REVISED - December 18, 2000

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-20008

WILLIAM EDWARD ENGLAND,

Plaintiff-Appellant, VERSUS

DEBORAH CAROL ENGLAND,

Defendant-Appellee.

Appeal from the United States District Court For the Southern District of Texas

November 27, 2000

Before DUHÉ, EMILIO M.. GARZA, and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

This is an expedited appeal of the District Court's denial of

a Petition for Return of Children under the Convention on the

Civil Aspects of International Child Abduction (the “Hague

Convention” or “the Convention”). The District Court held that

even though two children were wrongfully removed by their mother

from Australia, their country of habitual residence, to the United

States in violation of the Hague Convention, they need not be

returned to Australia because return would expose them to grave

risks of psychological harm and because the older child objects to

being returned. For the following reasons we reverse and remand. BACKGROUND

William and Deborah England (“William” and “Deborah”) have two

children: Karina, age thirteen, and Victoria, age four. All parties

are American citizens. The England family lived in Texas until

1997, when they moved to Australia incident to William's job

transfer there. In June 1999, the Englands left Australia for an

extended overseas vacation. They arrived in the United States in

July 1999 for the last leg of their vacation. Their itinerary

scheduled their return to Australia for July 15, 1999. As planned,

William returned to Australia that day. Ostensibly concerned for

the health of her cancer-stricken father, Deborah remained in the

United States. Since, Deborah told her husband, the England girls'

last chance to see their grandfather was perhaps at hand, Karina

and Victoria remained in the United States with her instead of

returning to Australia with William as planned.

A few weeks later, Deborah filed for divorce from William in

Texas. Shortly thereafter, she phoned William and advised him that

neither she nor their daughters would be returning to Australia.

After Deborah refused William's various requests to return the

children, William filed in the District Court a Petition for Return

of Children Under the Hague Convention. After an Australian court

determined that Australia was the “habitual residence” of Karina

and Victoria and that their removal from Australia was “wrongful,”

the District Court heard and denied William's Hague Convention

petition.

2 The Convention requires that a child wrongfully removed from

her country of habitual residence be returned there upon petition

unless, among other reasons not relevant here, clear and convincing

evidence establishes that a grave risk of psychological harm

attends her return or unless a court elects to heed the wishes of

a sufficiently old and mature child who desires not to return. The

District Court, agreeing with the Australian court, held that,

within the meaning of the Convention, Karina and Victoria were

wrongfully removed from their place of habitual residence. The

Court, however, determined that Karina, an adopted child who prior

to her adoption by the Englands had a “turbulent” history in

orphanages and foster care and endured “difficult” adoption

proceedings, would face a grave risk of psychological harm if

separated from her mother or forced to move so soon after re-

settling in Texas. See England v. England, No. H-99-2715 (S.D.

Tex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition

for Return of Children Under the Hague Convention). The District

Court also found that – notwithstanding her Attention Deficit

Disorder, learning disabilities, Ritalin use, and emotional

itinerancy (she has had four mothers in her thirteen years of life)

– Karina was sufficiently mature for the Court to credit her desire

to remain with her mother and not return to Australia. The Court

declined to separate Victoria from her older sister because “it

would be psychologically damaging to both girls to be separated

from each other during the pendency of the [Englands'] custody

3 proceedings.” Id. Accordingly, the Court allowed Karina and

Victoria to remain in the United States with their mother.

William argues that the District Court erroneously held that

Karina and Victoria's return to Australia pending the outcome of

custody proceedings would subject them to grave risks of

psychological harm. He also argues that Karina is not mature

enough for a court appropriately to consider her wishes under the

Hague convention.

DISCUSSION

We review the District Court's factual findings for clear

error and its legal conclusions de novo. Sweatman v. Commercial

Union Ins. Co.,

(5th Cir. 1994).

I. Grave Risk

The District Court's holding that Karina and Victoria need not

return to Australia under the terms of the Convention because

return would expose them to grave risks of psychological harm was

clearly erroneous because the evidence of these psychological risks

is neither clear nor convincing.

