On February 26, 2021, in the matter of Colchester v. Lazaro, the U.S. District Court for the W.D. of Washington ordered the parties’ 6-year-old child returned to Spain. On October 22, 2021, the Ninth Circuit vacated and remanded.

At trial, Ms. Lazaro argued that the child would be at grave risk of harm if returned to Spain, alleging that Mr. Colchester was violent and abusive towards her and the child. Prior to trial, she requested appointment of a psychological expert. Her counsel argued that an expert evaluation was necessary to demonstrate the impact of the abuse on the child, and was essential to proving the grave risk exception by clear and convincing evidence. Counsel cited to a recent Hague Abduction suit in Washington State where the court refused to find a grave risk of harm because no psychological expert testified about the “potential for psychological harm to children in cases of spousal abuse.” The Court herein decided no further discovery would take place, no evaluation would take place, and then scheduled a 4-day trial.

At trial, Ms. Lazaro attempted to present the best evidence she could, and asked for the court to hear from the child, in whatever way the court deemed appropriate. The court declined to hear from the child. As a note, the court said, “I am not inclined to permit testimony by the child. During some of the events involved here, she would have been three or four years old. She has just turned six years old, and I think it would be a mistake to put a child in the position of testifying in favor of one party or the other and could do permanent scarring to the child. It’s just something I don’t think is appropriate.”

At trial, Ms. Lazaro did have a Spanish psychologist testify. This person had conducted a virtual 90-minute session with the child, but was unable to meet the child in-person, alone, and had to conduct the interview through an interpreter. The Court ultimately concluded that this testimony lacked utility.

In its return order, the Court did not address any of the substance that Ms. Lazaro presented as to a grave risk. It did, however, adopt several paragraphs verbatim from Mr. Colchester’s proposed findings. The Court did include a statement that the grave risk exception had been raised and “rejected” in prior U.S. and Spanish courts.

The Ninth Circuit concluded that even though there is no right to appointment of a psychological expert, in this case it was error in that it prevented Ms. Lazaro from fully presenting evidence of her exception. A district court has broad discretion to permit or deny discovery. On appeal, “a decision to deny discovery will not be disturbed except upon the clearest showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant. Prejudice is established if there is a reasonable probability that the outcome would have been different had discovery been allowed.” In this case, the trial court’s opinion was devoid of any discussion or reasoning for why it denied Ms. Lazaro’s request for an expert evaluation. “… [T]herefore [the Court] h[e]ld that the district court’s wholesale denial of discovery in general and of the psychological examination in particular was unreasonable. This alone would suffice for remand.” “[T]he district court’s findings [must] … ‘be explicit enough to give the appellate court a clear understanding of the basis of the trial court’s decision, and to enable it to determine the ground on which the trial court reached its decision.’” 

The Ninth Circuit concluded its opinion, stating, “But we stress that “[t]he rulings in this opinion are procedural,” so we “do not prejudge the merits of the Article 13(b) defense,” which has a high burden of proof. Khan, 680 F.3d at 788. We also leave it to the district court to determine where S.L.C. shall reside while these proceedings remain ongoing.” As a reminder, there is a Spanish custody order, granting Mr. Colchester custody of the child.