The ‘Grave Risk’ Defence
Article 13(b) is the most frequently cited defence available under the Hague Convention. It stipulates that a court is not required to order the return of a child to his or her state of habitual residence 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”.
What is grave risk of harm?
Grave risk can amount to direct or indirect harm. Establishing grave risk is case-specific, and a Judge is required to assess the future risk when determining whether to return a child under the Hague Convention i.e., what will that child’s circumstances be if they are returned to their habitual state immediately.
For example, in April 2023, the Irish Court of Appeal upheld a High Court Judge’s refusal to order a woman to return her young daughter to the UK due to a “grave risk” that the child could be exposed to physical and psychological harm. Mr Justice Garrett Simons declined to return the child over concerns that the father, who has an alleged history of committing domestic violence, would trespass at the mother’s home and take the child. In his ruling he said that whilst the default position of the Hague Convention was to make an order directing the return of a child, this was “one of the truly exceptional cases where such an order should not be made”.
This is not to say that every allegation of domestic violence would prevent the return of a child. However, in this instance, evidence was placed before the Court that the father suffered from PTSD and had a history of violence, including four convictions for assault, damaging property and battery and had a history of substance abuse, depression, and anger management. Mr Justice Simons stated that “The Hague convention does not oblige a parent to tolerate such grave risk”.
The ‘Grave Risk’ Threshold
It is important to note that the threshold in order to establish grave risk is significant. This was illustrated in a NI High Court decision in January 2023 when it ordered that two children of separated parents who were removed by their mother to the Republic of Ireland from Northern Ireland must be returned. The children aged 8 and 12 were removed by their mother without their father’s consent. In alleging grave risk, the mother claimed the father was “a threat and danger” to both children.
The Judge decided there was insufficient evidence to decide whether the allegations regarding the father were true, and even if they were true, they would not have been sufficient enough to suggest that the children would be at grave risk if returned. The Judge alluded to protective measures which can be sought in the child’s country of origin, by claiming that there was no evidence of grave risk which could not be addressed by the NI Courts and social services.
The Judge decided that removing the children without their father’s consent was not an appropriate way of moving to a new home and there may be “irreparable harm” to the children’s long term psychological health if their relationship with their father is abruptly severed.
Protective Measures
The aforementioned case leads to the consideration of protective measures. The Courts must consider any protective measures which could be put in place to ensure that a child would not face an intolerable situation if returned to their country of habitual residence. For instance, in January 2023, Ms Justice Mary Rose Gearty ruled that two children removed from another EU country and brought to Ireland by their mother had to be returned to their country of origin. The mother claimed that one of her children was at grave risk of self-harm if returned.
Taking into account the views of the children. Ms Justice Gearty said that although the child had addressed unhappiness in respect of her schooling and made references to self-harm, she felt that ongoing evaluation and support could be provided in her home country. Ms Justice Gearty said that what was contained in the assessors report was insufficient to establish a grave risk to the child.
“With insufficient evidence to establish a grave risk to the child or to conclude that either of them would be in an intolerable situation should they be returned, the judge said the Court is not required to consider the exercise of its discretion in this regard” – Justice Mary Rose Gearty.
Jurisdictional comparison
As the Hague Convention is an international treaty, it applies to states with different legal systems. As pointed out in the Supreme Court decision of H.I. v M.G. (Child Abduction): Wrongful Removal [1999], it is to be construed in the same manner by the Courts of the various states who have ratified or acceded to the Hague Convention. The test to be applied in other jurisdictions is no different, and therefore the requirement for ‘grave risk’ is applied equally as stringently.
For instance, in the USA, a mother who drove her son from Ohio USA to Canada in June 2022 argued that her case fell under the exception under Article 13(b) because there was a grave risk of physical or psychological harm or placing the child in an intolerable situation.
The Court outlined that the article 13(b) exception applied, because the case met the high threshold for establishing that returning the child to Ohio would subject him to a grave risk. In this case, the father created a domestic violence situation involving video and audio surveillance, manipulation, and abusive control of both the mother and the son. Again, it is the concept that the Hague Convention will not expect a parent to tolerate such grave risk.
Conclusion
The default position under the Hague Convention is that the requested court will order the return of a child to their country of habitual residence. This will ensure that the paramount consideration is the best interests of the child and creates a deterrent for parents removing their child from the jurisdiction without the consent of the other parent. However, it is worth noting the exceptions under Article 13 which are an integral part of the Hague Convention. Ultimately, the Court’s overriding objective is to ensure the best interests of the child.
Legal Advice
Please contact our Family Law Team on 01 296 0666 as soon as possible if you are worried that:
- Your child has been abducted from Ireland to overseas;
- Your child has been abducted from overseas and taken to Ireland;
- You are being accused of abducting your child;
