Many parents accused of abducting their children in violation of the Hague Convention on the Civil Aspects of International Child Abduction are not sure how to respond. That’s because parents treat their Convention case as just another custody case, confident the best interest of the child is the standard. This article briefly discusses why those parents are wrong, and what defenses are available under the Convention.

The Hague Abduction Convention

The Convention has become the primary mechanism to ensure the return of children who have been wrongfully removed or retained from their country of habitual residence. The two main purposes behind the Convention are to protect children from the harm of an international abduction and secure the left behind parent’s rights of access to their child.

However, many parents confuse the purposes of the Convention, mistakenly thinking their defense rests on proving who the better parent is. It comes as a surprise to many people to learn that the judge in a Convention case does not have jurisdiction to hear a child custody dispute.

Before any defenses are even asserted, a Petitioner seeking a child’s return must first prove their case. To prove a case under the Convention, a Petitioner must demonstrate where the habitual residence of the child was before the wrongful removal or retention; that the removal or retention breached the Petitioner’s custody rights; and finally, that at the time of the child’s removal or retention those rights were actually exercised.

Affirmative Defenses

Once a prima facie case under the Convention is proved, the court must promptly return the child unless the Respondent can establish an affirmative defense. As will be shown below, the available defenses under the Convention are not the same as arguments one might raise in a typical child custody case.

Settled Defense

When less than one year has elapsed between the date of the wrongful removal or retention and the filing of the petition, a court must order the return of the child forthwith. However, a court has discretion to not return a child if the child is now settled in its new environment. The Convention does not define the term “settled”, so Courts look to see if the child has significant emotional and physical connections demonstrating security, stability, and permanence in a new environment.

Actually Exercising Custody Rights

Under the Convention, if a parent demonstrates that at the time of removal or retention, the left-behind parent was not actually exercising custody rights at the time of removal or retention, returning the child is not required. Surprisingly, the Convention does not actually define what “exercise” rights of custody actually means. In the United States, courts broadly find a parent is actually exercising rights of custody whenever that parent keeps any sort of regular contact with the child.

Consent or Acquiescence

Another defense under the Convention is consent. A court is not required to order the return of a child if the left-behind parent actually consented to, or subsequently acquiesced in, the removal or retention of the child outside the child’s habitual residence. Both consent and acquiescence look at the petitioner parent’s subjective intent.

Mature Child Objection

Additionally, a court is authorized to not order the return of a child if the judge finds that the child objects to being returned, and the child has attained an age and degree of maturity at which it is appropriate to take account of its views. While it is easy discovery a child’s age, determining a child’s maturity level can be harder. Accordingly, mature child cases tend to be very fact intensive.

Grave Risk

The Convention provides that a child need not be ordered returned if “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. Grave risk is subject to a high burden of proof. When deciding whether grave risk exists, courts consider the magnitude of the potential harm and the probability that the harm will materialize. The potential for harm to the child must be “severe,” and the level of risk and danger very high.

Public Policy

The Convention provides that return of the child may be refused if this would not be permitted by fundamental principles relating to the protection of human rights and fundamental freedoms. In addition to having a high burden of proof, like the Grave Risk defense, this defense has a poor track record, and those who have asserted the Public Policy defense in the United States have not been successful.

Conclusion

The available defenses under the Hague Abduction Convention are different from a typical child custody case because the purposes of the Convention are different. Given that courts in a Convention case cannot decide the merits of the custody dispute, typical arguments about the best interest of the child won’t have much traction, leaving the practitioner with the defenses listed above.