Hague Article 13b

The United States became a party to the Hague Convention on the Civil Aspects of International Child Abduction (the 'Convention') on July 1, 1988. This was the effective date of its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. ' 11601 et seq. The stated objective of this legislation is to protect children from wrongful international removal or retention from their lawful custodians. See Convention, art. 1.

Both the Convention and ICARA ensure litigants that a parent will not be allowed to obtain custody of a child by retaining the child from his or her habitual residence in a jurisdiction where the wrongdoing parent believes she will receive more favorable treatment. See Convention, art. 1; see also 42 U.S.C. ' 11601(a)(2). Thus, all countries that have signed the Hague Convention Treaty are mutually committed to return children wrongfully removed or retained within the meaning of the Convention, unless one of the narrow exceptions applies. 42 U.S.C. ' 11601(a)(4); see also Currier v. Currier, 845 F. Supp. 916, 920 (D.N.H. 1994).

With only 20 years of U.S. case law on the Convention, any new American case ' especially at the federal appellate level ' attracts the attention and interest of 'Hague' lawyers in this country. Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007), handed down on Dec. 28, 2007, is no exception.

The Case

Simcox is significant because it addresses the 'grave risk of harm' defense to a return order found in Article 13b of the Convention.

In Simcox v. Simcox, 499 F. Supp. 2d 946 (N.D. Ohio 2007), the district court ordered the return of children to their father in Mexico, the state of the children's habitual residence. However, because the trial court found the petitioning father was abusive both to the children and their mother, the court conditioned the children's return on certain 'undertakings' fashioned to ameliorate the risk of harm to the children upon their arrival in Mexico.

On appeal, the Sixth Circuit found the undertakings problematic. It addressed the role that undertakings should play where Article 13b is used as a defense to a return. The appellate court reversed and remanded the case 'to allow the court to reconsider what conditions, if any, could ensure the safety of the children during the pendency of custody proceedings.' Simcox, 511 F.3d at 610. It is vital to remember that the Convention has been uniformly construed as granting courts of the country where the children are retained the authority to determine the merits of the retention claim only, not the merits of any underlying custody issues. See Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993); Levesque v. Levesque, 816 F. Supp. 662, 663 (D. Kan. 1993); see also Wanninger v. Wanninger, 850 F. Supp. 78, 80 (D. Mass. 1991) (holding that the Hague Convention authorizes federal district courts to determine merits of a claim under the Convention but does not allow courts to consider the merits of the underlying custody dispute).

In Simcox, the Sixth Circuit created three categories of Article 13b cases, in an effort to aid a trial court's deliberation over whether children should be returned, and if so, what, if any, undertakings should be implemented. Simcox, 511 F.3d at 607-08.

In a Hague case, the petitioner requests the court to return the children to their country of 'habitual residence,' if the court finds they were wrongfully removed to, or retained in, another country that is a signatory of the Hague Convention. If such wrongful removal or retention is found, the court 'shall' order the return of the children. However, under Article 13b, the court is not required to return the children if the responding party 'establishes that ' there is a grave risk that [the children's] return would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation.'

Joseph and Claire Simcox ' both United States citizens ' married in 1991 in London, UK. Throughout their marriage, they traveled extensively and moved frequently. Claire maintained the family had no established home and lived a nomadic and isolated existence. The couple had five children, the youngest of whom was born in 2002 while the family resided in Mexico.

Joseph and Claire painted starkly different pictures of how the family lived in Mexico. Joseph maintained that the children lived blissful lives, filled with marvelous cultural and educational opportunities as well as exotic travel. Claire claimed her children's lives involved hard labor, severe physical punishment, and exposure to their father's humiliation and violent behavior. Evidence at trial showed that Joseph would call Claire vile names in the presence of the children. He was also physically abusive: He pulled Claire's hair, shoved his finger in her neck, and banged Claire's head against the passenger window of their car while traveling. The children were also physically abused. One child told of belt whipping, spanking, hitting, and pulling of ears and hair. The children had also witnessed their father hit their mother on numerous occasions. Simcox, 511 F.3d at 598-99.

The district judge expressed frustration at the lack of credibility that both parents had in their testimony. Claire admitted she never sought medical attention for alleged injuries or those of her children. Further, she never reported incidents of abuse to any government officials until shortly before she left Mexico. There was also evidence that Claire may have left Mexico for the United States not because of her husband's abuse, but to be near a man with whom she had become romantically involved. Simcox, 511 F.3d at 598-99.

