Court Places Child Returned to Denmark in Limbo

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By Julianne Tobin Wojay

Jan. 25 — A judgment granting a father's Hague child abduction convention petition for his child's return to Denmark must be reversed and the matter remanded for a full evidentiary hearing on the mother's domestic violence claims, the California Court of Appeal, Fourth District, has ruled.

The court said that because the mother alleged that the child faced a “grave risk” of harm if returned to Denmark pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, the judge below erred by not fully considering her evidence on that issue.

Road Map

In a Jan. 25 e-mail to Bloomberg BNA, Sudha Shetty, Director of the Hague Domestic Violence Project and Assistant Dean for Global Programs at Goldman School of Public Policy, University of California, Berkeley, noted that the court did not originally certify this case for publication. However, she said that Hague DV joined amicus Family Violence Appellate Project in requesting publication, which “is an essential step to establishing clear guidance for these cases—building a road map—for judges in California state courts” who are not necessarily trained in Hague matters.

Turning to the court's decision, Shetty pointed out that Articles 2 and 11 of the Convention direct Contracting States to use “expeditious procedures” and instruct courts to “act expeditiously.” Thus, she said, the “expedited nature of Hague Convention cases have a significant impact on the structure and management of these cases and case law suggests that courts do have discretion to limit discovery, limit witnesses, or limit witness testimony to affidavits in an effort to expedite these cases.”

“Expedited proceedings, however, should not come at the expense of a party's right to due process—and this is precisely what the Noergaard decision correctly addresses,” Shetty stated, adding that “[t]his is an important question in Hague Convention cases because [ ] courts often limit discovery or relax evidentiary standards to some degree due to the expedited nature of Hague proceedings, but there is sporadic guidance to courts as to how far they can go in limiting or expediting a hearing.”

“Importantly,” she continued, the Noergaard court cites to Danaipour v. McClarey, which “explains in its discussion of the grave risk analysis that ‘[t]he Convention assigns the duty of the grave risk determination to the country to which the child has been removed. . . . Generally speaking, where a party makes a substantial allegation that, if true, would justify application of the Article 13(b) exception, the court should make the necessary predicate findings’.” 286 F.3d 1, 18, 28 FLR 1243 (1st Cir. 2002).

The Noergaard decision, Shetty concluded, provides “important guidance to future courts handling Hague Convention cases involving allegations of domestic violence and the grave risk defense, where they must balance the expedited nature of these proceedings with a party's due process rights.”

Returned to Denmark

In January 2014, Orange County (Cal.) sheriff deputies removed 11-year-old Mia from her mother's care and turned her over to the county social services agency. The agency relinquished physical custody to the father, who was armed with two Danish custody orders.

According to the mother, the agency conducted only a cursory review of her claim that the father engaged in a pattern of domestic violence against the family after he lost in job in Germany and that he had unilaterally taken Mia from Germany to his native Denmark.

The mother claimed that the father's history of spousal and child abuse had caused Mia to run away from his care in Denmark and flee to Orange County with her maternal grandmother.

The state trial court in the father's Hague case likewise paid little due to the mother's abuse claims, which she raised as an affirmative defense under the Convention's Art. 13(b) “grave risk” provision. It conducted a “summary trial,” and admitted only two documents into evidence—the 2012 Danish court orders vesting custody of Mia in the father.

The court declined to resolve the mother's claim that the father had recently sent her an e-mail containing death threats, saying it lacked the technical expertise to determine the e-mail's authenticity. It also denied her requests to testify, to call witnesses (lay and expert) to support her abuse claims, and for a psychological evaluation of Mia.

Additionally, the court would not allow the mother to cross-examine the father, and would not consider her supporting documents and exhibits concerning the e-mail, her abuse allegations, the Danish custody proceedings, and a European Union investigation concerning the alleged failure of Danish courts to take allegations of domestic violence seriously when brought by a non-Danish parent.

After interviewing Mia in-camera, the court concluded she did not fear the father or flee from him. Saying that Denmark was a “civilized country” whose courts were capable of dealing with the mother's claims, it granted the father's Hague petition on Mar. 6, 2014, and he returned to Denmark with Mia.

The mother appealed, arguing that the court erred in granting the Hague petition without an evidentiary hearing on her domestic violence and abuse claims, including the death threats.

‘Puzzling’ Decision

Justice Richard M. Aronson cited Chafin v. Chafin, 133 S.Ct. 1017, 39 FLR 1190 (2013), in explaining that Mia's return to Denmark did not moot the appeal or further proceedings below. That being said, he agreed with the mother that a full evidentiary hearing was required and that the return order must be reversed.

