Felder v. Wetzel , 696 F.3d 92 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 12-1939
CLAUDIA FELDER,
Petitioner, Appellant,
v.
PATRICK WETZEL; CHILDREN'S HOSPITAL
INTEGRATED CARE ORGANIZATION, LLC,
d/b/a CHILDREN'S HOSPITAL BOSTON;
ALEXANDRA PONDER, a/k/a DEBBIE PONDER,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
Barry S. Pollack, with whom Phillip Rakhunov and Sullivan &
Worcester, LLP were on brief, for appellant.
Edward F. Dombroski, Jr., with whom Travers Dombroski PC was
on brief, for appellee Patrick Wetzel.
Mary Beth L. Sweeney, with whom Rachael E. MacKenzie, David E.
Cherny, and Atwood & Cherny P.C. were on brief, for appellee
Alexandra Ponder.
September 28, 2012
LYNCH, Chief Judge. In this Hague Convention case
concerning claims by the mother of wrongful retention in this
country of her fourteen-year-old daughter who was in need of
emergency psychiatric care, the district court both denied relief
and dismissed the Swiss mother's case. Felder v. Ponder, Civ.
Action No. 12-11192-DJC, 2012 WL 3128570 (D. Mass. July 30, 2012).
The district court interpreted orders of the relevant Swiss
Guardianship Authority and a Swiss court as having stripped the
mother of all custody rights so as to deprive the federal court of
jurisdiction. While the language of those orders was imprecise, we
believe the orders had a far more limited scope and the federal
court is required under the Convention to hear the case. We vacate
its dismissal of this case and remand with instructions.
I.
The chronology and basic facts are not in dispute. On
May 19, 2012, K.W., a fourteen-year-old Swiss citizen, attempted to
harm herself by ingesting pills while living in the United States
with her godmother, Alexandra Ponder. K.W. was then hospitalized
at Children's Hospital Boston ("the Hospital"). On June 7, 2012,
the Hospital declined to release K.W. to her mother, petitioner
Claudia Felder, a Swiss resident, absent evidence such a release
would comply with the child's treatment plan. On June 25, 2012, a
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U.S. family court, on an ex parte motion by the godmother Ponder,1
gave Ponder temporary guardianship over K.W. extending until
October 26, 2012. By July 11, 2012, K.W. had been released from
the Hospital into Ponder's care. In the meantime, on June 21, June
25, and July 11, 2012, the Swiss Guardianship Authority issued
orders and communications pertaining to K.W. which are key to this
case, and which we describe later.
On July 10, 2012, K.W.'s mother, Claudia Felder, filed a
petition in federal district court for the return of K.W. to
Switzerland pursuant to the Hague Convention on the Civil Aspects
of International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11670. The Convention is implemented by the International Child
Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq.
As relief, Felder sought, inter alia, "an Order directing
the prompt return of KW to her habitual residence of Switzerland,
subject to undertakings by Mother and a qualified physician to
provide a treatment plan for KW consistent with advice and
involvement of medical professionals." Respondents Ponder and
Wetzel opposed this relief, with Wetzel filing a motion to dismiss
the petition, which Ponder joined. Respondents also asserted two
defenses to K.W.'s return to Switzerland under Article 13 of the
Convention.
1
Ponder's motion was made with the consent of K.W.'s non-
custodial biological father, Patrick Wetzel.
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Without reaching the merits of the petition or the
Article 13 defenses, on July 30, 2012, the district court dismissed
Felder's petition. Felder appeals, arguing that the district court
erred in dismissing the case primarily because it failed to
distinguish between permanent legal custody rights and emergency
physical custody issues, and because it incorrectly interpreted
certain Swiss child guardian agency and court rulings. Felder also
argues that the district court erroneously failed to make a request
under Article 15 of the Convention to the central authority of
Switzerland for its opinion on Felder's custody rights.
For the reasons described below, we reverse the district
court's dismissal of Felder's petition and remand for further
proceedings consistent with this opinion.
II.
We focus on the facts most relevant to the Hague
Convention issues: those regarding custody and habitual residence,
the medical and psychological emergency involving K.W., and the
nature of the orders from the Swiss authorities and court.
