England v. England ( 2000 )

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., 39 F.3d 594, 600 (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, 42 U.S.C. §§ 11601-11610 (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.” Id., 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. 42 U.S.C. § 11603 (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, 78 F.3d 1060,
1067 (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.” Id. at
1063. 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, 58 F.3d 374,
376 (8th Cir. 1995); Rydder v. Rydder, 49 F.3d 369, 372 (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, 58 F.3d at 377 (“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, 78 F.3d at 1067-68 (“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, 221 F.3d 204, 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 42 U.S.C. § 11603(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. 42 U.S.C. § 11601(a)(4)
(1994); Nicholson v. Nicholson, No. 97-1273-JTM, 1997 WL 446432, 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 42 U.S.C. § 11601(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, 78 F.3d 1060 (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, 58 F.3d 374 (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, 49 F.3d 369 (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