Under Article 12 of the Convention,1 when a child has been

“wrongfully removed or retained,” the “judicial or administrative

authority of the Contracting State where the child is . . . shall

order the return of the child forthwith.” Convention on the Civil

1 Both Australia and the United States have signed and implemented the Convention, the latter through the International Child Abduction Remedies Act,

(1994).

4 Aspects of International Child Abduction, Oct. 25, 1980, art. 12,

51 Fed.Reg. 10493, 10498 (emphasis supplied). Article 13 of the

Convention provides an exception to Article 12's rule of mandatory

return in the event of “a grave risk that [the child's] return

would expose the child to physical or psychological harm or

otherwise place the child in an intolerable situation.”

art.

13b, 51 Fed.Reg. at 10499. The Convention's implementing

legislation, the International Child Abduction and Remedies Act

(“ICARA”), requires that a party opposing a child's return prove

the existence of such a grave risk by clear and convincing

evidence.

(e)(2)(A) (1994). Even if this

“narrow” exception2 applies, though, a federal court has “and

should use when appropriate” the discretion to return a child to

his or her place of habitual residence “if return would further the

aims of the Convention.” Friedrich v. Friedrich,

(6th Cir. 1996). The Convention's primary aims are to

“restore the pre-abduction status quo and to deter parents from

crossing borders in search of a more sympathetic court.”

. Accordingly, the Convention prohibits courts considering

Convention petitions from “adjudicating the merits of [the]

underlying custody dispute[s].” Nunez-Escudero, 58 F. 3d at 376

(citations omitted).

2 See, for example, Nunez-Escudero v. Tice-Menley,

(8th Cir. 1995); Rydder v. Rydder,

(8th Cir. 1995).

5 While admittedly the District Court and not this Court is the

fact-finder, we nonetheless discern nothing in the record

constituting clear and convincing evidence that return to Australia

pending the outcome of custody proceedings there3 would expose

Karina to grave risks of psychological harm. The following is the

whole of the District Court's findings regarding “grave risk” in

this context:

“Through Karina's testimony, however, Ms. England has established that given Karina's turbulent history in orphanages, foster care, and difficult adoption proceedings there is a grave risk of psychological harm if she should be separated from her mother or have to endure another move so soon after re-settling in Houston. There are two custody proceedings pending, one divorce proceeding in the United States and one in Australia, both of which have been temporarily abated pending the outcome of this proceeding. If the Court should send Karina back to Australia, one court or the other may well send her back to the United States after a full examination of her best interests. The Court finds that such movement back and forth poses a serious threat to her psychological welfare.”

England v. England, No. H-99-2715 (S.D. Tex. Dec. 20, 1999) (order

denying Motion Re-Urging the Petition for Return of Children Under

the Hague Convention).

Courts considering this issue have uniformly found

considerations such as those articulated by the District Court

inapposite to the “grave risk” determination. See, for example,

Nunez-Escudero,

(“The district court incorrectly

3 A non-divorce custody proceeding in Australia is stayed pending the outcome of this litigation, as is Deborah's Texas divorce action.

6 factored the possible separation of the child from his mother in

assessing whether the return of the child to Mexico constitutes a

grave risk that his return would expose him to physical or

psychological harm or otherwise place him in an intolerable

situation”); Friedrich,

(“Mrs. Friedrich alleges

that she proved by clear and convincing evidence in the proceedings

below that the return of Thomas to Germany would cause him grave

psychological harm. Mrs. Friedrich testified that Thomas has grown

attached to family and friends in Ohio. She also hired an expert

psychologist who testified that returning Thomas to Germany would

be traumatic and difficult for the child, who was currently happy

and healthy in America with his mother. . . . If we are to take the

international obligations of American courts with any degree of

seriousness, the exception to the Hague Convention for grave harm

to the child requires far more evidence than Mrs. Friedrich

provides. Mrs. Friedrich alleges nothing more than adjustment

problems that would attend the relocation of most children”); Walsh

v. Walsh,

, 220 n.14 (1st Cir. 2000) (“We disregard the

arguments that grave risk of harm may be established by the mere

fact that removal would unsettle the children who have now settled

in the United States. That is an inevitable consequence of

removal”). The District Court's finding that return to Australia

would expose Karina to a grave risk of psychological harm, then,

was clearly erroneous.

