, filed the petition for the

return of the child. That child was born in the United States af‐

ter the mother had brought ZFK here and is therefore a U.S.

citizen. The father does not argue that the mother abducted that

child, who continues to live with her mother.

On March 7 the father obtained an ex parte order from the

district court requiring the mother to yield custody of ZFK to

him pending resolution of his petition, and on the thirteenth the

judge scheduled an evidentiary hearing for March 22. It was

held that day, with the judge as trier of fact since it was an equi‐

table proceeding. He issued a final order of return the next day

and also ordered the wife to hand over ZFK’s passport to her

husband so that he could take the child back to Canada. But the

judge conditioned the orders on the husband’s agreeing to pay

a retainer (though not necessarily any additional fees) for an at‐

torney who would be hired by the wife to handle the divorce

and custody proceeding that her husband has begun in Canada.
No. 12‐1692                                                                                        5

On the wife’s motion we stayed both the order of return,

and the order that she turn over the child’s passport to her hus‐

band, pending the decision of her appeal. And on May 1, after

hearing oral argument in the appeal the day before, we ordered

the child returned to the mother pending our decision, but that

both the mother’s passport and the child’s passport be held by

the U.S. Marshals Service until further notice.

The wife’s testimony, if believed, reveals that her husband

has a violent, ungovernable temper, had physically abused her

on many occasions, some in the presence of ZFK (and in front of

the child he had told his wife he would take out her eyeballs—

though the child, not quite 3 years old at the time, may not have

known what “eyeballs” are), had been rough on occasion with

the child—indeed terrified the child—and that the child’s mood

had brightened greatly when she was living apart from her fa‐

ther. But if the husband’s testimony is believed, he was, if not a

model husband, not an abuser of his wife or the child. His law‐

yer conducted a vigorous cross‐examination of the wife, based

in part on discrepancies between her testimony at the eviden‐

tiary hearing and a deposition she had given a few days earlier.

She stood her ground, making few concessions to the cross‐

examining attorney.

Rule 52(a)(1) of the civil rules requires the judge to “find the

facts specially and state [his] conclusions of law separately”

when he is the trier of fact. He is not excused from this duty in a

proceeding under the Hague Convention. And the duty is not

waived—indeed it is at its most exacting—when as in this case

plaintiff and defendant testify inconsistently and it is impossi‐

ble to demonstrate by objective evidence which one is telling

the truth, or more of the truth. The trier of fact must decide

whom to believe (and how much to believe) on the basis of the

coherence and plausibility of the contestants’ testimony, cor‐

roboration or contradiction by other witnesses, and other clues

to falsity and veracity.
No. 12‐1692                                                                                        6

The process of factfinding in such a situation is inexact and

the findings that result are doubtless often mistaken. But the

judge can’t just throw up his hands, as happened in this case,

because he can’t figure out what is true and what is false in the

testimony. There is no uncertainty exception to the duty im‐

posed by Rule 52. As we said in another case, “One cannot but

sympathize with the inability of the district judge in this case to

say more than he did in justification of the damages that he as‐

sessed for loss of consortium. But the figures were plucked out

of the air, and that procedure cannot be squared with the duty

of reasoned, articulate adjudication imposed by Rule 52(a).” Ar‐

pin v. United States, 521 F.3d 769, 776 (7th Cir. 2008).

And if there were such an exception, it would not be avail‐

able when the evidentiary hearing had lasted only a day, as in

this case. The judge could have adjourned the hearing for a few

days to enable additional evidence to be obtained and pre‐

sented; in particular he could have had ZFK examined by a

child psychologist. The wife’s lawyer—his initial proposal of an

expert witness having been turned down because the witness

hadn’t had time to examine the child (remember that the hear‐

ing was held only two weeks after the respondent learned

about the suit)—offered to submit an evaluation based on an

examination of the child by the end of the week. The judge re‐

fused. His final order, issued as we said the day after the hear‐

ing, is two pages long and contains no findings of fact relating

to the Article 13(b) defense—just a conclusion that the wife had

failed to meet her burden of proof. That was not a finding of

fact, but a conclusion of law. Rule 52(a)(1) requires both: that

the facts be found “specially” and the conclusions of law stated

separately. It is needless to add that there is no rule exempting

the judge from the duty of finding the facts in cases in which

the plaintiff has a higher burden of proof than the usual civil

burden of the preponderance of the evidence.
No. 12‐1692                                                                                        7

But at the end of the evidentiary hearing the judge had had

a discussion with the lawyers, and from that we can piece to‐

gether his thinking and extract a single, solitary factfinding.  

The judge began by saying, directly after the parties’ wit‐

nesses had testified (there were no closing arguments), that

“neither—none of the parties to the suit are residents of Illi‐

nois.” Not true; the wife is currently a resident of Illinois. The

judge said that “if I send it [the issue of custody of the child]

back to Canada, the Canadian courts presumably will look and

take evidence and so forth and hear essentially the same evi‐

dence, I guess, I’m hearing today and make a decision to award

custody to the mother or to the father.... [Under the Hague

Convention] the child is to be returned except where there’s

grave risk of harm to the child. And, now, there’s—presumably,

there’s always some risk. All I know is what I heard here today.

And I’m—there’s been a he said/she said hearing today. And

it’s very difficult for me to say categorically one side is telling

the truth and one side is not telling the truth.” The judge men‐

tioned a bruise that the mother had received on her arm in In‐

dia and that had been photographed at the police station and

was a basis for her complaint to the police. The judge said that

if the father had inflicted the bruise—which he declined to de‐

cide one way or the other—that was a bad thing to have done

but it hadn’t created a “grave risk,” a key term in Article 13(b).

