Sunday, February 18, 2007

The Grave Risk of Harm Defense in Hague Child Abduction Cases

A major debate is under way as to the future of the “grave risk of harm defense” in Hague Convention international child abduction cases. The move is spearheaded by those who believe that the Hague Convention discriminates against expatriate mothers who are victims of domestic violence and who return to their countries of origin with their children. It is a reaction to a long line of cases that have given the grave risk of harm defense an extremely narrow interpretation, and to the notion that the integrity of the Convention as a whole requires that the well-being of individual children in hard cases must be sacrificed for the greater good of maintaining the integrity of the Hague Convention process.

Thus far, the high water mark of the new approach has been the decisions of the Third and Seventh Circuits in Van de Sande v. Van de Sande, 431 F.3d 567 (7th Cir. 2005), In re Application of Adan, 437 F.3d 381 (3d Cir. 2006) and Koch v. Koch, 450 F.3d 703 (7th Cir. 2006).

The outcome of the debate will significantly affect most Hague Convention cases brought in the U.S. because a broader defense will provide much greater scope for issues concerning a child’s physical and psychological well-being to be raised in Hague cases.

See our article on this topic at