The Hague Convention - 13(1)(b)

The Hague Convention on international child abduction and the ‘grave risk of harm’ exception under article 13(1)(b) – Discuss

The Hague Convention provides a means of preemptory disposition of requests made by member states in circumstances of alleged child abduction. Article 13(1)(b) was designed to ensure that the desired procedural efficiency in fulfilling member state requests did not trump a child’s best interests. It is contended that despite the profound political limitations noted below, the Article has proven to be an appropriate and relatively robust vehicle when these potentially conflicting interests are considered.

The discussion in support of the proposition outlined above is developed from an analytical framework styled in the form of a concentric circle. Article 13(1)(b) is placed at the centre, with a primary ring of preliminary observations to establish context, a secondary ring of selected case law and commentaries, with a tertiary ring of analysis directed to the specific child welfare issues engaged in Article 13(1)(b) proceedings. The materials employed are drawn from primarily UK and international common law jurisdiction sources.

Preliminary Observations

Although laudable in its goals, the 24 year history of this Hague Convention has met with mixed political success. The Convention is not the accepted international standard for the resolution of abduction disputes; as of January 2007, only 64 nations were Convention signatories. The limitations of this international roster are made more prominent by the absence of India and China, representing over one-third of the world population.

The absence of all Muslim nations where the religious sharia law is utilised to resolve custodial disputes is also a factor that undermines the international efficacy of the Convention. The sharia varies in its application throughout the Muslim world; there is little question that sharia traditions often invoke certain presumptions in favour of a child’s father that are incompatible with the Hague regime.^[1]

Article 13 was drafted at a time when there existed concerns that fathers who abducted their children and fled to a foreign jurisdiction would use superior financial resources to defeat legitimate custody claims.^[2] Ironically, women form the majority of abductors in modern Hague Convention proceedings^[3], without any apparent weakening or irrelevancy in the application of the Article.

Analysis

Article 13(1)(b) is best understood as a tool available in appropriate circumstances to rebut the presumption of child return. The onus of proof applied in Article 13(1)(b) cases has been uniformly high, as courts in most Hague member states have strictly regulated the availability of the exception. The courts are properly motivated by a fear that the process can be exploited.

It is noteworthy that the courts are not required to consider as paramount the child’s welfare – that consideration is reserved for the ultimate custody litigation in the proper forum.^[4] The Article 13(1)(b) test is the ‘assessment of risk’, a less rigorous and exacting exercise. There is abundant common sense at the root of this approach. In exceptional cases there is the distinct prospect that this test may work a hardship, or otherwise create potential long term adverse impacts upon a child. Such unfortunate consequences may be the inevitable result of doing justice to the greater number of children by a forceful application of a principled and weighty standard.

‘Grave risk’ has been variously defined as more than an ordinary risk, substantial, serious, and weighty.^[5]The grave risk contemplated by Article 13(1)(b) has three distinct aspects – physical harm, psychological harm and intolerable situations. Physical harm is likely the clearest basis to invoke the Article; it is also the least common basis advanced when a grave risk finding is sought.^[6]

The grave risk to the child as created through psychological harm is a more common contention in Article 13(1)(b) litigation. Courts have generally been alive to the difficulties associated with this defence, given the primary Article 13 purpose to facilitate the return of a child, with the fuller consideration of custody issues in the requesting jurisdiction. Where separation from the abductor is claimed as a basis of psychological harm to the child, a much cited passage from N v N ^[7]is resonant:

‘Is a parent to create the psychological situation, and then rely on it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the convention, at least in respect of applications relating to young children.’

The eminent good sense of N v N has been echoed in other jurisdictions.^[8]

Grave risk is also considered where it is claimed that the child will sustain psychological effects due to a ‘material disadvantage’ resulting upon return to the requesting jurisdiction. Most legal jurisdictions have sensibly restrained the application of this apprehended risk to cases where the abducting parent has not created the disadvantage (e.g. failure or refusal to pay support). As an example, the fact that a child will to live on social assistance if returned has not been regarded as a determining factor under this heading.^[9]

