USA: Second Circuit Rules That Child From Italy With Severe Autism May Remain In The U.S. To Avoid The “Grave Risk of Harm”

Relying heavily upon the expert testimony of a noted behavior analyst in the context of a hearing held in the federal district court under the Hague Convention, the Second Circuit Court of Appeals has held that, despite a father’s wishes in an international custody dispute, a young boy with “severe” autism may remain in the United States with his mother and his brother so that he might continue to receive ABA therapy and thus avoid the “grave risk of harm” that he would face if he were to return to Italy, a country where such services are not readily available. The Court’s unanimous opinion, written by renowned jurist Guido Calabresi, affirmed the decision of the district court (Hon. Laura Taylor Swain).

The student was represented by Wilmer Cutler Pickering Hale and Dorr. Mayerson & Associates attorneys Gary Mayerson, Tracey Spencer Walsh and Maria McGinley were granted leave to file an amicus brief in support of the student on behalf of the Autism Speaks Federal Legal Appeals Project. Click here for the Court’s Decision Ermini v. Vittori.

Confronting what it characterized as “various issues of first impression in this Circuit, the Second Circuit analyzed the Hague Convention and reconciled its provisions against the unique needs of the student, a child with “severe” autism. While the Hague Convention was designed to ensure the prompt return of children “wrongfully removed” from their country of origin, the Court held that where, as here, a return to the country of origin would result in the “grave” risk of harm to the child, the child need not be returned.

The district court had credited the testimony and report of Dr. Carol Fiorile, a Columbia University trained Ph.D. and Board Certified Behavior Analyst, that if the student were to be removed from his “CABAS” type ABA program here in the U.S., he would face a severe loss of the skills that he had developed and that any “hope for [the student] to lead an independent and productive life” depended on his continued participation in the ABA program he was attending–a program not readily available in Italy.

The Second Circuit noted that “this is the first occasion for this Court to consider this kind of psychological harm…” and that such harm was “implicated by a developmental disorder such as autism.” As the Court went on to explain: “The harm, in fact, is of such a severity that it threatens to strike to the very core of the child’s development individually and of his ability to participate as a member of society.”

Autism Speaks Board member Gary Mayerson noted the significance of the Court’s decision: “Autism is a global concern.  Given the demand for effective services, we are going to see more and more of these kinds of cases.  I am proud that our court system was able to apply an international treaty to recognize the unique needs of one child with autism.”