Grave Risk of Harm Under
Article 13(b) of the Hague Convention on International Child
Abduction: What Constitutes a War?
Laura W. Morgan
[Ed. Note: On August 5, 2003, the United States Court
of Appeals, 8th Circuit, reversed the district courts
decision in Silverman v. Silverman, and held that Israel
is not a zone of war under Article 13(b) of the Hague Convention.
This decision puts the United States in line with cases from
other countries that have similarly held that Israel is not
a zone of war for purposes of return of a child under the
Hague Convention. E.g., Altheim and Altheim
(Argentina 2001); Cornfield v. Cornfield (Canada 2001);
Watkins v. Watkins (Federal Republic of Germany 2001);
Ben Said vs. Leboeuf (France 2002); S
(A Child) (UK 2002); see also Korn v. Korn,
No. DR 01 1348 RAF (Ala. Cir. Ct. Jan. 25, 2003). Contra
Genish v Dept of Community Services (Australia
text of cases.]]
I. Section 13(b) of the Hague Convention
The Hague Convention on the Civil Aspects of International
Child Abduction was adopted by the United Sates on April 29,
1988, thereby becoming a contracting state, and on the same
date passed the International Child Abduction Remedies Act,
42 U.S.C. §§ 11601 et seq. The stated purpose is
to insure the prompt return of children who have been abducted
from their country of habitual residence or wrongfully retained
in a contracting state not their country of habitual residence.
The Preamble states that the Hague Convention seeks to
protect children internationally from the harmful effects
of their wrongful removal or retention and to establish procedures
to ensure their prompt return to the State of their habitual
residence, as well as to secure protection for the rights
of access. See Hague International Child Abduction
Convention: Text and Legal Analysis, 51 Fed. Reg. 10,498 (March
26, 1986) (Hague Convention). The Convention thus
seeks to deter parents from moving children across international
borders in search of a forum more sympathetic in the underlying
custody dispute. See generally Linda Silberman, Hague
Convention on International Child Abduction: A Brief Overview
and Case Law Analysis, 28 Fam. L.Q. 9 (1994); Scott M.
Smith, Annotation, Construction and Application of International
Child Abduction Remedies Act, 125 A.L.R. Fed. 217 (1995);
Julia Todd, The Hague Convention on the Civil Aspects
of International Child Abduction: Are the Conventions
Goals Being Achieved?, 2 Indiana J. Global Legal Studies
Under the Hague Convention, there are a number of exceptions
to the obligation to return a child. Article 13(b) in particular
provides that a court need not return a child to his country
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.
Hague Convention, art. 13(b).
Determining whether a child faces a grave risk of harm
is not an easy task. Among the federal courts
most difficult and heart-rending tasks is the decision under
the Hague Convention on the Civil Aspects of International
Child Abduction whether to return an abducted child to the
childs home country when a parent claims the child will
face a grave risk of physical or psychological harm if returned.
Danaipour v. McLarey, 286 F.3d 1, 4 (1st
Cir. 2002). Because the Hague Convention establishes a strong
presumption in favor of returning a wrongfully removed child,
a party opposing return based on an Article 13(b) exception
bears the burden of establishing that exception by clear and
convincing evidence. 42 U.S.C. § 11603(e)(2)(A); Miller
v. Miller, 240 F.3d 392 (4th Cir. 2001). Exceptions
to the general rule of expedient return, including Article
13(b), are to be construed narrowly. See Permanent
Bureau, Hague Conference on Private Intl Law, Conclusions
and Recommendations of the Fourth Meeting of the Special Commission
to Review the Operation of the Hague Convention of 25 October
1980 on the Civil Aspects of International Child Abduction
§ 4.3 (2001) <http:// www.hcch.net/e/ conventions/reports28e.html>;
Elisa Pérez-Vera, Explanatory Report, ¶ 34, at
434 in 3
Hague Conference on Private Intl Law, Acts and Documents
of the Fourteenth Session (1982).
The Article 13(b) defense may not be used as a vehicle
to litigate (or relitigate) the childs best interests.
Hague International Child Abduction Convention: Text and Legal
Analysis, 51 Fed. Reg. 10,494, 10,510 (March 26, 1986). Indeed,
even if the conditions for an Article 13(b) exception are
met, the Hague Convention gives the court discretion to return
the child to the country of habitual residence. Hague Convention,
arts. 13, 18, T.I.A.S. No. 11,670, at 8-9; Walsh v. Walsh,
221 F.3d 204, 221 n. 17 (1st Cir.2000); Friedrich v. Friedrich,
78 F.3d 1060, 1067 (6th Cir.1996); Hague International Child
Abduction Convention: Text and Legal Analysis, 51 Fed. Reg.