The assertion that the status quo prior to the abduction was one that harmed the child is a further potential component of Article 13(1)(b) grave risk. This position is often adopted by female abductors who allege prior domestic violence; the assertion is tied to the body of science that has established a connection between exposure to violence and harm to the child.^[10] There is little question that in many such circumstances a court can properly establish the defence. The inherent risk in the status quo defence is that the defence is not related to the child’s interest as it represents the parent advancing their personal interests.^[11]

The final category of grave risk is a broadly inclusive ‘intolerable situation’, a heading that potentially includes anything not otherwise specified. ^[12] A common approach includes alleged deficiencies in the requesting nation’s legal system that will ultimately harm the child. The UK approach is exemplified by Re E-B (Children)^[13], ‘…where an Article 13B defence is asserted, it is common enough for the respondent to adduce expert evidence of the law and practice in the state of habitual residence, perhaps to demonstrate that on return the respondent would be exposed to criminal process or otherwise denied access to the family justice system.’^[14]

Where there is evidence that the abductor will be arrested upon their return to the requesting jurisdiction to contest custody, a number of authorities have considered whether the arrest would result in a form of harm to the child sufficient to constitute ‘grave risk’. One might assume that such claims would be dispatched as certainly as those advanced in N v N^[15]. However, in a number of decisions this argument gained sufficient traction to invoke an Article 13(1)(b) defence.^[16]

Further discussion

Article 13(1)(b) is not a perfect mechanism to resolve the difficult and often emotion-charged issues arising in abduction cases. As averted to above, the child centred language of the Article is open to subversion for improper purposes. There is no question that any presiding judge charts a demanding course between the presumption that a child be returned, and the fear that a failure to invoke Article 13(1)(b) may lead the child to misery. The Article provisions could be made more specific by way of discrete categories required to establish the defence, to endeavour to limit considerations that not expressly related to child welfare – the risk of harm if the abductor were arrested is an example of a defence that could be eliminated by comprehensive drafting. In totality, the Article and its jurisprudence achieves a reasonable measure of its objectives.

Bibliography

Beaumont, Paul R., and Peter E. McEleavy The Hague Convention on International Child Abduction (Oxford: Oxford University, 1999)

Goelman, Deborah M. “Shelter from the Storm: Using Jurisdictional Statutes to Protect Victims of Domestic Violence after the Violence against Women Act of 2000.” (2004) Columbia Journal of Gender and Law 13, 1: 101

Sobal, Barbara and William M. Hilton “Article 13(b) of the Hague Convention Treaty Does It Create a Loophole for Parental Alienation Syndrome – an Insidious Abduction?” (2004) International Lawyer 35 (3): 997-1025

UK Foreign and Commonwealth Office http://www.fco.gov.uk (Accessed March 19, 2007)

Weiner, Merle H. “International child abduction and the escape from domestic violence” (2000) Fordham Law Review 69, 2: 593-706

2006 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction and Attachment A http://travel.state.gov/pdf/2006_Hague_Compliance_Report_doc041806.pdf (Accessed March 19, 2007)

Case law

C v C [1989] 2 All ER 465

Re E [1999] 2 FLR 642

E-B (Children), Re [2002] EWCA Civ 1771

Freidrich v Freidrich 78 F. 3d 1060 (6th Cir. 1996)

N v N [1995] 1 FLR 107

1

Footnotes

^[1] E.g. Iran

^[2] Beaumont, Paul R., and Peter E. McEleavy The Hague Convention on International Child Abduction, 136

^[3] Weiner, Merle H. “International child abduction and the escape from domestic violence” (2000) Fordham Law Review 69, 2: 595

^[4] Freidrich 78 F. 3d 1060 at 1068 (6th Cir. 1996

^[5] Beaumont, 141

^[6] 2006 Report, Attachment A

^[7] [1995] 1 FLR 107 at 113

^[8] Sobal, Barbara and William M. Hilton “Article 13(b) of the Hague Convention Treaty Does It Create a Loophole for Parental Alienation Syndrome – an Insidious Abduction?’ (2004) International Lawyer 35 (3): 997

^[9] E.g. C v C [ 1989] 2 All ER 465

^[10] Goelman, 101

^[11] Ibid, 107

^[12] Beaumont, 151

^[13] [2002] EWCA Civ 1771

^[14] Ibid, para 14

^[15] N7 and 8, supra

^[16] Sobal, 1001