William Edward ENGLAND, Plaintiff-Appellant, v. Deborah Carol ENGLAND, Defendant-Appellee, 234 F.3d 268

DUHÉ, Circuit Judge: This is an expedited appeal of the District Court’s denial of a Petition for Return of Children under the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention” or “the Convention”). The District Court held that even though two children were wrongfully removed by their mother from Australia, their country of habitual residence, to the United States in violation of the Hague Convention, they need not be returned to Australia because return would expose them to grave risks of psychological harm and because the older child objects to being returned.

For the following reasons we reverse and remand. BACKGROUND William and Deborah England (“William” and “Deborah”) have two children: Karina, age thirteen, and Victoria, age four. All parties are American citizens. The England family lived in Texas until 1997, when they moved to Australia incident to William’s job transfer there. In June 1999, the Englands left Australia for an extended overseas vacation. They arrived in the United States in July 1999 for the last leg of their vacation. Their itinerary scheduled their return to Australia for July 15, 1999. As planned, William returned to Australia that day.

Ostensibly concerned for the health of her cancer-stricken father, Deborah remained in the United States. Since, Deborah told her husband, the England girls’ last chance to see their grandfather was perhaps at hand, Karina and Victoria remained in the United States with her instead of returning to Australia with William as planned. A few weeks later, Deborah filed for divorce from William in Texas. Shortly thereafter, she phoned William and advised him that neither she nor their daughters would be returning to Australia.

After Deborah refused William’s various requests to return the children, William filed in the District Court a Petition for Return of Children Under the Hague Convention. After an Australian court determined that Australia was the “habitual residence” of Karina and Victoria and that their removal from Australia was “wrongful,” the District Court heard and denied William’s Hague Convention petition.

The Convention requires that a child wrongfully removed from her country of habitual residence be returned there upon petition unless, among other reasons not relevant here, clear and convincing evidence establishes that a grave risk of psychological harm attends her return or unless a court elects to heed the wishes of a sufficiently old and mature child who desires not to return. The District Court, agreeing with the Australian court, held that, within the meaning of the Convention, Karina and Victoria were wrongfully removed from their place of habitual residence.

The Court, however, determined that Karina, an adopted child who prior to her adoption by the Englands had a “turbulent” history in orphanages and foster care and endured “difficult” adoption proceedings, would face a grave risk of psychological harm if separated from her mother or forced to move so soon after resettling in Texas. See England v. England, No. H-99-2715 (S.D.Tex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition for Return of Children Under the Hague Convention).

The District Court also found that — notwithstanding her Attention Deficit Disorder, learning disabilities, Ritalin use, and emotional itin-erancy (she has had four mothers in her thirteen years of life) — Karina was sufficiently mature for the Court to credit her desire to remain with her mother and not return to Australia. The Court declined to separate Victoria from her older sister because “it would be psychologically damaging to both girls to be separated from each other during the pendency of the [Eng-lands’] custody proceedings.” Id.

Accordingly, the Court allowed Karina and Victoria to remain in the United States with their mother. William argues that the District Court erroneously held that Karina and Victoria’s return to Australia pending the outcome of custody proceedings would subject them to grave risks of psychological harm. He also argues that Karina is not mature enough for a court appropriately to consider her wishes under the Hague convention. DISCUSSION We review the District Court’s factual findings for clear error and its legal conclusions de novo. Sweatman v. Commercial Union Ins. Co., 89 F.3d 594, 600 (5th Cir.1994). I.

Grave Risk The District Court’s holding that Karina and Victoria need not return to Australia under the terms of the Convention because return would expose them to grave risks of psychological harm was clearly erroneous because the evidence of these psychological risks is neither clear nor convincing. Under

Article 12 of the Convention, when a child has been “wrongfully removed or retained,” the “judicial or administrative authority of the Contracting State where the child is ... shall order the return of the child forthwith.” Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 12, 51 Fed.Reg. 10493, 10498 (emphasis supplied).

Article 13 of the Convention provides an exception to

Article 12’s rule of mandatory return in the event of “a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Id., art. 13b, 51 Fed.Reg. at 10499. The Convention’s implementing legislation, the International Child Abduction and Remedies Act (“ICARA”), requires that a party opposing a child’s return prove the existence of such a grave risk by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A) (1994).

Even if this “narrow” exception applies, though, a federal court has “and should use when appropriate” the discretion to return a child to his or her place of habitual residence “if return would further the aims of the Convention.” Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996). The Convention’s primary aims are to “restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.” Id. at 1063.

Accordingly, the Convention prohibits courts considering Convention petitions from “adjudicating the merits of [the] underlying custody dispute[s].” Nunez-Escndero, 58 F.3d at 376 (citations omitted). While admittedly the District Court and not this Court is the fact-finder, we nonetheless discern nothing in the record constituting clear and convincing evidence that return to Australia pending the outcome of custody proceedings there would expose Karina to grave risks of psychological harm.

The following is the whole of the District Court’s findings regarding “grave risk” in this context: “Through Karina’s testimony, however, Ms. England has established that given Karina’s turbulent history in orphanages, foster care, and difficult adoption proceedings there is a grave risk of psychological harm if she should be separated from her mother or have to endure another move so soon after re-settling in Houston. There are two custody proceedings pending, one divorce proceeding in the United States and one in Australia, both of which have been temporarily abated pending the outcome of this proceeding.