But the issue was not creating a grave risk to the mother, but a

grave risk (of psychological harm) to the child. If the mother’s

testimony about the father’s ungovernable temper and brutal

treatment of her was believed, it would suport an inference of a

grave risk of psychological harm to the child if she continued

living with him.

Very little of the wife’s testimony was so much as men‐

tioned by the judge, even though the wife had testified that

she’d been beaten with a pillow (which may sound like a pillow

fight, but it was a sofa pillow that he beat her with in no
No. 12‐1692                                                                                        8

friendly fashion and she testified that it hurt), knocked down by

him in front of ZFK, hit in the chest by a heavy wallet that he

had hurled at her, choked by him twice (and she said she

thought she would die) when she was pregnant with her sec‐

ond child, threatened as we said with having her eyeballs

yanked out, and dragged bodily from the backyard into a room

in the house.

Supervised Visitation Services of Chicago, funded by the

City, supervises visits by noncustodial parents to their children.

It supervised ZFK’s visits to her mother after the marshals had

transferred the child to the father’s custody on March 9. One of

the supervisors testified that when the visit was over and she

(the supervisor) told the child that she was taking her back to

her father, the child became hysterical. The supervisor testified

that the child had seemed “in major distress”—“bigger than”

(normal) “separation anxiety.” In cross‐examination she said “I

do feel it wasn’t just a matter of her being upset about leaving

her mother. There was definitely a factor there of not wanting

to go back to her dad.” She was also worried by the child’s hav‐

ing saidwithout apparent reason when returned to her father  “I

am a bad girl.”

Another supervisor testified that during another supervised

visit the child “said ‘hurt’.... [S]he pointed to her arm, and then

said something about Dad.... [S]he said: ‘I’m scared.’ And I

asked her to clarify who she was scared of, and she said ‘Dad.’

Or ‘Daddy.’ Something like that.... It was not very clear to me

what exactly she was trying to say and what exactly was going

on.” About this witness the judge said “she was very,

very...was certainly very, very speculative as to—and couldn’t

say specifically whether anything particular happened.”

The mother’s testimony was corroborated by her sister and

her sister’s husband. The judge did not mention the testimony

of those witnesses, the testimony of the supervisor from Super‐

vised Visitation Services (the one who testified about the child’s  
No. 12‐1692                                                                                        9

having said she “hurt”), or any testimony of the mother except

about the bruise on her arm and he made no finding about

whether the father had inflicted it, instead as we noted dismiss‐

ing it as not evidence of a “grave risk”—to the mother. His fo‐

cus on the bruise to the exclusion of any mention of the

mother’s testimony that her husband had choked her hard

enough to make her afraid she would die, or indeed of any of

her other testimony, is perplexing.

It is possible that the judge ignored the mother’s testimony

because so much of it was about physical and psychological

abuse of her by her husband (and her husband’s parents, who

lived with them), rather than of the child. But much of that

abuse occurred in the child’s presence; and repeated physical

and psychological abuse of a child’s mother by the child’s fa‐

ther, in the presence of the child (especially a very young child,

as in this case), is likely to create a risk of psychological harm to

the child. Whether it is a grave risk, and thus triggers the Article

13(b) defense, is a separate question, but one that cannot be ad‐

dressed, let alone answered, without recognizing the potential

for such a risk in the father’s behavior toward the mother in the

child’s presence. All this the judge ignored.

Throwing up his hands at what he may have thought an in‐

comprehensible quarrel between foreigners, the judge remarked

that even if the child wouldn’t be safe living with her father,

“Why can’t Canada any more than Illinois protect—offer her

protection?” The mother’s lawyer pointed out that other wit‐

nesses besides the mother had testified and that there was tes‐

timony of “multiple instances” of abuse, to which the judge re‐

plied: “Then she ultimately should prevail.... Canada should

make the decision on who gets custody of the child because the

child is a Canadian citizen and domiciled in Canada.” The law‐

yer as we said asked for a few days to obtain a psychologist’s

evaluation of the child and the judge refused.
No. 12‐1692                                                                                        10

It seems that the judge, building on his mistaken belief that

none of the parties was an Illinois resident, overlooked our

warning in Van De Sande v. Van De Sande, supra, 431 F.3d at 570–

71, not to treat the Hague Convention as a venue statute de‐

signed “to deter parents from engaging in international forum

shopping in custody cases” (quoting Baxter v. Baxter, 423 F.3d

363, 367 (3d Cir. 2005)). The Convention says nothing about the

adequacy of the laws of the country to which the return of the

child is sought—and for good reason, for even perfectly ade‐

quate laws do not ensure a child’s safety. Because of the privacy

of the family and parental control of children, most abuse of

children by a parent goes undetected. Pennsylvania v. Ritchie,

480 U.S. 39, 60 (1987); Coy v. Iowa, 487 U.S. 1012, 1022 (1988)

(concurring opinion); Van De Sande v. Van De Sande, supra, 431

F.3d at 570–71; Valentine v. Konteh, 395 F.3d 626, 640 (6th Cir.

2005) (opinion concurring in part and dissenting in part). ZFK is

not yet 4. She is hardly in a position to complain to the

Mounties about her father.

