French lawyer with expertise in French family law and international law,
an expert in child psychiatry and child psychology, and Dubois. In
addition, I interviewed Marie-Eline and Francois.
After due consideration of all the evidence and the arguments of the
parties, I again find by clear and convincing evidence that there is a
"grave risk" that the return of the children to France would expose them
to "physical or psychological harm or otherwise place [them] in an
intolerable situation." Convention, Art. 13b. Recognizing that the "grave
risk" exception to the Convention is to be construed narrowly, I find
that the extraordinary circumstances of this case require that I apply
the Article 13b exception. I find that any repatriation arrangements,
including even the return of the children in their mother's temporary
custody with financial support by Blondin and French social services,
would expose Marie-Eline and Francois to a "grave risk" of psychological
harm. Accordingly, the petition is denied.
STATEMENT OF THE CASE
A. The Facts
The underlying facts of the case are set forth in my prior decision,
Blondin v. Dubois, 19 F. Supp.2d 123 (S.D.N.Y. 1998), as well as in my
September 14, 1998 order denying petitioner's motion for
reconsideration; those factual findings are hereby adopted and
incorporated in this decision. A brief summary of those facts follows.
Blondin and Dubois, both French citizens, met in 1990 and soon began
living together in France. A daughter, Marie-Eline, was born in 1991.
Throughout the course of their relationship, Blondin repeatedly abused
Dubois, beating her with his hands and a belt, sometimes when she was
holding Marie-Eline. In addition, he often threatened to kill Dubois.
Blondin also beat Marie-Eline frequently and threatened her life as
well; in 1992, Blondin twisted a piece of electrical cord around
Marie-Eline's neck and threatened to kill her. Blondin I, 19 F. Supp.2d
To escape the abuse, Dubois twice left Blondin and moved into different
battered women's shelters with Marie-Eline and Crispin, her son from a
previous relationship. In 1992, Dubois and the children stayed in a
shelter for approximately two weeks, returning home when Blondin came to
get them. Blondin I, 19 F. Supp.2d at 124. In 1993, Dubois and the
children left Blondin again, going to another shelter for battered
women; Dubois and Marie-Eline eventually moved to a different shelter,
where they stayed for approximately eight or nine months. Id. at 125.
At some point in 1993, Blondin commenced a proceeding in the French
courts to obtain custody of Marie-Eline. In December 1993, the
proceedings were resolved when Blondin and Dubois reconciled. The English
translation of an October 7, 1997 order of a French court summarized the
results of the 1993 proceedings as follows: "parental authority [over
Marie-Eline] was granted to both parents jointly, the principal residence
of the child being with the father, and the mother having visitation and
sheltering rights." Blondin I, 19 F. Supp.2d at 125. After the
reconciliation, Dubois and Blondin resumed living together, and a son,
Francois, was born in 1995.
Despite the reconciliation, Blondin continued to beat Dubois in front
of the children. He often threatened to "kill everyone," and once
threatened to throw Francois out of the window. In August 1997, Dubois
left Blondin again, taking the children to the United States. She removed
Marie-Eline and Francois from France without Blondin's knowledge or
consent; indeed, she forged his siguature to obtain passports for the
children. Blondin I, 19 F. Supp.2d at 125. Dubois, Marie-Eline, and
Francois moved in with Dubois' brother, Aureliou Ruyor, his wife, and
their two children in the Bronx.
B. Procedural History
1. The Initial Petition
Within days of discovering that Dubois and the children had left, and
apparently unaware that they had fled to the United States, Blondin
obtained a preliminary order from a French court, directing that the
children not leave the metropolitan area without his permission. Blondin
eventually discovered that Dubois, Marie-Eline, and Francois were living
in the United States, and on June 18, 1998, he filed a petition in this
Court seeking the children's return to France under the Convention.
Following the Convention's mandate to proceed expeditiously, see
Convention, Art. 11 ("The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings for the return
of children."), I conducted hearings in the case on June 19, 22, 24, and
29, 1998. I heard testimony from Blondin, Dubois, and Marie-Eline.
