Unique Use of the Hague Convention in Custody Dispute

A trial judge's order granting a fugitive Irish national with an outstanding Massachusetts warrant custody of his young children was overturned by the 1st U.S. Circuit Court of Appeals. The mother had appealed the lower court's decision based on a narrow defense under the Hague Convention, alleging the father was abusive.

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A federal appeals court has overturned a trial judge’s order granting a fugitive Irish national with an outstanding Massachusetts warrant custody of his young children. The decision issued Wednesday by the 1st U.S. Circuit Court of Appeals reversed U.S. District Court Chief Judge William G. Young’s order that granted the petition of the father, John Walsh, to return his children to Ireland where he lives. In its decision a three-judge panel concluded that, under the Hague Convention of the Civil Aspects of International Child Abduction article 13(b), the children need not be returned to the father, stating, “[w]e do not believe the undertaking by the district court or even a barring order, are sufficient to protect the children from the exposure to grave risk in this case.” The mother, Jacqueline Walsh, appealed Young’s decision based on a narrow defense under the Hague Convention alleging the father was abusive. Boston lawyer Barry S. Pollack, who represents the children, said the decision is “extremely important because it recognizes that domestic violence should be of international concern.” Pollack, of the firm Dechert, Price & Rhoads, said further that the father’s wrongdoing was so egregious, “it would be an abuse of discretion to allow the children back to Ireland.” The children, a boy, age 4, and a daughter, age 9, are living with their mother, Pollack said. “This decision was necessary to allow them to develop as a loving family,” he said. E. Chouteau Merrill of the Boston firm of Brown, Rudnick Freed & Gesmer, who represents John Walsh, said her client would petition for an en banc hearing in front of the full 1st U.S. Circuit Court of Appeals. “I think Judge Young set the bar at the right level,” Merrill said. “We’re talking about enforcing a treaty and it’s hard to do when there are emotional issues involved.” In reaching its decision, the appellate court ruled that the children faced a “potential grave risk of physical or psychological harm,” that the father was habitually abusive, had violated an Irish order of protection, and was wanted by Massachusetts law enforcement officials for threatening to kill a neighbor in Malden, Mass. The appellate court wrote that it did not come to its conclusion lightly and that “international child abduction is a serious problem.” Jacqueline Walsh took the children from Ireland to the U.S. in violation of Irish court orders. “While this case is not entirely one-sided, we believe that the district court underestimated the risks to the children and overestimated the strength of the undertakings of this case,” the court wrote. John Walsh was arraigned in Malden District Court in 1993 on the threat to kill charge, but he fled to Ireland in January 1994, according to the decision. In March 1994, Jacqueline Walsh, who was seven months pregnant, went to live in Ireland with her husband. According to testimony contained in the decision, Jacqueline Walsh described numerous beatings at the hands of her husband over a period of three years. Jacqueline Walsh returned to the U.S. with her children in November 1997, in violation of Irish court orders. Nearly a year later, John Walsh filed a petition in the U.S. District Court of Massachusetts for the return of his children to Ireland, pursuant to the Hague Convention. Following a three-day hearing, Young ordered the children returned to Ireland. Jacqueline Walsh and Martha Miller, an intervenor in the case, filed a motion to vacate Young’s order in January 1999, contending that the fugitive disentitlement doctrine barred John Walsh, a fugitive from justice in Massachusetts, from petitioning the federal courts. They also claimed that the U.S., not Ireland, was the children’s place of “habitual residence” and, consequently, their return to the U.S. was not wrongful under the Hague Convention. The appellate court wrote that it had no doubt that Irish courts would issue appropriate protective orders, but that is not the issue. “The issue is John’s history of violating orders issued by the court, Irish or American,” the court wrote. “John’s past acts clearly show that he thinks little of court orders. He has violated the orders of the courts of Massachusetts, and he has violated the orders of the courts of Ireland,” the court wrote. “There is every reason to believe that he will violate the undertakings he made to the district court in this case and any barring orders from the Irish courts.”

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