If the judge’s order is affirmed, the child’s mother, who ap‐

pears not to be employed or to have any significant financial

resources, will have to hunt up a Canadian lawyer and con‐

vince the lawyer to represent her without any assurance of be‐

ing fully compensated. If able to hire a lawyer she may be able

to obtain interim custody of the child from a Canadian court,

along with a support order, but what will she do until she ob‐

tains that relief? Move back in with the father? Let the child live

with him while she returns to the United States while the cus‐

tody proceeding unfolds? Suppose she eventually wins custody

of the child, as is not unlikely since no one accuses her of having

abused the child or being an unfit mother. Then ZFK who (until

our order of May 1 was executed) had been separated from her

mother only since March might not be reunited with her for an

indefinite period. Unless a trier of fact determines that the

mother is a thorough liar, we are concerned that continuing the
No. 12‐1692                                                                                        11

child in her father’s custody may inflict inflict psychological

harm on her.

But that is an aside. We are not the factfinders. The essential

point is that the evidentiary hearing was inadequate. Rule 52(a)

was violated; there were no findings of fact on the key issues.

Decisions are frequently reversed for such omissions. See, e.g.,

Freeland v. Enodis Corp., 540 F.3d 721, 739 (7th Cir. 2008); Arpin v.

United States, supra, 521 F.3d at 776–77; Supermercados Econo, Inc.

v. Integrand Assurance Co., 375 F.3d 1 (1st Cir. 2004); Rosco, Inc. v.

Mirror Lite Co., 304 F.3d 1373, 1379 (Fed. Cir. 2002); Zivkovic v.

Southern California Edison Co., 302 F.3d 1080, 1090–91 (9th Cir.

2002). The failure to allow psychological evidence was another

error.

The errors were not harmless. The district court’s order is

therefore vacated and the case remanded for a proper hearing.

Circuit Rule 36 shall apply on remand. We urge that the pro‐

ceedings on remand be conducted expeditiously and we sug‐

gest that the judge to whom the case is assigned appoint a child

psychologist to interview ZFK. See Fed. R. Evid. 706. Our May 1

order shall remain in effect until further notice.

The rulings in this opinion are procedural. We do not pre‐

judge the merits of the Article 13(b) defense. And we remind

that the burden of proving the defense is stiff. But whether the

burden has been carried cannot be determined in the absence of

Rule 52 factfindings.

VACATED AND REMANDED, WITH DIRECTIONS.
HAMILTON, Circuit Judge, dissenting: I respectfully dissent

from the decision to reverse and remand this case to the district

court. My colleagues and I agree that the child’s country of

habitual residence is Canada and that the mother’s removal of

the child from India to the United States violated the father’s

rights as a parent. The disputed issue is the mother’s “grave

risk” defense to what is otherwise a rock-solid Hague

Convention case for return of the child to Canada. I would

affirm the district court’s finding that the mother did not prove

the “grave risk” defense by clear and convincing evidence and

would affirm the orderreturning the child to Canada. I would

allow that nation’s courts to address this child’s best interest

and to decide on custody, support, visitation, and all related

matters without further delay.

As I explain in detail below, the temptation we face with this

case is one that was anticipated by the diplomats and family

law experts who drafted the Hague Convention and by the

United States Congress that enacted the implementing

legislation. The temptation is to decide the merits of the

underlying custody dispute, and to do so based on the best

interest of the child. That sounds at first like a humane and

sensible way to decide the case. But for cases involving

abductions, the Convention and the legislation were drafted as

tightly as possible to discourage courts from deciding the best

interest of the child. The Convention and the legislation are

designed to decide venue, and to decide it quickly, to deter

forum shopping in custody disputes by way of international

child abductions. The right venue is ordinarily the country of

the child’s habitual residence. Although there is an important

exception where a return to that country would pose a “grave

risk” to the child, that exception was drafted carefully to keep

it narrow, precisely so as to prevent courts deciding Hague
2 No. 12-1692

Convention petitions from reaching too far into the merits of

the custody question.

My colleagues’ decision to reverse is based on the noblest of

motives, to protect a vulnerable child from a potential threat

and to try to act in her best interest. Despite my colleagues’

disclaimers that the reversal is only a procedural decision,

though, the reversal does what Hague Convention courts are

not supposed to do. The reversal is also clearly based on the

view that the district judge who saw and heard the witnesses

was simply wrong in his evaluation of the parties’ credibility

– an evaluation we can make only by reading and re-reading

transcripts.

I do not know whether the district judge was right or wrong

in his factual evaluation of credibility. I will cheerfully

concede that, based on all we know about this troubled family,

a family court judge (whether in Canada or the United States)

who considers the best interest of the child is likely to award

custody to her mother, at least on an interim basis while the

divorce goes forward. The law could not be any clearer,

however, that that is not the question for the district court or

for us to decide. Our job and the district court’s job is to decide

onlythe narrow questions presented by the Hague Convention

petition.

For the district court, this was a difficult case. Based on the

district court’s findings, our job on appeal in this case should

be much easier. We should respect the district court’s findings

and allow the family courts in the Canadian province of

Alberta to do their job, which is the more difficult one of

deciding all the issues of child custody, support, and visitation

in the divorce case. By instead broadening the issues in this
No. 12-1692 3

case, as the majority does, we tend to undermine a critical

provision of the Hague Convention and invite other parents

who have abducted their children to do the same in future

cases. To explain my reasons in more detail, I address first the

“grave risk” exception as it evolved in the Hague Convention,

whose proceedings show that our obligation under

international law is to resist the lure of deciding custody based

on a broad inquiry into the best interest of the child. I turn

then to the majority’s specific criticisms of the district court’s

handling of this case.

