A major debate is under way as to the future of the grave risk of harm defense in Hague Convention international child abduction cases. The move is spearheaded by those who believe that the Hague Convention discriminates against expatriate mothers who are victims of domestic violence and who return to their countries of origin with their children. It is a reaction to a long line of cases that have given the grave risk of harm defense an extremely narrow interpretation, and to the notion that the integrity of the Convention as a whole requires that the well-being of individual children in hard cases must be sacrificed for the greater good of maintaining the integrity of the Hague Convention process.

Thus far, the high water mark of the new approach has been the decisions of the Third and Seventh Circuits in 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).

The outcome of the debate will significantly affect most Hague Convention cases brought in the U.S. because a broader defense will provide much greater scope for issues concerning a childs physical and psychological well-being to be raised in Hague cases.

The Issue

The fundamental idea of the Hague Convention is that custody issues should be decided by the country of a childs habitual residence, not by the country to which a parent has abducted a child. Therefore, the Hague Convention was designed so that the fundamental issues are whether the claim is brought by a person who has rights of custody under the law of the childs habitual residence and whether the child was removed from or retained out of the habitual residence without the consent or acquiescence of such claimant.

It is central to the Hague Convention formula that a Hague Convention proceeding does not make any determination of the future custody of a child. It merely decides which country has jurisdiction to make the custody determination. For this reason, the Convention provides that any pending custody proceedings must be stayed as soon as a Hague proceeding has commenced. Nonetheless, the drafters of the Convention realized that it was necessary to provide a defense in the event that there was a substantial risk that the child would be harmed if he were returned to the habitual residence. Accordingly Article 13(b) of the Hague Convention states:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that (b) there is a 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.

The current debate concerns the meaning of the words grave risk, physical or psychological harm and intolerable situation.

Traditional Interpretation

The traditional view has been that Article 13(b) must be interpreted narrowly. This is supported and evidenced by the following factors.

The Explanatory Report of the Hague Convention, which is afforded substantial authority in Hague cases, asserts that a restrictive interpretation of the grave risk of harm defense, as well as of two other limited defenses, is necessary to avoid a collapse of the entire structure of the Convention. Paragraph 34 of the Explanatory report states that:

[T]he three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. [A] systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the childs residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.

Elisa Pez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1980).

The U.S. Department of States Legal Analysis of the Hague Convention (51 Fed. Reg. 10494 (1986)) prepared for the Senate Committee on Foreign Relations to which the Convention was referred, confirms the intention that Article 13 was intended to be afforded a narrow interpretation. In this regard the State Department stated that the drafters were aware that any exceptions had to be drawn very narrowly lest their application undermine the express purposes of the Convention to effect the prompt return of abducted children; that it was generally believed that courts would understand and fulfill the objectives of the Convention by narrowly interpreting the exceptions that Article 13(b) was not intended to be used by defendants as a vehicle to litigate (or relitigate) the childs best interests and that [o]nly evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the courts determination.

In the seminal case of Friedrich v Friedrich, 78 F.3d 1060 8 (6th Cir. 1996), the Sixth Circuit held that a grave risk of harm for the purposes of the Hague Convention can exist in only two situations. The first is if returning the child would put the child in imminent danger prior to the resolution of the custody dispute in the courts of the country of habitual residence. These would be circumstances such as returning the child to a zone of war, famine or disease. The second situation is if there is evidence of serious abuse or neglect of the child, or extraordinary emotional dependence, and if the courts in the country of habitual residence cannot or will not give the child adequate protection.

The Friedrich approach has been followed by most U.S. courts, e.g., Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995); Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377-8 (8th Cir. 1995). However, U.S. courts have sometimes strained to find ways to avoid the approach in specific cases. In Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) [Blondin IV], the Second Circuit upheld the District Courts refusal to return children to France because uncontested expert testimony showed that they would face a recurrence of traumatic stress disorder if they were repatriated to France. See also Danaipour v. McLarey, 286 F.3d 1, 4 (1st Cir. 2002).

The New Approach: Domestic Violence

Since approximately 2000, there has been a fundamental and dramatic change in the treatment by U.S. courts in Hague Convention cases of domestic violence as the basis of a defense under Article 13(b) of the Convention. There has been a radical shift in the opinion of scholars and in the response of the courts towards allowing the defense in Hague Convention cases. This is evidenced by many cases and articles.

