11th Circuit Holds Once Respondent Shows Grave Risk of Harm Burden Shifts to Petitioner to Prove Undertakings Will Alleviate Risk

In Baran v Beaty, --- F.3d ----, 2008 WL 1991092 (11th Cir.(Ala.)) from October 2001 through August 2006, Gareth Baran, an Australian national, lived with Susan Beaty, a United States citizen, at their home in Australia. On March 11, 2006, Beaty gave birth to their son, Samuel, who was the subject of this petition. In October 2001, Baran sustained debilitating injuries in an automobile accident, rendering him unable to work or care for himself for some time thereafter. Beaty, a registered nurse, tended Baran and worked to support the household financially. After his accident, Baran became depressed and began drinking heavily, becoming intoxicated on an almost daily basis. It was not uncommon for Baran to drive while intoxicated or to pass out after an allday drinking binge. When drunk, Baran was violent and unstable. He berated Beaty and intimidated her physically. On occasion, he was physically abusive towards her. On one such occasion Baran slapped Beaty so hard she fell to the ground. Another time, he pushed her in the presence of his daughter, frightening and upsetting the child. On a separate occasion, while Beaty was pregnant with Samuel, Baran pinned her between a door and the wall, pushing on the door in a manner that applied intense pressure to her abdomen. On other occasions, Baran hurled furniture at Beaty and smashed the door of the couple's microwave oven in a fit of anger. After Samuel was born, Baran's alcohol abuse and anger intensified. Baran began drinking all day every day, and participated only minimally in Samuel's care and supervision. Although there were times when Baran would assist in caring for Samuel, such occasions were isolated and infrequent. Baran did not temper his abusive conduct when Samuel was present. One night when Samuel was less than a week old, Baran became intoxicated and decided he wanted to show his drinking companions "how big Sam's balls were." He took Samuel, undressed him, and carried him balanced on one hand into the night air before stumbling into a table, sending glassware flying as he did so. On July 13, 2006, Baran subjected Beaty to a six-hour, expletive-laden barrage of verbal abuse and threats while she held Samuel in her arms. On that occasion, Baran screamed to Beaty he hated her, she was never going to see Samuel or her family again, and he was going to "bash her face in." To punctuate the threat, Baran repeatedly swung a portable telephone at her head, causing Beaty to fear for her life. All the while, Beaty held Samuel and attempted to use her body to shield him. Samuel remained very quiet, but he cried out when Baran tore him from Beaty's arms and deposited him on a couch unsupervised. Despite these incidents of endangerment, there was no evidence Baran had ever beaten or otherwise physically harmed Samuel. At various times Baran told Beaty in pointed terms she had "tricked" and "trapped" him with the pregnancy, he did not want another child, Beaty should not blame him if anything happened to Samuel, and she should have had an abortion. Baran informed Beaty when the child grew older, he would tell Samuel he did not want him. On at least two occasions, in the context of disagreements concerning his family or financial matters, Baran told Beaty to return to the United States, admonishing her to take Samuel with her because Baran wanted his freedom. Based on this course of conduct, Beaty came to fear for her life and Samuel's life if they remained in Australia with Baran. Beaty felt isolated and believed none of Baran's family could provide any kind of support or intervention necessary to protect her and Samuel from Baran's explosive outbursts. Beaty never went to the Australian police or judicial system for help because she firmly believed those institutions would be unable to protect her. She never sought legal custody of Samuel from any Australian tribunal because she believed no one in Australia was capable of helping or protecting her or Samuel. On August 20 Baran came home from an errand to find a note in Beaty's handwriting reading, "Hey Babe, Went for a walk be back later. Susie & Boo Boo." ("Boo Boo" was Beaty's pet name for Samuel.) Beaty and Samuel went to the United States. Since arriving in the United States, Beaty and Samuel lived with Beaty's parents in Alabama. Beaty was adamant that she would never return to Australia under any circumstances because she feared Baran would harm her if she did. Baran has had no face-to-face contact with Beaty or Samuel since they left Australia, although he and Beaty had numerous telephone conversations. On September 21, 2006, Baran submitted to the Australian Central Authority an "Application for the Return of a Child," pursuant to the Hague Convention. The application stated Beaty had removed Samuel to the United States without Baran's consent, and requested that Samuel be returned immediately. Under the heading "proposed arrangements for return of the child," the application read: The child should be returned forthwith to me at the family home in Altona, Victoria, Australia. I would like the mother to return with the child. As I am unemployed, I am unable to cover the costs associated with their travel. I am willing to meet the child at the Melbourne Airport upon arrival. If the [mother] does not return I am able to look after the said child alone. In his petition, Baran did not propose any alternative arrangements for Samuel's care. On February 16, 2007, Baran filed a petition in federal district court, seeking Samuel's return. The court held an evidentiary hearing March 22, 2007, at which Beaty testified in person. Baran appeared by counsel. At the hearing, Beaty introduced as evidence a May 1997 affidavit Baran's ex-wife had filed in Australian court during custody proceedings regarding Baran's older children. In the affidavit, the ex-wife averred Baran had slapped her, thrown her against the wall, kicked her in the abdomen while wearing heavy work boots, and thrown furniture about the home during their relationship. Beaty also introduced transcripts of phone conversations between herself and Baran she had secretly recorded. Baran did not provide any testimony at the hearing, relying solely on the affidavit attached to his original petition, in which he denied having physically harmed Beaty during his relationship with her.In an opinion dated March 28, 2007, the district court found although Beaty had wrongfully removed Samuel from the country without Baran's consent, Samuel would face a grave risk of harm were he to be returned to Australia. Noting Baran had not suggested conditions of return that would reduce or eliminate the risks Samuel faced on return, the court