Since the District Court found that the evidence of grave risk

7 to Victoria was even less clear and convincing than the evidence of

grave risk to Karina, see England v. England, No. H-99-2715 (S.D.

Tex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition

for Return of Children Under the Hague Convention) (“ . . . moving

back and forth would not pose the same psychological threat to

Victoria as it would for her sister”), the Court's finding that

return threatened Victoria with a grave risk of psychological harm

was also clearly erroneous.

II. Age and Maturity

The District Court also erred in determining that Karina is

mature enough for the Court appropriately to consider her views

under the Convention.4 The Convention establishes that a court

“may refuse to order the return of the child if it finds that the

child objects to being returned and has attained an age and degree

of maturity at which it is appropriate to take account of its

views.” Convention, art. 13, 51 Fed.Reg. at 10499. The party

opposing the child's return must establish the child's maturity by

a preponderance of the evidence.5

(e)(2)(A)

4 The dissent comments that we so conclude despite the absence of “any case holding that, under the Hague Convention, a 13 year-old is just too young as a matter of law to take account of her views.” The dissent’s concern is misplaced. We do not hold that as a matter of law a 13 year-old is not sufficiently mature for her views to be considered. We do hold that, on this record, a 13 year-old has not been shown to be mature enough for her views to be considered. Indeed, the evidence found in the record which is recounted in this opinion points to the opposite conclusion. 5 This burden is salient. The dissent declares that when the record is examined for evidence regarding Karina’s maturity, it

8 (1994). Like the grave risk exception, the “age and maturity”

exception is to be applied narrowly.

(a)(4)

(1994); Nicholson v. Nicholson, No. 97-1273-JTM,

, at

*3 (D. Kan. July 7, 1997) (“The child objection defense has been

narrowly construed”).

The Court's findings on this issue are even more limited than

those on the grave risk exception:

“In addition, Karina has clearly objected to being returned to Australia and she is old enough and mature enough for the Court to take account of her views. She has maintained friendships with classmates here while living abroad, she likes it here and her situation has stabilized. The Court, in accordance with Karina's stated preference, declines to return her to Australia.”

England v. England, No. H-99-2715 (S.D. Tex. Dec. 20, 1999) (order

denying Motion Re-Urging the Petition for Return of Children Under

the Hague Convention). The Court's findings, while certainly

sensitive to Karina's emotional plight, nevertheless constitute a

non sequitur. That Karina has maintained her friendships with

children in America, prefers America to Australia, and now enjoys

a “situation [that] has stabilized” does not establish that she is

mature enough for a court appropriately to consider her views on

where she would prefer to live under the Hague Convention. Rather,

discovered “no testimony by any...witnesses in the record that would raise even a genuine issue as to whether Karina was too young or too immature to have her views considered.” This underscores the dissent’s error. To prevail, William England need not show that Karina is “too immature to have her views considered.” Rather, Deborah England, the party opposing the child’s return to her place of habitual residence, must establish Karina’s maturity by a preponderance of the evidence. This she has failed to do.

9 these findings only establish that Karina prefers to remain in the

United States and that some reasons support this preference. If

anything, the preponderance of the evidence in this record suggests

that Karina is not mature enough for the Court appropriately to

take account of her views under the age and maturity exception. By

no fault of her own, Karina has had four mothers in twelve years.

She has been diagnosed with Attention Deficit Disorder, has

learning disabilities, takes Ritalin regularly, and is, not

surprisingly, scared and confused by the circumstances producing

this litigation. In view of this evidence and the narrowness of

the age and maturity exception to the Convention's rule of

mandatory return, we hold that the District Court erroneously found

Karina mature enough to trigger this exception to the Convention.

CONCLUSION

We reverse the District Court and remand with instructions

that the district court order Karina and Victoria returned to

Australia forthwith pending the outcome of custody proceedings

there in accordance with the Convention and for such other

proceedings as may be appropriate.

REVERSED and REMANDED with instructions.

10 DeMOSS, Circuit Judge, dissenting:

I cannot concur in Part II “Age and Maturity” of the majority

opinion. I write now to set forth the reasons why I believe the

district court’s conclusion as to the applicability of the age and

maturity exception in Article 13 of the Hague Convention should be

affirmed.

