Split Circuits: The Grave Risk Exception to the Hague Abduction Convention

Jeremy D. Morley

There is considerable uncertainty in the United States as to whether a respondent in a Hague Abduction Convention case, who asserts the “grave risk” exception as a shield against an order that a wrongfully removed or retained child must be returned to the country of habitual residence, must prove that the courts and other authorities of the nation of habitual residence are unable or unwilling to protect the child.

The “grave risk” exception in Article 13(b) of the Hague Convention authorizes a court to deny a petition to return the child to his or her habitual residence if the respondent establishes “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.”

In conceded dicta, the Sixth Circuit in the Friedrich case[1] in 1996 presented an opinion of the scope of the grave risk exception that has dominated the discussion on the topic ever since. The court stated that:

“Although it is not necessary to resolve the present appeal, we believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute— e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” (emphasis added).

The Friedrich court further stated that, “In thinking about these problems, we acknowledge that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country's courts to respond accordingly… When we trust the court system in the abducted-from country, the vast majority of claims of harm - those that do not rise to the level of gravity required by the Convention - evaporate.”[2] 

Some courts have adopted and applied the second leg of the Friedrich language strictly, insisting that there is a strong burden of proof on a respondent to prove that inadequate protection is unavailable in the habitual residence. Others have repudiated it. And others have handled grave risk cases without focusing on it.

The Second and Third Circuits have expressly adopted a requirement that a respondent alleging grave risk by virtue of abuse by the petitioner must establish both that there is a grave risk of abuse and also that the authorities in the habitual residence will not provide the necessary protection.

The Second Circuit upheld the Friedrich language in Blondin,[3] although it quibbled with the district court in that case as to whether it was applying the Friedrich language as narrowly as the district court claimed. It stated that, “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” It stated that, “Although the wording in Friedrich might seem somewhat narrow, we believe the facts in the case at bar fall within the second standard set forth in that opinion. See id. (noting that grave risk of harm exists “in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection”) (emphasis added).” The ultimate holding in Blondin was that expert evidence established that the French authorities could not provide the necessary protection and that a return would indeed rise to the level of a grave risk so that the Article 13(b) exception to a return should apply.

In Ermini,[4]  the Second Circuit found that the father’s physical abuse conduct was sufficient  to establish that the children faced a “grave risk” of harm and explained that,
normally, this finding alone would not end the analysis. “We would next consider, or remand for the district court to consider, the range of remedies that might allow for return of the children to their home country together with protection from the domestic abuse.” However, it was also established that one child was severely autistic and had moved from Italy to New York for medical treatment that was most beneficial and that was not available in Italy. Accordingly, since the respondent established that if her son were removed from his current therapy and repatriated to Italy he would suffer substantial harm, she had succeeded in established the existence of harm of a severe magnitude that was manifestly sufficient to satisfy the grave risk exception. 

The Third Circuit applied the Friedrich language in Adan.[5] The district court had ordered the child’s return to Argentina despite the respondent’s allegations of sexual abuse by the left-behind father while the child resided in Argentina. The Third Circuit held that the lower court had incorrectly considered the totality of circumstances concerning those allegations and had failed to consider most of the respondent's evidence concerning the inaction of the Argentine authorities. The Court stated that, “if the alleged grave risk of harm is abuse, the party opposing the application of the Convention bears the burden of proving by clear and convincing evidence that the return of the child to her habitual residence puts her in imminent danger and that the country of habitual residence is incapable or unwilling to give the child adequate protection.” The appeal court found that the lower court had failed to consider the majority of the proffered evidence related to the alleged inaction of Argentine courts and police, and it remanded the case. District courts in the Third Circuit have likewise applied the Friedrich language.[6]

The Seventh and Eleventh Circuits have taken a completely different course.

The Seventh Circuit in Van de Sande[7] refused to be bound by the Friedrich language. It asserted that “to define the issue not as whether there is a grave risk of harm, but as whether the lawful custodian's country has good laws or even as whether it both has and zealously enforces such laws, disregards the language of the Convention and its implementing statute; for they say nothing about the laws in the petitioning parent's country.” It insisted that, “The omission to mention them does not seem to have been an accident - the kind of slip in draftsmanship that courts sometimes correct in the exercise of their interpretive authority. If handing over custody of a child to an abusive parent creates a grave risk of harm to the child, in the sense that the parent may with some nonnegligible probability injure the child, the child should not be handed over, however severely the law of the parent's country might punish such behavior.” Accordingly, on the facts before it, since there was evidence of physical abuse to both the mother and the children, as well as death threats to both by the father, the grave risk exception had been adequately established, even though it must be assumed that Belgium, the country where the children were taken from, had sufficient laws for the protection of children. The Court stated that, “To give a father custody of children who are at great risk of harm from him, on the ground that they will be protected by the police of the father's country, would be to act on an unrealistic premise. The rendering court must satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser's custody.” Nonetheless, instead of dismissing the petition, the Court remanded the case to the district court for it to determine whether undertakings could be required that would effectively protect the children if they were returned to Belgium.

