The Southern District of NY refused Mr. Jacquety’s request to have his child EJ returned to Morocco under the Hague Abduction Convention. The parties stipulated that Mr. Jacquety met his burden for Petitioner’s case. Ms. Baptista argued one exception to the child’s return: that a return would place the child in a grave risk of harm.
“The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” … “[A]t one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.” . . . “Even if the requirements of the grave risk of harm exception are met, principles of comity require the court to “determine whether there exist alternative ameliorative measures that are either enforceable by the District Court or, if not directly enforceable, are supported by other sufficient guarantees of performance.””
One of Respondent’s experts who had evaluated EJ opined that EJ has PTSD and “that E.J. is at serious risk of an increase in her PTSD symptoms and negative impact on her development if she were to return to Morocco.” Exacerbating the potential for harm, in early 2019 in Morocco, the courts issued a custody order giving Mr. Jacquety custody of EJ, and Ms. Baptisa access to him on weekend days at Mr. Jacquety’s house in Casablanca.
In this particular case, the Respondent provided expert testimony about the child’s condition, and the Petitioner provided no contrary opinions. The Court cited to Lozano saying, “courts that determined that the [grave-risk] exception applied have done so when presented with uncontroverted expert testimony and other credible evidence that the child would face grave risk if returned.” The child’s psychological harm is not speculation. EJ was evaluated by a competent expert, and the Petitioner Father’s expert did not evaluate EJ and had no opinion on the actual harm to EJ. Further, there are no “ameliorative measures” that would abate the grave risk. The Moroccan authorities cannot fulfill “the impossible task of ensuring that a return to Morocco would not trigger a recurrence of traumatic stress disorder in the children.” Morocco was the scene of this child’s trauma.