The specific language of this exception in Article 13 reads as

follows:

The judicial or administrative authority [the district court in this case] may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In her Order of December 20, 1999, Judge Gilmore stated:

In addition, Karina has clearly objected to being returned to Australia and she is old enough and mature enough for the Court to take account of her views. She has maintained friendships with classmates here while living abroad, she likes it here and her situation has stabilized. The Court, in accordance with Karina’s stated preference, declines to return her to Australia.

The language of Judge Gilmore’s Order is a clear and precise

exercise of the discretion vested in her by the express language of

this exception in Article 13.

I do not find anything in the Convention or in the

implementing statute passed by the U.S. Congress which speaks to

standards of review to be applied by our Court in reviewing this

decision of the district court. We should apply, therefore, our normal requirements that give substantial deference to factual

findings and credibility decisions made by the district court in a

bench trial by requiring that we find that the district court

“clearly erred” in making such factual decisions and credibility

choices before discounting these views. I assume also that we

would review de novo legal decisions of the district court.

I think as a reviewing court we need to keep in mind that

Judge Gilmore heard and saw the testimony of Karina in person and

had the benefit of that person-to-person evaluation in addressing

the question of whether Karina was sufficiently old enough and

mature enough to make it “appropriate to take account of [her]

views.” I have read Karina’s testimony, and I saw nothing therein

which would lead me to conclude that she is too young or too

immature “to take account of [her] views.” Furthermore, I saw no

testimony by any of the other witnesses in the record that would

raise even a genuine issue as to whether Karina was too young or

too immature to have her views considered.

From my reading of her testimony, there is no doubt in my mind

that Karina “objected to being returned to Australia,” and Judge

Gilmore so found. I do not see anything in the majority opinion

which would indicate that the majority concluded that Judge Gilmore

clearly erred in finding that Karina did in fact object to being

returned to Australia. So the heart of our debate and discussion

about the applicability of this exception revolves around the

determination as to whether or not Karina has “attained an age and

12 degree of maturity” which makes it appropriate to take account of

her objection. There is no question that at the time of her

testimony in this case Karina was 13 years old. I have looked for

and could not find, and the majority has not cited, any case

holding that, under the Hague Convention, a 13 year-old is just too

young as a matter of law to take account of her views. In regard

to age, the Hague Convention itself states that it shall cease to

apply to a child who attains the age of 16 years or more. See

Article 4. If the age and maturity exception of Article 3 is to

have any meaning at all, it must be available for a child who is

less than 16 years old. The Hague Convention does not fix a

minimum age at which this exception would become inapplicable. The

Convention does recognize that, in states within which different

territorial units have their own rules of law respecting custody

and children, the laws of those territorial units may be used for

determining the applicable law within the Convention. See Articles

31 and 33. In this regard, section 153.008 of the Texas Family

Code states that “If the child is 10 years of age or older, the

child may, by writing filed with the Court, choose the managing

conservator, subject to the approval of the Court.” While the

child’s preference as to managing conservator (the person having

custody) is not controlling, it seems to me that a federal district

judge sitting in Texas should be instructed by this statute that a

child who is ten years or older is old enough to have his objection

13 considered by the Court. I would conclude, therefore, that Karina,

as a 13 year-old, “has attained an age” sufficient to take account

of her views. The majority does not separately address “age” as a

factor in its decision.

We turn then to the “degree of maturity” element of this

exception. From my reading of the record, I found no witness who

testified as to any circumstances or events which would lead to a

conclusion that Karina was “immature for her age.” To the

contrary, the record indicates that Karina was an average student

academically, maintaining the school grade level commensurate with

her age, and that she was engaged in a variety of sports and

extracurricular activities. The words “degree of maturity” as used

in Article 13 are inherently relative and subjective in their

concept. But it seems self-evident to me that a “degree of

maturity” contemplates something less than actual, full, final,

complete maturity. For that reason, I recognize that judges

reading the same record (or hearing the original testimony) could

come to different conclusions on the subject of Karina’s degree of

maturity. But the conclusions reached by Judge Gilmore on that

subject are clearly supported by the record. I disagree

specifically with the evidence that the majority cites as

supporting its position that Karina is not mature enough to take

account of her views. In page 872, the majority states: “By no

fault of her own, Karina has had four mothers in twelve years.”

