UNITED STATES - FEDERAL JURISDICTION
United States Court of Appeals for the Sixth Circuit
Rogers, Sutton and Cook, Circuit Judges
UNITED STATES OF AMERICA
5 December 2016
Grave Risk - Art. 13(1)(b)
Appeal dismissed, return ordered
42 U.S.C. § 11601; the International Child Abduction Remedies Act; Article 335, Turkish Civil Code; Article 31, 1969 Vienna Convention on the Law of Treaties (reference to an articulation of customary international law).
Pliego v. Hayes, 86 F. Supp. 3d 678; Friedrich v. Friedrich, 78 F.3d 1060; Mendez-Lynch v. Mendez-Lynch, 220 F. Supp. 2d. 1347; Mora v. New York, 524 F.3d 183; Aquamar, S.A. v. Del Monte Fresh Produce NA., Inc., 179 F.3d 1279; Kreimerman v. Casa Veerkamp, SA. de C. V , 22 F.3d 634; Lozano v. Montoya Alvarez 134 S. Ct. 1224; Abbott v. Abbott 560 U.S. 1; Gsponer v. Johnstone, 12 Family Law Reports 755, (Family Court of Australia 1988); Jabbaz v. Mouammar, 226 Dominion Law Reports 4th 494 (Court of Appeal for Ontario, Canada); LPQ v. LYW,  Hong Kong Court of First Instance 2324; Damiano v. Damiano,  New Zealand Family Law Reports 548; Q., Petitioner,  Scots Law Times 243; Director-General, Department of Families,Youth and Community Care of Queensland v. Hobbs Julie (unreported, Family Court ofAustralia, Lindenmayer, J., 24 Sept. 1999); State Central Authority of Victoria v. Ardito, (unreported, Family Cort of Australia, Joske, J., 29 Oct. 1997); KG v. CB & others, 2012 (4) 8 South African Law Reports 136; Laing v. Central Authority, ( 1996) 21 Family Law Reports 24 (Family Court of Australia); Sabbithi v. Al Saleh, 605 F. Supp. 2d 122; Gonzalez Paredes v. Vila, 479 F. Supp. 2d 187; Hollis v. O'Driscoll, 739 F.3d 108; West v. Dobrev, 735 F.3d 921.
1 child wrongfully removed at 4 years – National of Spain and the United States of America – Married parents – Father national of Spain – Mother national of United States of America – The mother and father had joint custody – Child lived in Turkey until April 2014 (first removal) and April 2015 (second removal) – Application for return filed with the courts of the United States of America (federal jurisdiction) – Return ordered – Main issue(s): Art. 13(1)(b) grave risk exception to return – an “intolerable situation” can include circumstances where there is conclusive evidence that courts of the State of habitual residence are practically or legally unable to adjudicate custody
The case concerns a child born in 2011 to a Spanish father and an American Mother. The father was working as a diplomat in Turkey at the time of the wrongful removal. In April 2014, the mother traveled to Kentucky, United States with the child and made a unilateral decision not to return. The father filed a return application with the District Court for the Western District of Kentucky (the District Court). The District Court ordered the child’s returned to Turkey in January 2015, finding that the evidence of alleged physical or psychological harm submitted in support of the mother’s argument that return should be refused was insufficiently “clear and convincing” (See INCADAT Ref HC/E/US 1385). This decision was not appealed.
Shortly thereafter, the mother returned to Turkey and obtained an exit ban for the child and a temporary custody order from a Turkish court. The father filed a motion in Turkish court to dismiss the mother’s temporary custody order on grounds of his diplomatic immunity under Article 31 of the 1961 Vienna Convention on Diplomatic Relations. The temporary custody order was quashed and the father attempted to reclaim his child, who had by then disappeared with the mother. She left Turkey for Albania by boat, and traveled to the United States in April 2015.
In June 2015, the father filed an application for return before the same District Court for the second time. Pending its final decision, the District Court granted him temporary custody within Kentucky or Tennessee. The father took steps to waive his diplomatic immunity in Turkey, in order to enable the Turkish courts to adjudicate custody upon the child’s return. His diplomatic immunity was expressly waived by the Spanish Embassy for the determination of custody only, and not for any related civil or criminal matters.
The mother argued that custody could not be properly adjudicated nor the child protected from abuse in Turkey due to the father’s diplomatic status, and that the father had undue influence with the Turkish authorities. She asserted that this amounted to an “intolerable situation” under Article 13(1)(b) of the 1980 Hague Child Abduction Convention, and that return should therefore be refused. The District Court did not consider these arguments to be persuasive, accepted the father’s explanation that evidence of bruises on the child’s body submitted by the mother were actually mosquito bites, and ordered the child’s return for the second time.
The ruling of the District Court was upheld and return ordered. There was insufficient evidence to support the mother's claim of a grave risk of placing the child in an "intolerable situation" upon return.
The matter to be determined was whether the child faced an “intolerable situation” upon return, given that the mother relied on this language of Article 13(1)(b) instead of there being any “physical or psychological harm”. The mother argued that the Turkish authorities would be unable to property adjudicate custody or protect the child upon return due to the father’s diplomatic immunity and his “undue influence”, coupled with evidence of previous abuse. Her appeal was dismissed and the District Court’s ruling affirmed.
The Circuit Court referred to the rules on treaty interpretation under customary international law (as articulated by Article 31 of the 1969 Vienna Convention on the Law of Treaties) to conclude that an “intolerable situation” can include circumstances where courts of the State of habitual residence are practically or legally unable to adjudicate custody. This interpretation was supported by the text of the 1980 Hague Child Abduction Convention, its object and purpose, and subsequent practice of Contracting Parties (including case law from a number of other jurisdictions).
However, there was no clear error in the lower court’s finding that the father’s diplomatic immunity had been waived to the extent necessary for custody to be determined, notwithstanding his continued immunity from any related proceedings (including prosecution for abuse). Any limitations in the Turkish courts’ ability to determine custody had rightly been found to fall short of amounting to an “intolerable situation”. In addition, the mother had failed to prove that there had been corruption or undue influence over the Turkish authorities.
The mother had argued that an “intolerable situation” would arise from the father’s alleged abuse in combination with his diplomatic immunity, whereas the District Court had considered the allegations of abuse under the “physical or psychological harm” prong of Article 13(1)(b). Nevertheless, the evidence presented by the mother was insufficient to support her claim. The District Court had not erred in finding that what the mother claimed were bruises on the child’s body were actually mosquito bites, and that the Turkish courts would be able to respond to any abuse by issuing a custody order in her favour.