PSD partner Joshua Solomon was quoted in an April 25, 2013 article on the RICO and bribery indictment filed against former probation commissioner John O’Brien.
by Peter Duffy
Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction states that return of a child wrongfully retained or removed from his or her home country is not required if the respondent opposing the return establishes that “there is 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.” Two recent cases from the District of Massachusetts highlight the role expert testimony can play in establishing the degree of psychological harm, if any, a child faces if returned to his or her home country.
In a recent March 13, 2013 decision in the case of Mlynarski v Pawezka, Magistrate Judge Kenneth P. Neiman ordered a child returned to Poland despite his respondent mother’s claim that the child faced a “grave risk” of harm if returned. Magistrate Judge Neiman noted that the mother had failed to proffer any expert evidence to support her claim as follows:
Respondent has not alleged that A.M. suffers from a traumatic stress disorder or is recovering from such a disorder. Neither has Respondent proffered any expert evidence or other testimony to support her contention that A.M.’s return at this time would expose him to a grave risk of psychological harm. At most, Respondent introduced some letters from neighbors and friends which attest to her being a good mother. . . . The court is more than willing to accept those attestations, but Respondent’s favorable qualities as a mother do little to demonstrate that A.M. would face a grave risk of harm were he to return to Poland. To the contrary, as she herself testified, not only is A.M. bilingual but Respondent has family who continue to reside in Poland, including her mother, sister, grandmother, aunt and uncle.
The recent case of Felder v. Ponder et al. also concerned a respondent’s claim that a child faced a “grave risk” of harm if returned to her home country, Switzerland. Lawyers for respondents had argued that the girl at issue had been suicidal and a return to Switzerland could exacerbate the problem. An expert for the left-behind mother testified that the girl overdosed on Xanax and aspirin, after complaining about anxiety and headaches, without any persuasive signs of suicidal tendencies. In the middle of the trial, the court ordered that respondents refrain from any further interference with the mother’s exercise of custody rights, thereby returning the child to the mother before returning the child to Switzerland. The Felder case settled just before the end of trial in January 2013 on terms calling not only for the child’s immediate return to her home country but also on a substantial six-figure payment to the mother to reimburse her for expenses seeking the return of her daughter.
In both Mlynarski and Felder, a child was ultimately returned to a country of origin, so the results in these cases can perhaps be best explained in terms of the general rule established by the Hague Convention favoring return of wrongfully removed children. The cases also highlight, however, the role of expert testimony for both petitioners and respondents in Hague Convention cases. Because respondents opposing the return of a child to his or her home country bear the burden of proving, under Article 13(b), a “grave risk” of harm by clear and convincing evidence, respondents like the one in the Mlynarski case can be affected most by the failure to retain a solid expert.
Last week, in United States v Michaud, the First Circuit forgave FBI agents who violated the Fourth Amendment by illegally placing a GPS device on a vehicle. The court distinguished between law enforcement using “new investigative methods in the face of uncertainty,” which is bad, and law enforcement relying on “clear and settled principles to install a [new technology] instead of [an old technology], and then to monitor it for over a week,” which is apparently good. This decision may cause law enforcement to feel more empowered than they are to rely on faith when violating privacy rights.
For several reasons, the FBI and other law enforcement agents should not embark more freely on police-state inquisitions just yet. First of all, other court rulings suggest that the good faith exception to the exclusionary rule does “not extend to situations in which police officers have interpreted ambiguous precedent or relied on their own extrapolations from existing caselaw.” Second, the parties in Michaud did not sufficiently build a record concerning the FBI’s ability to seek a warrant within the eleven-day monitoring period even if one were not available at the start. Third, nothing in Michaud relieves state actors of potential financial liability, in a Bivens or Section 1983 action, for those constitutional violations. Faith is not enough by itself to avoid the exclusionary rule.. Good faith is the standard.
Limitations on the holding in Michaud can be found in its conclusion:
[The] good-faith exception is not a license for law enforcement to forge ahead with new investigative methods in the face of uncertainty as to their constitutionality. “The justifications for the good-faith exception do not extend to situations in which police officers have interpreted ambiguous precedent or relied on their own extrapolations from existing caselaw.” …The good-faith exception is, however, properly applied in cases like this one (or Davis itself), where new developments in the law have upended the settled rules on which the police relied