The Hague Convention on international child abduction and the ‘grave risk of harm’ exception under article 13(1)(b) – Discuss
The Hague Convention provides a means of preemptory disposition of requests made by member states in circumstances of alleged child abduction. Article 13(1)(b) was designed to ensure that the desired procedural efficiency in fulfilling member state requests did not trump a child’s best interests. It is contended that despite the profound political limitations noted below, the Article has proven to be an appropriate and relatively robust vehicle when these potentially conflicting interests are considered.
The discussion in support of the proposition outlined above is developed from an analytical framework styled in the form of a concentric circle. Article 13(1)(b) is placed at the centre, with a primary ring of preliminary observations to establish context, a secondary ring of selected case law and commentaries, with a tertiary ring of analysis directed to the specific child welfare issues engaged in Article 13(1)(b) proceedings. The materials employed are drawn from primarily UK and international common law jurisdiction sources.
Although laudable in its goals, the 24 year history of this Hague Convention has met with mixed political success. The Convention is not the accepted international standard for the resolution of abduction disputes; as of January 2007, only 64 nations were Convention signatories. The limitations of this international roster are made more prominent by the absence of India and China, representing over one-third of the world population.
The absence of all Muslim nations where the religious sharia law is utilised to resolve custodial disputes is also a factor that undermines the international efficacy of the Convention. The shariavaries in its application throughout the Muslim world; there is little question that sharia traditions often invoke certain presumptions in favour of a child’s father that are incompatible with the Hague regime.
Article 13 was drafted at a time when there existed concerns that fathers who abducted their children and fled to a foreign jurisdiction would use superior financial resources to defeat legitimate custody claims. Ironically, women form the majority of abductors in modern Hague Convention proceedings, without any apparent weakening or irrelevancy in the application of the Article.
Article 13(1)(b) is best understood as a tool available in appropriate circumstances to rebut the presumption of child return. The onus of proof applied in Article 13(1)(b) cases has been uniformly high, as courts in most Hague member states have strictly regulated the availability of the exception. The courts are properly motivated by a fear that the process can be exploited.
It is noteworthy that the courts are not required