After careful consideration of all of the evidence and the parties'
arguments, I found by clear and convincing evidence that there was a
"grave risk" that returning the children to France would expose them to
physical or psychological harm or otherwise place them in an intolerable
situation. Blondin I, 19 F. Supp.2d at 124. I found that Blondin had
repeatedly physically abused both Dubois and Marie-Eline and had
threatened to kill them on numerous occasions, and thus the children
would face a "grave risk" of physical and psychological harm at the hands
of Blondin if they were repatriated.*fn1 Id. at 124-25. As a result, I
held that Dubois had established a defense to Blondin's claim of wrongful
removal, and I refused to return the children to France, pursuant to
Article 13b of the Convention.
Under these circumstances, I was wary of requiring Dubois and the
children to live in Blondin's home. In an earlier ruling from the bench,
I had rejected Blondin's suggested alternative custodial arrangement
— the temporary placement of the children in France with
Marie-Eline's godmother pending a final custody decision by the French
courts. (6/29/98 Tr. at 115-16). In my memorandum decision, I considered
the further possibility of requiring Blondin to pay for their housing
elsewhere, but he represented that he had "no more money." Blondin I, 19
F. Supp.2d at 128. In light of all of these considerations, I denied
Blondin's petition. Blondin moved for reconsideration of my decision, and
I denied the motion by order dated September 14, 1998.
2. The Second Circuit's Opinion
Blondin appealed the denial of the petition to the Court of Appeals for
the Second Circuit. In a decision dated August 17, 1999, the Second
Circuit concluded that I should have performed "a more complete analysis
of the full panoply of arrangements that might allow the children to be
returned to [France]" to allow the French courts an opportunity to
before invoking the Article 13b "grave risk" exception. The Court of
Appeals explained that
[c]ourts considering Hague Convention petitions should
make every effort to honor simultaneously the
Convention's commitments to the return of wrongfully
abducted children (1) to the return of wrongfully
abducted children to their home countries, for custody
adjudication by courts there . . . and (2) to
safeguarding the children from "grave risk" of harm.
Blondin II, 189 F.3d at 242. The Second Circuit further noted that
because the "whole structure of the Convention depend[s] on the
institutions of the abducted to state generally deferring to the forum of
the child's home state,"
it is important that a court considering an exception
under Article 13(b) take into account any ameliorative
measures (by the parent 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.
Id. at 248. In light of this "clarified standard," the Second Circuit
vacated the judgment below and remanded the case for further proceedings
to consider whether other options were available by which the children
could be safely returned to France.
The Court of Appeals stressed, however, that "whatever the outcome of
those proceedings might be, we do not disturb the District Court's
conclusion that the children should not be released from the United
States into the custody of their father. At most, they could be returned
in the temporary custody of some other person. . . ." Blondin II, 189
F.3d at 242 (emphasis added). The Second Circuit again emphasized that it
"[did] not disturb or modify the District Court's finding that returning
Marie-Eline and Francois to Blondin's custody (either expressly or de
facto) would expose them to a `grave risk' of harm, within the meaning of
Article 13(b)." Id. at 250. In conclusion, the Court of Appeals directed
me to consider on remand "remedies that would allow the children's safety
to be protected pending a final adjudication of custody in France." Id.
3. Proceedings on Remand
I proceeded with dispatch after the Second Circuit's decision,
discussing the case with the parties informally even before the mandate
issued and holding another conference upon receiving the expedited
mandate. (9/10/99 Tr. at 1). In addition, in accordance with the Second
Circuit's advice to "make any appropriate or necessary inquiries of the
government of France," I wrote to the French Ministry of Justice, which
acts as the French Central Authority with regard to the Convention, as
well as the United States Department of State, seeking its assistance.
(See 9/14/99 Court Letter to Agnes Bodard-Hermant, et al.; see also
10/21/99 Court Letter to Agues Bodard-Hermant, et al.).
