The Limitations on Art. 13(b) of The Convention on the Civil Aspects of International Child Abduction done at the Hague on 25 Oct 1980 by William M. Hilton, CFLS Attorney At Law Box 269 -- Santa Clara, CA 95052-0269 TEL: (408) 246-8511 -- FAX: (408) 246-0114 Web Site: http://www.hiltonhouse.com E-Mail: hilton34@hiltonhouse.com 11 Am.J.Faml.L. 139 (1997) INTRODUCTION The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention] has been in effect in the United States since 01 Jul 1988. FN1 At the time The Convention went into effect the principle source of interpretation was (and continues to be) two documents: Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. Ill, 1980, p. 426. FN2 LEGAL ANALYSIS OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, 51 Fed. Reg. 10,503 (1986) FN3 The passage of time has seen a significant number of decisions in the courts of first instance and courts of appeal within and without the United States (including United States Federal courts) which have, for the most part, followed the general intent of The Convention, which is to promptly return a child to his or her "habitual residence" so that the courts of the "habitual residence" may conduct hearings on the merits of the underlying custody dispute. Despite the general trend both in the United States and in the other nations that have becomes "Contracting States" to The Convention, there are still instances when efforts will be made to thwart the laudable goal of the prompt return of the child to his or her "habitual residence". This blocking is usually attempted by resorting to Art. 13(b) of The Convention: "Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-- * * * * (b) 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." This article will explore the current status of the courts on the effect of Art. 13(b) and will show that the efforts to invoke this section have been met with court decisions which severely limit its application to those instances where the return of the child to his or her "habitual residence" would endanger the child because of internal strife in the "habitual residence" and/or the courts of the "habitual residence" cannot or will not provide protection to the child and/or his or her parents. DISCUSSION First and formost one must not lose sight of the the principal purpose of The Convention, which is to cause the prompt return of the child to his or her "habitual residence". Articles 1, 7; 42 U.S.C. 11601(a)(4). An action under The Convention is commenced by the filing of a Petition For Return in the courts of the place where the child is physically located. 42 U.S.C. 11603(f)(3). FN4 When the Petition For Return has been filed with the court within one (1) year of a wrongful removal/retention within the meaning of Art. 3 of The Convention, the court in the requested state is mandated to return the child forthwith to his or her "habitual residence". Art. 12 In certain very limited and exceptional cases, the Court's mandatory return under Art. 12 court is changed to a discretionary return of the child to the child's "habitual residence" if the Respondent can show 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." Art. 13(b) The arguments of counsel for the abducting parent notwithstanding, it is important to note that the duty to return is not abrogated by a finding under Art. 13(b) but merely changes the duty from mandatory to discretionary. Since the general intent of The Convention is to cause the return of a child to his or her "habitual residence" unless there are some powerful, very compelling reasons otherwise, the court of the requested country should normally and routinely exercise its discretion and return the child to his or her "habitual residence". The Respondent who requests that the court exercise its very limited discretion to use this narrow exception has the burden of establishing the existence of both the "grave risk" and the "intolerable situation" by clear and convincing evidence. 42 U.S.C. 11603(e)(2)(A). FN5 While it is clear that the proving of an exception under Art. 13(b) does not vitiate, despite the efforts of the Respondent to convince the court otherwise, the court's duty to return the child to his or her "habitual residence", it serves its purpose of protecting the child by alerting the court to potential problems and gives the court the authority to make suitable "undertakings" to ensure the safe return of the child to his or her "habitual residence". Art. 7(b). Even this limited use of the exception under Art. 13(b) must be used in the most restrictive fashion possible. FN6 In the primary source of interpretation of The Convention FN7 Professor Elisa Perez-Vera has made the following comment: "34 To conclude our consideration of the problems with which this paragraph deals, it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them - those of the child's habitual residence - are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration." Explanatory Report by E. Perez-Vera. Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, Vol. III, 1980, p. 426. The courts that have considered the application of Art. 13(b) have universally held that there must be a grave risk of substantial physical or psychological harm before it can be considered: "The Full Court of the Family Court of Australia, the appeal court, has emphasized further that it is not merely a grave risk of 'any' physical or psychological harm which should satisfy the provision. The harm must be of a substantial or weighty kind." Brown v Brown (Fam.Ct.Aust. 1992) No SY9391 of 1992 "This provision was not intended to be used by defendants as a vehicle to litigate the child's best interests. Only evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court's determination. The person opposing the child's return must show that the risk to the child is grave, not merely serious." Collopy and Christodoulou (Dist.Ct.Co. 1991) 90 DR 1138, Division B The United States Federal Court of Appeals, 6th Circuit, has held that the Art. 13(b) exceptions shall not be considered unless the following conditions prevail: "[W]e 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. Psychological evidence of the sort Mrs. Friedrich introduced in the proceeding below is only relevant if it helps prove the existence of one of these two situations." Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060, 1069 Exhibit D at page 10 In attacking a Petition For Return, Respondent will frequently attempt to turn the matter into a custody determination. FN8 Article 13(b) inquiries are not intended to deal with issues or factual questions which are appropriate for consideration in a custody proceedings. Psychological profiles, detailed evaluations of parental fitness, evidence concerning lifestyle and the nature and quality of relationships all bear upon the ultimate issue. The Convention reserves these considerations to the appropriate tribunal in the place of "habitual residence". Tahan v Duquette (1992) 259 N.J. Super. 328 [613 A.2d 486] The Respondent must show, with clear and convincing evidence (42 U.S.C. 11603(e)(2)(A), that the return of the child to his or her "habitual residence" would seriously endanger the emotional or physical health of the child. A showing that a particular person in the child's "habitual residence" (including a family member of the child) would cause the kind of harm that is contemplated by Article 13(b) is not sufficient since it is common ground that such a person can be found in any place in the world. It is also common ground that Family Courts throughout the world are familiar with persons who can cause harm to children and have standard procedures to protect children from such persons. An application of this point would be if a child were to be returned to a place such as Bosnia or Somalia. Regardless of how competent a parent may be, it can be seen that a return would place the child in serious harms way. Illustrative of this point is Brown v Brown, supra, where a child was wrongfully removed from Austria and taken to Australia. The Australian court, after examining pornographic photos of the child, stated the following: "In any event, the child was in an intolerable situation. The photographic record continues in existence and as the child grows up she may well have to come to terms with the knowledge of the act of her mother in taking such photographs of her as a child in such circumstances." "Assuming in his favour that further similar photographic sessions would create a grave risk of exposure to substantial harm, I am unable to be satisfied that there is a grave risk that such events or anything similar to them would be repeated between now and the Austrian authority's determination of the matter. Indeed the high prospect is that the wife will not, in the short term, endanger her prospects of continuing interim custody and final custody by pursuing further such activity even if she personally finds it artistically worthwhile. She did not strike me as being that silly. This finding is supported by my assessment that she has a fervent desire to succeed in her custody case. Whether or not she can in the longer term resist her predilection is an entirely different matter. This will be an issue for the custody court in Austria which will have to determine (a) the interim custodian and; (b) the final custodian of the child." The decision of the Australian court was that, even though there was very serious misconduct on the part of the mother, the Austrian family court could and would deal with this matter. MANDATORY VS DISCRETIONARY RETURN Under Art. 12, if the court finds that there has been a "Wrongful Removal" or "Wrongful Retention", then the child must be returned to his or her "habitual residence" forthwith. If there is an affirmative finding of an exception under Art. 13, the duty to return shifts from mandatory to discretionary: "Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-- * * * " Art. 13. The mere finding of an exception under Art. 13 does not mandate that the child not be returned to his or her "habitual residence". When such an exception is found under Art. 13, the court is required to exercise its discretion and, under the totality of the circumstances, decide where the decision on the best interests of the child is to be made: The forum chosen by the abductor or the "habitual residence" of the child, where the primary evidence as to the child's best interests may be found. There is also the fundamental unfairness of having the parent who remained in the "habitual residence" haled before a court many thousands of miles and thousands of dollars away and which would subject that parent to a substantial financial burden and personal strain of litigating a child custody dispute. Kulko v Superior Court (Horn) (1978) 436 US 84 [98 S.Ct. 1960, 56 L.Ed. 132]. Such an analysis can best be analogized to a consideration of the factors in a forum non conveniens argument: In which forum will the substantial evidence be found that is relevant to the issue before the court. One should look to the substantial evidence on the critical issues of the controversy (both parents' fitness to maintain custody, living conditions, availability of education and friends for the child) and where witnesses are located whose testimony would be of most benefit to the court in making an appropriate custody decree. Plas v Superior Court (Cal.App. 3 Dist 1984) 155 Cal.App.3d 1008, 1021. (France & California) UNDERTAKINGS An "Undertaking" is an agreement/stipulation between the parties on the specific issue of the logistics of returning a child to his or her "habitual residence". In the undertaking the parties agree that the child will be returned to the "habitual residence" if certain conditions are met, e.g., costs of transport are paid, a third party escorts the child back, the parties report to the Family Court of the "habitual residence" immediately upon return, etc. FN9 An "Undertaking" would be used in the following circumstances: Assume that the evidence shows that there may be concerns about the immediate safety of the child during the period of return to his or her "habitual residence" and before the matter can be submitted to the Domestic Relations Courts of the "habitual residence". Under these circumstances, the Court of the