I. The Narrow Exception for “Grave Risk”

A close look at the proceedings that led to the Hague

Convention shows that its framers and ratifiers foresaw the

path my colleagues take in this case, warned against it, and

drafted language as clearly as they could to prevent courts

from broadening a Hague Convention case into a complete and

prolonged custody battle.

The basic premise of the Hague Convention is to protect the

best interests of all children by removing the incentive to

abduct children involved in custody disputes and to return an

abducted child to her country of habitual residence, promptly,

and without attempting to determine merits of the underlying

custody dispute. 42 U.S.C. § 11601(a)(4); Blondin v. Dubois,

189 F.3d 240, 245 (2d Cir. 1999); Friedrich v. Friedrich, 983 F.2d

1396, 1400 (6th Cir. 1993); Fabri v. Pritikin-Fabri, 221 F. Supp. 2d

859, 863 (N.D. Ill. 2001). The central provision of the

Convention, Article 12, provides what is known as the return

remedy: “Where a child has been wrongfully removed or

retained in terms of Article 3 . . . the authority concerned shall
4 No. 12-1692

order thereturn of the child forthwith.” See Abbott v. Abbott, 130 S.

Ct. 1983, 1989 (2010).

In drafting the Convention, it was recognized, of course, that

there could be exceptional circumstances in which the return

remedy should be denied, including cases where return would

endanger the child. The drafters considered a number of

different formulations for this exception. Their debates show

that they recognized that if the exception were too broad, or

were interpreted too broadly, it could effectively undermine

the entire Convention.

The drafters first considered “substantial risk” and other,

even less demanding formulations in the English texts of the

proposals, such as exceptions for the best interests of the child

or for the forum nation’s public policy. Those less demanding

standards were all rejected in favor of the “grave risk”

language inArticle 13(b). They were rejected precisely because

they would create too great a risk that the courts would delve

into the merits of the ultimate custody determination. See, e.g.,

1980 Conference de La Haye de droit international prive,

Enlévement d'enfants, in 3 Actes et Documents de la

Quatorziéme session (“Actes”), pp. 168, 182-83, 203-04, 362

(1982).

1

These concerns are clear in participating nations’ comments

on the earlier, less demanding standards. Germany, for

Such negotiating records can be helpful in interpreting

1

disputed terms in international treaties. E.g., Sale v. Haitian Centers

Council, Inc., 509 U.S. 155, 184-87 (1993).
No. 12-1692 5

example, provided a warning that predicts our handling of this

case:

The wider and vaguerthe provision is worded, the greater

the margin forthe ‘abductor’ successfully to resist the return

of the child. In the interest of an effective ‘functioning’,

therefore, the exceptions should be restricted as closely as

possible and only the situations really worthy of an

exception should be provided for. 

This is also in accordance with the purpose of the

Convention to return the child as quickly as possible. The

wide scope of discretion now left to the competent authorities

under [the “substantial risk” exception] may result in a

considerable delay of the return. Expert opinions may be called

for as well as second opinions by other experts which will take much

time, investigations of fact may be made by which matters could

easily be delayed.

Actes p. 216 (emphasis added). Of particular interest to our

Congress orto United States courts, perhaps, are the comments

of the United States delegation, which sharply criticized the

early “substantial risk” proposal:

The United States is seriously concerned about the farreaching inroads [the article that later became Article 13]

makes into the ‘prompt return’ principle. The very objects of

the Convention may be defeated if this article is adopted in

its present form. As the Swiss Delegate, Mr Beachler, stated

in 1976, the status quo ante must be re-established before

there is any other discussion. Only after the return of the

child to the country of origin may the merits be considered.
6 No. 12-1692

[This article] retains little of the ‘restoration of custody’

concept or of ‘prompt return’ without examination of the

merits. Its broad exceptions will tend to turn virtually every return

proceeding into an adversary contest on the merits of the custody

question. No abductor’s lawyer would fail to raise one or more of the

exceptions.

Actes p. 242 (emphasis added; citation omitted).

The Convention adopted the stricter “grave risk” standard

to prevent or at least discourage such efforts to broaden the

scope of court proceedings seeking return of a child. The

drafters were familiar with the practice of courts relying on

such broad standards to resist demands that abducted children

be returned to their countries of habitual residence. Actes pp.

182-83. The Convention was designed to end that practice. 

The Explanatory Report for the final text of the Convention

explained:

[I]t must not be forgotten that it is by invoking ‘the best

interests of the child’ that internal jurisdictions have in the

past often finally awarded the custody in question to the

person who wrongfully removed orretained the child. It can

happen that such a decision is the most just, but we cannot

[ignore] the fact that recourse by internal authorities to such

a notion involves the risk of their expressing particular

cultural, social etc. attitudes which themselves derive from

a given national community and thus basically imposing

their own subjective value judgments upon the national

community from whichthe childhas recently been snatched. 
No. 12-1692 7

Actes p. 431. On the exception for grave risk, the Explanatory

Report warned more specifically against expansive

interpretation:

To conclude our consideration of the problems with which

this paragraph deals, it would seem necessary to underline

the fact that the three types of exception to the rule

concerning the return of the child must be applied only so

far as they go and no further. This implies above all that they

areto beinterpreted in a restrictivefashion if the Convention is not

to become a dead letter. In fact, the Convention as a whole

rests upon the unanimous rejection of this phenomenon of

illegal child removals and upon the conviction that the best

way to combat them at an international level is to refuse to

grant them legal recognition. The practical application of

this principle requires that the signatory States be convinced

that they belong, despite their differences, to the same legal

community within which the authorities of each State

acknowledge that the authorities of one of them – those of

the child’s habitual residence – are in principle best placed

to decide upon questions of custody and access. As a result,

systematic invocationofthe said exceptions, substituting theforum

chosen by the abductor for that of the child’s residence, would lead

to the collapse of the whole structure of the Convention by

depriving it of the spirit of mutual confidence which is its

inspiration.

