CASE

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Case Name

In re Walsh, 31 F. Supp. 2d 200 (D. Mass. 1998)

INCADAT reference

HC/E/USf 222

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States District Court for the District of Massachusetts

Level

First Instance

Judge(s)
Young D.J.

States involved

Requesting State

IRELAND

Requested State

UNITED STATES - FEDERAL JURISDICTION

Decision

Date

18 December 1998

Status

Overturned on appeal

Grounds

Grave Risk - Art. 13(1)(b) | Undertakings | Interpretation of the Convention

Order

Return ordered subject to undertakings

HC article(s) Considered

13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Air France v. Saks, 470 U.S. 392, 84 L. ED. 2d 289, 105 S. Ct. 1338 (1985); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995); Blondin v. Dubois, 19 F. Supp. 2d 123 (S.D.N.Y. 1998); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996); Steffen F. v. Severina P., 966 F. Supp. 922 (D. Ariz. 1997); Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995); K. v. K. [1997] 3 FCR 207 ; N. v. N. (Abduction: Article 13 Defence) [1995] 1 FLR 107, [1995] Fam Law 116; Murrary v. ACT, 6 October 1993, Appeal No. EA 51 (Australia); Rechsteiner v. Kendell, 80 ACWS 3d 1195 (Ont. Fam. 1998); Turner v. Frowein, No. FA-97-0084450 (Conn. Super. Ct. June 25, 1998); In re Ves, 559 SP (Ir. H. Ct.); PF. v. MF., 1992 Ir. SC. 390 (Ir. 1992); MacMillan v. MacMillan, 1989 SLT 350, 1989 SCLR 243; Re H.B. (Abduction: Children's Objections) [1997] 1 FLR 392; In re BAD, 113 M (Ir. H. Ct. 1997); Re A. (A Minor) (Abduction) [1988] 1 FLR 365; Laing v. Central Authority (1996) FLC 92-416; Panazatou v. Pantazatos, No. FA 9607-13571S (Conn. Super. Ct. Sept. 24, 1997); Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995); Re K. (Abduction: Psychological Harm) [1995] 2 FLR 550, [1995] Fam Law 662; Thompson v. Thompson, [1994] 3 SCR 551, 6 RFL (4th) 290; Re O. (Child Abduction: Undertakings) (No. 1) [1994] 2 FLR 349; C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465, [1989] 1 FLR 403, [1989] Fam Law 228; Custody of Vaughn, 422 Mass. 590, 664 N.E.2d 434 (Mass. 1996).

INCADAT comment

Aims & Scope of the Convention

General Approach to Interpretation
Interpretation

Exceptions to Return

General Issues
Limited Nature of the Exceptions

Implementation & Application Issues

Measures to Facilitate the Return of Children
Undertakings

SUMMARY

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Facts

The children, a girl and a boy, were 8 1/4 and 3 1/4 respectively at the date of the alleged wrongful removal. They had lived in the United States and Ireland.

The parents were married and had joint rights of custody. They travelled to Ireland separately in January 1994 since the father was facing serious criminal charges in the United States. Shortly thereafter, following repeated incidents of physical abuse, the mother obtained a protective order against the father.

The Irish social services agencies then became involved as concerns were raised as to the care given to the children. Further problems arose when the father destroyed possessions in the former matrimonial home. In November 1997 the mother and her new boyfriend took the children to the United States, the mother's State of origin.

The father applied for the return of the children under the Convention.

Ruling

Removal wrongful and return ordered subject to undertakings; the standard required under Article 13(1)(b) to indicate that the children would face a grave risk of physical harm had not been met.

Grounds

Grave Risk - Art. 13(1)(b)

Article 13(1)(b) must be construed narrowly. The court noted that an intolerable situation was not intended to encompass a return to a home where money was in short supply or where educational or other opportunities were more limited than in the requested State. An example of an intolerable situation was one in which a custodial parent sexually abused the child. In the instant case there were no allegations, much less clear and convincing evidence, that the children were threatened with the degree of harm required under the Article 13(1)(b) exception. The evidence demonstrated that the father was often unkind to his children, that he spanked and slapped them for minor childish infractions, and that there was constant exposure to verbal and physical conflict between the parents. However, the evidence did not reveal an immediate, serious threat to the children's physical safety.

Undertakings

The court noted that numerous courts had recognized the legitimacy of exacting appropriate undertakings to ensure that the children would be cared for properly during transit and that no harm would come to them prior to a substantive custody hearing in the country of their habitual residence. The court requested the father to pay for the return of the children to Ireland and once there to provide housing, clothing, medical care and to serve as a parental figure. If the father was unable to provide these things he had to give the District Court a detailed description of how the Irish Social Services would make such provisions. The District Court also sought to stop the father having contact with the children and mother in Ireland.

Interpretation of the Convention

Following the decision of the United States Supreme Court in Air France v. Saks, 470 U.S. 392, 84 L. ED. 2d 289, 105 S. Ct. 1338 (1985) the District Court held that it was appropriate and desirable to consult foreign case law in construing the terms and scope of the Convention.

INCADAT comment

On 25 July 2000 the United States Court of Appeals for the First Circuit allowed an appeal against the order for the return of the children to Ireland: Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) [INCADAT Reference: HC/E/USf 326]. The First Circuit found that the standard required under Article 13(1)(b) had been met because there was a high probability the father would violate the undertakings he had given.

Interpretation

Preparation of INCADAT case law analysis in progress.

Limited Nature of the Exceptions

Preparation of INCADAT case law analysis in progress.

Undertakings

Preparation of INCADAT case law analysis in progress.