In any event, on the night of Jan. 31, 2006, Claire drove the four younger of her five children to the Texas border and entered the United States. On Jan. 12, 2007, Joseph filed his Hague petition in the United States District Court for the Northern District of Ohio seeking the return of the children to Mexico.

The district court concluded that two Simcox children (the youngest two) had been wrongfully removed from their country of habitual residence ' Mexico ' within the meaning of the Hague Convention. This finding shifted the burden to Claire to prove one of the defenses to a return order permitted under Article 13b of the Hague Convention.

The Central Question

The central question of the case was whether, under Article 13b, the trial court was bound to return the children 'if ' there is a grave risk that [their] return would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation.' It is the burden of the respondent to show 'by clear and convincing evidence' that an exception applies. 42 U.S.C. ' 11603(e)(2)(A). Simcox, 511 F.3d at 600.

The Trial Court Ruling

The trial court found that while Claire had shown evidence of a serious risk of harm, it could 'only consider that evidence 'directly establishing the existence of a grave risk that would expose the [children] to physical or emotional harm or otherwise place [them] in an intolerable situation.' Simcox, 499 F. Supp. 2d at 954. The district court concluded Claire had not met her burden to pass the 'grave risk' threshold. Id.

The trial court, finding Claire had failed to carry her burden to establish a valid defense to the return of the children, ordered their return to Mexico for a custody determination by the appropriate court in that country. However, because of a concern for the safety of the children, the lower court made the return subject to undertakings:

• Upon their return to Mexico, the two youngest children were required to remain in Claire's custody in the family residence until the Mexican court determined whether a protective order was appropriate.
• Joseph was ordered to have no contact with Claire until the Mexican court determined access and visitation rights.
• Upon return to Mexico, Claire was required to provide the oldest child (who remained in Mexico) reasonable access to her siblings. Simcox, 499 F. Supp. 2d at 954.

Claire appealed to the Sixth Circuit, which granted a stay pending an expedited hearing.

In discussing the Article 13b defense, the appellate court noted that many courts and commentators have supported the use of undertakings in order to accommodate the children's best interests, as well as the jurisdictional interest of the courts in the country of the children's habitual residence. However, the court noted that the same courts have viewed undertakings involving an abusive parent with skepticism. Simcox, 511 F.3d at 604-07.

The Sixth Circuit Ruling: Three Categories

The Sixth Circuit observed that undertakings are not appropriate in all Article 13b cases. The trial court must be aware of the limits of its authority and focus on the particular circumstances in question in order to determine that the undertakings will be sufficient to protect them. As an analytical aid, the court held that in Hague cases dealing with an Article 13b defense, abuse can be placed in three categories:

First Category

The first category includes cases in which the abuse of the children is relatively minor. It is not likely that the risk of harm caused by the children's return will rise to the level of a 'grave risk' or place the children in an intolerable situation in such cases. In this category, undertakings fashioned to protect the children are not relevant, and, since the 'threshold' has not been met, the court has no authority to refuse to return the children ' undertakings or not.

Second Category

The second category includes cases in which the risk of harm to the children is clearly grave. Such cases would involve credible evidence of sexual abuse, other psychological or physical abuse, death threats, or serious neglect. The creation of undertakings in this category of grave risk will likely be ineffective to ameliorate the risk that the children would be harmed, given the problems of enforcement and the likelihood that a habitually abusive parent would not be deterred by orders from other courts. Consequently, unless the trial court is confident that the children will 'in fact,' and not just in 'legal theory,' be protected if returned to the abusing parent's custody, the petition to return should not be granted.

Third Category

The third category would include those cases that fall somewhere between the two extreme categories. These cases would involve abuse that is substantially greater than minor 'but is less obviously intolerable.' In such cases, whether the return would subject the children to a grave risk of harm, or otherwise place them in an intolerable situation, would be a fact-intensive question dependent upon many factors. Those factors would include the nature of the abuse and its frequency, the likelihood of recurrence and 'whether there are any enforceable undertakings that would sufficiently avoid the risk of harm to the [children] by [their] return.' Simcox, 511 F.3d at 607-08.

Undertakings

Undertakings, said the court, should only be adopted where the trial court is satisfied that the parties are likely to comply. Where a petitioner has a history of ignoring court orders, it would be inappropriate to fashion undertakings. 'Where a grave risk of harm has been established, ordering return with feckless undertakings is worse than not ordering it at all.' Id. at 608.

The court decided that the Simcox case fit into the third category. Claire had met her burden of reaching the grave risk of harm threshold. The abuse was both psychological and physical, and the incidents were not sporadic or isolated. Further, the children were suffering from post-traumatic stress disorder, and the psychological problems could be exacerbated if the children were returned to Mexico and exposed to the father. Id. at 608-09.

