Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008)

INCADAT legal file Hague parental abduction

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Removal and Retention – Arts 3 and 12
The mother argued that the removal was not wrongful as she had brought the younger son to the US for medical treatment. The Court held that this was irrelevant for purposes of the wrongful removal determination because the analysis turned on whether the removal was consistent with the rights of custody established in the country of habitual residence. The mother should have litigated such issues in Germany. In any even the facts did not supports the mother’s argument.
Grave Risk – Art. 13(1)(b)
The District Court had appointed an independent expert in paediatrics, child abuse, child sexual abuse and child pornography, to assess whether the photographs of the sons constituted child pornography and whether the behaviour problems suffered by the children were indications of sexual abuse. The expert reported that there was no evidence to suggest that the father was a paedophile, that he was sexually aroused by children, or that the pictures were pornographic. She approved of the German investigations and stated that they were accurate assessments and that their conclusions were consistent with their reported observations. She determined that the symptoms that the boys displayed were consistent with the stress in their lives caused by the acrimonious custody dispute. She recommended that the boys not undergo further sexual abuse evaluation because it would increase their already-dangerous stress levels. Finally, she noted that they may have been psychologically abused by both parents because the parents’ acrimonious relationship played out in front of them. These findings were not challenged on appeal.
The father had given undertakings to the District Court, notably to secure dismissal of German criminal charges against the mother that had arisen out of the dispute. The mother submitted however that these were insufficient to protect her and the boys upon their return. This was rejected by the 1st Circuit which noted that it had only previously reversed a District Court’s imposition of undertakings as insufficient to protect when a grave risk of harm had been established: Danaipour v. McLarey, 286 F.3d 1 (1st Cir.2002), [INCADAT cite: HC/E/USf 459].
Objections of the Child to a Return – Art. 13(2)
Pursuant to Federal Rule of Civil Procedure 17(c) and with the consent of the parties, the district court appointed a guardian ad litem and attorney for the brothers. The Court of Appeals ruled that the District Court had properly given little weight to the wishes of the brothers because of their young ages, lack of maturity, and susceptibility to parental influence. The District Court had not abused its discretion when it concluded that it would be harmful and pointless to allow the older child to testify. In this the Court of Appeals accepted the evidence of a child psychiatrist that the further questioning of the older child would cause him harm.
Human Rights – Art. 20
The mother argued that the Hague Convention violated the equal protection component of the Due Process Clause of the Fifth Amendment. In this she claimed that the grave risk of harm standard was unconstitutional because she was entitled to the less-demanding best interests of the child standard. The Court did not admit the argument for it had not been raised at first instance, but it noted nevertheless that it was without merit for the best interests of the child standard applied in custody matters which was not the issue in a Hague Convention case.