denied the petition. The Eleventh Circuit Court of Appeals affirmed. Beaty contended on appeal that Samuel would face a grave risk of harm were he to be returned to Australia because of Baran's violence and drunkenness. Baran challenged the district court's conclusion, contending that his drunkenness and temper were not the sort of grave risks to which Article 13(b) is directed. He contended that to establish grave risk, Beaty was required to show Samuel had been mistreated, not that she herself had been verbally or physically abused. Although there was no evidence to suggest Baran intentionally harmed Samuel, the district court was presented with evidence Baran had threatened to do so both before and after Samuel's birth. Moreover, the court heard testimony that Baran had placed Samuel in harm's way by abusing Beaty while she was pregnant, verbally berating Beaty for hours on end while she held Samuel in her arms, and handling newborn Samuel irresponsibly while drunk. To deny return, the district court was not required to find Samuel had previously been physically or psychologically harmed; it was required to find returning him to Australia would expose him to a present grave risk of physical or psychological harm, or otherwise place him in an intolerable situation. Convention, art. 13(b). The evidence presented was sufficient to support the court's conclusion that Baran's violent temper and abuse of alcohol would expose Samuel to a grave risk of harm were he to be returned to Australia. Baran contended the grave risk analysis does not end when a court concludes the conditions to which the child will be returned pose a grave risk of harm. He argued that before denying a petition for return, the court must first determine whether the child's country of habitual residence is capable of protecting the child from the identified risk. The Court noted that neither the Convention nor ICARA specifies the manner in which a reviewing court must assess whether a grave risk of harm to the child exists and whether that risk alone justifies denying a petition for return. Nevertheless, before denying a petition for return, some federal courts have required respondents to present evidence the child's country of habitual residence is not equipped to protect the child upon return. This proposed requirement" appears to have originated with the Sixth Circuit's opinion in Friedrich v Friedrich, 78 F.3d at 1069. The Sixth Circuit's formulation has been repeated by courts throughout the country, and has been accepted by many lower courts as a governing principle of law. Not all courts, however, have accepted the Sixth Circuit's interpretation of the grave risk analysis. Relying on the plain language of Article 13(b), many courts hold when a respondent proves returning a child would expose him to a grave risk of physical or psychological harm, the reviewing court has discretion to deny the petition for return outright. That position is consistent with the Convention's official commentary and with directives from the United States State Department. (Eisa Prez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Actes et Documents de la Quatorzieme Session 426 (1980) ("Prez-Vera Report"), P 29; Hague Int'l Child Abduction Convention: Text and Legal Analysis, 51 Fed.Reg. at 10510.) The State Department's pronouncements, while not binding, are entitled to deference. Although a court is not barred from considering evidence that a home country can protect an at-risk child, neither the Convention nor ICARA require it to do so. Although the Convention's goal is to quickly return abducted children to their countries of habitual residence, the text of the Convention and the commentaries on it place a higher premium on children's safety than on their return. Consequently, the Eleventh Circuit declined to impose on a responding parent a duty to prove that her child's country of habitual residence is unable or unwilling to ameliorate the grave risk of harm which would otherwise accompany the child's return. The court pointed out in a footnote that its rule does not prohibit courts from considering, as part of the discretionary decision to deny return under Article 13(b), whether the child's country of habitual residence may be able to protect the child from harm. It simply held that the responding parent may meet her burden of proving grave risk of harm without adducing evidence regarding the home country's ability or willingness to offer the child protection.
The Court noted that although the practice is far from uniform, some courts hold that once a respondent has shown a child is at grave risk of harm, the burden shifts to the petitioner to provide evidence that specific undertakings will alleviate the identified risk. (See, e.g., Danaipour v. McLarey, 286 F.3d 1, 15 (1st Cir.2002) (holding "proponent of the undertaking bore the burden of showing" country of habitual residence could provide adequate evaluation of alleged abuse); see also Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir.1995). When the petitioner makes such a showing, the district court must factor the proposed undertakings into its discretionary decision to grant or deny return. The State Department has recommended any undertakings ordered pursuant to the Hague Convention be "limited in scope and further the Convention's goal of ensuring the prompt return of the child to the jurisdiction of habitual residence, so that the jurisdiction can resolve the custody dispute." (Danaipour, 286 F.3d at 22 (citing Letter from Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Dep't of State, to Michael Nicholls, Lord Chancellor's Dep't, Child Abduction Unit, United Kingdom (Aug. 10, 1995), available at http://hiltonhouse.com/articles/Undertaking_Rpt.txt, last visited May 2, 2008).The State Department has explained "[u]ndertakings that do more than this would appear questionable under the Convention, particularly when they address in great detail issues of custody, visitation, and maintenance." Although the State Department does not oppose the use of undertakings in all circumstances, it has cautioned:When grave risk of harm to a child exists as a result of domestic abuse, however, courts have been increasingly wary of ordering undertakings to safeguard the child. (Simcox, 511 F.3d at 606; Danaipour, 286 F.3d at 26; Van De Sande, 431 F.3d at 571-72 (quoting Danaipour, 286 F.3d at 25).The Eleventh Circuit held that Baran bore the burden of proposing undertakings that would ameliorate the grave risk of harm to which Samuel would be exposed on return to Australia, yet he adduced no evidence on the question. Under the circumstances, the trial court reasonably concluded it could not guarantee Samuel's safety should it order him to be returned to Australia for further custody proceedings.