The Hague Convention on Civil Aspects of International Child Abduction was adopted in 1980 in response to the problem of international child abduction during domestic disputes. The United States is a contracting state to the Convention, and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA). 42 U.S.C. § 11601 et seq. The Convention provides that a child abducted in violation of “rights of custody” must be returned to the child’s country of habitual residence, unless certain exceptions apply. The intention of the Hague Convention is to secure the prompt return of children wrongfully removed to or retained in any Contracting State, to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Art. 1.
ICARA instructs a person who seeks a child’s return to file a petition in state or federal court and further instructs the court hearing the case to decide it in accordance with the Hague Convention. 42 U.S.C. § 11603(a), (b), (d). The elements to the prima facie cause of action for return are: the child was wrongfully removed or retained; the child was removed from his or her habitual residence; there was a breach of the rights of custody under the law of the child’s habitual residence; the left-behind parent was exercising those custody rights; and the child is under the age of sixteen. If the child in question has been wrongfully removed or retained within the meaning of the Convention, the child shall be promptly returned unless an exception is applicable. 42 U.S.C. § 11601(a)(4).
The Hague Convention sets forth several affirmative defenses, including Article 13(b), which provides that the court does not have to order the return of a child where “there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The 7th Circuit Court of Appeals recently considered the grave risk of harm defense in Hernandez v. Cardoso (2016) 844 F.3d 692. In that case, the parties were Mexican residents. The mother moved to the United States with their children, without the father’s consent. Upon locating them, the father filed a petition for the children’s return under ICARA. At the court hearing, the mother testified that the father subjected her to domestic violence repeatedly in front of the children. The court denied the father’s petition for return based on the grave risk of harm defense, stating that although the children were not subjected to abuse themselves, witnessing repeated acts of domestic violence of the mother created a risk of psychological harm to the children. The Court of Appeals affirmed the ruling.