It is undisputed that before issuance of the orders we
describe later the mother had full custody of her daughter K.W. and
it is undisputed that Switzerland was throughout and is the country
of habitual residence. It is undisputed that before these medical
events, on an unspecified date, Felder had signed an "Authorization
for Medical Treatment of [K.W.]" giving "my authorization and
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consent for Alexandra Ponder to authorize necessary medical or
dental care for this child." The form stated that Felder was the
parent and legal guardian, and the authorization was limited. This
was done because K.W. was attending school in Massachusetts in the
Fall of 2011. Felder bought K.W. a July 12, 2012 return ticket to
Switzerland at the end of the school year. K.W. flew back to
Switzerland for the holiday break and then returned to
Massachusetts on January 3, 2012.
Felder's Hague Convention petition states that "on or
about May 19, 2012 . . . KW stated that she tried to hurt herself
by ingesting certain medications belonging to Ponder."2 K.W. was
initially taken to the emergency room at Holy Family Hospital in
Methuen, Massachusetts, but was then transferred to the inpatient
psychiatric unit of Boston Children's Hospital on May 23, 2012.
Ponder informed Felder of K.W.'s hospitalization and
Felder agreed that K.W. should receive immediate medical care;
during the next three weeks, Felder monitored K.W.'s progress via
Ponder and the staff at the Hospital while consulting with Swiss
medical professionals. After K.W. had been hospitalized for three
weeks, Felder and Dr. Andreas Schmidt, K.W.'s Swiss physician,
proposed to the staff of the Hospital that K.W. be transferred to
2
Ponder alleges that "after [K.W.'s] mother threatened to
return her to Switzerland, the minor child attempted suicide," and
that "[w]hen KW finally woke up, she told Godmother that if she had
to return to Switzerland and to her Mother, then she did not want
to be on the earth."
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Zurich for further treatment. Felder's petition states that she
and Schmidt advised the staff at the Hospital that "they would take
responsibility for KW's health and safety and would both personally
accompany KW back to Switzerland."
On June 7, 2012, a social worker at the Hospital
contacted Felder and advised her that the Hospital would not permit
K.W.'s immediate return to Switzerland. The Hospital's counsel
represented that "[t]he hospital has never taken a specific opinion
as to which custodian, be it mother or godmother or father, is the
appropriate person for custodial purposes or medical decision-
making," rather, "[t]he issue has been . . . safety planning." On
June 11, 2012, Hospital staff sent an email to Dr. Daniel Marti of
the Kinderspital Zürich outlining the conditions under which K.W.
could be safely returned to Switzerland.3 The Hospital staff
explained that "[g]iven the patient's current condition, the
clinical team here strongly feels that the following must be in
place for a safe discharge home to Switzerland": (1) "[t]ransfer
plan for patient from our locked inpatient psychiatric facility to
a secure psychiatric setting in Switzerland," and (2)
3
In this email, the Hospital staff noted that
[o]ur 6/7/12 discharge plan for the patient was for
discharge from our locked inpatient psychiatric facility
to an acute residential treatment program at McLean . .
. . It was our understanding that all were in agreement
with this plan so we went forward with the arrangements.
Then we learned patient's mother stated she was no longer
was [sic] in support of this plan.
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"[c]onfirmation of the accepting secure psychiatric facility in
Switzerland with the current clinical team."
Felder contends that, at about this time, "Ponder stopped
providing Mother with information about her daughter and, in
conjunction with the staff at the Hospital, prevented Mother and
KW's sisters from having contact with KW." On June 17, 2012,
Ponder asked Felder if she would agree to Ponder's guardianship
over K.W. and to an order that would prevent K.W. from leaving the
United States. Felder refused and told Ponder that she was
terminating the medical authorization for K.W. she had signed.
On June 20, 2012, Felder traveled to Boston and again
told Ponder that she was revoking Ponder's authorization for
medical care. Felder alleges that she did not know that K.W.'s
father, Wetzel, had by this time filed an ex parte petition as to
K.W. in the Guardianship Authority of the City of Lucerne.4
We discuss in the merits of our legal analysis the three
communications issued by the Swiss Guardianship Authority,
respectively on June 21, 2012 (ex parte); June 25, 2012 (ex parte);
and July 11, 2012 (after hearing from Felder), and a Swiss court
4
Swiss law establishes two guardianship authorities, the
Guardianship Authority and the Guardianship Supervisory Authority.
Code Civil [CC] Dec. 10, 1907, SR 210, art. 361 (Switz.). These
authorities have power to transfer custody over a child, modify
awards of parental custody, or withdraw custody under certain
conditions. See id. arts. 298-298a, 311-12, 315b. The
Guardianship Authority may also take appropriate measures to
protect a child's welfare. See id. arts. 307, 315a.