requested state may properly condition the return of the child upon appropriate "undertakings" being given to the court by either or both of the parties. The United Kingdom Court of Appeal, in Evans and Evans (1988) Court of Appeal (Civil Division) No. AD 1716 of 1988, stated that the allegations of the father, if true, as to the promiscuity, drug taking and other matters against the mother would suffice to make a finding that there was a grave risk in returning the child to the mother. But the court further held that the English courts could frame an order such that the child would be returned safely to Australia, in this case in the care of the father, so that the Australian courts would then hear and rule on these allegations. The English court concluded by saying: "That must be the approach of the courts in this country. If the submissions which Mr. Levy has so ably made to us on behalf of his client were to be accepted, I believe that it could drive a coach and horses through the provisions of this Convention, since it would be open to any "abducting" parent to raise allegations under Article 13, and then to use those allegations, whether they were of any substance or not, as a tactic for delaying the hearing by saying that oral evidence must be heard, information must be obtained from the country of the child's habitual residence, and so on. That is precisely what this Convention, and this Act, were intended to avoid, and in my judgment the courts should be astute to avoid their being used as machinery for delay. In this case the Australian courts are the proper courts in which to investigate the allegations made by the father; if those allegations have substance I have no doubt that the Australian courts will deal with them appropriately." Since the issue before the court is the safety of the child pending the return of the child to his or her "habitual residence" and the raising of an action in the the "habitual residence", then the court of the requested state, if it feels it is necessary, can require reasonable undertakings by the Petitioner and/or the Respondent to protect the health and safety of the child during this interim period. An illustration of this sort of undertaking is found in the C v C (Abduction; Rights of Custody) (Ct.Appeal 1989) [1989] 2 All ER 465. The court could, as an example, order that the child be returned in the care of the Respondent or that the Petitioner return the child and report immediately to the Central Authority of the "habitual residence" or that the child be escorted back to the "habitual residence" in care of a third party selected by the court and the child be put in the care of the "habitual residence's" equivalent of Child Protective Services, etc. In discussing "undertakings", the Court in Feder v Evans-Feder (3rd Cir. 1995) 63 Fed.3d 217, stated the following: "'We also note that in order to ameliorate any short-term harm to the child, courts in the appropriate circumstances have made return contingent upon "undertakings" from the petitioning parent. Thomson v. Thomson, 119 D.L.R.4th 253 (Can.Sup. 1994).", id at 227. See also Footnote 3 of the Dissent which endorses the use of "undertakings". Similarly, the court in Walton v Walton (S.D.Miss. 1996) 925 F.Supp. 453, approved a stipulation whereby the Petitioner agreed to certain terms in an order for return of the child to his or her "habitual residence". Id at 458 - 459. CONCLUSIONS A finding under Art. 13(b) changes the mandatory return of Art. 12 to discretionary, but does not mandate that the child not be returned. Indeed, unless other strong, compelling factors exist, the court of the requested state should order the return of the child with the proper undertakings. Any exceptions to the mandatory return of the child to his or her "habitual residence" are to be sparingly used and restrictively construed. The bias of The Convention is to cause the return of the child, if at all possible. Further, such exceptions are only to be used when the court of the requested state cannot reasonably guarantee the health and safety of the child pending a return of that child to his or her "habitual residence". The burden is on the Responding party to show by clear and convincing evidence that there is severe and immediate peril to the health and safety of the child upon his or her return to the "habitual residence" of the child and that the court's of the "habitual residence" cannot or will not protect the child. The fact that a court could infer that a particular party might cause the child to be in this peril is not sufficient, the showing must be that the return of the child to his or her "habitual residence" places that child in immediate and severe danger. It would be presumptuous and offensive in the extreme, for a Court in the requested state to conclude that the Respondent and the child are not capable of being protected by the Courts of the "habitual residence" or that the relevant authorities of the "habitual residence" would not enforce protection orders which are made by their Courts. -------------------- 1. Available on Hilton House Web Site as Hague_con_text.txt 2. Available on Hilton House Web Site as Perez.rpt.txt. 3. Available on Hilton House Web Site as Legal_analysis_hague.txt 4. The International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq. Available on Hilton House Web Site as 42usc1160etseq_fed.txt. 5. See also, e.g., Dept of Health & Com Services v Karides (Australia 1995) Family Court, Melbourne No. ML.2927 of 1995. Available on Hilton House Web Site as Karides_aus.txt 6. Thomson v. Thomson, 119 D.L.R.4th 253 (Can. 1994); Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060. 7. Feder v Evans-Feder (3rd Cir. 1995) 63 Fed.3d 217; Levesque v Levesque (D. Kan 1993) 816 F.Supp. 662; Walton v Walton (S.D.Miss. 1996) 925 F.Supp. 453. 8. See DREAMING THE IMPOSSIBLE DREAM: RESPONDING TO A PETITION UNDER THE CONVENTION, available on Hilton House Web Site as Defend_art.txt. 9. For a full discussion of "Undertakings" see REPORT ON HAGUE CONVENTION OPERATIONS by the Child Abduction Unit; November, 1995, available on Hilton House Web Site as Undertaking_rpt.txt