Case Update (11 Oct 2023): Galaviz v. Reyes; trial judge’s finding of an Article 20 exception was incorrect; reversed to enter an order returning children
In February of 2022 (about 20 months ago), the U.S. District Court for the Western District of Texas did something extraordinary in the field of Hague Abduction Convention jurisprudence. It actually concluded that two children, retained in El Paso, Texas from their habitual residence of Mexico, should not be returned based on Article 20 of the Hague Abduction Convention (and a separate Article 13b argument). The basis of the Article 20 decision was that the children were not getting free public education in Mexico, something that the trial judge determined was a human right. The eldest child’s school would require the mother to be physically present each day because of the child’s special needs, something she could not do and also work to support the family. The Fifth Circuit has, however, reversed the trial judge and remanded for the district court to enter an order to return the children to Mexico.
The Fifth Circuit found that the trial judge’s findings “focused on [the mother’s] actions or inactions regarding the children’s education, not on Mexican laws or policies that would prohibit return. The court even acknowledged that ‘the law in Mexico may provide for special education.’ By focusing on [the mother’s] actions or inactions, the court essentially made an impermissible custody determination. [The father] did not present clear and convincing evidence demonstrating that the return of the children would utterly shock the conscience of the court or offend all notions of due process.”
The court also concluded that there was no grave risk of harm, that certain allegations of neglect had “equally plausible explanations”, that isolated incidents of physical discipline do not rise to the level of a grave risk, and anonymous text messages to the police alleging that the mother sexually abused the children is not clear and convincing evidence of a grave risk.
