Exposure to Family Violence in Hague Child Abduction Cases

• Publication year: 2022

Exposure to Family Violence in Hague Child Abduction Cases

Deborah Reece

EXPOSURE TO FAMILY VIOLENCE IN HAGUE CHILD ABDUCTION CASES

Deborah Reece^*

ABSTRACT

The Hague Convention on the Civil Aspects of International Child Abduction requires signatory countries to hold prompt hearings for the return of wrongfully removed children back to their habitual residence. There are five defenses to return provided in the Convention. For taking parents escaping domestic violence with their children, the most typical defense offered to defeat a return petition is "grave risk of harm." Courts vacillate on whether exposure to family violence amounts to a grave risk to a child. Further, some courts require consideration of "ameliorative measures" in an effort to repatriate children to abusive households, instead of denying a return. However, the body of social science literature studying the effects of exposure to family violence underscores the profound harm to children who are witness to family abuse and belies any safety measures concocted to return them to the situs of harm. Accordingly, the Convention and its implementing legislation should be amended to include language which contemplates the damage to a child exposed to family violence and courts should not be mandated to devise methods to return them to the abusive environment.

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TABLE OF CONTENTS

INTRODUCTION...............................................................................................83

I. THE CONVENTION: PROCEDURES, ELEMENTS, DEFENSES, AND UNDERTAKINGS...................................................................................83

A. Procedures, Elements, and Defenses.......................................... 84
B. Grave Risk Defense and Domestic Violence .............................. 87

1. Definitions ............................................................................ 88
2. Application ........................................................................... 89

C. Undertakings .............................................................................. 93

1. Second, Third, and Ninth Circuits: Undertakings Analysis Required ............................................................................... 94
2. First, Eighth, and Eleventh Circuits: Undertakings Analysis Not Required .......................................................... 96

II. THE SOCIAL SCIENCE OF FAMILY ABUSE............................................98

A. Why Parents Abduct ................................................................... 98
B. Domestic Violence versus Family Abuse.................................. 100
C. Types of Family Abuse for Children......................................... 103
D. Effects of Indirect Maltreatment ............................................... 104

1. Psychological Impact ......................................................... 104
2. Educational Impact ............................................................ 105
3. Intergenerational Impact and Revictimization ................... 106

E. Effect of Returning the Child to the Habitual Residence.......... 107

1. Returning the Child............................................................ 107
2. Returning the Child with the Taking Parent ....................... 109

III. EXPOSURE TO FAMILY VIOLENCE CASE ANALYSIS...........................110

A. Garcia v. Duarte Reynosa......................................................... 110
B. Saada v. Golan ......................................................................... 114

IV. GRAVE RISK AND UNDERTAKINGS....................................................118

A. Purpose, Scope, and Enforcement ............................................ 119

1. Purpose............................................................................... 119

a. Comity.......................................................................... 120
b. Protection from Harm and Discretion to Return......... 121
c. Prompt Adjudication .................................................... 121

2. Scope .................................................................................. 122

a. Therapy ........................................................................ 122
b. Financial Support ........................................................ 123
c. Protective Orders ........................................................ 123

3. Enforcement ........................................................................ 124

V. POLICY...............................................................................................124

A. Amended: Article 13(c)....................................................... 125

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B. Amended: ICARA § 9002 Definitions and Expert Testimony............................................................................ 128
C. Elimination of the Blondin Rule ......................................... 128

CONCLUSION.................................................................................................129

INTRODUCTION

In 1980, the global community came together to address the growing incidence and concern over international parental child abduction. This unified effort resulted in the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). To date, over 100 countries have signed the treaty. A central goal of the Convention is to promptly return internationally parentally abducted children back to their "habitual residence." However, there are cases when the parent who abducts the child does so to escape family violence. In some of those cases, the abducted child was not the target of abuse, but was, instead, exposed to a violent household. In cases where family violence was a motivating factor for removal, the taking parent may assert the affirmative defense that returning the child to the habitual residence would subject the child to a grave risk of harm or an intolerable situation. "Grave risk" is not defined in the Convention, leaving the definition and subsequent application open to interpretation. Consequently, the "grave risk" defense has a mixed history of success, especially when the abducted child is "merely exposed" to family violence rather than being the target of abuse, despite the amassed literature concluding that children exposed to family violence are victims of that abuse and bear the scars for a lifetime. Courts worldwide are still divided on whether "mere exposure" can form the basis for a successful grave risk defense. Accordingly, some children who were removed from a violent household are ordered to return to that dangerous situation. To address this possibility of danger upon return, some courts order protective measures, known as "undertakings," to ensure the safety of the returned child. However, these orders are mostly ineffective. It is for this reason that a growing community, comprised of academics, social scientists, attorneys, and advocates, is calling for an amendment to the foundational documents of the Convention to include exposure to family violence as a grave risk defense and to eliminate the mandate for courts to consider ameliorative measures before denying a return.

I. THE CONVENTION: PROCEDURES, ELEMENTS, DEFENSES, AND UNDERTAKINGS

The Hague Convention on the Civil Aspects of International Child Abduction is designed to "protect children internationally from the harmful

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effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access."¹ The International Child Abduction Remedies Act (ICARA) is the implementing legislation for the Convention in the United States.²

A. Procedures, Elements, and Defenses

The process for initiating a Hague case is straightforward. However, litigation can be complicated because the terminology in the Convention is specialized. To understand the law and its application, it is important to become familiar with the specialized vernacular used in the Convention: (a) the parent from whom a child was removed is referred to as the "petitioner" or the "left-behind parent"; (b) the parent who removed or retained the child is the "respondent" or "taking parent"; (c) a wrongful removal or retention must be from the child's "habitual residence" which, presumably, is the country from where the child was removed;³ and (d) the state where the child is located is referred to as the "removal state."

The initiation of a case under the Convention begins with an application either for return⁴ or for access.⁵ Access petitions are used by left-behind parents who are not seeking to return the child to the habitual residence, but who want "access" to the child in the removal state, akin to a parenting time request.⁶ This paper will only focus on petitions for return.

The application for return includes information relating to the parents, the child, the custodial situation at the time of the wrongful removal or retention,

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and the circumstances of the removal or retention.⁷ The petition may be supplemented with a number of exhibits, including birth certificates, judicial orders, and information supporting the allegations of the petition.⁸ The petition is submitted to the Central Authority in the habitual residence or "to the Central Authority of any other Contracting State."⁹ The Central Authority in receipt of the return application communicates the petition to the Central Authority in the removal state.¹⁰ The Central Authority for the United States is the U.S. Department of State, Office of Children's Issues (OCI).¹¹ When the OCI receives the petition from the habitual residence or left-behind parent, the OCI determines the child's location and welfare, potentially seeks a voluntary return of the child, and helps the left-behind parent locate counsel.¹² The petition may be filed in the local family court or in the federal district court where...