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order of July 12, 2012. For now, it is sufficient to say that on
June 21, 2012, the Swiss Authority ex parte issued a precautionary
order to Felder saying that "[a]t present, the existing
endangerment of your daughter can only be avoided by withdrawing
your right to determine the place of residence of [K.W.] or
concretely the parental custody right." The order prohibited
Felder from removing K.W. from the Hospital clinic and said she
would be given a full hearing later. The order was served on the
Hospital, making clear the medical team had authority to treat K.W.
On June 25, 2012, Ponder filed a motion to be appointed
as K.W.'s temporary guardian with the Essex Division of the Probate
and Family Court of the Commonwealth of Massachusetts ("the Family
Court"). Felder says this was done without her knowledge; in any
event, she did not appear.
The state Family Court acted based on Ponder's
representations.5 The accuracy of these representations has not
5
The key representations in Ponder's petition were that:
"The minor child has been in the care and custody of the
moving party for a year. On May __, 2012, after her
mother told her that she was going to force her to return
to Switzerland, the child attempted suicide. The child
has been in a psychiatric facility with Children's
Hospital since that time. . . . The mother has arrived
with the intention of removing the child from the
psychiatric facility and returning to Switzerland. The
moving party and the Father are concerned that the minor
child will attempt suicide again if she is removed from
the facility and with her mother"; and that
"Mother's rights to the child have been terminated by the
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been tested in federal court. On June 25, 2012, the state Family
Court appointed Ponder as K.W.'s guardian until September 24, 2012
-- a date that has since been extended to October 26, 2012.6
On July 10, 2012, Felder filed her petition under the
Hague Convention in federal district court. Respondents Ponder and
Wetzel, in addition to seeking the dismissal of Felder's petition,
raised two Article 13 defenses under the Convention: that K.W.'s
return to Switzerland would present a grave risk of harm to her,
and that K.W. was of sufficient age and maturity that her
objections to being returned to Switzerland should be heeded.
Felder had by this time also sought recourse from the
Swiss Guardianship Authority. On July 11, 2012, the Swiss
Authority issued a "Decree" subtitled "Repeal of precautionary
order of June 21, 2012," in which it observed that by "letter dated
June 27, 2012, the biological mother . . . requested
reconsideration of the precautionary decision of June 21, 2012 and
its complete repeal." The decree did in fact repeal the
Swiss government, City of Lucerne, Office of the
Guardianship Authority, for endangerment of the child as
a cause of her volatile relationship with the child and
intention to return the child to Switzerland against her
wishes and against the advice of clinicians."
6
The Family Court order authorized Ponder "to perform any and
all acts necessary for the day-to-day care, custody, education,
recreation and property of the minor" and "to authorize any and all
medical and dental care for the health and well-being of the minor,
except the Guardian may not consent to extraordinary medical
treatment pursuant to G.L. c. 190B, § 5-306A."
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precautionary order, with an explanation. We later describe the
decree further.
On July 11, 2012, Felder filed an "Emergency Motion by
Mother Claudia Felder to Vacate Temporary Guardianship" in the
Massachusetts Family Court. Apparently, K.W. had been discharged
from the Hospital and was staying with Ponder. At the close of the
hearing, the Family Court "enter[ed] a finding, that the most
recent order from the Swiss courts [i.e., the June 21, 2012
precautionary injunction], quote, withdraws mother's custody
rights" and stated that "it is not clear to me . . . that it is --
it had been reinstated."7 Explaining that "I have to do what's in
[K.W.'s] best interest and right now, I need to preserve the status
quo," the court, in a handwritten order, denied Felder's emergency
petition "pending the hearing in Federal Court."
On July 2, 2012, Felder had also filed a court complaint
in Switzerland seeking to reverse the Guardianship Authority's June
21, 2012 precautionary order. The July 11, 2012 decree was issued
in the interim. On July 12, 2012 the District Court of Lucerne
ruled on Felder's petition, concluding that "[w]ith the
[Authority's] repeal of the precautionary ruling handed down June
21, 2012, the revocation of the complainant's parental custody
7
The Family Court did not appear to have before it the
Authority's July 11, 2012 decree repealing its June 21, 2012
precautionary order, which was issued on the same day as the Family
Court hearing.
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ordered by the custodianship authorities of Lucerne becomes
obsolete. The complainant no longer has any legally protected
interests in continuing the proceedings before the Lucerne District
Court." The Lucerne District Court also determined that "[t]he
court of lower instance cannot be accused of either gross
procedural error or violation of rights."
