Case Update (29 January 2024): Harvey v. Means; grave risk of harm not established by clear and convincing evidence
The U.S. District Court for the Western District of Washington ordered two children, ages six and four, returned to Scotland pursuant to the Hague Abduction Convention. The parties had married in 2015 in Washington and moved to Scotland from Brighton, England in 2017. Their two children were born in Scotland and they resided there until September 30, 2023, when their Respondent Mother moved them to Seattle. The children were subject to an August 2022 Scottish custody order, denying the Respondent Mother’s request to relocate the children, and awarding each parent 50 percent custody. That custody order followed acrimony between the parents, and an inquiry by the National Society for the Prevention of Cruelty to Children into an incident accusing the Petitioner Father of sexual abuse, which was ultimately concluded with no finding of abuse.
The Respondent Mother made several arguments at trial. She argued that “the children were born and remained in Scotland because of [Father’s] coercion.” The court, however, stated that the Mother “grew to dislike Glasgow as her marriage and mental health worsened, but a change of heart cannot override the clear conclusion that Scotland is the children’s habitual residence.” The Mother further argued that a return would expose the children to a grave risk of harm or intolerable situation because the children would “effectively lose their mother” because “she cannot return to Scotland because she felt suicidal there” and she would be “unable to find employment or housing in Scotland” and “could be subject to criminal prosecution…”. The Court, however, concluded that refusing to separate children from their abducting parent would “largely frustrate[]” the purposes of the Convention. The Mother also further argued emotional abuse by Father during their marriage. The court, however, concluded “there is nothing in the record reflecting that any form of spousal abuse occurred in the children’s presence. And while [Mother] claims that [Father] emotionally abused her, she does not allege that he emotionally abused the children.” The Mother brought forth the prior allegation of sexual abuse, and additionally testified about two other incidents that “gave her pause.” The court concluded that witnesses testified to the Father and children having a “normal and healthy relationship” and that the incidents were explained by the Father who, at the time of those incidents, reflected an “appropriate level of concern”.
The Mother’s final argument was that she had been “emailing with a doctor who could perform … an [forensic] evaluation” and sought more time to secure a psychological assessment, which was denied by the court. The court reached the conclusion that she had not, at trial, proposed or requested an assessment, had actual notice of the case since November 20, 2023, had set a discovery deadline for exchanging exhibits and witness lists, and that to permit an extension of time to seek an expert “would thus prejudice [Father] and cut agains the Conventions promise ‘to use the most expeditious procedures available’ to decide petitions.” The district court specifically distinguished this case from the 9th Circuit case of Colchester v. Lazaro.
On April 24, 2025, the U.S. Court of Appeals for the 9th Circuit affirmed.
