Analyzing The "Grave Risk" Defense Hon. James D. Garbolino Judge of the Superior Court Placer County, California From: Chapter Four of Selected Good Practices in International Family Abduction Cases by Linda K. Girdner and Patricia M. Hoff With increasing frequency, the defense of "grave risk" is being raised by abducting parents in an effort to defeat an action for return of a child under the Hague Convention FN 1. In some instances, this defense is the only viable alternative for an abducting parent to serve up to a court in a case where a clear case of wrongful removal is made out. Given the limited number and scope of the defenses for a case for return of a child wrongfully abducted, it is not wholly unexpected that claims of domestic violence, child abuse, and psychological harm will argued as "grave risk" bases upon which to deny return to the child's habitual residence. Such cases certainly exist, and when proven such defenses should be sustained. Nevertheless, there is a real danger for courts to exceed the scope and intent of the Convention when the defense amounts only to a showing of transient or, reparable harm. Courts should also be wary not to deny the return of a child where the courts or officials of the habitual residence have the ability to cope with the allegations of threatened harm, or can provide sufficient protections to obviate their effect upon the child. U.S. courts should also be made aware that their own powers may be invoked to insure that any psychological trauma to the child may be avoided through the use of orders for return which address the issues of safety or emotional distress of the abducting parent and the child. Courts will find the text of the "grave risk" defense in Article l3b of the Convention. This provision permits a court to refuse to return a child if it finds that "here 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." As with the other defenses under the Convention, even though a defense of grave risk is established, the court is still not required to deny the petition, FN 2 and the court may exercise its discretion to order the child returned. FN 3 One recent case represents a troubling departure from previously reported U.S. cases which have dealt with this issue. In Steffen F v Severina P. (D.Ariz. 1997) 966 F.Supp. 922, the court held that despite a particularly egregious case of wrongful removal by the child's mother, the return of a three year old child to Germany would disrupt the child's bonding, and would likely cause the child to suffer long term psychological damage. In Steffen F., father and mother lived in Germany, and married in December 1993. Four months later, Jaime, a son was born. The family lived together with mother's child from a previous relationship. When Jaime was a year old, the parents separated. The parties negotiated a separation agreement, with father having custody of Jaime on alternate weekends and at other times during the week which were agreed upon. In November, 1995, mother left Germany surreptitiously, sending father a letter which said, in part, "As you read this letter, we are already out of the country.... if you try to find me, good luck". Mother settled in Tucson, Arizona. She Filed an action for dissolution of her marriage. and served father with process. In April, 1996, father obtained a temporary custody order from German Courts, and made an application directly with the U.S. Central Authority for the return of the child. Mother's action for dissolution proceeded to judgment, however, the court did not make an order with regard to Jaime. Father filed an action for return of the child under the Hague Convention in July, 1996 in federal district court. During the pendency of those proceedings, father obtained a permanent custody order granting him custody of the child in February, 1997 from German courts. Trial took three days, with both father and mother in attendance. Mother raised, inter alia, the defense of "grave risk" based upon a removal of Jaime from his mother. Mother's expert psychologist testified that a grave risk existed because if Jaime were removed from his mother for any period of time longer than a few weeks, the child would likely become unbonded and unattached to the mother. This would likely produce long-term, serious psychological problems. The court analyzed the proof as follows: "Severina P. also provided evidence of another source of grave risk to Jaime F. if he were returned to Germany, that being psychological harm. Dr. Jerry Day offered compelling testimony that Jaime F. faces a grave risk of psychological harm if he is returned to Germany. After testifying that Jaime F. was bonded and attached to his mother, Dr. Day stated that removal of Jaime F. from his mother for any period of time longer than a few weeks would like1v result in unbonding and unattachment. He stated that a grave risk exists because a child being unbonded and unattached often produces long-term, serious psychological problems. Such children often grow up to be manipulative and untrusting. He stated that sociopaths tend to be adults who were unbonded as children. He also stated that a painful separation such as would occur here should Jaime F. return to Germany would likely result in Jaime F. suffering significant disorders. Dr. Day further testified that, although it is possible for a child of Jaime F.'s age who has bonded and attached to his mother, upon removal from her, to reattach to the child's father, the prospects for rebonding and reattachment are bleak." * * * * * "Having weighed all the evidence before it, the Court concludes that Respondent Severina P. has proven by clear and convincing evidence that a grave risk of harm exists if Jaime F. were returned to Germany. The grave risk