With respect to the undertaking put in place by the trial court, the Sixth Circuit found two problems. First, Claire had been ordered to return to Mexico with the children. Arguably, Claire could defeat the return order by simply refusing to travel with the children to Mexico. Since the condition that the children remain in Claire's custody would be unfulfilled, the children would not be returned. The court had no authority to require Claire to return to Mexico.

The second problem was the lack of enforceability of the undertakings. By the trial court's own findings, Joseph had shown 'an arrogance, a need to be in control and a tendency to act out violently.' These traits made it doubtful that Joseph would be willing to abide by the undertakings. Also raising questions were his threats to have Claire arrested upon her return to Mexico. Id. at 609.

On remand, the Sixth Circuit directed the district court to determine what undertakings, if any, would be sufficient to ensure the safety of the children in Mexico, pending the outcome of custody proceedings there. The appellate court required that a subsequent return order should be as explicit as the undertakings that should apply in the event Claire declined to return to Mexico with her children. One suggestion was for Joseph to surrender his United States passport and remain in the States for a period of time. If the lower court determined that no such arrangement is possible, and that the only way the children could be protected was to place them with their mother, then it may be necessary to deny the petition. The court reiterated 'that the burden for establishing the appropriateness and efficacy of any proposed undertakings rests with the petitioner.' Id. at 611.

Conclusion

Simcox will prove invaluable to lawyers and judges handling Hague cases. Attorneys representing the respondent will have the opportunity at a hearing to categorize their cases and fashion appropriate undertakings if the court rejects the Article 13b defense and enters a return order. Likewise, courts now have appropriate and practical standards to follow if undertakings are deemed necessary when returning children to their country of habitual residency. As a result, Simcox represents a new brick to add to the increasing body of law under the Hague Convention.

William R. Wright, a member of this newsletter's Board of Editors, practices with Wright Law Firm, P.A. in Jackson, MS, where he limits his practice to all areas Family Law with emphases on complex financial issues and jurisdictional disputes. He is a Fellow in the American Academy of Matrimonial Lawyers and has served two terms as Chairman of the Family Law Section of the Mississippi Bar.

The United States became a party to the Hague Convention on the Civil Aspects of International Child Abduction (the 'Convention') on July 1, 1988. This was the effective date of its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. ' 11601 et seq. The stated objective of this legislation is to protect children from wrongful international removal or retention from their lawful custodians. See Convention, art. 1.

Both the Convention and ICARA ensure litigants that a parent will not be allowed to obtain custody of a child by retaining the child from his or her habitual residence in a jurisdiction where the wrongdoing parent believes she will receive more favorable treatment. See Convention, art. 1; see also 42 U.S.C. ' 11601(a)(2). Thus, all countries that have signed the Hague Convention Treaty are mutually committed to return children wrongfully removed or retained within the meaning of the Convention, unless one of the narrow exceptions applies. 42 U.S.C. ' 11601(a)(4); see also Currier v. Currier , 845 F. Supp. 916, 920 (D.N.H. 1994).

With only 20 years of U.S. case law on the Convention, any new American case ' especially at the federal appellate level ' attracts the attention and interest of 'Hague' lawyers in this country. Simcox v. Simcox , 511 F.3d 594 (6th Cir. 2007), handed down on Dec. 28, 2007, is no exception.

The Case

Simcox is significant because it addresses the 'grave risk of harm' defense to a return order found in Article 13b of the Convention.

In Simcox v. Simcox , 499 F. Supp. 2d 946 (N.D. Ohio 2007), the district court ordered the return of children to their father in Mexico, the state of the children's habitual residence. However, because the trial court found the petitioning father was abusive both to the children and their mother, the court conditioned the children's return on certain 'undertakings' fashioned to ameliorate the risk of harm to the children upon their arrival in Mexico.

On appeal, the Sixth Circuit found the undertakings problematic. It addressed the role that undertakings should play where Article 13b is used as a defense to a return. The appellate court reversed and remanded the case 'to allow the court to reconsider what conditions, if any, could ensure the safety of the children during the pendency of custody proceedings.' Simcox, 511 F.3d at 610. It is vital to remember that the Convention has been uniformly construed as granting courts of the country where the children are retained the authority to determine the merits of the retention claim only, not the merits of any underlying custody issues. See Friedrich v. Friedrich , 983 F.2d 1396, 1400 (6th Cir. 1993); Levesque v. Levesque , 816 F. Supp. 662, 663 (D. Kan. 1993); see also Wanninger v. Wanninger , 850 F. Supp. 78, 80 (D. Mass. 1991) (holding that the Hague Convention authorizes federal district courts to determine merits of a claim under the Convention but does not allow courts to consider the merits of the underlying custody dispute).

