international family law
A key debate is unfolding about the future of the grave risk of harm defense in Hague Convention international child abduction cases. Some argue that the Hague Convention unfairly affects mothers who flee domestic violence, particularly expatriate mothers who return to their home countries with their children. This debate challenges the narrow interpretation given to the grave risk of harm defense in past cases and questions whether the integrity of the Convention should require sacrificing the well-being of children in difficult cases.
The most notable cases that have pushed for a broader defense include Van de Sande v. Van de Sande, 431 F.3d 567 (7th Cir. 2005), In re Application of Adan, 437 F.3d 381 (3d Cir. 2006), and Koch v. Koch, 450 F.3d 703 (7th Cir. 2006). A broader interpretation of the defense could lead to more consideration of a child’s physical and psychological well-being in Hague cases.
The Hague Convention aims to ensure that custody issues are decided in the child’s habitual residence, not the country to which the child has been abducted. The Convention doesn’t decide custody but determines which country has the authority to do so. Article 13(b) allows a defense if returning the child would expose them to grave risk of harm.
Traditionally, the grave risk of harm defense has been interpreted narrowly to avoid undermining the Convention’s goal of quickly returning abducted children. U.S. courts, following the Friedrich v. Friedrich case, generally recognize grave risk in cases of imminent danger, such as war zones or severe abuse. The courts focus on evidence that directly shows the child would face harm or an intolerable situation if returned.
In recent years, U.S. courts have increasingly recognized domestic violence as a valid defense under Article 13(b). The First Circuit in Walsh v. Walsh (2000) acknowledged that exposure to domestic violence can be a sufficient reason to prevent a child’s return under the Convention. Scholars like Professor Merle Weiner argue that the remedy of return is inappropriate when the mother is the primary caregiver and is trying to protect her children from violence.
Several scholars and court cases support expanding the definition of grave risk. For example, Professor Carol Bruch argues that courts should be more open to applying the grave risk defense in domestic violence situations. In cases like Tsarbopoulos v. Tsarbopoulos (2001), courts considered domestic abuse as a factor in determining grave risk, especially when the children would not be protected if returned to the country of origin.
Recent decisions show a shift toward recognizing domestic violence as a serious factor in Hague Convention cases. In Van de Sande v. Van de Sande (2005), the Seventh Circuit ruled that children should not be returned to a father who had a history of violence, acknowledging the risk to the children’s safety. This case marks a significant change in how U.S. courts interpret the grave risk defense in the context of domestic violence.
The outcome of this debate will likely affect how U.S. courts handle future Hague Convention cases, particularly those involving domestic violence. Expanding the defense could provide better protection for children in situations where returning them would place them at serious risk of harm.
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