Family Violence and Proving Grave Riskk for Cases under the Hague Convention Article 13(b)

Abstract

In The Hague Convention on Child Abduction is intended to address and deter wrongful removal and retention of children. Cases under the Convention now often raise issues under the “grave risk” Article 13(b) exception to return. The Convention emphasizes summary resolution of cases and an approach of judicial “self-denial,” avoiding an inquiry into the child’s “best interests.” However, when family violence issues are raised, a court must consider and assess the risks faced by children. Children exposed to domestic violence may face grave risk if returned, even if not direct victims. However, the domestic violence is a “differentiated phenomenon.” The fact that there may have been some acts of domestic violence does not preclude an order of return, but the court rather must assess the nature and serious o the acts, the likelihood of their recurrence and the adequacy of the protection that can be provided in the jurisdiction of the child’s habitual residence. Child sexual abuse allegations, especially involving young children and the context of parental separation raise challenging issues that are often best resolved in the jurisdiction of child’s habitual residence, where the most evidence is available, provided that the child can be adequately provided upon return. The paper provides some legal and social context for the consideration of Hague Child Abduction cases raising issues of “grave risk” based on allegations of domestic violence and child sexual abuse.