Actes pp. 434-35 (emphasis added).

Turning from the Hague Convention itself to its

implementation bythe UnitedStates,the Congress emphasized

these same points, recognizing the temptation to turn Hague

Convention proceedings into full-blown custody fights. 
8 No. 12-1692

Congress found that children who have been wrongfully

removed or retained “are to be promptly returned unless one

of the narrow exceptions set forth in the Convention applies.” 

42 U.S.C. § 11601(a)(4). Congress declared: “The Convention

and this chapter empower courts in the United States to

determine only rights underthe Convention and not the merits

of any underlying child custody claims.” 42 U.S.C.

§ 11601(b)(4). The State Department advised Congress that the

exceptions were “drawn very narrowly lest their application

undermine the express purposes of the Convention – to effect

the prompt return of abducted children,” and that Convention

delegates believed that “courts would understand and fulfill

the objectives of the Convention by narrowly interpreting the

exceptions and allowing their use only in clearly meritorious

cases, and only when the person opposing return had met the

burden of proof.” Hague International Child Abduction

Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494,

10,509 (March 26, 1986). More specifically on the “grave risk”

exception, the State Department explained:

This provision was not intended to be used by defendants as

a vehicle to litigate (or relitigate) the child’s best interests. 

Only evidence directly establishing the existence of a grave

risk that would expose the child to physical or emotional

harm or otherwise place the child in an intolerable situation

is material to the court’s determination. The person

opposing the child’s return must show that the risk to the

child is grave, not merely serious.
No. 12-1692 9

Id. at 10,510.2

One critical provision of the implementing legislation in the

United States dealt with burdens of proof. In implementing

the “grave risk” exception, Congress imposed on a respondent

(the mother in our case) the burden of proving the exception

“by clear and convincing evidence.” 42 U.S.C. § 11603(e)(2)(A)

(referring to Article 13(b) of the Convention). That demanding

standard of proof was properly the focus for the district court

and should be our focus as well. The choice to impose that

high burden of proof was designed to make a difference, and

should make a difference, in cases exactly like this one where

it is difficult to make a reliable factual determination.

Reasonable people may debate whether the “grave risk”

standard is sufficiently sensitive to legitimate claims of abuse,

without being over-sensitive to false or exaggerated claims.

Some of the advocates’ and scholars’ law journal articles cited

by the majority argue that the “grave risk” standard is too

difficult for victims of domestic violence to satisfy. See, e.g.,

Karen Brown Williams, Fleeing Domestic Violence: A Proposal to

Change the Inadequacies of the Hague Convention on the Civil

Aspects of International Child Abduction in Domestic Violence

Cases, 4 J. Marshall L.J. 39 (2011); Roxanne Hoegger, What if She

Leaves? Domestic Violence Cases Under the Hague Convention and

the Insufficiency of the Undertakings Remedy, 18 Berkeley

Women’s L.J. 181 (2003); Merle H. Weiner, International Child

Abduction and the Escape from Domestic Violence, 69 Fordham L.

The executive branch’s interpretation of a treaty is entitled to

2

“great weight.” Abbott, 130 S. Ct. at 1993, quoting Sumitomo Shoji

America, Inc. v. Avagliano, 457 U.S. 176, 185 (1982).
10 No. 12-1692

Rev. 593 (2000). As the majority points out, the proportion of

international child abduction cases where the abductor is

herself fleeing a violent or psychologically abusive situation

has grown much higher than was anticipated by the

Convention or by Congress. The demanding “grave risk”

standard, requiring proof by clear and convincing evidence,

creates the possibility that an abusive parent could use the

Convention, which was enacted to protect children, to have

courts order those children back into harm’s way. 

The Convention drafters were aware of this possibility. The

“grave risk” exception was a compromise designed to address

the problem narrowly, without inviting abducting parents and

their lawyers to broaden litigation over the return remedy to

include a full custody battle. The drafters recognized that

allowing such broader litigation would undermine the ability

of the Convention to protect those other children who are

abducted by their abusers or by parents who seek to use them

as leverage. Our job, of course, is to apply the Convention and

the legislation themselves, not the scholarly criticisms and

proposals for improvements in them. See also Merle H.

Weiner, Navigating the Road Between Uniformity and Progress: 

The Need for Purposive Analysis of the Hague Convention on the

Civil Aspects of International Child Abduction, 33 Colum. Hum.

Rts. L. Rev. 275, 279-80 (2002) (noting concern about effects of

judicial manipulation of Convention in cases involving claims

of domestic violence).

Before moving to the specifics of our case, and the majority’s

criticisms of the district court’s handling of this case, one

shouldnot forget the Hague Convention’s emphasis on prompt

decisions. Article 11 provides: “The judicial or administrative

authorities of Contracting States shall act expeditiously in
No. 12-1692 11

proceedings for the return of children.” What is expeditious? 

Article 11 provides further that if the entire petition is not

decided within six weeks from the start of the proceedings, the

interested parties and countries have a right to an explanation

for the delay. That’s a mild sanction, but it certainly gives us

a target. In this case we are already well past that point, and

the reversal here points toward more weeks or months of

litigation in the district court.

