## Facts

- Iraj Danaipour and Kristina McLarey were estranged spouses with two minor daughters, A.D. (7) and C.D. (almost 3), whose habitual residence was Sweden.
- In June 2001, McLarey removed the children from Sweden to the United States in violation of a Swedish court order.
- Danaipour filed a petition in federal district court in Massachusetts seeking the children’s return under ICARA and the Hague Convention.
- McLarey asserted the Hague Convention’s Article 13(b) defense, alleging the father sexually abused the children and that return would expose them to grave risk of harm.
- After a prior appeal required findings on the abuse allegations, the district court held a trial on remand.
- The district court found by clear and convincing evidence that Danaipour sexually abused C.D., but did not find that A.D. had been abused.
- Based on the abuse finding and related evidence, the district court concluded that returning either child to Sweden would create a grave risk of physical or psychological harm and denied the return petition.

## Issues

1. Whether the district court clearly erred in finding by clear and convincing evidence that Danaipour sexually abused C.D.
2. Whether the district court correctly applied Hague Convention Article 13(b) to deny return based on a grave risk of physical or psychological harm (or an intolerable situation), including as to A.D.
3. What role trial-court factfinding and credibility determinations play in applying Article 13(b) in cases involving substantiated sexual abuse.

## Decision

- The First Circuit affirmed the judgment denying the petition for return.
- The court held the district court’s finding that C.D. was sexually abused was not clearly erroneous.
- The court held that, given the abuse finding and the record concerning risk and the limits of protective measures, the district court permissibly concluded that return would pose a grave risk to the children within Article 13(b).

## Legal Principles

- Under ICARA, the respondent must prove an Article 13(b) grave-risk defense by clear and convincing evidence.
- Article 13(b) is a narrow exception to the Convention’s general rule of prompt return, but it must be applied when proven.
- A court adjudicating a Hague return petition must resolve serious sexual-abuse allegations when they are central to an Article 13(b) defense; it may not defer that determination to custody proceedings abroad.
- Appellate review of Hague Convention abuse findings is for clear error; trial-court credibility determinations and evaluation of competing experts receive substantial deference.
- A substantiated finding of sexual abuse can support a grave-risk determination, and the grave-risk analysis may extend to both siblings where the proven abuse and surrounding circumstances show serious psychological or physical danger upon return.

## Conclusion

The First Circuit upheld denial of return under the Hague Convention because the district court’s supported finding that the father sexually abused one child satisfied ICARA’s clear-and-convincing standard for Article 13(b) and justified concluding that return to Sweden would expose the children to a grave risk of harm.


Danaipour v. McLarey, 386 F.3d 289 (1st Cir. 2004)