On June 22, 2022, the U.S. District Court for the D. of Mass. ordered a minor child, MPA, returned to her habitual residence of Brazil under the Hague Abduction Convention. MPA is the biological daughter of parents that had separated in November 2021, but remained legally married. Both parents shared time with MPA, including transporting her to school in Brazil. All relevant individuals are Brazilian nationals. On March 4, 2022, upon the Mothers’ request, MPA’s Father consented to a visitor visa for MPA to visit Walt Disney World in Florida. That same day, the Mother and MPA traveled by plane from Brazil to Mexico, and then, at some point, crossed the Mexico – U.S. border without documentation. The Mother turned herself into border patrol, and she and MPA currently live in Medford, Massachusetts with her father.
The Mother argued against MPA’s return to Brazil on the basis of Article 13(b) of the Hague Abduction Convention. [Note: the evidentiary hearing was held on June 17, 2022, 2 days after the Golan v. Saada opinion was handed down by the U.S. Supreme Court]. The court found that Mother’s evidence of physical discipline and the Father’s driving the child while intoxicated were things that could be adequately addressed by agreement or the legal system in Brazil.
The court, however, was troubled by the Mother’s argument that the child would suffer psychological harm if returned. The Mother had sought an emergency protective order in Brazil, which was ultimately dismissed because she left the jurisdiction. But, in that Brazilian case, the court found the Mother “had been the victim of psychological violence, materialized in the practice of threat and illegal constraint, with the intention of convincing her to give up the custody of the couple’s daughter in favor of the paternal family” and acknowledged that local police failed to comply with instructions to question the Father and his family. This court was concerned that she was desperate enough to make “the dangerous journey across the Mexican desert to the United States with her daughter to seek asylum…” The question, however, remains the risk of harm to the child, not the Mother. The Mother testified that the child voiced potential suicidal ideation related to her being separated from her Mother, but the court could not sufficiently decipher the real cause of these fears (return to Brazil, separation from Mother, etc.), and felt that there were ways they could be ameliorated (the child returns with the mother, the child resides with the mother’s family, etc.).
On June 23, 2022, the Court issued its final return order, which included certain measures to protect the child. They included: the Father’s commitment to not drive the child after consuming alcohol, and agreement that the child would reside with the maternal Grandmother unless otherwise ordered by a Brazilian court. The court further requested that the Brazilian consulate issue a “Return to Brazil Authorization” for the child and mother, because their Brazilian passports were being held by the U.S. government after they entered the U.S. While the trial judge did not find a grave risk of harm in returning the child, the court had expressed concerns, while noting that it felt the concerns could be ameliorated. The return order clearly put in place certain measures to return the child in a manner that the court concluded would prioritize the child’s safety.