The trial court's decision not to address the death threat issue “is puzzling,” Aronson said, pointing out that, “[a]s Judge Posner has observed, ‘the judge can't just throw up his hands [ ] because he can't figure out what is true and what is false'.” (Khan v. Fatima, 680 F.3d 781, 785, 38 FLR 1321 (7th Cir. 2012) (reversing Hague return order for evidentiary hearing).

Patently Material

“Death threats are patently material to the grave risk analysis, and therefore the trial court erred by leaving the matter undecided,” Aronson said, citing Van De Sande v. Van De Sande, 431 F.3d 567, 32 FLR 1076 (7th Cir. 2005).

Noting that the Danish custody orders predate the 2013 e-mail, he ruled that due process required the court to decide the material issue of the alleged death threats and afford the mother the opportunity to offer evidence on that issue. (The father claims that she falsified the e-mail and is being criminally prosecuted in Denmark for doing so.)

There are also “manifest flaws in simply leaving” the issue for Danish authorities “potentially to address,” Aronson added, saying that a Hague court must consider such issues in deciding whether to impose undertakings in the return order and must itself “ascertain and protect the child's safety.” See Khan; Danaipour.

“As with the alleged death threat e-mail, mother is similarly entitled on remand to an evidentiary hearing on her other claims” regarding the father's alleged domestic violence, he continued.

Alacrity Doesn't Always Control

Aronson recognized that both the Convention and its federal implementing legislation, the International Child Abduction Remedies Act, authorize courts to forego a plenary evidentiary hearing “[w]here circumstances warrant” (West v. Dobrev, 735 F.3d 921, 929, 40 FLR 1005 (10th Cir. 2013)), and that the Convention directs courts to resolve proceedings expeditiously.

“But alacrity in Hague proceedings is not an objective for its own sake. Rather, an overriding issue remains the child's safety,” he asserted, saying that here, “we have no confidence mother received a fair or adequate hearing.”

The “trial court could not simply ignore to decline to hear mother's evidence or proposed testimony and deem the matter fully heard and fair resolved,” Aronson said, observing that “[i]t is no surprise the trial court reached the conclusions it did based on admitting only father's exhibits [the custody orders] and excluding all of mother's[.]”

‘Unfortunate Irony.’

After preventing the mother from calling witnesses or presenting evidence “the court could not make an informed and fair decision,” he stated, noting that the “unfortunate irony in this case is that mother claimed the Danishcourts failed to afford her a full and full hearing on her claims father abused her and the children.”

Further noting the mother's claim that the Danish courts ignored and never decided her Hague petition (alleging that the father abducted Mia from Germany) and custody petition, he found that the father contests the veracity of this allegation.

Thus, Aronson instructed, on remand the trial court must “determine what was adjudicated in the Danish custody proceedings. [ ] More to the point, the trial court must determine in this case whether the Danish court that awarded the father custody actually heard and adjudicated mother's claim of abuse.”

Noting the father's claim that he was acquitted of one of the abuse charges and that Danish authorities declined to prosecute the others, Aronson tasked the trial court with also determining whether the Hague Convention required it to extend comity or a collateral estoppel effect to the alleged acquittal and decision not to prosecute.

Due Process

He gave two reasons why it must make such findings: “[f]irst, clearly ascertaining what has been decided in Denmark will resolve what mother can litigate in her claim of grave risk,” and will impact whether Denmark is Mia's place of habitual residence in light of the father's alleged abduction of her from Germany.

Secondly, Aronson said, the court must determine what occurred in the Danish proceedings so it can assess the mother's claim under Art. 20 of the Convention that her or Mia's fundamental rights will not be protected there.

Asserting that “due process requires we reverse and remand the matter so mother may have her day in court,” he acknowledged that post-return proceedings in Denmark or the EU may have now “outstripped our discussion,” and directed “careful inquiry” into what has occurred and its collateral estoppel or comity effect, if any.

Justices William F. Rylaarsdam and Eileen C. Moore concurred.

The mother was represented by Merritt McKeon, Laguna Hills, and the father by Stephen B. Ruben and Diana L. Leonida, of Ruben/Huggins, San Francisco.

To contact the reporter on this story: Julianne Tobin Wojay in Washington at jwojay@bna.com.

To contact the editor responsible for this story: David Jackson at djackson@bna.com