Child Abduction

• Author: International Law Group

Jennifer, a U.S. citizen, married Davy van de Sande, a Belgian citizen, in 1999 and they had two children. They eventually moved to Belgium. But not all was merry in their relationship. Jennifer alleged that Davy often beat and threatened her, as well as the children. One day, Jennifer took the children and returned to the U.S. Davy first obtained an ex parte custody decree in Belgium, and then sought the return of the children to Belgium. He filed an action in U.S. federal court.

The International Child Abduction Remedies Act, 42 U.S.C. Section 11601, implements the Hague Convention on the Civil Aspects of International Child Abduction (October 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89). It permits parents to seek the return of children abducted to another member state.

Jennifer presented six affidavits describing Davy's violent behavior and threats. The district court found most of the violence directed at Jennifer - not the children - and granted Davy summary judgment. Presumably, the court was influenced by the assumption that the Belgian legal system would provide sufficient safeguards in this case.

The U.S. Court of Appeals for the Seventh Circuit reverses and remands.

The abducting parent has a narrow defense under the Hague Convention. Under Article 13(b) of the Convention, the abducting parent may not have to return the child if "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."

The affidavits in this case could be clear and convincing evidence of "risk of harm" to the children if returned to Belgium. The issue is whether they prove a "grave" risk of harm, and whether the children should be returned under these circumstances.

"Return plus conditions ('undertakings') can in some, maybe many, cases properly accommodate the interest in the child's welfare to the interests of the country of the child's habitual residence.

Often the bulk of the evidence concerning risk of harm will be found in that country and the left-behind parent's defense to charges of abuse may be more...