Walsh v. Walsh

In Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000), while the First Circuit gave express recognition to the fact that the exposure to domestic violence is a sufficient risk to preclude a childs return under the Convention, it allowed the appeal because, inter alia: 1) the children had witnessed the fathers assaults upon the mother; 2) credible social science literature establishes that serial spousal abusers are also likely to be child abusers; and 3) both state and federal laws have recognized that children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser.

The First Circuit relied on the fact that a congressional resolution, passed in 1990, specifically found that:

whereas the effects of physical abuse of a spouse on children include … the potential for future harm where contact with the batterer continues; Whereas children often become targets of physical abuse themselves or are injured when they attempt to intervene on behalf of a parent; H.R. Con. Res. 172, 101st Cong., 104 Stat. 5182, 5182 (1990); see also Opinion of the Justices to the Senate, 691 N.E.2d 911, 917 n.5 (Mass. 1998); Custody of Vaughn, 664 N.E.2d 434, 439 (Mass. 1996).

Accordingly, the court held that these factors are sufficient to make a threshold showing of grave risk of exposure to physical or psychological harm.

Professor Merle Weiner

A series of influential and scholarly articles have been published by Professor Merle Weiner to establish that while the remedy of return works well if the abductor is a non-custodial parent, it is inappropriate when the abductor is a primary caretaker who is seeking to protect herself and the children from the other parents violence. Merle H. Weiner, Navigating the Road Between Uniformity and Progress: The Need for Purposive Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 33 Colum. Human Rts. L. Rev. 275, 278-79 (2002). In such a case, the remedy [of return] puts the victims most precious possession, her child, in close proximity to her batterer either without her protection (assuming she does not return with the child), or with her protection, thereby exposing her to further violence. Merle H. Weiner, International Child Abduction and the Escape from Domestic Violence, 69 Fordham L. Rev. 593, 634 (2000); cf. 18 U.S.C.§ 1204(c)(2).

As will be seen below, the Third Circuit has now cited Professor Weiners articles and has expressly adopted her thesis.

A federal district court in Washington State has held that spousal abuse is a factor to consider in determining whether grave risk applies because of the potential that the abuser will also abuse the child. Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045, 1057 (E.D. Wash. 2001). Furthermore and of great relevance to the pending action insofar as children are to be returned to the scene of admitted domestic violence in Greece the court in Tsarbopoulos ruled that Greece was unable to provide sufficient protection for the children in that case and found it highly significant that there was no evidence of undertakings, offers of support in Greece, or other services available to ensure the safety of the children if they were returned to Greece.

Professor Carol S. Bruch

Professor Carol S. Bruch published a well-received article in the ABA publication, Family Law Quarterly, Fall 2004 (38:3), entitled The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases. Prof. Bruch argued that the courts have been far too grudging in their application of the Article 13(b) defense, and she called on courts to exercise more common sense in refusing to send mothers and children back to circumstances of domestic abuse.

Two decisions were rendered in January 2005 in the federal district court for the Eastern District of New York. Both were Hague Convention cases in which the mother fled with children to avoid domestic violence. In each case the return petition was denied by reason of the grave risk of harm that a return would entail. Elyashiv v Elyashiv, 353 F. Supp. 2d 394 (E.D.N.Y. 2005); Olhuin v. Del Carmen Cruz Santana, 2005 U.S.Dist. LEXIS 408 (E.D.N.Y. 2005).

Shetty and Edelson

Professors Shetty and Edelson published a scholarly article in 2005, which forcefully presented the argument that as the weight of the emerging social science evidence and U.S. public policy change brings about expanded definitions of a childs best interest, so too must there be an interpretation of the Hague Convention that prevents a battered mother from being compelled to return her children to an abusive father in a country which did not protect her or her children. Shetty, S. & Edleson, J.L. (2005). Adult domestic violence in cases of international parental child abduction, Violence Against Women, 11, 115 - 138.