That need for a prompt decision on the remedy of return

gives district courts a good deal of flexibility in deciding the

procedures they will use to decide these petitions. In

Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011), for example,

we affirmed the remedy of return after expedited proceedings

with limited and expedited discovery. We said: “The

Convention and its implementing Act are chock full of the

language of urgency and in no uncertain terms contemplate

expedited procedures to guarantee that children are returned

quickly to the correct jurisdiction.” Id. at 533. In essence, a

district judge facing a Hague Convention petition should

ordinarily use the expedited procedures that apply to motions

fortemporary restraining orders and preliminary injunctions. 

Our appellate review of the procedural choices should respect

the time pressures and allow for some flexibility, some

discretion, and even some imperfections.

II. The District Court’s Decision

The district court faced the following situation. The father

easily proved his prima facie case of entitlement to the return

remedy. The child’s habitual residence has been Canada, and

the mother removed the child from the father’s custody in

violation of his rights as a father (under Canadian law) when
12 No. 12-1692

she took the child during the family trip to India and flew to

her parents’ home in the United States. The hearing transcript

shows that the judge knew he was supposed to act quickly and

that his job was most emphatically not to decide the merits of

the underlying custody dispute between the parents. The only

serious issue was whether the mother proved by clear and

convincing evidence that returning the child to her father in

Canada would pose a grave risk to her physically or

psychologically. On that issue, the district judge heard

testimony for a day. At the end of the hearing, he stated his

oral finding that the mother had not proved her defense by

clear and convincing evidence. The next day he issued a short

written order repeating that finding.

The majority identifies three distinct errors by the district

court: (a) failing to make sufficiently specific findings; (b)

overlooking a warning in one of our cases not to rely on police

and laws of the country of habitual residence to protect a child;

and (c) refusing to delay a ruling to give the mother’s expert

time to conduct a psychological evaluation of the child. As I

read this record, the district judge did not commit such

reversible errors.3

I believe the district court made an error at the outset of the

3

case, but one that is now moot. The father filed with his petition

under the Hague Convention a request that he be given immediate

custody of the child before the mother could be heard, ostensibly on

the ground that she posed a flight risk and might take the child back

to India, which is not a party to the Hague Convention. The showing

of flight risk was thin, but even if there was a flight risk, the much less

drastic step of seizing the mother’s and child’s passports should have

been sufficient to preserve the status quo until the mother could have

been heard on the interim custody issue.
No. 12-1692 13

A. Sufficiency of Findings

The majority’s strongest argument is that the findings were

not specific enough and that the judge should have explained

in more detail his view of the facts and the testimony of the

witnesses. If all we had were the two-page written order, I

would agree that more was needed. But we also have more

detailed oral explanations that emerged at the end of the

hearing as the judge announced his decision, the mother’s

lawyer argued that the decision was mistaken, and the judge

explained his reasoning further. In my view, the transcript is

sufficient to understand the judge’s thinking. It shows that the

judge understood the evidence, understood the law, and did

not clearly err by finding that the mother had not proved by

clear and convincing evidence that return would pose a grave

risk to the child.

Federal Rule of Civil Procedure 52(a) allows for oral

findings. It requires findings on as many of the subsidiary

facts as are necessary to disclose to the reviewing court the

steps by which the trial court reached its ultimate conclusion

on each factual issue. Ortloff v. United States, 335 F.3d 652, 661

(7th Cir. 2003), abrogated on other grounds, Ali v. Federal

Bureau of Prisons, 552 U.S. 214 (2008), as stated in Parrott v.

United States, 536 F.3d 629, 635 (7th Cir. 2008). The sufficiency

of findings must be evaluated in context, keeping in mind the

substantive issues and the burden of proof. See American Red

Cross v. Community Blood Center of the Ozarks, 257 F.3d 859, 863

(8th Cir. 2001) (oral findings at end of one-day hearing were

sufficient given the limited proceedings). Findings are to be

liberally construed in support of a judgment, even if those

findings are not as detailed as we might desire. Zack v. C.I.R.,
14 No. 12-1692

291 F.3d 407, 412 (6th Cir. 2002) (affirming judgment); Grover

Hill Grain Co. v. Baughman-Oster, Inc., 728 F.2d 784, 793 (6th Cir.

1984) (reversing judgment where findings did not give clear

understanding of basis for district court’s decision); Travelers

Ins. Co. v. Dunn, 228 F.2d 629, 631-32 (5th Cir. 1956) (affirming

judgment where district court stated oral finding that appellee

had “testified truly”). Given the urgency of the matter the

district judge had to decide, we should read his findings more

charitably than my colleagues do so long as we can follow the

path of his reasoning. That path is easy to follow here. The

mother had to prove her defense by clear and convincing

evidence. The conflicts in the evidence about the father’s

treatment of the mother over the years of their marriage, and

the credibility issues raised with both of them, meant that her

evidence was not clear and convincing.

