Autistic Kids Shielded From Abduction Treaty
MANHATTAN (CN) - Describing it as a "novel, and significant" abduction case, the 2nd Circuit found Tuesday that transferring a severely autistic child from a successful U.S. treatment program to a country with fewer medical options can expose him to "grave risk."
Italian father Emiliano Ermini petitioned under the Hague Convention for the return of his two sons, one of whom is a 9-year-old receiving applied behavioral analysis therapy for autism.
The treaty that the father invoked has more than 90 signatories to date.
Designed to standardize the procedures for the return of children "wrongfully abducted" from their home states, the convention lets parents assert that returning their children to their home country would cause "grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
Viviana Vittori alleged that her children with Ermini faced two such harms in Italy: an abusive father and the interruption of a successful autism treatment.
U.S. District Judge Laura Taylor Swain heard their case at a bench trial early last year.
In a December 2011 "violent altercation," Ermini hit Vittori's head against a kitchen cabinet of their Suffern, N.Y., home and attempted to "suffocate" and "strangle" her, Swain's findings of fact states.
To resolve related criminal charges, Ermini pleaded guilty a year later to second-degree harassment.
Ermini had a "habit of striking the children" and "hit [Vittori] at least 10 times during the course of their relationship," the judge found.
Swain also determined that the son had better access to applied behavioral analysis (ABA) therapy for autism in the United States.
At the time of the proceedings, the U.S. had more than 4,000 board-certified ABA practitioners, while Italy had fewer than 20, an expert testified in court.
Although she rejected his petition, Swain let Ermini renew his application if there was a change how 9-year-old Daniele's continuation of treatment and if the Italian court issued a final order demanding the return of Daniele and his brother, Emanuele.
A three-judge panel from the 2nd Circuit made the federal court's rejection permanent Tuesday.
In addition to crediting both of the mother's defenses, the court said that the question of autism marked the "first occasion for this court to consider this kind of psychological harm" under the treaty's provisions.
"We note, however, that Article 13(b) explicitly lists 'psychological' harm and 'physical' harm as appropriate harms for triggering the convention's affirmative defenses, both of which are implicated by a developmental disorder such as autism," Judge Guido Calibresi wrote for the court. "And we hold that the facts as found by the district court lend themselves straightforwardly to the conclusion that the risk of harm was grave."
Ermini's attorneys, Rocco Lamura and Genci Bilali with Tosolini Lamura Rasile & Toniutti, disputed the court's findings.
"In our opinion, the exception of the grave risk was not fully explored by the court as it relates to the autism; instead, other issues, of less importance, and not fully related to an Hague convention case, were addressed," they said in an email.
The 39-page opinion cites Swain's fining that the 9-year-old would suffer harm to his cognitive, emotional, and relational skills if pulled from therapy, and potentially stop him from leading an independent life.
"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," Calibresi wrote.
Sanket Bulsara, an attorney for Vittori with Wilmer Cutler Pickering, called the decision "significant."
"We are pleased that the 2nd Circuit upheld the decision of the trial court finding that separating Daniele Ermini from his treatment for autism would create a grave and intolerable risk of harm," Bulsara said in an email. "The decision allows our client's children to remain in the United States and to obtain this necessary treatment.
Gary Mayerson, who wrote a friend-of-the-court brief on behalf of Autism Speaks, said he expected the decision to spawn similar cases.
"Autism is a global concern," Mayerson said in a statement. "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."