Van de Sande v. Van de Sande

In Van de Sande v. Van de Sande, 431 F.3d 567 (7th Cir. 2005), the Seventh Circuit issued a well-reasoned analysis of the entire problem of spousal abuse and its impact on Hague return applications and overturned the order of the district court. In that case, two children, habitually resident in Belgium, were retained by their mother in the United States. The Belgian father was subsequently awarded custody by a Belgian court and he issued return proceedings. The American mother presented evidence that she had been the victim of domestic violence at the hands of the father and that the latter had also chastised the couples daughter, although not their son. She also alleged that the father had declared that he would kill the mother and children. The Seventh Circuit held that there was sufficient evidence to establish a prima facie claim of grave risk of harm to the children, within the meaning of Article 13(b) of the Hague Convention, as to constitute a defense to an action for return of children under International Child Abduction Remedies Act (ICARA). The Court of Appeals (Judge Posner) accepted the evidence presented in the affidavits submitted for the mother. It ruled that the fathers propensity for violence and his disregard for the childrens welfare, which he displayed by beating his wife in the childrens presence, meant that the children would face a grave risk of harm if returned. The court in Van de Sande considered the existing case law to the effect that it should focus exclusively on whether the children could and would be protected in Belgium. It ruled, however, that this was not the correct approach to take, being at odds with the language of the Convention and the U.S. implementing legislation. In this regard, the court cited with approval the articles by Professor Weiner, as well as Roxanne Hoeggers article entitled, What If She Leaves? Domestic Violence Cases Under the Hague Convention and the Insufficiency of the Undertakings Remedy, 18 Berkeley Womens L.J. 181, 187 (2003). The court further held that to give custody of children to a father when they were at great risk of harm from him, on the grounds that they would be protected by the police of the fathers country, would be to act on an unrealistic premise. It ruled that the rendering court must satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abusers custody. Turning to whether a return could be ordered subject to conditions, the court suggested that in cases of child abuse, the presumption should be against such an outcome. Nevertheless it remitted the case to the district court level for the matter to be considered.

In September 2005, the Hague Convention Chapter Advisory Committee of the Washington Courts issued a report entitled The Hague Convention on International Child Abduction: A Child Return and the Presence of Domestic Violence. The report set forth strong arguments in support of the recent trend in U.S. courts against returning children whose mother took them to this country as a refuge against domestic violence.

In February 2006, the Third U.S. Circuit Court of Appeals issued a key ruling in In re Application of Adan, 437 F.3d 381 (3d Cir. 2006), sending the case back to the district court to issue more specific findings of the facts relevant to the mothers defense of grave risk of harm. The Court of Appeals specifically endorsed the determination in Walsh that abuse against a mother may well create grave risk of harm to her child.

Thus the Third Circuit stated (437 F.3d 381, footnote 6) that: We note that the evidence of Adans [the father] abuse of Avans [the mother] is relevant to the District Courts determination of whether returning Arianna [the child] to Argentina would expose the child to a grave risk of harm. See, e.g., Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000) (holding that such evidence is relevant when considering whether a grave risk of harm to a child exists because credible social science literature establishes that serial spousal abusers are also likely to be child abusers and both state and federal law have recognized that children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser).

Finally, in June 2006 in Koch v. Koch, 450 F.3d 703 (7th Cir. 2006), the Seventh Circuit ruled that At least one other court has found that the physical abuse of one spouse by another is a relevant factor in the courts determination of the existence of shared intent to make a place the familys habitual residence. Tsarbopoulos v. Tsarbopoulos, 176 F. Supp. 2d 1045, 1056 (E.D. Wash. 2001). Danes physical attacks against Antonia certainly gave him an incentive to seek a friendlier forum for custody, in contravention of the goals of the Convention and ICARA.[International Child Abduction Remedies Act ] And these physical attacks on Antonia, of course, would be relevant to certain defenses to allowing the children to remain in the United States even if that was their habitual residence at the time of their removal from Germany. See Note 5, supra. We are mindful that spouse abusers sometimes abuse the children as well, and that choking the mother in view of the children can itself be considered a form of child abuse. Van De Sande, 431 F.3d at 570 (fathers threat to children could not be dismissed in light of gross disregard of childrens welfare displayed by beating and verbally abusing wife in the presence of the children).


There has been a dramatic shift in recent years in the U.S. law concerning grave risk of harm and a growing realization that it is inappropriate to order that children be sent back to face domestic violence without a full evaluation of the nature of the prior abuse and of the likelihood that the authorities in the country to which the children are being returned will indeed fully protect them and their abused mother.


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