Once a child reaches the age of 16, the Convention no longer legally applies, and a parent (or anyone with a “right of custody”) cannot use the Convention to seek the child’s repositioning (i.e., return). (Art. 4). Further, in that the Convention is not self-executing, each Contracting State must otherwise implement the Convention through domestic legislation. In the United States, this legislation is the International Child Abduction Remedies Act (ICARA) at 22 U.S.C. § 9001, et. seq. While each Contracting State implements this Convention in its own way, when the United States enacted ICARA, it required that anyone seeking to use this Convention to file a lawsuit in the U.S. state or federal court where a child is sitting after their abduction (22 U.S.C. § 9003(b)). An abduction can exist in one of two ways: (1) a child is either wrongfully removed from their habitual residence, or (2) a child is wrongfully retained outside of their habitual residence after an otherwise permitted trip. Note that the U.S. Department of State, operating as the U.S. Central Authority (i.e., the central contact point for the implementation and functioning of this Convention) accepts requests for assistance in cases that fall under this Convention by a parent filing an “application” with their office (see www.travel.state.gov). But this application does not otherwise initiate the legal proceedings that must be filed in the United States to commence a request to return an abducted child.
A petitioner in a Hague Abduction Convention lawsuit in the United States must demonstrate a few key elements in their case-in-chief. They must establish that a child, under the age of 16, was removed from another Contracting State under this Convention, that the other Contracting State and the United States have a legal relationship under this Convention, that the other Contracting State is the child’s habitual residence (see Monasky v. Taglieri, 589 U.S. 68 (2020)), and that the petitioner had a “right of custody” (see Abbott v. Abbott, 560 U.S. 1 (2010)) under the law of that child’s habitual residence and was actually exercising it, all at the time the child was either removed from or retained outside of that habitual residence.
A petitioning party is not limited to a parent, even though a parent is the person who traditionally has a “right of custody” under the law of a child’s habitual residence. There are instances where the parties in a Convention case are government entities due to the child being subject to the protections of the government after situations of abuse, neglect, or being an unaccompanied minor. So long as a petitioner has a right of custody, they can request that the child be returned. Pursuant to the Convention, a right of custody includes “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence” (Art. 5(a)). In Abbott v. Abbott, the U.S. Supreme Court held that a ne exeat, which is a right to essentially veto the departure of a child from a jurisdiction, constitutes such a right of custody. Similarly, a respondent (i.e., the alleged abductor) can also be the government, for example, if the child is placed by the government in foster care.
What Arguments May the Respondent Make?
The Convention works by obligating the respondent to return an abducted child in all but very rare circumstances and makes those rare circumstances discretionary, giving the U.S. court seized with jurisdiction the wide latitude to return children even when the tespondent makes a viable argument under the Convention’s rare exceptions to return (Art. 18). The exceptions to returning a child under the Convention include
when the petitioner filed their lawsuit for the child’s return more than one year after the date of the wrongful removal or retention (Art. 12) and the child is now settled in their new environment;
when the petitioner has consented to or subsequently acquiesced in the child’s removal or retention (Art. 13(a));
when the child is mature and objects to being returned (Art. 13); and
when the child’s return would not be permitted by the fundamental principles of the country where they sit after the abduction relating to the protection of human rights and fundamental freedoms (Art. 20).
Additionally, the most litigated exception to returning a child under the Convention is found in Article 13(b)—when returning a child would expose that child “to physical or psychological harm or otherwise place the child in an intolerable situation.”
For a child who has experienced abuse in their habitual residence country, the logical argument that any respondent would make is under Article 13(b). This exception (and the Article 20 exception), as it is implemented in ICARA, requires the respondent to present evidence that meets a clear and convincing burden. (See 22 U.S.C. § 9003(e)(2)(A)). The remaining exceptions only require a preponderance of the evidence. The focus of the “grave risk” exception is whether there is a harm to the child, not the respondent, and whether that harm exists upon the child’s return, not necessarily whether that harm existed at the time of the removal or retention (although that may be relevant).
In the United States, case law has long held that a “grave risk of harm for the purposes of the Convention can exist in only two situations”:
when the child would be in imminent danger before the court could resolve custody (such as in the situation of war, famine, or disease) or
the harm is serious abuse or neglect when the court in the country of habitual residence is not capable or not willing to give the child protection. (See Friedrich v. Friedrich, 78 F.3d 1060, 1069 (1996)).
Because of the high burden of proof and the high threshold of harm set forth in precedent, respondents have found it difficult to prove a grave risk to the child upon their return. Furthermore, the U.S. Supreme Court, in Golan v. Saada, 596 U.S. 666 (2022), highlighted a court’s discretion to explore “ameliorative measures” that exist or can be put in place to allow a child to return home safely, despite the risk. Therefore, if there are ameliorative measures, such as legal services, housing assistance, shelters, or even foster care, a U.S. court can return a child who may otherwise be exposed to a risk if the court concludes there is a measure that ameliorates the risk. While a functioning system of foster care in the habitual residence may be an adequate measure to ameliorate the risk for some children, it may not ameliorate the risk for all children. Each case is fact and child specific. If the court elects to examine ameliorative measures and finds that any such measures do not actually ameliorate the risk upon the child’s return, the court can decline to return that child.
Can We Trust in the Legal Systems of Contracting States If an Abducted Child Is Sent Home?
When a child is abducted across an international border, it is common for the parents to hurl accusations that the child was abused, either directly or by witnessing violence against a parent. The child abduction may be an extra-judicial mechanism used by a parent to try to escape the abuse. At times, the abduction itself becomes an extension of abuse towards the child. There is an international convention that may provide a legal remedy to resituate an abducted child back to their habitual residence, so that the child’s care can be addressed by the courts in the appropriate jurisdiction. While there are arguments to be made against returning children who are subject to abuse, the Convention’s language, the evidentiary burden used in ICARA, and the existing case law make it a difficult argument for a respondent party to make. The Convention itself is premised on trust in the legal systems of other Contracting States, including the trust that the other legal system will protect a child upon their return.
