The Hague Convention on Civil Aspects of International Child Abduction (the “Hague Convention”) requires all signatory states to promptly return a child “wrongfully” removed to a foreign country by one parent without the consent of the other parent. The Convention, however, expressly allows not to return a child to her home country if doing so would expose the child to a “grave risk of physical or psychological harm.”

This “grave risk of harm” defense often arises against the backdrop of domestic violence, when one parent flees the home country with the child, claiming domestic abuse by the other parent. Many courts and practitioners, however, remain seemingly unaware of the growing scientific consensus regarding the severe and long-lasting psychological harm to children exposed to domestic abuse, and require evidence of the child sustaining bruises or broken bones at the hands of the abusive parent.

The plain language of the Hague Convention, as well as its stated intent, demand a better understanding of the many forms domestic abuse can take and the severe harm it causes to children exposed to it, even in the absence of any physical injuries. To require proof of physical injuries in order to establish the grave risk of harm exception is contrary to the plain language and the goals of the Hague Convention, and unnecessarily exposes children to great harm.

A Modern Approach to the ‘Grave Risk of Harm’ Defense

The Hague Convention is a multilateral treaty, to which the United States and over 80 other countries are signatories. It is designed to protect children internationally from the harmful effects of their wrongful removal by establishing an expedited process for the courts or administrative agencies of the country to which the child is removed to return the child back to the home country. The Convention is not a mechanism for custody disputes and, in that expedited proceeding, custody issues are not to be addressed. Rather, the fundamental purpose of the Convention is to ensure that custodial issues are decided by the country of the child’s habitual residence, by promptly returning the child, rather than by the country to which the child was abducted by a parent. See Elisa Perez-Vera, Explanatory Report: Hague Conference on Private Int’l Law, in 3 Acts and Documents of the Fourteenth Session 426, ¶ 19 (the “Explanatory Report”).

The drafters of the Convention recognized, however, that there are circumstances where the return may be inappropriate. Thus, Article 13(b) of the Hague Convention provides that “the judicial or administrative authority of the requested state is not bound to order the return of the child if [the party opposing repatriation] establishes 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.”

The Explanatory Report explained that defenses to the return, including the grave risk of harm defense, “derive from a consideration of the interests of the child.…[T]he interest of the child in not being removed from its habitual residence…gives way before the primary interest of any person in not being exposed to physical or psychological danger….” Explanatory Report at ¶ 29.

Many cases addressing the grave risk of harm exception arise in the context of domestic abuse, with the abused parent fleeing with the child from the abusive parent. The U.S. courts generally agree that in such cases the parent opposing the return of the child must demonstrate that the child—not the parent who fled with the child—would be exposed to a grave risk of harm upon return. Moreover, the International Child Abduction Remedies Act (I.C.A.R.A.), through which the Hague Convention is implemented in the United States, requires that grave risk of harm be proven by “clear and convincing evidence.” 22 U.S.C. § 9003(e)(2)(A).

Evolution of “Physical Harm” Definition

Perhaps in view of this restrictive standard, and in part due to our underdeveloped understanding of child psychology at the time, in the earlier years of the Hague Convention the U.S. courts presented with the grave risk of harm defense concentrated solely on the presence of physical harm, requiring proof of physical abuse of the child that resulted in demonstrable physical injuries to establish the exception. See, e.g., Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995).

Needless to say, our understanding of what causes psychological harm to children has evolved greatly since then. In fact, there is presently a near universal consensus among psychologists and psychiatrists that domestic abuse—physical or psychological—has far-reaching traumatic effects on children regardless of whether children are direct victims of such abuse, witness the abuse or are otherwise exposed to it by becoming aware of the violence. Jill R. McTavish, Children’s exposure to intimate partner violence: An overview, Int’l Rev. Psychiatry, at 5 (2016); NIJ Study, at 27-28.

The traumatic effects may be physical, psychological, behavioral and neurobiological, and include depression, anxiety disorders, post-traumatic stress disorder and developmental delays. See Bonnie E. Carlson, Children Exposed to Intimate Partner Violence: Research Findings and Implications for Intervention, 1 J. Trauma, Violence & Abuse 321, 328 (2000); Jeffrey L. Edleson, Measuring Children’s Exposure to Domestic Violence: The Development and Testing of the Child Exposure to Domestic Violence (CEDV) Scale, 30 J. Child & Youth Servs. Rev 502, 503 (2008).

These effects are more severe in young children; they are magnified when the violence is directed at the child’s primary caregiver, such as her mother, and magnified even further when the perpetrator is a parent or a “significant figure” in the child’s life. H. Lien Bragg, Office on Child Abuse and Neglect, U.S. Dep’t of Health and Human Services, Child Protection in Families Experiencing Domestic Violence, at 11 (2003); Alicia Lieberman, Attachment Perspectives on Domestic Violence and Family Law, 49 Family Court Review 529, 530 (2011). Not surprisingly, the U.S. Surgeon General has declared domestic violence to be the number one health concern in our country.

The society at large likewise understands that grave psychological injuries can be sustained by children without any physical injuries. Witness the tremendous outcry over the current administration’s policy of separating migrant children from their parents. The children generally suffered no physical injuries. Yet, the terrible psychological toll inflicted upon them is well understood by most people.

Psychological Impact

Recently, some courts presented with the grave risk of harm defense have begun to recognize the psychological impact of domestic violence on children. An instructive most recent example is a 2017 case from the U.S. District Court for the Southern District of New York, Davies v. Davies, affirmed by the U.S. Court of Appeals for the Second Circuit. 2017 U.S. Dist. LEXIS 10494 (S.D.N.Y., Jan. 25, 2017), aff’d Davies v. Davies, 717 Fed. Appx. 43 (2d Cir. 2017). (The author represented the respondent-mother in that case, both at trial and on appeal.)

In Davies, the District Court found that the child suffered severe psychological harm primarily from witnessing a great deal of abuse of his mother:

The evidence at trial showed beyond any doubt that Mr. Davies’s behavior towards both Ms. Davies and K.D., and in K.D.’s presence, was extremely violent, unpredictable, outrageous, menacing, and dangerous. It was a pervasive, manipulative violence that left few physical scars, but which was nonetheless severely damaging to Ms. Davies, and runs an almost certain risk of continuing to negatively affect K.D.

Many courts, however, are still using an unjustifiably narrow definition of harm. In Souratgar v. Lee, for example, the Second Circuit affirmed a district court’s return of a child despite numerous acts of domestic violence, many documented, against the child’s mother, including in the presence of the child, because “at no time was [the child] harmed or targeted.” 720 F.3d 96, 104 (2d Cir. 2013). Similarly, as recently as January 2018, the Fifth Circuit affirmed a district court’s return of a child because there was no “objective evidence” of “physical abuse” of the child, which the district court noted was “the more pertinent issue for likelihood of grave risk of harm to [the child].” Soto v. Contreras, 880 F.3d 706, 710 (5th Cir. 2018)

Conclusion

Of course, not every case involving allegations of domestic abuse will result in a finding of a “grave risk of harm” to a child. Proving grave risk of psychological harm under the heightened standard of clear and convincing evidence is no small undertaking. But both practitioners and courts should recognize the terrible psychological harm to children caused by domestic violence, and consider evidence well beyond physical injuries. It is time the grave risk of harm defense be given its full intended meaning pursuant to the Hague Convention so that children can be protected against avoidable harm.

 

Valentina Shaknes is a partner with McLaughlin & Stern where she concentrates her practice exclusively in the areas of matrimonial and family law.