The proceedings concerned two children, born in Mexico, to married Mexican parents, in December 1997 and October 2002. An older sibling was born in March 1996. The action in respect of this child was dismissed on 12 May 2012, after the latter had turned 16 (the Hague Child Abduction Convention only applies to children under 16).
The parents’ marriage began to deteriorate at the time of the birth of the second child and the father became physically abusive to the mother. In early 2010, the mother left the family home for five months taking the two younger children with her. They stayed with the maternal grandmother. In July 2010, the mother took all three children to Mexico City, where she arranged for them all to be smuggled into the United States of America.
Mother and children first spent a month in Texas, staying with a maternal aunt, before staying with a different maternal aunt in New York. The mother, the maternal aunt and their combined six children lived in a one bedroomed flat for one year. The mother then found a two bedroomed flat where she and the three children resided for a year, before they were forced to return to stay with the maternal aunt and her children.
On 30 November 2011, the father filed a petition in the United States District Court for the Eastern District of New York for the return of the children.
On 20 July 2012, the petition was referred to a Magistrate Judge for a Report and Recommendation.
The Magistrate Judge conducted a two-day hearing and, on 25 September 2012, issued a Report recommending that the petition be granted and that the children be returned to Mexico.
The mother objected to the Magistrate Judge’s finding that the evidence failed to establish any of the three affirmative defences she had raised: grave risk of harm, settlement, and the objections of the older child.