If a child has been abducted by it’s parent to another country, the other parent can ask the court in that country to order the return of the child to the country where the child lived before the abduction. The court can refuse, based on the grave risk exception.
Grave risk exception
The judge can refuse to give that order, on the grounds that there is a serious risk that the child in that country will be exposed to a physical or mental danger, or be put in an unbearable condition in any other way (Article 13, paragraph 1 sub b Hague Child Abduction Convention). After all, in that case the disadvantage of being suddenly removed from the familiar environment is less great than the disadvantage of exposure to physical or psychological danger. In European cases, this ground for refusal is viewed in conjunction with the right to respect for private and family life (Article 8 of the European Convention on Human Rights).
When will the judge assume that such a risk exists?
Restrictive explanation
The Netherlands Supreme Court believes that the ground for refusal should be interpreted restrictively. It is not a question of in which country the best interests of the child will be served. The fact that the child is rooted in the country where he has resided since the kidnapping is also no reason to allocate this ground for refusal. When there are reasons to be concerned about the well-being of the child after returning to the country of origin, there is no reason in itself to refuse to issue a return order. In that case, it must first be investigated whether adequate and concrete provisions have been made in the country of origin to ensure the protection of the child after return.
Return without the kidnapping parent
It is possible that the abducting parent cannot return to the country of origin, for example because that parent does not have a visa (anymore). That in itself is no reason to assume psychological danger. Nor is a child’s young age. In all cases, additional circumstances must be demonstrated that demonstrate the danger or the unbearable condition.
Domestic violence
The accusation that the child will be exposed to domestic violence after returning to the country of origin is in itself also insufficient to successfully appeal to the grave risk exception. In principle, the judge assumes that in the country of origin there are also agencies and facilities that offer protection to the child. It is therefore necessary to demonstrate that these facilities and bodies cannot be expected to be sufficient. This can be done, for example, by showing that everything has already been attempted in the past.
Unsafe countries
Some countries are simply known as unsafe countries. Sometimes this is temporarily the case. That in itself is not enough. There really need to be additional circumstances that show that the child is at risk.
Poverty
The same applies to a suspicion that the child will live in poverty after returning. The mere fact that the parent with whom the child will live in that country has no housing or income is insufficient. Here, too, the court will in principle assume that in the country of origin provisions exist for people who have no home or income and that the child and the parent will be helped.
The grave risk exception
In an abduction procedure, general comments about the child, the other parent or the country of origin will not suffice. You will need to proof that there is a serious risk of physical or mental danger if you want the court to use the grave risk exception. The arguments must be substantiated as concretely as possible with special circumstances, focused on the situation of the child himself and provided with examples of incidents and concrete attempts to eliminate risks.
You can read more information about international child abduction:
www.carefulchildrelocation.com
Or read the A-Z, FAQ or the page about international child abduction.