In case of first impression,
Second Circuit holds that Hague Abduction Convention requires complete analysis
of protective arrangements that might allow return of abducted children to
country of habitual residence without exposing them to "grave risk"
of harm
Marthe Dubois had a turbulent
extra-marital relationship in France with Felix Blondin during which two
children came into the world, Marie-Eline and Francois. Blondin allegedly
abused Dubois. After intermittently living in shelters for about nine months,
Dubois took the children to the home of relatives in New York City.
In a lawsuit, the New York
federal court denied Blondin's petition to order the children sent back to
France, pursuant to the Hague Convention on the Civil Aspects of International
Child Abduction [T.I.A.S. No. 11670, 1343 U.N.T.S. 89]. The Court held
specifically that sending the children back would place them at "grave
risk" of harm.
Article 13(b) allows such a
showing to counter the Convention's presumption that abducted children should
go back to their home country. The
district court also found that Blondin's means were rather limited and that he
could not support Dubois and the children other than in his home in France.
Blondin then filed a timely
appeal. The U.S. Court of Appeals for the Second Circuit vacates the judgment
and remands.
The Court sees this case as
presenting issues of first impression under the Hague Convention. Article 1 of
the Convention generally favors "the prompt return of children wrongfully
removed to or retained in" any signatory state (which includes the U.S.
and France). Proper application of the Convention and deference to the
children’s home forum, however, demands that the lower courts consider the
possibility of special arrangements for their return.
"[I]t is important that a
court considering an exception under Article 13(b) take into account any
ameliorative measures (by the parents and by the authorities of the state
having jurisdiction over the question of custody) that can reduce whatever risk
might otherwise be associated with a child's repatriation. In the exercise of
comity that is at the heart of the Convention ..., we are required to place our
trust in the courts of the home country to issue whatever orders may be
necessary to safeguard children who come before it. ... [...] As the District
Court properly recognized here, ... granting Blondin's petition would not - as
a legal matter — invariably entail turning the children over to his custody. In
fact, other arrangements might be available that would allow the children to
return to France in some other person's care, pending a long-term custody
adjudication - thus reducing or eliminating the risk of harm that might
otherwise be associated with granting Blondin's petition." [Slip op.
25-26].
The Second Circuit therefore
remands for the district court to reconsider whether French law provides for
other options that would allow the children’s return to France without the
"grave risk" of harm. Aided by the U.S. State Department, the court
should make any appropriate and necessary inquiries of the French government to
determine the range of remedial placement options that may be available under
French law.
[Editors' Note: Even though the
Court does not say so directly, it appears that all family members are French
nationals whose contacts with the U.S. were tenuous.]
Citation: Blondin v.
Dubois, No. 98-2834 (2d Cir. August 17, 1999).