In Simcox, the Sixth Circuit created three categories of Article 13b cases, in an effort to aid a trial court's deliberation over whether children should be returned, and if so, what, if any, undertakings should be implemented. Simcox, 511 F.3d at 607-08.

In a Hague case, the petitioner requests the court to return the children to their country of 'habitual residence,' if the court finds they were wrongfully removed to, or retained in, another country that is a signatory of the Hague Convention. If such wrongful removal or retention is found, the court 'shall' order the return of the children. However, under Article 13b, the court is not required to return the children if the responding party 'establishes that ' there is a grave risk that [the children's] return would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation.'

Joseph and Claire Simcox ' both United States citizens ' married in 1991 in London, UK. Throughout their marriage, they traveled extensively and moved frequently. Claire maintained the family had no established home and lived a nomadic and isolated existence. The couple had five children, the youngest of whom was born in 2002 while the family resided in Mexico.

Joseph and Claire painted starkly different pictures of how the family lived in Mexico. Joseph maintained that the children lived blissful lives, filled with marvelous cultural and educational opportunities as well as exotic travel. Claire claimed her children's lives involved hard labor, severe physical punishment, and exposure to their father's humiliation and violent behavior. Evidence at trial showed that Joseph would call Claire vile names in the presence of the children. He was also physically abusive: He pulled Claire's hair, shoved his finger in her neck, and banged Claire's head against the passenger window of their car while traveling. The children were also physically abused. One child told of belt whipping, spanking, hitting, and pulling of ears and hair. The children had also witnessed their father hit their mother on numerous occasions. Simcox, 511 F.3d at 598-99.

The district judge expressed frustration at the lack of credibility that both parents had in their testimony. Claire admitted she never sought medical attention for alleged injuries or those of her children. Further, she never reported incidents of abuse to any government officials until shortly before she left Mexico. There was also evidence that Claire may have left Mexico for the United States not because of her husband's abuse, but to be near a man with whom she had become romantically involved. Simcox, 511 F.3d at 598-99.

In any event, on the night of Jan. 31, 2006, Claire drove the four younger of her five children to the Texas border and entered the United States. On Jan. 12, 2007, Joseph filed his Hague petition in the United States District Court for the Northern District of Ohio seeking the return of the children to Mexico.

The district court concluded that two Simcox children (the youngest two) had been wrongfully removed from their country of habitual residence ' Mexico ' within the meaning of the Hague Convention. This finding shifted the burden to Claire to prove one of the defenses to a return order permitted under Article 13b of the Hague Convention.

The Central Question

The central question of the case was whether, under Article 13b, the trial court was bound to return the children 'if ' there is a grave risk that [their] return would expose [them] to physical or psychological harm or otherwise place [them] in an intolerable situation.' It is the burden of the respondent to show 'by clear and convincing evidence' that an exception applies. 42 U.S.C. ' 11603(e)(2)(A). Simcox, 511 F.3d at 600.

The Trial Court Ruling

The trial court found that while Claire had shown evidence of a serious risk of harm, it could 'only consider that evidence 'directly establishing the existence of a grave risk that would expose the [children] to physical or emotional harm or otherwise place [them] in an intolerable situation.' Simcox, 499 F. Supp. 2d at 954. The district court concluded Claire had not met her burden to pass the 'grave risk' threshold. Id.

The trial court, finding Claire had failed to carry her burden to establish a valid defense to the return of the children, ordered their return to Mexico for a custody determination by the appropriate court in that country. However, because of a concern for the safety of the children, the lower court made the return subject to undertakings:

• Upon their return to Mexico, the two youngest children were required to remain in Claire's custody in the family residence until the Mexican court determined whether a protective order was appropriate.
• Joseph was ordered to have no contact with Claire until the Mexican court determined access and visitation rights.
• Upon return to Mexico, Claire was required to provide the oldest child (who remained in Mexico) reasonable access to her siblings. Simcox, 499 F. Supp. 2d at 954.

Claire appealed to the Sixth Circuit, which granted a stay pending an expedited hearing.

In discussing the Article 13b defense, the appellate court noted that many courts and commentators have supported the use of undertakings in order to accommodate the children's best interests, as well as the jurisdictional interest of the courts in the country of the children's habitual residence. However, the court noted that the same courts have viewed undertakings involving an abusive parent with skepticism. Simcox, 511 F.3d at 604-07.