On July 20, 2012, the federal court conducted oral
argument on Wetzel's motion to dismiss Felder's petition under the
Convention but did not take evidence.
Ten days later, on July 30, 2012, the federal district
court dismissed Felder's petition. Felder, 2012 WL 3128570, at *1.
The district court concluded that K.W.'s state of habitual
residence was Switzerland, id. at *4-*5, a conclusion not disputed
on appeal. It then looked to Swiss law and the orders of the Swiss
authorities to determine that "as of June 21st, the Guardianship
Authority took the action that it was empowered to take and revoked
Felder's parental custody," id. at *6, and that "the Guardianship
Authority's subsequent rulings did not unequivocally reinstate her
custody rights," id. at *7. The district court reasoned that "the
one authority, the Guardianship Authority, that has the power to
determine custody rights, did not decline to take further action,
but instead deferred to the actions of the Probate and Family Court
in the United States." Id. The court concluded that "Felder has
failed to show, by a preponderance of the evidence, the wrongful
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retention of K.W. in the United States." Id. at *8. The court
also declined Felder's request to make an inquiry of the Swiss
central authority under Article 158 of the Hague Convention for "a
decision or other determination that the removal or retention was
wrongful within the meaning of Article 3 of the Convention." Id.
at *8 n.2. The court did not reach the question of whether any
defenses under Article 13 of the Convention applied to the case.
III.
In an appeal under the Hague Convention, we review both
the district court's interpretation and its application of the
Convention to the facts de novo. Charalambous v. Charalambous, 627
F.3d 462, 466 (1st Cir. 2010) (per curiam) (citing Danaipour v.
McLarey, 286 F.3d 1, 13 (1st Cir. 2002)). Our review of the
meaning of the orders from the Swiss Guardianship Authority and the
Swiss court is also de novo. Whallon v. Lynn, 230 F.3d 450, 454,
456 (1st Cir. 2000).
As the Supreme Court explained in Abbott v. Abbott, 130
S. Ct. 1983, 1995-96 (2010),
The Convention is based on the principle that the best
interests of the child are well served when decisions
8
Article 15 of the Hague Convention provides in relevant part
that "[t]he judicial or administrative authorities of a Contracting
State may, prior to the making of an order for the return of the
child, request that the applicant obtain from the authorities of
the State of the habitual residence of the child a decision or
other determination that the removal or retention was wrongful
within the meaning of Article 3 of the Convention, where such a
decision or determination may be obtained in that State."
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regarding custody rights are made in the country of
habitual residence. See Convention Preamble, Treaty
Doc., at 7. Ordering a return remedy does not alter the
existing allocation of custody rights, Art. 19, id., at
11, but does allow the courts of the home country to
decide what is in the child's best interests. It is the
Convention's premise that courts in contracting states
will make this determination in a responsible manner.
The Convention applies to children habitually resident in
contracting states who are under the age of sixteen. Art. 4. One
of its objects is "to secure the prompt return of children
wrongfully removed to or retained in any Contracting State." Id.
art. 1.
Abbott requires adherence to the text of the Convention,
which may vary from dictionary or common law definitions of the
terms used. 130 S. Ct. at 1991. The Convention defines "rights of
custody" to "include rights relating to the care of the person of
the child and, in particular, the right to determine the child's
place of residence," as opposed to "rights of access," which
"include the right to take a child for a limited period of time to
a place other than the child's habitual residence." Art. 5.
Ponder and Wetzel have raised two of the "exceptions to
th[e] [Convention's] general rule" of return. Walsh v. Walsh, 221
F.3d 204, 216 (1st Cir. 2000). A child wrongfully retained or
removed need not be returned under the grave risk exception if
"there is a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise place the
child in an intolerable situation," Hague Convention, art. 13(b).
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In addition, "[t]he judicial or administrative authority 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."
Id. art. 13.
The district court's reasoning in dismissing Felder's
petition was based on its reading of the various orders of the
Swiss authorities and court.9 While the district court quite
correctly examined these orders, we think that these orders in sum
were not designed to nor did they terminate the mother's rights.
Rather there was an attempt to do no more than cope with an
emergency situation as to K.W., which the Guardianship Authority
concluded required prompt action and which was better not taken
from abroad, but immediately addressed by courts, doctors, and
others concerned on the scene. We reach our conclusion by looking
at the sequence of events leading to the district court's actions,
the text of the Swiss orders, and the purposes of the Convention.
