Three Key Defenses to Return of Children to Their County of Residence Under The Hague Convention And Other Remedies

Many countries are signatories to the Hague Convention on the Civil Aspects of Child Abduction¹; and the treaty has been ratified between these countries. When this is the case, a child wrongfully removed from his or her country of habitual residence may be subject to proceedings to return proceedings, generally brought in the country where they have been taken.

However, while there are always circumstances relevant to removal, a few constitute legal, affirmative defenses that will allow the judicial or administrative authority to not be bound to order return. These are the focus of this blog and are highly fact sensitive and subject to various applications in different state or federal courts.

The first is the consent defense. This occurs where the parent left behind has consented to or subsequently acquiesced to the removal from the child’s country of habitual residence. In essence, this prohibits a parent who agrees to relocation to a foreign (Hague country) to have “cold feet” and then revoke the consent to move or where that parent has acquiesced to the child living in another country.

The second is a grave risk of harm. With this defense, which is set forth in the Hague in the same provision as an intolerable situation, a state or federal tribunal may elect not to issue a return order if the return constitutes a grave risk that the child’s return would expose the child to physical or psychological harms.

The intolerable situation defense. This defense is a catch-all provision. Set forth with the grave-risk-of harm defense, this defense is focused very specifically on the child, not the parent. However, and often, these are inner-woven and the removing parent’s situation may inferentially support either of these defenses. Under the defense, a court need not issue a return order if ultimately it would put the child in an “intolerable situation.”

Many, if not most Hague Cases are handled in federal court. However, even if a return order issues, appeal is not moot and litigants may proceed in certain circumstances in state court in certain domestic proceedings.² The enforcement for a successful case is uncertain.

Dixon & Moseley, P.C. attorneys handle Hague Convention cases in Indiana state and federal courts. We hope this blog post provides you with a view of a responsive state and federal court system to address actions of alleged wrongful removal and return defense. This blog post is intended for educational purposes and is not intended to solicit legal services. It is an advertisement.

1. The International Child Abduction Remedies Act (ICARA) implements the Convention in the United States. It grants state and federal courts concurrent jurisdiction over Convention actions in accordance with the Convention.
2. Chafin v. Chafin, 133 S.Ct. 1017 (2012).