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Axford v. Axford

July 28, 2009

VICTORIA JANE AXFORD, PETITIONER,
v.
MARK STEPHEN AXFORD AND ROXY ROOKSTOOL, RESPONDENTS.



The opinion of the court was delivered by: Schiller, J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Presently before the Court is Victoria Jane Axford's Verified Petition for Return of Child to Petitioner. On July 23, 2009, the Court conducted an evidentiary hearing on the Verified Petition. At the conclusion of the hearing, the Court entered an Order granting the Verified Petition and stating that a Memorandum would be issued forthwith.*fn1 This Memorandum provides the reasons why the Court granted the Verified Petition and ordered the child be returned to the United Kingdom, his country of habitual residence. Additionally, this Memorandum addresses Petitioner's fee petition.

I. PROCEDURAL BACKGROUND

On June 29, 2009, Victoria Jane Axford ("Petitioner" or "Victoria") filed the instant Petition seeking the return of her thirteen year old child, Morgan Lee Axford ("M.A.") to England pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980).*fn2 Before effecting service of the Petition on Respondents, Petitioner filed an Expedited Ex Parte Motion for Expedited Service and Surrender of Passports and Travel Documents. (Doc. No. 2.) On July 7, 2009, a hearing was held before the Honorable R. Barclay Surrick on the ex parte motion. Victoria, who is a citizen of the United Kingdom and resides in England, testified at the hearing by telephone. She offered credible testimony that Respondent Mark Stephen Axford had absconded with M.A., who is autistic, without the consent of Victoria or the English courts.*fn3 In the course of an investigation by police in the United Kingdom, Victoria learned that Mark had obtained a passport for M.A. under false pretenses and then traveled to the United States with plane tickets purchased by Respondent Roxy Rookstool. On the date of a scheduled return flight to England, Mark Axford married Rookstool in the United States. Victoria believed that the couple was residing with M.A. outside of Philadelphia, Pennsylvania and that Mark had enrolled M.A. in school by representing that Victoria was dead.

In a July 10, 2009 Memorandum and Order, Judge Surrick granted the ex parte motion and directed the United States Marshals Service to serve the Petition and confiscate Respondents' passports. (See Doc. No. 12.) The United States Marshals Service served the Verified Petition later that day and confiscated the passports of M.A and Respondent Mark Stephen Axford. Rookstool, a United States citizen, did not possess a passport. An evidentiary hearing was scheduled for July 20, 2009. (Doc. No. 12.)

On July 13, 2009, Mark wrote a letter to the Court requesting a continuance of the evidentiary hearing and seeking additional time to retain counsel. (See Letter from Mark Stephen Axford to the Court, July 13, 2009, included as an exhibit to this Memorandum.) In the letter, he stated, inter alia, that he "had made every attempt in the United Kingdom to pursue every lawful avenue" with respect to custody of M.A., but that he was "finally forced to act in violation of U.K. Law in order to uphold higher laws and responsibilities." (Id.) On July 14, 2009, Brian M. Puricelli entered his appearance on behalf of Rookstool. (Doc. No. 13.) On July 16, 2009, Hope C. LeFeber, Esquire, entered her appearance on behalf of Mark Axford.*fn4 (Doc. No. 14.) Christopher Furlong, Esquire, thereafter entered his appearance on behalf of M.A. The evidentiary hearing on the Verified Petition was rescheduled for July 23, 2009. (Doc. No. 15.)

On July 17, 2009, Mark Axford went to the law office of Attorney LeFeber with M.A. to prepare for the evidentiary hearing. Before their meeting could take place, the United States Marshals Service appeared in the lobby and arrested Mark pursuant to a warrant issued by Magistrate Judge Elizabeth T. Hey. The warrant was issued because of an extradition request from the United Kingdom. The British embassy had submitted a diplomatic note to the United States Department of State formally requesting the extradition of Respondent Axford because of criminal charges in that country, stating that

Her Brittanic Majesty's Embassy present their compliments to the Department of State and have the honour to request the extradition of Mark Stephen Axford in accordance with the Extradition Treaty between the United States of America and the United Kingdom of Britain and Northern Ireland, and Related Exchange of Letters, signed on March 31, 2003.... Mr. Axford is accused of the following two offences: Child Abduction contrary to the Child Abduction Act 1984; [and] Making an untrue statement to Procure a passport contrary to section 36 of the Criminal Justice Act 1925. This is an urgent case because Mark Axford is alleged to have abducted his autistic son to the United States of America. I would be grateful if you could ensure that Department of Justice is aware that Hague Convention proceedings have begun to return the child. I would ask that you make sure that those involved would ensure that extradition and Hague Convention proceedings run in tandem so that when Mr. Axford is arrested for extradition purposes the child is returned under civil proceedings. (Diplomatic Note No. 71/09, June 24, 2009.)

