In November 2020, the U.S. District Court for the ED Georgia denied Mr. Romero’s request to return his children to Chile under the Hague Abduction Convention. Mr. Romero appealed, and, on May 25, 2021, the Eleventh Circuit affirmed.
Mr. Romero argues that the District Court was clearly erroneous and objects to its determination that his children were settled in Georgia, that it would constitute a grave risk to return them to Chile, and that his oldest child was mature enough to object to being returned.
The Eleventh Circuit reiterated the pertinent parts of the testimony adduced at a 2-day trial. It also noted that the trial judge interviewed the oldest of the two children in chambers, and permitted both parties to submit questions in advance to be asked of her, but they could not cross-examine her. They listened to the child’s interview on the phone, and were permitted to submit follow-up questions (although neither did). The child was age 14 at the time of trial, and made a clear objection with mature explanations: in Chile, she lived in poverty, frequently moved, and was constantly in fear that Mr. Romero would find them and hurt her mother. The child, without prompting, described a number of violent incidents where her father beat her mother, described watching her father purchase and consume drugs, and recalled interactions with the police in Chile.
While Mr. Romero argues several points, this blog post will focus on the court’s interview of the oldest child. While in chambers, the child testified as to substantive matters, such as her observations of her father and his behavior. Mr. Romero argued on appeal that if the child were to testify on substantive matters, beyond simply stating an objection to being returned, she must be cross-examined. The 11th Circuit disagreed with Mr. Romero. Apparently, Mr. Romero asked that the child testify in chambers, he listened by phone to the testimony, he was able to pose questions to the child by submitting them in advance, and was able to follow up with additional questions afterwards, although he chose not to do so. He was also afforded the opportunity to submit rebuttal evidence. On appeal, Mr. Romero did not pinpoint precisely what question he was denied asking of his child. The process itself was designed to protect the child from being asked questions directly by her parents.
In addition, a child’s testimony is germane to multiple different issues before the court, not just whether the child objects to a return. It can be relevant to whether a grave risk exists, the situs of the child’s habitual residence, or other issues. There is no requirement that the Hague Abduction Convention affirmatively authorize this type of testimony in order for the court to elicit it. In this case, the child’s testimony was credible. It was consistent with the testimony of her mother and half-brother. It was corroborated by records. The child provided “lengthy and detailed particularized objections of being repatriated to Chile…” demonstrating her maturity. The child’s objections were based on her firsthand experience, indicating they were not a product of Ms. Bahamonde’s influence.