HC/E/USf 222
UNITED STATES - FEDERAL JURISDICTION
United States District Court for the District of Massachusetts
First Instance
IRELAND
UNITED STATES - FEDERAL JURISDICTION
18 December 1998
Overturned on appeal
Grave Risk - Art. 13(1)(b) | Undertakings | Interpretation of the Convention
Return ordered subject to undertakings
-
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.
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.
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.
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.
Preparation of INCADAT case law analysis in progress.
Preparation of INCADAT case law analysis in progress.
Preparation of INCADAT case law analysis in progress.