of harm arises from the fact that Jaime F. has attached and bonded to his mother and is likely to suffer detachment and unbonding should he be removed from her." This case is troubling from the standpoint that where an abduction is carried out by a primary caretaker, the abductor may easily raise the issue of an interruption in bonding as a potential defense to return of the child. While an interruption in bonding can be a real and significant problem, its genesis is found in the actions of the abductor in removal of the child. On the other hand, the abduction has prevented the left-behind parent from an opportunity to bond. The court in Steffen F. acknowledged the conundrum of rewarding an abductor by allowing a bonding argument to be sustained in response to a petition for return of the child. It was not the first court to acknowledge the problem, but it is the first U.S. case to arrive at the conclusion that the defense would be sustained and the petition for return denied. Frankly, it would appear that "grave risk" defense should be based upon better stuff. In Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060 (6th Cir. 1996) the court enumerated those types of dangers which might be considered to create a "grave risk" of the type of harm envisioned by the Convention. "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." Friedrich's analysis is supported in part by the general agreement that abuse of a child is a "grave risk" which the Convention contemplates. FN 4 Other courts have allowed the possibility of other factors which might sustain such a defense, namely Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995) [domestic violence]; Caro v. Sher, 296 N.J.Super. 594, 687 A.2d 354 (1996) [alleged lack of functioning judicial system], although the defense was not proved in either case. The issue of a disruption in the bonding process falls squarely within the question whether the "grave risk" amounts to a transient or temporary situation, or whether there are indications that the child would suffer long-lasting and more permanent harm. FN 5 See Renovales v. Roosa, 1991 WL 204483 (Conn.Super. 1991) [Court acknowledged that psychological effects attending a return were insufficient to constitute a "grave risk"]. Even though some degree of psychological damage may be expected from a return of a child, the return of the child should not be denied unless the adverse effects cannot be ameliorated, and are likely to be permanent in nature. See Slagenweit v. Slagenweit, 841 F.Supp. 264 (effects of the return were temporary should have 'no long-lasting effect" upon the child.) FN 6 Courts are not so callous as to deny that a child who is abducted by one parent will undergo psychological difficulties when ordered to return to his or her habitual residence. But clearly, this type of harm is potentially present in most cases arising under the Convention. FN 7 The issue is squarely met in Friedrich II, supra, 78 F.3d 1060: "Mrs Friedrich advocates a wide interpretation of the grave risk of harm exception that would reward her for violating the Convention. A removing parent must not be allowed to abduct a child and then--when brought to court--complain that the child has grown used to the surroundings to which they were abducted. [fn. 9 - Under the logic of the Convention, it is the abduction that causes the pangs of subsequent return. The disruption of the usual sense of attachment that arises during most long stays in a single place with a single parent should not be a "grave" risk of harm for the purposes of the Convention.] 78 F.3d 1060, 1068." The danger in following the Steffen F. case lies for good reason. The defenses set forth under the Convention are to be interpreted narrowly. This rule of interpretation is reinforced by the subsequent decision of Congress to attach a higher burden of proof upon the proponent of the defense (i.e. clear and convincing evidence). Taken together, these bases seem to cry out for an interpretation which prevents the favored case for return from being consumed by a defense based upon a broad interpretation of "grave risk". Had the framers of the Convention meant to provide for special considerations in cases involving children abducted by their primary caretaker during their bonding years, they could easily have do so. Many children who are abducted may fall within the critical years for their bonding attachments. The issue will usually arise when the abducting parent is the primary caretaker FN 8 (although as noted above, abduction interrupts bonding with the left-behind parent). To acknowledge an interruption in the bonding process, absent unusual circumstances, as the basis for a "grave risk defense" elevates the defense to a status higher than the need for return of the child. Because of the potential for its frequency of use, the exception would soon become the rule. Furthermore, Steffen F.'s approach to the resolution of the "grave risk" issue was an "all or nothing" proposition. Despite the fact that a court is vested with the discretion to order a child returned even if a defense is sustained, the trial court simply denied the father's petition for return. Other alternatives were available. Our European brethren have recognized the utility of "undertakings" or formal stipulations between the parent seeking return of the child and the court which ameliorate the sometimes harsh conditions of return. These may include arranging for orders which protect against domestic violence, orders for support, maintenance, and access in the state of habitual residence, and orders which permit the child to be returned in the custody and control of the abducting parent. While the Convention does not refer to "undertakings", neither does it prohibit