The judge began to summarize his view of the case at page

214 of the transcript. He said that if he were sitting in Canada

as a family court judge, he would probably award custody to

the mother. Tr. 215. He continued: “But as I understand the

law, and I’m reading from Judge Posner’s opinion [in Van De

Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005)], that the

exception is the child is to be returned except where there’s

grave risk of harm to the child.” So far, so good. He

continued: “And, now, there’s – presumably, there’s always

some risk. All I know is what I heard today. And I’m – there’s

been a he said/she said hearing today. And it’s very difficult

for me to say categorically one side is telling the truth and one

side is not telling the truth. And the burden is – there’s

extraordinary burden on the part – to establish that defense of

grave risk of harm.” Tr. 215-16. Again, no error yet, and note

the critical reference to the burden of proof the mother faced.
No. 12-1692 15

Did the judge say enough about the only neutral witnesses,

the two visitation supervisors? The mother sought to show

with their testimony that the child had been traumatized by

herfather’s behavior and that she had spontaneously cried out

that he had hurt her. The supervisors’ testimony shows that

the child is now much more comfortable with her mother than

with her father. Tr. 101-04, 143. That is not necessarily

surprising after the child’s long absence from the father after

the abduction and the sudden change of custody ordered by

the district court, as at least one supervisor, Ms. Soto,

recognized. Tr. 102-04. The judge reasonably described Ms.

Kelly’s testimony about possible physical abuse as speculative,

Tr. 216, and he noted further: “But there’s been no evidence

whatsoever that anything physically was ever done to this

child, possibly except squeezing an arm, and that was

disputed. But even assuming that there was squeezing of an

arm, that’s far short of what I would consider establishing

grave risk of harm.” Tr. 219. That is a reasonable view of the

evidence, which was not nearly as clear or strong as the mother

argues, and it is a reasonable application of the legal standard

to that evidence. The judge did not specifically address the

testimony of Ms. Soto, who supervised a visit two days before

the hearing. Ms. Soto testified that the child was very happy

to see her mother, did not want to go home with her father,

and became hysterical when told it was time to meet herfather. 

Tr. 98. Ms. Soto testified that the child’s behavior went beyond

separation anxiety and she seemed traumatized. On crossexamination, however, she acknowledged that she would not

expect smooth transitions from one parent to another with a

young child who has been separated from one parent for 11

months, and when given the opportunity, she did not assert

that she thought the child had been abused by her father. Tr.
16 No. 12-1692

103-04. Ms. Soto’s testimony was so inconclusive that I see no

error in failing to address it specifically.

The majority seems most concerned with the lack of a

finding that either the mother and her family were telling the

truth orthe father was telling the truth, criticizing the judge for

invoking an “uncertainty exception” to the findings

requirement of Rule 52(a). “If the mother’s testimony about

the father’s ungovernable temper and brutal treatment of her

was believed, it would support an inference of a grave risk of

psychological harm to the child if she continued living with

him.” Slip op. at 7.

Not all courts would necessarily agree with that view of the

mother’s testimony here. See, e.g., Gaudin v. Remis, 415 F.3d

1028, 1035 (9th Cir. 2005) (“the question is whether the child

would suffer ‘serious abuse,’ that is ‘a great deal more than

minimal’”) (citations omitted); id. at 1037 (grave-risk inquiry

should focus on short-term risk pending opportunity for home

country’s courts to address interim custody issues). Atleast for

purposes of argument, though, I will accept the majority’s

latter point about possible psychological harm to the child from

short-term custody with the father pending a decision by a

Canadian court on interim custody. The problem is that the

majority’s criticism loses sight of the critical point here: the

burden to prove “grave risk” to the child by clear and

convincing evidence. 42 U.S.C. § 11603(e)(2)(A). With that

standard of proof, the judge simply was not required to find

that the mother’s testimony was eithertrue orfalse, accurate or

mistaken. Faced with conflicting evidence from both the

mother and the father, each of whose testimony was weakened

by inconsistencies and the conflicting testimony of the other,

it’s hard to argue with the finding that the mother’s evidence
No. 12-1692 17

was not “clear and convincing.” We might wish that the judge

had made a crisp call of ball or strike, true or false, but that is

not a realistic view of the applicable standard as applied to this

conflicting evidence. The district judge was not creating a new

“uncertainty exception” to Rule 52(a), as the majority suggests. 

He was simply applying the clear and convincing burden of

proof to evidence that he found neither clear nor convincing.

By imposing the requirement of clear and convincing

evidence, Congress was creating a logical space for exactly this

sort of finding: the mother might be telling the truth, or so a

judge might find by a preponderance of the evidence, but her

evidence is still not so persuasive as to be clear and convincing. 

We might not like that result. Like some of the advocates and

scholars cited by the majority, we might think that the

Convention and the Congress should have made it easier to

prove the defense. But under the controlling burden of proof,

the defense to the return remedy was not proven. The district

judge clearly understood the burden of proof and applied it to

reject the defense. I do not see a reversible errorthere. A more

detailed oral or written review of the conflicts in the evidence

explaining in more detail why the mother’s evidence was not

clear and convincing would not have helped the district judge

or us.4

The majority also criticizes the district court for mistakenly

4

finding that none of the parties was a resident of Illinois. The mother

is a United States citizen and has been residing in Illinois since May

2011, but she is, or at least was, also a permanent resident of Canada,

which the district court properly found was the habitual residence of

the child. In light of the Hague Convention’s standards based on

habitual residence, which the district court applied correctly, there

was no prejudicial error here.
18 No. 12-1692

B. Overlooking a Warning?

The majority next suggests that the district judge may have

made a legal error, that he may have “overlooked our warning

in Van De Sande v. Van De Sande, supra, 431 F.3d at 570-71 , not

to treat the Hague Convention as a venue statute designed ‘to

deter parents from engaging in international forum shopping

in custody cases.” Slip op. at 9, quoting Baxter v. Baxter,

423 F.3d 363, 367 (3d Cir. 2005). The Hague Convention is

indeed a venue statute. It is designed to deter exactly such

forum-shopping and to prevent litigation of custody in the

country chosen by the abducting parent, as the Third Circuit

explained in Baxter. Accord, e.g., England v. England, 234 F.3d

268, 271 (5th Cir. 2000); Lops v. Lops, 140 F.3d 927, 936 (11th Cir.