By letter dated September 22, 1999, Dubois asked the Court to consider
whether Marie-Eline had become so deeply rooted in the United States that
returning her to France would expose her to a grave risk of psychological
harm, arguing that the Second Circuit had left this issue open to
consideration on remand. (See 9/22/99 L. Joy Letter to the Court). In an
order dated October 28, 1999, I rejected the argument to the extent that
respondent was attempting to invoke the "well-settled" exception set
forth in Article 12 of the Convention, which applies only when a parent
delays for more than a year before filing a petition. (See 10/28/99
Order). See also Convention, Art. 12; Blondin II, 189 F.3d at 247-48. I
concluded, however, that the Court of Appeals had not foreclosed the
possibility that such an argument could be made within the context of
Article 13b of the Convention, and accordingly, I allowed Dubois the
opportunity to present evidence on the issue at the scheduled
hearing.*fn2 (See 10/28/99 Order, citing Blondin II, 189 F.3d at
In November 1999, the United States Attorney for the Southern District
of New York, representing the United States Department of State, *fn3
forwarded to me the responses of the French Ministry of Justice. (See
11/24/99 and 12/17/99 W. Schwartz Letters to the Court and enclosures).
The United States later submitted a statement of interest, pursuant to
28 U.S.C. § 517,*fn4 to express its views on the interpretation of
the Convention. (See 12/17/99 Statement of Interest of the United
On December 20, 1999, I conducted an evidentiary hearing at which
counsel for the parties and for the United States were present. The
United States presented Veronique Chauveau, a French attorney and expert
on French and international family law, as a witness. In addition, I
heard testimony from Dr. Albert Solnit, Sterling Professor Emeritus of
Pediatrics and Psychiatry and Senior Research Scientist at the Yale
University Child Study Center, who had examined Marie-Eline and Francois
at the respondent's request. Dubois testified about her family's
relocation to New Jersey and her relatives in France. Finally, I spoke
with Marie-Eline and Francois, on the record but in my chambers, outside
the presence of their mother and the attorneys. At the conclusion of the
hearing, I reserved decision.
C. Additional Findings of Fact
The government's expert witness, Veronique Chauveau, testified
generally about how French custody proceedings operate and about the
social and legal support services available to Dubois and the children
should they be returned to France. In addition, the letters submitted by
the various French authorities in response to my inquiries detailed what
specific social services and legal protections awaited Dubois and the
children should they return to France.
There is pending in France a court order that granted parental
authority over Marie-Eline jointly to Blondin and Dubois, with
Marie-Eline's principal residence being with Blondin. (12/20/99 Tr. at
12-13; Chauveau Aff. ¶ 15). Upon arriving in France, Dubois could
file a request in French family court seeking a modification of the prior
French order to grant her a temporary custody order, fixing the "habitual
residence" of the children with her pending the completion of the
evaluation and the new custody hearing. (12/20/99 Tr. at 12-13; 11/3/99
B. Biondi Letter to J. Penta). The French family judge would appoint a
forensic expert (a child psychiatrist) and a welfare officer to evaluate
the children and Dubois and prepare reports to the court. (12/20/99 Tr.
at 12; Chauveau Aff. ¶ 15). Chauveau estimated that the entire
process of evaluating the children, preparing the reports, conducting a
hearing, and rendering a final custody decision could take from one to
three months, depending on the diligence of Dubois's attorney, the speed
of the forensic expert and the welfare officer, and the willingness of
both parties to participate in the inquiry.*fn5 (Id. at 13-14).
Moreover, Chauveau testified that while French judges "seem to have a
difficulty" understanding the meaning of an undertaking, the French
courts would likely enforce certain undertakings that Blondin might
give, provided that they did not run "contrary to the public policy of
France." (Id. at 18-19). For example, a French judge would likely enforce
an undertaking given by Blondin promising not to enforce the existing
custody order until a French family judge ruled on the custody
modification request. (Id. at 14-15, 19). Blondin has given such an
undertaking, as well as others, including offering to pay for the airfare
to France for Dubois and the children, as well as three weeks in a
"one-star hotel" while Dubois applies for government housing, financial
support, and other social services. (See 1/12/00 V. Wolfman Letter to the
Court & Blondin Undertaking; 10/13/99 V. Wolfman Letter to the Court &
11/3/99 Blondin Hotel Undertaking). Chauveau asserted that these
undertakings would likely be enforced as well, for "when there is an
agreement between parents that is coherent with the best interests of the
child, the judge is always keen to enforce these kind of agreements."
(Tr. at 19-20).