While that is factually true, I would interpret it as enhancing

14 maturity. She has experienced adversity and rejection and has had

several occasions to form an opinion as to the impact on her own

life of changes in adoptive parents and changes in places of

living. On that same page, the majority also refers to her

diagnosis with Attention Deficit Disorder, her learning

disabilities, and the fact that she takes Ritalin regularly as

evidence indicating that she is immature. There is no expert

testimony whatsoever in the record which would support a

correlation between these circumstances and immaturity. I am

surprised that the majority is willing to draw these conclusions

without the benefit of testimony in the record from a medical

doctor or psychologist. The impression I got from reading the lay

testimony in the record is that by taking Ritalin, Karina

effectively overcomes any learning disability related to ADD.

There is nothing in the record which would compel a conclusion that

Karina evidences immature behavior as the result of taking Ritalin.

Finally, I have to disagree with the majority’s legal

assessment in page 872 that the age and maturity exception is to be

subjected to some “narrow” interpretation. Nothing in the

Convention itself states that the exceptions set forth in Article

13 shall be “narrowly construed.” As the only authority for its

view, the majority cites to

(a)(4), which is a

part of the Congressional Findings and Declarations which Congress

made when it adopted the statute implementing the Hague Convention.

In this text, the word “narrow” is used only as an adjective

15 modifying the noun “exception;” and nothing in the remainder of the

statutory text speaks to the manner in which a court should address

the task of construing language in the statute. While

congressional findings may be looked to for purposes of clarifying

an ambiguity in the text of a statute, they should not be used for

the purpose of inserting into the statute a provision not otherwise

addressed.

For the foregoing reasons, I think Judge Gilmore was on

completely solid ground in her decision not to return Karina to

Australia because of Karina’s objection to being so returned and in

her finding that Karina was of sufficient age and maturity that the

court could give recognition to this objection.

Because of her ruling as to Karina, Judge Gilmore had to

decide what to do about Victoria (the four year-old). As to

Victoria, Judge Gilmore’s Order now before us states the following:

While moving back and forth would not pose the same psychological threat to Victoria as it would for her sister and she is too young to articulate a preference, the Court declines to separate her from her older sister and finds that it would be psychologically damaging to both girls to be separated from each other during the pendency of the custody proceedings. Accordingly, Mr. England’s Petition is DENIED.

This case presents us with a special circumstance as to what the

district court should do when there are two children involved, one

sufficiently old and mature to warrant the Court recognizing her

objection to being returned to Australia and the other too young to

articulate a preference. I have looked and can find nothing in the

16 Hague Convention itself nor in the enabling legislation in the

United States Code which speaks to the circumstance of multiple

siblings being the subject of a demand for return. Given the

silence of the Hague Convention and the enabling legislation on

this subject, it seems to me that a district court can and should

exercise its judicial discretion to formulate an applicable rule.

One approach might be to treat each child as a separate person,

applying the literal language of the Convention to each and

contemplating that the result may be that one child has to be

returned and the other does not. To me, that would be a wasteful

and inefficient approach, which leads, in this case, to potential

conflict between the courts of Australia and the courts of the

United States as to the terms and conditions of the divorce itself

and, more particularly, the custody questions that would

necessarily flow therefrom. An alternative approach would be to

recognize the desirability of a single decree dealing both with the

divorce and the child custody issues and allow the court before

whom the Hague petition is pending to make a decision between the

two national jurisdictions on the basis of which jurisdiction has

the greater degree of contact and interest in the resolution of the

disputes between the parties involved. I think Judge Gilmore was

reaching for this type of solution when she found that it would be

psychologically damaging to both girls for them to be separated

from each other during the pendency of the custody proceedings and

that there was a value to be served by not separating Victoria from

17 her older sister.

In this particular case, the interest of Australia in deciding

the controversies is de minimis and the interest of the United

States in deciding these controversies is overwhelming. The

following facts, which are clearly established by the record in

this case, support this conclusion:

1. William, Deborah, Karina, and Victoria are each citizens

of the United States and not of Australia. Each of them carry U.S.

passports.

