On May 11, 2020, the Second Circuit Court of Appeals affirmed the return of a minor child to Ecuador in the case of Valles Rubio v. Veintimilla Castro, 813 Fed.Appx. 619 (2020). The key issue on appeal revolved around the grave risk of harm to the minor child if returned to Ecuador, and more specifically the ameliorative measures available to ensure a safe repatriation of the minor child. “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” In this case, the court concluded there was a grave risk of harm, but further concluded that the Ecuadorian courts were capable and willing to protect the child. The Mother appealed, arguing that the court did not sufficiently develop the record to support its conclusion that there are enforceable ameliorative measures in Ecuador, and it did not give sufficient weight to the fact that the Mother said that she would not return to Ecuador, which could place the minor child back into the care of a parent who was otherwise found to be abusive.
Ultimately, when the Court found that a grave risk existed, it requested the parties to file a Joint Status Update (JSU) setting out agreed-upon ameliorative measures. The Father, on appeal, asked the court to take judicial notice of this JSU, which it did. “The JSU provides for weekly visits between B.V. and Castro’s family, daily conversations by video or telephone between Castro and B.V., and restrictions on B.V.’s access to firearms, including prohibitions on the presence of any firearms where B.V. resides. Castro has failed to establish on appeal that these measures are inadequate to protect B.V., nor has she shown why she cannot avail herself of the Ecuadorian courts or the equitable power of the district court to enforce ameliorative measures for the protection of B.V.”
In essence, the district court did not simply repatriate the child – it ordered the parties to negotiate the terms of the repatriation and report back as to their agreement. They did so, and memorialized that in the JSU. The Second Circuit found that the Mother “failed to show that these measures or the protection of the Ecuadorian courts are inadequate, even if she remains in the United States; nor did she petition the district court to amend the terms of the JSU.”