The 1980 Hague Convention on the Civil Aspects of International Child Abduction aims to ensure the prompt return of children who have been wrongfully removed or retained across international borders. Its purpose is to protect children from the harmful effects of abduction and to ensure that custody decisions are made by the appropriate jurisdiction.
However, there are specific exceptions under which a court may dismiss an application for the return of an abducted child.
This article explores these exceptions and provides examples from jurisprudence in the United States, Italy, and Romania.
Legal Grounds for Non-Return Under the 1980 Hague Convention
Article 13(a): Consent and Acquiescence
A court may refuse to order the return of a child if the person, institution, or other body requesting the return was not actually exercising custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.
Example: In the US case of Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996), the court found that the father had not acquiesced to the mother’s retention of the child in the United States. The mother argued that the father had consented to her taking the child to the US, but the court determined that any consent given was conditional and limited in scope.
Article 13(b): Grave Risk of Harm
A court is not bound to order the return of the child if it finds that 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.
Example: In the case of Blondin v. Dubois, 238 F.3d 153 (2nd Cir. 2001), the US court refused to return the children to France, determining that they would face a grave risk of psychological harm due to the father’s history of severe domestic violence. The court emphasized the potential traumatic impact on the children’s well-being.
Article 13: Child’s Objections
A court may also consider the child’s objections to being returned, taking into account the child’s age and maturity.
Example: In the Italian case of Cass. Civ., Sez. I, 9 agosto 1997, n. 7453, the Supreme Court of Italy considered the objection of a 13-year-old child who expressed a strong desire not to return to the United States due to the substantial adjustment he had made in Italy and the potential psychological impact of returning. The court found that the child’s maturity and reasoning warranted consideration of his objection.
Article 12: Well-Settled in New Environment
If more than one year has passed since the wrongful removal or retention, and it is demonstrated that the child is now settled in their new environment, the court may refuse to order the return of the child.
Example: In the Romanian case of Bucharest Tribunal, Decision No. 5867/2010, the court declined to return a child to Spain, finding that the child had become well-settled in Romania, having lived there for over a year, formed significant social ties, and adapted to the local environment and education system.
Article 20: Fundamental Freedoms and Human Rights
A return may be refused if it would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
Example: In the US case of Van de Sande v. Van de Sande, 431 F.3d 567 (7th Cir. 2005), the court ruled that returning the children to Belgium would contravene their fundamental rights due to credible evidence of severe domestic abuse by the father. The court emphasized that such a return would violate the children’s right to safety and security.
Conclusion
While the 1980 Hague Convention generally mandates the prompt return of wrongfully removed or retained children to their habitual residence, several exceptions exist to protect the child’s best interests. Courts in different jurisdictions, including the US, Italy, and Romania, have invoked these exceptions in various cases, balancing the Convention’s goals with the need to safeguard the child’s welfare. Each case is unique, and courts must carefully consider the specific circumstances and evidence presented to determine whether an exception to return is justified.
Below you can find a list of ten additional relevant cases related to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, along with the court decisions:
- Abbott v. Abbott, 560 U.S. 1 (2010) – United States. The U.S. Supreme Court held that a parent’s ne exeat right (the right to consent before the other parent can take the child out of the country) constitutes a “right of custody” under the Hague Convention, requiring the return of the child to the habitual residence for custody proceedings.
- In re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 – United Kingdom
- Elisa Perez-Vera Report (Explanatory Report on the 1980 Hague Child Abduction Convention) – Spain. Although not a court case, this Report is often cited in legal decisions for its authoritative interpretation of the Hague Convention, influencing numerous decisions on child abduction cases.
- Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013) – United States
- Neulinger and Shuruk v. Switzerland, No. 41615/07, ECHR 2010 – Switzerland
- C v. C (Minor: Abduction: Rights of Custody) [1989] 1 WLR 654 – United Kingdom
- X v. Latvia, No. 27853/09, ECHR 2013 – Latvia. The European Court of Human Rights held that the Latvian courts had not adequately considered the child’s best interests and potential psychological harm, thus violating Article 8 of the European Convention on Human Rights.
- Re M and Another (Children) (Abduction: Rights of Custody) [2007] UKHL 55 – United Kingdom
- Karakaya v. Sural & Ors [2017] EWHC 188 (Fam) – United Kingdom
- Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007) – United States. The Sixth Circuit found a grave risk of harm due to the father’s history of domestic violence and denied the return of the children to Germany.
These cases illustrate the various applications and exceptions under the 1980 Hague Convention and highlight how courts across different jurisdictions interpret and balance the Convention’s principles with the best interests of the child.
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Attorney-at-Law Ana Maria Alexandru, Bucharest Bar
E-mail: amalexandru@outlook.com