The United States Marshals Service permitted Ms. LeFeber to contact the court before taking Mark into custody. The Marshals Service was directed to bring Mark and M.A. to the court rather than to a detention facility. Judge Surrick held an emergency hearing on July 17, 2009. Under the circumstances, the Government agreed that detention of Mark was not necessary at that time and that electronic home confinement, pending the extradition proceeding, was appropriate. Detention of Respondent Axford would have resulted in an unstable and potentially traumatic temporary custody arrangement for M.A., a special needs child. Judge Surrick entered an Order accordingly.

On July 21, 2009, this case was transferred to me as the acting Emergency Judge. On July 23, 2009, the Court conducted an evidentiary hearing on the Verified Petition. Unfortunately, prior to the hearing, Mark, in violation of Judge Surrick's Order, removed his electronic monitoring device and left the location where he was staying. He took M.A. with him. As a result, neither Mark nor M.A. were present during the evidentiary hearing.

II. FINDINGS OF FACT

The following facts are derived from the record in this case, including the Verified Petition, the evidentiary hearings and the exhibits admitted into evidence.

A. Background

Petitioner has lived her entire life in England. On December 18, 1993, Victoria and Mark married in England. Victoria gave birth to a son, M.A., on November 9, 1995. Mark is M.A.'s biological father. The couple divorced on October 25, 1999. M.A. is now thirteen years old and suffers from autism. As a result of his autism, M.A. has difficulty communicating and interacting in social situations. Petitioner has no other children.

Prior to the hearing, Craig D. Weiss, Ph.D., a licensed psychologist, performed clinical interviews, observations, and testing on Victoria, Mark, M.A., Rookstool, and Kevin White, Victoria's partner. He also reviewed school records and a number of letters that Mark submitted on his behalf. Dr. Weiss prepared a report that was made part of the record; he also testified during the evidentiary hearing.

In his report, Dr. Weiss stated that M.A. suffers from autism and has a reported IQ of 49, which "is equivalent to a mental age of about seven." (Weiss Report at 2.) According to the report, Mark alleged that Victoria and White abuse drugs and alcohol and were abusive toward M.A. (Id. at 2-4.) Mark contends that he made repeated allegations to M.A.'s school, social services, and courts in England that his son was being abused, none of which was deemed valid. (Id. at 4.)

Dr. Weiss described Mark as being of average intelligence and "angry, suspicious and sometimes paranoid" about the prospect of M.A. returning to England. (Id. at 5.) He expressed mistrust of Victoria and told Dr. Weiss that she was manipulative and dramatic. (Id.) The report further notes that Mark was "contemptuous of mother and fearful of the prospect that the Court may order [M.A.] returned to England. His mistrust extends to the American Court system, which he believes is railroading him and may possibly allow [M.A.] to return to an abusive mother." (Id.) Dr. Weiss characterized Mark as a "probably aloof, rigidly moralistic" man who finds the world to be "a threatening place where he has been unjustly blamed for others' problems." (Id. at 5-6.)

Victoria was described as being of average intelligence. (Id. at 6.) She denied abusing M.A. and denied abusing drugs or alcohol. (Id.) "Although she admits [Mark] has never threatened nor harmed her, she claims to be afraid of him, given his clear anger at her and the fact that he absconded with [M.A.]." (Id.) Her partner, Kevin White, was aware of Mark's allegations of abuse. One of White's previous girlfriends submitted a letter that claimed he was abusive when drunk; White "admitted there was some truth to her claims." (Id. at 8.)

As for M.A., he was "quite friendly" when Dr. Weiss interviewed and observed him. (Id. at 9.) M.A. never initiated conversation and even his answers to open-ended questions were brief. (Id.) He often parroted what was said to him, making him appear very agreeable. (Id.) Dr. Weiss concluded that M.A. did not engage in "emotional reciprocity" but also concluded that he enjoyed human contact with his mother and clearly bonded with both his father and Rookstool. (Id.) He displayed poor verbal expressive skills because of his autism, ...


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