The Eleventh Circuit in Baran,[8] ruled that, “we decline to impose on a responding parent a duty to prove that her child's country of habitual residence is unable or unwilling to ameliorate the grave risk of harm which would otherwise accompany the child's return.” It reasoned that to require a respondent to adduce evidence regarding the condition of the legal and social service systems in a country she has fled creates difficult problems of proof, and appears not to have been contemplated by the Convention. It explained that, notwithstanding the Convention's goal of quickly returning abducted children to their countries of habitual residence, the text of the Convention and the commentaries on it place a higher premium on children's safety than on their return. It then stated, in a footnote, that courts are not prohibited from considering, as part of the discretionary decision to deny return under Article 13(b), whether the child's country of habitual residence may be able to protect the child from harm. “We simply hold that the responding parent may meet her burden of proving grave risk of harm without adducing evidence regarding the home country's ability or willingness to offer the child protection.” Accordingly, since the evidence presented was sufficient to support the district court's conclusion that the father's violent temper and abuse of alcohol would expose the child to a grave risk of harm were he to be returned to Australia, the Court upheld the district court’s dismissal of the petition.

The Sixth Circuit applied its own Friedrich language in March,[9] but deviated from that track in Simcox.[10] In the latter case, the respondent established that the petitioning father had engaged in repeated physical and psychological abuse of the mother in the children's presence, and that most of the children were also abused and suffered from post-traumatic stress disorder, but there appears to have been little evidence as to any lack of protection available in Mexico. The appeal court ruled that the “grave risk threshold” had been met by the evidence of past abuse and threats of future abuse. It expressed noted that there is a danger of making the threshold so insurmountable that district courts will be unable to exercise any discretion in all but the most egregious cases of abuse. It found that the district court should have exercised its discretion to refuse to order a return of the children provided it could be satisfied by any undertakings proposed by the petitioner to protect the children. It stated that the burden for establishing the appropriateness and efficacy of any proposed undertakings rested firmly with the petitioner. In a footnote it went even further, stating that if the extent of the abuse had been at the level of Van der Sande, it would have denied the petition outright.[11]

The Eighth Circuit in Acosta[12] upheld a ruling by the district court that denied a Hague petition on the basis of grave risk despite the fact that there was no specific evidence that the authorities in Peru could not protect the children. The district court did not deem that evidence of lack of protection in Peru was required to be shown. The circuit court stated that even if Peru had services designed to address domestic violence, that would not, by itself, establish that the children would receive sufficient protection if returned.

Other circuits have not taken a definitive stand. The Ninth Circuit expressed some doubts about the Friedrich language in Cuellar.[13] It stated that that language “is in some tension” with the fact that the grave risk inquiry should focus only on the period necessary to obtain a custody determination. The Tenth Circuit has acknowledged the Circuit split, but has not indicated which camp, if either, it would join.[14] Lower courts in other circuits have generally applied the Friedrich language.[15]

In summary, the extent to which a respondent cannot establish the grave risk exception without first proving a future lack of protection in the country from which the child was removed is totally uncertain in several circuits, while in other circuits it is subject to diametrically opposed rules. It is to be hoped that the Supreme Court will provide clarity at some point in the future.

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[1] Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6^th Cir. 1996).

[2]  Id. at 1068.

[3]  Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).

[4] Ermini v. Vittori, 758 F.3d 153 (2d Cir. 2014).

[5] In re Application of Adan, 437 F.3d 381 (3d Cir.2006).

[6] E.g. Bowen v. Bowen, 2014 WL 2154905 (W.D.Pa.,2014).

[7] Van de Sande v. Van de Sande 431 F.3d 567 (7th Cir.2005).

 

[8] Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008).

[9] March v. Levine, 249 F.3d 462 (6^th Cir. 2001).

[10] Simcox v. Simcox, 511 F.3d 594 (6^th Cir. 2007).

[11] Simcox v. Simcox, 511 F.3d 594 (6^th Cir. 2007).

[12] Acosta v. Acosta, 725 F.3d 868 (8^th Cir. 2013).

[13] Cuellar v. Joyce, 596 F.3d 505, 510 (9^th Cir. 2010).

[14] West v. Dobrev, 735 F.3d 921, 931 n.8 (10th Cir. 2013).

[15] Garcia v. Angarita, 440 F.Supp.2d 1364, 1381-82 (S.D.Fla.2006); In re D.D., 440 F.Supp.2d 1283, 1299 (M.D.Fla.2006);  Haruno v. Haruno, 2013 WL 5663070 (D.Nev.,2013); Patrick v. Rivera-Lopez, 2013 WL 708947 (D.Puerto Rico,2013); Munoz v. Ramirez, 923 F.Supp.2d 931 (W.D.Tex.,2013).