In addition, free legal assistance will be provided to Dubois should
she return to France. The French Ministry of Justice asked the
Seine-Saint-Denis Bar Association in Bobigny, the jurisdiction in which
Dubois resided before moving to the United States, to appoint an attorney
to represent Dubois in the event she chose to file a custody modification
petition. (11/3/99 B. Biondi Letter to J. Penta). In response, the
president of the bar association stated that "the Bar Association will
appoint an attorney specializing in personal law as a legal
representative" for Dubois if she so requests. (11/2/99 C. Gourion Letter
to A. Bodard-Hermant). The appointment of counsel "could occur
immediately if Ms. Dubois were to obtain provisional authorization to
receive legal aid . . . [from] the presiding judge of the court of
competent jurisdiction." (Id.).
Dubois is also eligible to receive social services and housing from the
French government, if she returns to France and applies for such
services. (9/8/99 A. Bodard-Hermant Letter to J. Penta). According to
Chauveau, Dubois would be eligible for the "minimum revenue," a monthly
sum of about 3,000 francs, as well as an "allocation famille locale,
which is an allocation every month for the children." (12/20/99 Tr. at
22). The children's allocation would vary, depending on Blondin's
financial contribution to their support. (Id.). In addition, the French
government could contribute some amount of money towards Dubois's rent,
or she could apply for residence in a shelter. (Id. at 22-24). Dubois
could receive these various social services within two or three weeks of
applying. (Id. at 23).
Finally, the Office of the Public Prosecutor of Bobigny has stated that
it will not criminally prosecute Dubois for the abduction of the
children, the forgery of Blondin's name on the passport documents, or the
use of those forged documents, should Dubois return to France.*fn6
(11/2/99 Public Prosecutor Statement; Tr. at 16). If Dubois does not
return to France with the children, however, the French Ministry of
Justice warns that "it might be forced to take action at the level of
international mutual assistance in criminal matters" to restore Blondin's
parental rights "if no acceptable solution can be found very promptly on
the basis of the Hague Convention." (11/3/99 B. Biondi Letter to J.
Penta). Chauveau understood this to
mean that "we [France] will seek a civil solution as a cooperation based
on the Hague. If we don't have any solution, whatever is the solution,
based on the Hague, then we leave the criminal procedure on. . . . [I]f
there is no solution by the Hague, they will leave the public prosecutor
free." (Tr. at 28).
Chauveau testified that she had discussed the possibility of
extradition with someone at the French Ministry of Justice:
Q: In your opinion, what would happen if Ms. Dubois
did not come back voluntarily to France? What would
happen and what would she face?
A: I believe the public prosecutor would issue an
international warrant. I know. I don't believe, I
Q: For the purpose of what?
[THE COURT]: How do you know that?
A: Because I discussed that with the Ministry of
Justice. I don't know if they are going to do it,
but this is something they are considering.
(Tr. at 24-25; see also Tr. at 26-30).
In other words, if I decline to send the children back under the Hague
Convention and Dubois does not voluntarily return, the French government
may seek to extradite Dubois from the United States to pursue a criminal
prosecution in France.
Dr. Albert J. Solnit*fn7 testified about the psychological impact of
sending the children back to France for custody proceedings and
Marie-Eline's maturity and ability to understand the purpose and meaning
of these proceedings. In addition to testifying, Dr. Solnit prepared a
written report ("Solnit Report") of his interview with Marie-Eline and
Francois. (Resp.Ex. E). Dr. Solnit based his testimony and his report on
interviews with Dubois, Marie-Eline, and Francois,*fn8 as well as my
memorandum decision, the Second Circuit's opinion, the October 28th
order, and the transcript of the June 29, 1998 hearing. I accept the both
the testimony and the written report of Dr. Solnit, and adopt his
findings regarding Marie-Eline and Francois.
Dr. Solnit explained that while living in France, Marie-Eline*fn9 had
suffered from an acute, severe traumatic disorder, caused by Blondin's
physical and verbal
abuse of her and her mother and the problems of living in an abusive
situation. Dr. Solnit identified several manifestations of traumatic
stress disorder in Marie-Eline, as described by Dubois and Marie-Eline
herself; Marie-Eline had difficulty in eating, nightmares, interrupted
sleeping, and fearfulness of being away from her mother. (Solnit Report
at 3). See also Blondin I, 19 F. Supp.2d at 125.