The first Swiss Authority order, the June 21, 2012 order,
was, as it stated, only a "precautionary injunction"; it was ex
parte and in the nature of a temporary emergency order. It plainly
restricted Felder from removing K.W. from Children's Hospital under
the circumstances. It stated that the proceedings would be
9
There is, as a result, no need to address in this opinion
the separate issue of wrongful retention.
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continued and that Felder would be given a fair hearing in proper
child protection proceedings. The Authority stressed that it had
the power to "take precautionary measures to protect threatened
interests for the time being" (emphasis added), that Felder's
"parental custody right regarding [K.W.] is withdrawn as a
precaution" (emphasis added) during the period of the
hospitalization, and that K.W. was "to remain temporarily
hospitalized for further precautionary treatment" (emphasis added).
The Authority also stated that "[t]he child protection proceedings
will be continued, and at the appropriate time, you [Felder] will
be granted a fair hearing in the proper child protection
proceedings." The Swiss Authority order on its face does not say
that a temporary guardianship meant to secure a child from
immediate harm was meant to permanently prevent the exercise of the
mother's custodial rights. The order was a temporary and emergency
response.
The June 25, 2012 Guardianship Authority letter to the
Hospital explained its June 21, 2012 order as being based on "the
[present] urgent need for action" and a fear the American
authorities would otherwise not act as needed in the best interests
of the child. In light of the emergency nature of the measures
taken, it would be incorrect to conclude that these decisions
decisively and permanently altered Felder's custody rights over
K.W. under Swiss law. They did not strip Felder of her right under
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the Convention to seek K.W.'s return and to have custody over her
child decided by K.W.'s state of habitual residence. Such a result
would frustrate the purposes of the Convention. The text of the
Swiss decisions do not demonstrate that the Swiss authorities
either stripped Felder of all custody rights over K.W. or ceded all
jurisdiction to the Massachusetts Family Court. They certainly did
not remotely state any intent to defeat a petition by Felder under
the Convention.
It is clear from the Swiss Guardianship Authority's July
11, 2012 decree that the prior order -- the Authority's June 21,
2012 temporary revocation of some of Felder's custody rights -- has
itself been revoked. The decree expressly states that:
• Felder is "entitled to custody" of K.W.; both
Felder and K.W. reside in Switzerland.
• the June 21, 2012 precautionary decision of
withdrawing parental custody was made under an
exception to normal custody rules known as forum
necessitatis.
• the Authority had invoked forum necessitatis in
order to address "the existing endangerment of the
child's well-being" and approval of the placement
at Boston Children's Hospital and in that context,
the precautionary withdrawal of the mother's right
to remove K.W. from the Hospital.
• the precautionary decision was made in a summary
proceeding and at the time the Authority had been
led to believe the American courts would otherwise
not act to protect the child.
• in light of the action of the American courts, the
basis for invoking child protection matters and the
forum necessitatis provisions before the Authority
no longer existed.
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• "Correspondingly, the precautionary decision is to
be repealed."
Nowhere in the Swiss Authority's July 11, 2012 decree
does the Authority "defer" all matters pertaining to K.W. to
American family court. Instead, the Swiss Authority recognized
that the taking of emergency measures by the Massachusetts Family
Court obviated the need for the Authority's prior precautionary
measures. The decree certainly does not state that the Swiss
Authority recognized the competence of the Massachusetts Family
Court to do anything more than order measures immediately necessary
to protect K.W.'s well-being. As in Nicolson v. Pappalardo, 605
F.3d 100, 108 (1st Cir. 2010), "it is impossible to read [the
language of the decree] as [an order] that permanent custody be
determined in [the state] court and nowhere else."
Our reading is strongly buttressed by the authoritative
Swiss District Court's July 12, 2012 order dismissing Felder's
complaint that the June 21, 2012 precautionary order should be
reversed. The Lucerne District Court's July 12, 2012 order stated
that "the revocation of the complainant's parental custody ordered
by the custodianship authorities of Lucerne [has] become[]
obsolete. The complainant no longer has any legally protected
interests in continuing the proceedings before the Lucerne District
Court."
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These later orders establish that as of July 12, 2012,
any temporary revocation by the Swiss authorities of some of
Felder's custody rights over K.W. had itself been revoked. Felder
has custody rights under the Convention. The issue is not open on
remand.
The Massachusetts Family Court has itself recognized that
its continuing authority is subject to the resolution of Felder's
Hague Convention petition. The temporary guardianship order to
Ponder expires on October 26, 2012, unless extended, and the Family
Court has stated that its actions respecting K.W. will "depend[] on
what the federal court does." For the reasons stated earlier, we
vacate the dismissal and remand for hearing on the merits. This
means Felder's petition for return with appropriate undertakings
must be heard on the merits, as must the defenses.
