Danaipour v. McLarey, 183 F. Supp. 2d 311 (D. Mass. 2002)

INCADAT legal file Hague parental abduction

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The children, two girls, were 7 and 3 years old at the date of the alleged wrongful removal. They had lived all of their lives in Sweden. In October 2000 a Stockholm court put in place a joint custody regime whereby the children would spend alternate weeks with each parent. The mother undertook not to remove the children from the jurisdiction.
Around this time the mother contacted a child psychologist because she was concerned the father was having inappropriate sexual contact with the girls. The father refused to consent to the psychologist seeing the girls. Nevertheless the expert suspected that sexual abuse had taken place. The expert notified the Swedish social services administration which in turn referred the case to the police. The police interviewed the children and examined the younger girl but found that there was no case to answer
The mother subsequently requested a full sexual abuse investigation. However the Swedish social service agency informed her this could not take place without the father’s consent. The father did not consent. The mother then filed a motion with the Stockholm District Court requesting that a sexual abuse investigation be instigated, but this application was denied in June 2001.
On 25 June 2001 the mother left Sweden with the children and traveled to the United States. The father petitioned for the return of the children.
On 2 January 2002 the United States District Court for the District of Massachusetts ordered the return of the girls to Sweden. It ruled that the authorities there could carry out a forensic evaluation to determine whether the girls had been sexually abused. The court further made the return order subject to 12 conditions to ensure the girls were not exposed to any risk of harm when back in Sweden.
On 3 April 2002 the United States Court of Appeals for the First Circuit allowed an appeal by the mother and remitted the case to the trial court to determine whether sexual abuse of the children had occurred and whether the children would consequently be at a grave risk of physical or psychological harm or of otherwise being placed in an intolerable situation if returned. Prior to the mother’s appeal there had been proceedings in Sweden.
On 14 February the Stockholm City Court ruled that it had no legal authority to confirm the portions of the District Court order requiring the mother to return the children to Sweden at her own cost, limiting the father’s contact with the children, requiring the mother to surrender her passport and not leave Sweden without court permission, and requiring that the father not initiate proceedings against the mother or attempt to enforce custody rights until the court decides otherwise.
The case in Sweden was then referred to the Child and Youth Psychiatric Service. On 2 March 2002 this Service informed the Swedish court that it could not investigate whether the children had been subjected to sexual abuse because this was a criminal issue and therefore for the police to investigate.