If the Court should send Karina back to Australia, one court or the other may well send her back to the United States after a full examination of her best interests. The Court finds that such movement back and forth poses a serious threat to her psychological welfare.” England v. England, No. H-99-2715 (S.D.Tex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition for Return of Children Under the Hague Convention). Courts considering this issue have uniformly found considerations such as those articulated by the District Court inappo-site to the “grave risk” determination.

See, for example, Nunez-Esendero, 58 F.3d at 377 (“The district court incorrectly factored the possible separation of the child from his mother in assessing whether the return of the child to Mexico constitutes a grave risk that his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation”); Friedrich, 78 F.3d at 1067-68 (“Mrs. Friedrich alleges that she proved by clear and convincing evidence in the proceedings below that the return of Thomas to Germany would cause him grave psychological harm. Mrs.

Friedrich testified that Thomas has grown attached to family and friends in Ohio. She also hired an expert psychologist who testified that returning Thomas to Germany would be traumatic and difficult for the child, who was currently happy and healthy in America with his mother.... If we are to take the international obligations of American courts with any degree of seriousness, the exception to the Hague Convention for grave harm to the child requires far more evidence than Mrs. Friedrich provides. Mrs.

Friedrich alleges nothing more than adjustment problems that would attend the relocation of most children”); Walsh v. Walsh, 221 F.3d 204, 220 n. 14 (1st Cir.2000) (“We disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States. That is an inevitable consequence of removal”). The District Court’s finding that return to Australia would expose Karina to a grave risk of psychological harm, then, was clearly erroneous.

Since the District Court found that the evidence of grave risk to Victoria was even less clear and convincing than the evidence of grave risk to Karina, see England v. England, No. H-99-2715 (S.D.Tex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition for Return of Children Under the Hague Convention) (“ ... moving back and forth would not pose the same psychological threat to Victoria as it would for her sister”), the Court’s finding that return threatened Victoria with a grave risk of psychological harm was also clearly erroneous. II.

Age and Maturity The District Court also erred in determining that Karina is mature enough for the Court appropriately to consider her views under the Convention. The Convention establishes that a court “may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Convention, art. 13, 51 Fed.Reg. at 10499. The party opposing the child’s return must establish the child’s maturity by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(A) (1994).

Like the grave risk exception, the “age and maturity” exception is to be applied narrowly. 42 U.S.C. § 11601(a)(4) (1994); Nicholson v. Nicholson, No. 97-1273-JTM, 1997 WL 446432, at *3 (D.Kan. July 7, 1997) (“The child objection defense has been narrowly construed”). The Court’s findings on this issue are even more limited than those on the grave risk exception: “In addition, Karina has clearly objected to being returned to Australia and she is old enough and mature enough for the Court to take account of her views.

She has maintained friendships with classmates here while living abroad, she likes it here and her situation has stabilized. The Court, in accordance with Karina’s stated preference, declines to return her to Australia.” England v. England, No. H-99-2715 (S.D.Tex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition for Return of Children Under the Hague Convention). The Court’s findings, while certainly sensitive to Karina’s emotional plight, nevertheless constitute a non sequitur.

That Karina has maintained her friendships with children in America, prefers America to Australia, and now enjoys a “situation [that] has stabilized” does not establish that she is mature enough for a court appropriately to consider her views on where she would prefer to live under the Hague Convention. Rather, these findings only establish that Karina prefers to remain in the United States and that some reasons support this preference.

If anything, the preponderance of the evidence in this record suggests that Karina is not mature enough for the Court appropriately to take account of her views under the age and maturity exception. By no fault of her own, Karina has had four mothers in twelve years. She has been diagnosed with Attention Deficit Disorder, has learning disabilities, takes Ritalin regularly, and is, not surprisingly, scared and confused by the circumstances producing this litigation.

In view of this evidence and the narrowness of the age and maturity exception to the Convention’s rule of mandatory return, we hold that the District Court erroneously found Karina mature enough to trigger this exception to the Convention. CONCLUSION We reverse the District Court and remand with instructions that the district court order Karina and Victoria returned to Australia forthwith pending the outcome of custody proceedings there in accordance with the Convention and for such other proceedings as may be appropriate. REVERSED and REMANDED with instructions. .

Both Australia and the United States have signed and implemented the Convention, the latter through the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (1994). . See, for example, Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376 (8th Cir.1995); Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir.1995). . A non-divorce custody proceeding in Australia is stayed pending the outcome of this litigation, as is Deborah’s Texas divorce action. .

The dissent comments that we so conclude despite the absence of "any case holding that, under the Hague Convention, a 13 year-old is • just too young as a matter of law to take account of her views.” The dissent’s concern is misplaced. We do not hold that as a matter of law a 13 year-old is not sufficiently mature for her views to be considered. We do hold that, on this record, a 13 year-old has not been shown to be mature enough for her views to be considered. Indeed, the evidence found in the record which is recounted in this opinion points to the opposite conclusion. . This burden is salient.

The dissent declares that when the record is examined for evidence regarding Karina's maturity, it discovered "no testimony by any ... witnesses in the record that would raise even a genuine issue as to whether Karina was too young or too immature to have her views considered.” This underscores the dissent's error. To prevail, William England need not show that Karina is "too immature to have her views considered.” Rather, Deborah England, the party opposing the child’s return to her place of habitual residence, must establish Karina’s maturity by a preponderance of the evidence. This she has failed to do.