2. William and Deborah were married in Houston, Texas,

U.S.A. and not in Australia. During a majority of the time of

their marriage they resided in Houston, Texas, U.S.A.

3. Karina was born in Chile, not Australia, and she was

adopted by William and Deborah pursuant to a court decree entered

in a state court of Texas, U.S.A. At the time of this controversy

she was 13 years old.

4. Victoria was born in Houston, Texas, U.S.A and not

Australia. At the time of this controversy she was four years old.

5. Both the parents of William and the parents of Deborah

(the grandparents of the children) are citizens of and reside in

the United States.

6. William entered Australia pursuant to an Australian

temporary work visa; Deborah and the two daughters entered and

remained in Australia solely pursuant to visas issued to them as

18 dependents of William. The visas of the two daughters expired in

August 1999.

7. William was employed in Australia by a U.S. entity and

not an Australian employer.

8. When William and Deborah left for Australia in 1997, they

owned a home in Houston which they had been living in for four

years. They also owned other real property in the State of Texas.

This property would be community property under the laws of Texas.

They did not sell their home in Houston, and all of the real

property remains as jointly owned property to be dealt with in any

divorce decree.

9. Prior to their departure from Australia on vacation in

June 1999, neither William nor Deborah had filed any petition with

any Australian court seeking a divorce or child custody decree. In

fact, neither William nor Deborah could have filed such a petition

for such relief because at that time they had not separated and

lived apart for 12 months as required by Australian law.

10. When William and Deborah and their two daughters left

Australia in June 1999 on a vacation trip home, they did so

jointly, freely, and voluntarily. There was no wrongful abduction

or denial of custody rights of any kind as of the time of their

departure from Australia.

11. When he returned to Australia towards the end of July

1999, William agreed at least tacitly to the decision of Deborah to

remain in Houston with the two children.

19 The foregoing facts are unique to this case and distinguish

this case from the three cases cited and relied upon by the

majority in their opinion.6

Under these circumstances, balancing the interests of

Australia and the interests of the United States, it is self-

evident that the interests of the United States greatly outweigh

the interests of Australia. Consequently, the decision of Judge

Gilmore to decline to return the two daughters to Australia is a

sensible solution to a difficult problem: it avoids potential

conflicts between separate court proceedings; it saves all parties

the expense of duplicitous court proceedings; and it permits a

quicker resolution of all the parties’ controversies. Therefore,

I would affirm the district court’s decision to decline to return

Karina and Victoria to Australia.

I conclude with some comments about the frightening precedent

that the majority opinion in this case will set. The net effect of

the Hague Convention as applied by the majority is to compel the

initiation of divorce proceedings in foreign lands between American

1 See Friedrich v. Friedrich,

(6th Cir. 1996). Father, a German citizen, married mother, a United States citizen, in Germany. One child born in Germany removed from Germany to United States when child was two years old; Nunez-Escudero v. Tice- Menley,

(8th Cir. 1995). Father, a Mexican citizen, married mother, a United States citizen, in Mexico. One child born in Mexico, removed from Mexico to United States when child was six months old; Rydder v. Rydder,

(8th Cir. 1995). Father, a Danish citizen, married mother, a United States citizen, in Sweden. Two children born in Sweden removed from Poland to United States when one was four years old and the other two years old.

20 couples who have children and who are overseas because of work

assignments. My guess is that very few American couples are

forewarned about the Hague Convention before they accept work

assignments overseas. When all the players (husband/father,

wife/mother, and children) are American citizens, who have spent

the large majority of their lives living in the United States,

whose relatives are back in the United States, who have property in

the United States, and who voluntarily come back to the United

States for a visit, it will come as a very disturbing shock to

learn that they must return to the foreign work country and its

courts to resolve their marital problems and child custody

disputes. This is a trap that employers who send their employees

overseas should be certain that the spouses and children of their

employees have considered. From my reading of the record in this

case, I am quite certain that Deborah England would have never

consented to go to Australia with her husband in 1997 if she had

been aware of the impact of the Hague Convention on any future

marital discord while they were in Australia.

For the foregoing reasons, I dissent.

21