On January 7, 2022, the First Circuit affirmed the U.S. District Court for the District of Massachusetts‘s return of Mr. Vieira’s 7-year-old son from Massachusetts to Brazil. Ms. De Souza argued, on appeal, that the court erred when it concluded that the grave risk exception did not apply and in failing to consider whether the mature child exception applied.
The parties are parents to one child, born in Brazil. In December 2018, Ms. De Souza moved to Massachusetts, leaving the parties’ child with Mr. Vieira in Brazil. On November 22, 2020, the maternal aunt offered to take the child to a doctor appointment, but, ultimately took the child to the airport and put the child on a flight to Massachusetts. The following day, Ms. De Souza called Mr. Vieira and alerted him that the child was with her and would not be returning to Brazil. On May 21, 2021, Ms. De Souza obtained a protective order against Mr. Vieira in Massachusetts. The PO was issued almost one month after Mr. Vieira filed his petition to return the child under the Hague Abduction Convention.
During the Hague Abduction Convention trial, Ms. De Souza represented herself. She testified as to the harm she feared would befall the child if he were returned to Brazil, and also stated, “if you ask [the child], [he] will tell you [of wanting] to stay here.” The judge ordered the child returned from the bench. The First Circuit requested the district court issue written findings. In the written findings, the court concluded that Ms. De Souza did not meet her burden to prove the child was at risk of a grave harm, and while the court didn’t identify the mature child exception as a distinct issue raised by Ms. De Souza, the court observed that there was no evidence that the child was mature.The First Circuit affirmed.
The grave risk exception is not to be used “as a vehicle to litigate (or relitigate) the child’s best interests.” None of the evidence indicated abusive behavior directed at the child. Further, even though there may have been spousal abuse in this case, the evidence indicated a lack of a “more generalized pattern of violence” that might tie spousal abuse to abuse of a child. Finally, the court indicated that any risk to the child did not rise to the level of being “grave.” The district court accepted Ms. De Souza’s testimony, including descriptions of the abusive behavior, and the court noted that a child can be at an increased risk of psychological injury when in contact with a spousal abuser. But, the grave risk of harm exception is an exceedingly high burden, and Ms. De Souza did not meet it.
Finally, Ms. De Souza argued, on appeal, that the court should have appointed the child a lawyer, interviewed the child, appointed a psychologist, or conducted some type of assessment as to whether the child was mature. She further argued that because, at trial, she was self represented and speaking through an interpreter, the court should have explored, on its own, any argument she raised, even if she did so incompletely or obliquely. The court, however, did not consider Ms. De Souza to have waived this exception. Instead, Ms. De Souza failed to present sufficient evidence to make out this exception. The court had no obligation to help her develop her case. In fact, the court should not assume the role of advocate for a pro se litigant. Ms. De Souza presented no evidence to support a finding that the child was mature.