Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereinafter referred to as “the Convention”), the general rule is that when a child is wrongfully removed to or retained in a country other than their habitual residence, the court of the State where the child is located must order their immediate return to the State of habitual residence.
The main goal of the Convention is to protect children internationally from the consequences of a sudden disruption in their lives. Therefore, while return is the general rule, there are exceptions, which are applied only to the extent that they serve the best interests of the child.
Article 13 of the Convention outlines, in a restrictive manner, the situations in which a return to the State of habitual residence may not be ordered.
Specifically, paragraph (b) of the same article provides that the return of the child should not be ordered 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.”
Although the Convention refers to the risk or intolerability of the situation upon return, it does not define what constitutes a “grave risk” or an “intolerable situation” for the purpose of applying paragraph (b) of Article 13. This means that the interpretation of these terms is left to case law and must be assessed on a case-by-case basis. Importantly, the interpretation of “risk” and “intolerability” must be strict, to avoid rendering the Convention ineffective, as stated in the Explanatory Report of the Convention.
Upon analyzing the provisions of paragraph (b) of Article 13, three types of risks can be identified: physical, psychological, and exposure to an intolerable situation.
Case law has interpreted that the level of seriousness to be considered pertains to the risk itself, not necessarily the damage the child may suffer if exposed to that risk. This means that there must be a real and substantial risk of the child being placed in a dangerous situation.
For example, this may occur when a child is moved from one State to another, and upon return, would be exposed to poverty, especially where the parent requesting the return is not in a position to provide for the child’s needs, and the other parent is equally unable to do so.
Thus, the court must assess not only the legality or illegality of the removal or retention but also the impact that a return would have on the child’s circumstances.
If, after analyzing the situation the child would face upon return to the country of habitual residence, it is concluded that the child would be subjected to conditions that no child should endure, the decision must be not to order the return — even if the removal or retention is deemed unlawful.
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