1998). The quoted passage in Van De Sande addressed a

different issue, an argument that a court could decide “grave

risk” and venue by asking only if the country of habitual

residence had sufficient laws and police to protect the child.

It is unclear from the Van De Sande opinion whether the

father actually made that argument in that case (the target of

the discussion was dictum in another circuit’s opinion), but in

any event the district judge did not make the supposed error

here. The judge was thoroughly familiar with Van De Sande. 

He referred to it repeatedly during the hearing. The majority

suggests the judge made this mistake when he asked: “Why

can’t Canada any more than Illinois protect – offer her

protection?” Tr. 218. In context, it is clear that the judge was

referring to the mother, not to the child. (The judge’s

preceding question was “Why can’t she move to Canada?”,

referring obviously to the mother.) The question was raised as

part of the judge’s proper effort to satisfy himself that a
No. 12-1692 19

Canadian family court could quickly take steps to deal with

interim questions such as custody, support, including paying

needed legal fees. See Tr. 212-13, 218, 220-22. There is no 5

doubt that the mother here would face substantial obstacles

litigating in the country of habitual residence, away from her

parents. She would need to find a place to live and a lawyer,

and she probably would need an award of interim support. 

But those obstacles are surmountable and in any event are not

legitimate grounds for denyingthe Hague Convention’s return

remedy.

C. Refusing Further Delay for More Evidence

At the beginning of the hearing, the judge granted the

father’s motion to exclude testimony from the mother’s

psychological expert, Dr. Hatcher. Because Dr. Hatcher had

not interviewed the mother or the child or anyone else

involved in the case, the district court found that the proffered

expert opinions would not be helpful. Tr. 7-8. Near the end of

the hearing, after the judge had said that grave risk had not

been shown, the mother’s lawyer asked for another week for

Dr. Hatcher to conduct a psychological evaluation of the child

and submit a report to the court. Tr. 221. The majority finds

that the district judge erred by not allowing such a delay. The

judge provided a sound reason for not doing so. After

Judge O’Scannlain explained for the Ninth Circuit in

5

Gaudin v. Remes, “because the Hague Convention provides only a

provisional, short-term remedy in order to permit long-term custody

proceedings to take place in the home jurisdiction, the grave-risk

inquiry should be concerned only with the degree of harm that could

occur in the immediate future,” particularly in context of concern

about psychological harm. 415 F.3d at 1037.
20 No. 12-1692

discussion back and forth, the court explained: “Based upon

what I know of experts, then they come up with an expert, and

then you’re right back where we started from. One will say

that there is, and the other will say there isn’t.” Tr. 224. The

judge was clearly indicating that waiting for such an

evaluation would lead, at a minimum, to several more weeks

of delay to allow for the mother to arrange for that evaluation,

for the fatherto arrange for a similar evaluation, for exchanges

of expert reports, and for another evidentiary hearing before

the district court. In other words, the judge recognized, he

would be hearing a full-blown custody fight, which simply was

not his job under the Hague Convention. He was correct, and

he certainly did not abuse his discretion.

The finding of error on this point is the most troubling aspect

of the majority’s decision, in terms of the overall effectiveness

of the Hague Convention. The Convention is undermined by

expanding the “grave risk” exception into a thorough inquiry

into the merits of the custody issue. By finding that the refusal

to delay the decision for such additional expert testimony was

an abuse of discretion (though the majority does not use that

phrase), the expansion of virtually any “grave risk” defense

into a full-blown custody hearing becomes nearly inevitable. 

As explained above in Part I, that was the prediction of the

United States delegation to the Hague Convention when the

exception was drafted more broadly. Both the Convention and

Congress rejected that broader approach. They insisted that

the exception be kept narrow and that decisions be made

quickly. Under the majority’s approach, however, those goals

may be missed any time one parent complains that the other

has abused her or him in any way that could have affected the

child psychologically. The idea that a decision could be made
No. 12-1692 21

within the target period of six weeks will become a distant

memory.

If the majority’s approach prevails, those consequences may

well echo to the detriment of United States parents whose

children are abducted to other countries. An important point

for the Congress in implementing the Convention was that a

foreign court must comply with its obligation to return a child

to the United States “without conducting any proceedings on

the merits of the underlying custody claims.” 134 Cong. Rec.

S3839-02 (daily ed. Apr. 12, 1988) (statement of Sen. Dixon). 

Many other members of Congress recounted problems their

constituents had encountered because their children had been

abducted to other countries that refused to return the children

without full consideration of custody issues underforeign law. 

See Weiner, 69 Fordham L. Rev. at 603-04 (collecting

examples). If the United States courts do not respect the limits

of Hague Convention proceedings, it will be difficult to argue

in foreign courts or through diplomatic channels that other

nations’ courts should respect them.

I do not mean to exaggerate predictions of doom here. 

Perhaps the majority’s reasoning on this point can be confined

to the combination of the allegations, corroborating evidence,

procedures, and findings in this case. The majority does not

suggest that the refusal of more time for psychological

evaluation was alone a sufficient basis to reverse. Yet the risk

to the Convention and to the other children and parents it is

supposed to protect is nonetheless serious. For these reasons,

I would affirm the judgment of the district court and allow the

Canadian courts to do their difficult job in dealing with this

child and her family.