As we explained in Kufner v. Kufner, 519 F.3d 33, 39 (1st
Cir. 2008) (ellipsis in original),
To petition for the return of a child under the Hague
Convention, the petitioner must establish by a
preponderance of the evidence that the child was
“wrongfully removed or retained” within the meaning of
the convention. 42 U.S.C. § 11603(e)(1). A removal or
retention is wrongful when "(a) it is in breach of rights
of custody attributed to a person . . . either jointly or
alone, under the law of the State in which the child was
habitually resident immediately before the removal or
retention; and (b) at the time of the removal or
retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for
the removal or retention." Hague Convention, art. III.
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We have stressed that "under the Constitution, parents have a
fundamental interest in their relationships with their children,"
Walsh, 221 F.3d at 216, and the Supreme Court has emphasized that
"[t]he liberty interest . . . of parents in the care, custody, and
control of their children . . . is perhaps the oldest of the
fundamental liberty interests recognized by this Court." Troxel v.
Granville, 530 U.S. 57, 65 (2000).
The two defenses under Article 13 of the Convention are:
that K.W.'s return to Switzerland would present a grave risk of
harm to her, and that K.W. is of sufficient age and maturity (as
she is almost fifteen) that her objections to being returned to
Switzerland must be heeded. "[A] respondent who opposes the return
of the child by asserting the article 13(b) exception has the
burden of proving this by clear and convincing evidence." Walsh,
221 F.3d at 217 (citing 42 U.S.C. § 11603(e)(2)(A)). This "narrow"
exception to return, id., must be heard on remand.
The record will need development as to whether the
emergency circumstances giving rise to K.W.'s hospitalization and
care have now passed. Even if so, we note that Article 13(b) "does
not require that the risk be 'immediate'; only that it be grave."
Id. at 218. On remand the district court must explore whether
respondents can carry their burden of demonstrating that K.W.'s
return presents a grave risk of harm to her under Article 13(b).
This inquiry must include consideration of whether any risk could
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"be mitigated sufficiently by the acceptance of undertakings and
sufficient guarantees of performance of those undertakings," id. at
219, with such consideration subject to the concerns set forth in
Danaipour, 386 F.3d at 303.
As for the second defense -- the age and maturity
exception set forth in the unnumbered provision of Article 13 -- we
note that K.W. will turn fifteen in December, 2012. The
explanatory report10 on the Convention states that "it would be very
difficult to accept that a child of, for example, fifteen years of
age, should be returned against its will." Elisa Pérez-Vera,
Explanatory Report: Hague Conference on Private International Law
¶ 30, in 3 Acts and Documents of the Fourteenth Session 426, 433
(1980). However, "[n]o part of the Hague Convention requires a
court to allow the child to testify or to credit the child's views,
so the decision rests within the sound discretion of the trial
court." Kufner, 519 F.3d at 40.
In carrying out these proceedings, the district court
should bear in mind that Article 11 of the Hague Convention
requires that "[t]he judicial or administrative authorities of
10
As we have noted, "Perez-Vera served as 'the official Hague
Conference reporter for the Convention,' and her explanatory report
'is recognized by the Conference as the official history of and
commentary on the Convention and is a source of background on the
meaning of the provisions of the Convention.'" Whallon, 230 F.3d
at 455 n.5 (quoting Hague International Child Abduction Convention;
Text and Legal Analysis, 51 Fed. Reg. 10494, 10503 (Mar. 26,
1986)).
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Contracting States shall act expeditiously in proceedings for the
return of children." At the same time, protection of the child's
safety and, where appropriate, autonomy is of paramount concern,
and such delay as is necessary to explore fully the ramifications
of the sought return of K.W. is entirely justified under the
circumstances.
We reverse the dismissal of Felder's petition under the
Convention, reinstate the case, and remand for further proceedings
consistent with this opinion.11 In doing so, we stress we have made
no determination as to whether K.W. should be returned. No costs
are awarded. So ordered.
11
We deny Felder's September 5, 2012 emergency motion for
relief from Essex County Probate Court's orders concerning medical
records. In light of our disposition of this case, we see no need
to act on Felder's August 14, 2012 motion to supplement the record
on appeal, Ponder's August 27, 2012 motion to supplement the record
on appeal, or Felder's August 30, 2012 conditional assent and
cross-motion to supplement the record on appeal.
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