Blondin v. Dubois

238 F.3d 153 (2nd Cir. 2001)

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Nature of the Case

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Facts

Dubois (W) and H met in the summer of 1990 and began living together but never wed. A daughter was born in 1991 and a son in 1995. Family life was turbulent. W testified that H beat her and that he did so with the children in her arms and that once H twisted an electrical cord around her neck and threatened to kill her. W left the home and went to live in a battered women's shelter, but once again W returned to H. The cycle repeated itself. Eventually, the parties went to court, but that case was dropped when they reconciled once again. H and W continued in their ways with H beating W. Eventually W took the children from France to the U.S. W concedes that she wrongfully removed the children from France and even forged the signature of H to obtain passports for the children. W contends that she did this to protect the children from a physically abusive environment. H denies that he has abused the children. H sought a court order in France that sought the children's return to France under The Hague Convention. The court held an immediate evidentiary hearing under The Hague Convention. It was determined that H was abusive and hit the children as well. The older child told the judge that both parents beat her but that H did so more than W. H's Hague petition was denied; the children would face a grave risk if returned to H's custody and that H would be unable to support the children. H appealed. The French authorities were contacted and assured the U.S court that measures would be taken to assure the children's safety if returned while a French court determined custody. On appeal, the court vacated the judgment of the District Court and remanded the cause for further proceedings. Because the aim of the Convention is to ensure the 'prompt return' of abducted children, the court held that further proceedings were required in order to determine whether any arrangements might be made that would mitigate the risk of harm to the children, thereby enabling them safely to return to France. It is important that a court considering an exception under Article 13(b) take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child's repatriation.' On remand, the District Court found that if the children returned to France, they would be eligible for social services, and W would receive free legal assistance in the pending custody proceedings; that H would assist her and the children financially in moving back to France, and would agree not to attempt to make contact with them prior to the judicial determination of custodial rights; and that the French government would not prosecute W for the abduction or the forgery. The District Court found, on the basis of the evidence presented, that even these arrangements--indeed, that any arrangements at all--would fail to mitigate the grave risk of harm to the children, because returning to France under any circumstances would cause them psychological harm, as France was the scene of their trauma. There was uncontested expert testimony that the children would suffer from post-traumatic stress disorder upon repatriation. This appeal resulted.