their use. Some critics of the use of undertakings note that they are absolutely unenforceable in the state of habitual residence, and as such provide only facial remedies which may not be adopted by the courts in the state of habitual residence. In cases like Steffen F., however, such undertakings would allow a court to avoid harm to the child by ordering the child returned to the habitual residence in the custody of the primary (abducting) caretaker. After the return, courts should be content to trust to the wisdom and experience of the courts of the habitual residence to deal with the issue of the "best interests" of the child in light of the bonding issues raised by the removing parent. Footnotes -------------------- 1 Hague Convention on the Civil Aspects of International Child Abduction, Senate Treaty Doc. 11, 99th Cong., 1st Sess. 9 (1980) reprinted in 19 I.L.M. 1501 (1981) [hereinafter Convention] 2 Most experts reported that in their jurisdictions Article 13 b is given a very narrow interpretation and that therefore few defences based upon this argument are successful. "Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction 33 I.L.M. 225, 241 (1994) Response to question 19. 3 The Explanatory Report of Perez-Vera explains at paragraph 113 as follows: "In general it is appropriate to emphasize that the exceptions in these two articles do not apply automatically, in that they do not invariably result in the child's retention; nevertheless, the very nature of these exceptions gives judges a discretion - and does not impose upon them a duty - to refuse to return a child in certain circumstances." See also Text & Legal Analysis, at 10510 ("Under Article 13(b), a court in its discretion need not order a child returned if there is a grave risk that return would expose the child to physical harm or otherwise place the child in an intolerable situation.") 4 "The person opposing the child's return must show that the risk to the child is grave, not merely serious. An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention. the court may deny the petition. Such action would protect the child from being returned to an "Intolerable situation" and subjected to a grave risk of psychological harm. - Text & Legal Analysis, 51 Fed. Reg. 10494, 10510. See also Friedrich v. Friedrich (Friedrich II), supra 78 F.3d 1060, 1068 ("An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child."); In re Shoshana B., supra, 34 Cal.App.4th 584, Ordered not Published. (". . . classic grave risk exception exists where the minor has been sexually abused by the custodial parent"). But see Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction 33 I.L.M. 225 (1994) Response to question 22, which casts some doubt upon this general acceptance: "Furthermore, another expert wondered whether this provision might be used in cases where the parent from whom the child has been abducted had subjected the child to sexual abuse. Others pointed out that in such cases the returning State should entrust the requesting State to make a proper pronouncement on the issue of custody. They suggested that in such cases all that was necessary was to ensure that the child is properly protected during the substantive hearing either by allowing him or her to return in the custody of the abducting parent or by placing him or her in the custody of a third party. Id, 33 I.L.M. 225, 241. 5 Slagenweit v. Slagenweit (D. Iowa 1993) 841 F.Supp. 264. infra. Similarly, where there is no evidence of actual harm, the court will not imply harm simply on the basis that a child will be deprived of the company of their primary caretaker. See Rydder v. Rydder (8th Cir. 1995) 49 F.3d 369 ("Although Mrs. Rydder cites several authorities that recognize that separating a child from his or her primary caretaker creates a risk of psychological harm (see Linda Silberman, The Hague International Child Abduction Convention: A Progress Report. 57 L and Contemp.Probs., Summer 1994, at 209; Carolyn Legette, International Child Abduction and the Hague Convention: Emerging Practice and Interpretation of the Discretionary Exception, 25 Texas Int'l. L.J. 287 (1990)), the district court was presented with no specific evidence of potential harm to Bjorn Jacob or Enunelie Marie Rydder. On the contrary. the district court found both parties to be "Intelligent, mature, loving parents," and this finding was not clearly erroneous. Thus the district court property determined, on the basis of the evidence presented, that Article 13(b) was not an obstacle to the return of the children to Poland.") 6 Note, however, that the court refused to order the child's return based upon a finding that the child's habitual residence had changed from Germany to the United States. 7 c.f. Thompson v. Thompson, 3 R.C.S. 551; 34 I.L.M. 1139 where the court rejected the notion that wresting the child from its primary caretaker is an acceptable by-product of the initial abduction "As this Court stated in Young v. Young, [1993] 4 S.C.R. 3, from a child centered perspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, it would be irrelevant from whence it came. I should observe, however, that it would only be in the rarest of cases that the effects of "settling in" to the abductor's environment would constitute the level of harm contemplated by the Convention." Id., 34 I.L.M. 1159, 1177. 8 The inequity of such a rule can be seen If applied to a situation in which an infant, perhaps only several days old, is abducted from the person who expected to be the child's primary caretaker, only to be hidden for a year or more by the abducting parent. A refusal to return the child in such a case merely extends the facts of Steffen F., but the injustice of refusing return becomes more pointed.