Since leaving France, however, Marie-Eline and Francois have been
living in the "secure environment of their home and extended family" in
the United States and in that safe environment, they are recovering from
the "sustained, repeated traumatic state created in France by their
father's physically and emotionally abusive treatment of their mother and
Marie-Eline." (Solnit Report at 4). Marie-Eline told Dr. Solnit that she
no longer has nightmares or trouble eating or sleeping. (Solnit Report at
5). Dr. Solnit pointed to Marie-Eline's academic marks at school, which
have increased each year she has lived here, as evidence of her
"cognitive recovery." (12/20/99 Tr. at 83-84). He stated that while the
children have significantly recovered from their traumatic disorders,
"[t]hey are not fully recovered yet." (12/20/99 Tr. at 66, 83). In
September 1999, Dubois, Marie-Eline, and Francois moved to Woodbridge, a
suburb in New Jersey, to live with their uncle, Aureliou Ruyor, their
aunt, and their two cousins in a house owned by Ruyor, and Dr. Solnit
noted that the children have flourished in this environment. (See
12/20/99 Tr. at 64-65, 118,; Solnit Report at 5-6). He explained that
Marie-Eline and Francois are "now embedded in an extended family in which
you can predict what will happen, they have a good relationship with
their cousins, with their aunt and their uncle, and [their aunt and
uncle] are extensions of their mother in terms of safety, security, and
nurturing." (12/20/99 Tr. at 73).
In Dr. Solnit's clinical judgment, removing the children from this
secure environment to return them to France would "almost certainly"
trigger a recurrence of the traumatic stress disorder they suffered in
France — i.e., a post-traumatic stress disorder. (Solnit Report at
6). A return to France "would set them back in a very harmful way" in
their recovery from their "severe trauma," for "such a move would undo
the benefit of the psychological and emotional roots they have
established with their mother and her extended family." (Solnit Report at
6-7). Specifically, Dr. Solnit explained that a return to France would
confront the children with certain developmental risks, including "not
feeling safe," "feeling exposed to the traumatizing uncertainty about
where they will live and who will provide them with loving care and
safety," and "having their fate determined by strangers." (Solnit Report
The risk of post-traumatic stress disorder would be present in any
proposed arrangement for returning the children to France, "however
carefully organized." (Solnit Report at 7). If the children were to
return to France and be placed in the custody of a third party, without
any contact with Blondin, they would be exposed to a grave risk of
psychological harm because "the primary trauma would be removing them from
the place where they are beginning to feel safety and trust. . . . [T]he
primary trauma is the removal and the uncertainty and the lack of security
that comes from leaving where they are now and going back to the scene of
their original trauma [France]." (12/20/99 Tr. at 72 & 64-65; Solnit
Report at 7).
Even a return in their mother's temporary custody, with the social and
legal support and protections detailed by Chauveau and the French
Ministry, would not alleviate the risk of post-traumatic stress
disorder, "because the removal from where they are now would open up the
recurrence of the trauma." (12/20/99 Tr. at 66). Dr. Solnit elaborated
on this point:
[THE COURT]: What I understand you to be saying is
that if they have to leave, that in itself would be
A: Yes, because they are now embedded in an extended
family in which you can predict what will happen,
they have a good relationship with their cousins,
with their aunt and their uncle, and they are
extensions of their mother in terms of safety,
security, and nurturing.
(12/20/99 Tr. at 73).
Dr. Solnit further explained that the trauma of removal from this
stable environment would be exacerbated by the uncertainty of what would
happen in France:
[T]he uncertainty, the insecurity of that transition,
the way in which the . . . courts have to march along
to an adult sense of time, would magnify that
insecurity, that feeling of uncertainty of not knowing
where they belonged, who would take care of them, who
could assure them of the safety they now feel.
[THE COURT]: One of the problems is you can't say to
them, you're going to go back just for a month or
three months. Potentially it could be for a longer
period of time.
A: Yes, For Francois that would be forever, because
his sense of time is not yet that developed. And for
Marie-Eline, I think she would not trust that,
because there have been other times, as she
explained to us, where reconciliation was followed
by a continuation of the violence and pain she
(12/20/99 Tr. at 65; see also Solnit Report at 7).