Mr. Tchenguiz is seeking the return of his child to England through the Hague Abduction Convention. There are apparently three legal issues at dispute in this case, which had been set for trial for January 10, 2022 (after a continuance of a December trial date based on Respondent’s new arguments in her pretrial brief). The key issues are: the child’s habitual residence, the grave risk of harm exception, and the mature child’s objection exception. In a December 8, 2021 order, the court set forth discovery deadlines and ordered the psychological evaluation of the child. Mr. Tchenguiz apparently issued discovery to Ms. Bird, the Respondent. Further, the parties attempted to seek the evaluation of the child by a jointly selected psychologist, but the expert terminated the evaluation. Mr. Tchenguiz therefore filed a motion to strike, arguing that Ms. Bird should be precluded, for her failure to cooperate in the discovery process, from offering evidence on these three key issues.
Pursuant to FRCP 37(b), the court is permitted to impose sanctions against a party who fails to obey a discovery order. There was such a discovery order in this case. One such sanction that may be imposed is to prohibit the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.
Grave Risk: The jointly selected evaluator, Dr. Scolatti, apparently never received joint instruction on the scope of his retention. Ultimately, at the end of December, he informed counsel for the parties that he was withdrawing from the case because he felt his role “had not been clarified” and he also noted that he had not prepared a written report. When contacting counsel, he also indicated that he was “instructed” by Ms. Bird to not communicate with the parties going forward. Because of the doctor’s withdrawal, there was no court-ordered mental evaluation. Mr. Tchenguiz sought to strike Ms. Bird’s grave risk of harm argument because of the lack of a mental health report, based on Ms. Bird’s behavior, and based on her lack of sufficient discovery responses as to this exception. The court was displeased with Ms. Bird’s conduct vis-a-vis Dr. Scolatti, as the court had apparently previously stated that once Ms. Bird, who had previously been self-represented, had counsel, she was not to be involved in the litigation, yet she nonetheless contacted Dr. Scolatti. Since it is Ms. Bird’s burden to prove a grave risk, and her interference with the discovery process undercut her ability to meet the clear and convincing exception’s burden, and she had not provided any evidence to support her exception, despite being requested in discovery, the court felt it appropriate to sanction Ms. Bird and preclude her from arguing a grave risk of harm.
Mature Child: Ms. Bird apparently violated discovery procedures in terms of the mature child’s objection exception, but the court concluded that there is a possibility of an in camera interview of the child by the court, which would be independent of Ms. Bird’s case, so the court did not strike that exception.
Habitual Residence: Given that the standard for resolving habitual residence is fact-based under Monasky v. Taglieri, and Ms. Bird failed to provide discovery responses or any evidence, through the discovery process, the court made a finding that England is the child’s country of habitual residence.