The Sixth Circuit Ruling: Three Categories

The Sixth Circuit observed that undertakings are not appropriate in all Article 13b cases. The trial court must be aware of the limits of its authority and focus on the particular circumstances in question in order to determine that the undertakings will be sufficient to protect them. As an analytical aid, the court held that in Hague cases dealing with an Article 13b defense, abuse can be placed in three categories:

First Category

The first category includes cases in which the abuse of the children is relatively minor. It is not likely that the risk of harm caused by the children's return will rise to the level of a 'grave risk' or place the children in an intolerable situation in such cases. In this category, undertakings fashioned to protect the children are not relevant, and, since the 'threshold' has not been met, the court has no authority to refuse to return the children ' undertakings or not.

Second Category

The second category includes cases in which the risk of harm to the children is clearly grave. Such cases would involve credible evidence of sexual abuse, other psychological or physical abuse, death threats, or serious neglect. The creation of undertakings in this category of grave risk will likely be ineffective to ameliorate the risk that the children would be harmed, given the problems of enforcement and the likelihood that a habitually abusive parent would not be deterred by orders from other courts. Consequently, unless the trial court is confident that the children will 'in fact,' and not just in 'legal theory,' be protected if returned to the abusing parent's custody, the petition to return should not be granted.

Third Category

The third category would include those cases that fall somewhere between the two extreme categories. These cases would involve abuse that is substantially greater than minor 'but is less obviously intolerable.' In such cases, whether the return would subject the children to a grave risk of harm, or otherwise place them in an intolerable situation, would be a fact-intensive question dependent upon many factors. Those factors would include the nature of the abuse and its frequency, the likelihood of recurrence and 'whether there are any enforceable undertakings that would sufficiently avoid the risk of harm to the [children] by [their] return.' Simcox, 511 F.3d at 607-08.

Undertakings

Undertakings, said the court, should only be adopted where the trial court is satisfied that the parties are likely to comply. Where a petitioner has a history of ignoring court orders, it would be inappropriate to fashion undertakings. 'Where a grave risk of harm has been established, ordering return with feckless undertakings is worse than not ordering it at all.' Id. at 608.

The court decided that the Simcox case fit into the third category. Claire had met her burden of reaching the grave risk of harm threshold. The abuse was both psychological and physical, and the incidents were not sporadic or isolated. Further, the children were suffering from post-traumatic stress disorder, and the psychological problems could be exacerbated if the children were returned to Mexico and exposed to the father. Id. at 608-09.

With respect to the undertaking put in place by the trial court, the Sixth Circuit found two problems. First, Claire had been ordered to return to Mexico with the children. Arguably, Claire could defeat the return order by simply refusing to travel with the children to Mexico. Since the condition that the children remain in Claire's custody would be unfulfilled, the children would not be returned. The court had no authority to require Claire to return to Mexico.

The second problem was the lack of enforceability of the undertakings. By the trial court's own findings, Joseph had shown 'an arrogance, a need to be in control and a tendency to act out violently.' These traits made it doubtful that Joseph would be willing to abide by the undertakings. Also raising questions were his threats to have Claire arrested upon her return to Mexico. Id. at 609.

On remand, the Sixth Circuit directed the district court to determine what undertakings, if any, would be sufficient to ensure the safety of the children in Mexico, pending the outcome of custody proceedings there. The appellate court required that a subsequent return order should be as explicit as the undertakings that should apply in the event Claire declined to return to Mexico with her children. One suggestion was for Joseph to surrender his United States passport and remain in the States for a period of time. If the lower court determined that no such arrangement is possible, and that the only way the children could be protected was to place them with their mother, then it may be necessary to deny the petition. The court reiterated 'that the burden for establishing the appropriateness and efficacy of any proposed undertakings rests with the petitioner.' Id. at 611.

Conclusion

Simcox will prove invaluable to lawyers and judges handling Hague cases. Attorneys representing the respondent will have the opportunity at a hearing to categorize their cases and fashion appropriate undertakings if the court rejects the Article 13b defense and enters a return order. Likewise, courts now have appropriate and practical standards to follow if undertakings are deemed necessary when returning children to their country of habitual residency. As a result, Simcox represents a new brick to add to the increasing body of law under the Hague Convention.

William R. Wright, a member of this newsletter's Board of Editors, practices with Wright Law Firm, P.A. in Jackson, MS, where he limits his practice to all areas Family Law with emphases on complex financial issues and jurisdictional disputes. He is a Fellow in the American Academy of Matrimonial Lawyers and has served two terms as Chairman of the Family Law Section of the Mississippi Bar.