Many cases arguing the Article 13(b) exception to return
have focused on specific psychological or physical harm to
the child. E.g., Danaipour v. McLarey, 286
F.3d 1, 4 (1st Cir. 2002); Walsh v. Walsh,
221 F.3d 204 (1st Cir. 2000); Whallon v. Lynn,
230 F.3d 450 (1st Cir. 2000); Blondin v. DuBois,
189 F.3d 240 (2d Cir. 1999); Nunez -Escuder v. Tice-Menley,
58 F.3d 374 (8th Cir. 1995); Rodriguez v. Rodriguez,
33 F. Supp. 2d 456 (D. Md. 1999); In re Prevot, 855
F. Supp. 915 (W.D. Tenn. 1994); Slagenweit v. Slagenweit,
841 F. Supp. 264 (N.D. Iowa 1993); Turner v. Frowein,
253 Conn. 312, 752 A.2d 955 (2000); Dalmasso v. Dalamasso,
9 P.3d 551 (Kan. 2000); Janakakis-Kostun v. Janakakis,
6 S.W.3d 843 (Ky. Ct. App. 1999); Ciotola v. Fiocca,
86 Ohio Misc. 2d 24, 684 N.E.2d 763 (Common Pleas 1997).
Grave risk is not so limited, however. In Friedrich
v. Friedrich, 78 F.3d 1060, 1069 (6th Cir.
1996), the court stated that grave risk would exist when the
return would put 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. In two
cases decided in the last two months, the litigants have argued
that return of the child to the childs country of habitual
residence would subject the child to grave risk of harm not
because of any specific psychological or physical harm directed
at the specific child, but because of the civil unrest in
the country. Can these cases be a bellwether for future 13(b)
II. Escaf v. Rodriquez
In Escaf v. Rodriquez, ___ F. Supp. 2d ___, 2002
WL 959312 (E.D. Va. May 6, 2002), the parents married and
lived in Colombia. The parents separated in 1996, and divorced
in 1997. The custody agreement, approved by the court, provided
that the child would reside with the mother in Colombia and
spend weekends and summers with the father. In 2000, the father
relocated to Virginia, and the child visited with the father
in Virginia in 2000. In 2001, however, when the child visited
the father, the father faxed the mother saying the child would
not return. The mother filed a Hague Convention action.
The father argued that the child would be exposed to grave
risk of harm if returned to Colombia because of the drug wars
and anti-American sentiment. The fathers current wife
testified that while she and the father had lived in Colombia,
they had been harassed by security officials, the fathers
office was robbed, and he was threatened with kidnaping.
The mother testified that she was confident of her sons
safety in Barranquilla. She pointed out that Isidoro has many
cousins and friends his age in Barranquilla, and there is
no evidence that any of them have been threatened or harmed
because of the political situation in Colombia.
The court acknowledged that U.S. State Department had issued
a warning against U.S. citizens traveling in Colombia, because
of the threat of kidnaping, hijacking, and murder. The court
also acknowledged that over 120 United States citizens had
been kidnaped in Colombia over the past 20 years. Nonetheless,
the court found that no threat has ever been directed to Isidoro
and he had lived in Barranquilla without incident for one
and a half years after the threat Rodriguez believed was directed
to him. At most, then, the evidence establishes (i)
that Colombia may be a dangerous place for some American businessmen
and (ii) that there has been a threat to Rodriguez in Barranquilla.
There is no persuasive evidence specifically establishing
a risk to Isidoro of kidnaping or violence in Barranquilla.
III. Silverman v. Silverman
In Silverman v. Silverman, 2002 WL 971808 (D. Minn.
May 9, 2002), the court determined that returning the two
children, Sam and Jacob, to Israel would expose them to a
grave risk of physical harm and place them in an intolerable
situation. Unlike the generalized risk of harm to Americans
in Colombia that the court in Escat v. Rodriguez
found insufficient, this court found that the current state
of the Intifada in Israel amounted to a state of war, subjecting
the child to more than just a generalized risk:
Israel is currently in a state of turmoil. Although,
as plaintiff testified, Israel has always been a country at
conflict to some extent, it is clear that the Intifada has
escalated dramatically in recent months. At the hearing, defendant
presented evidence of the violence occurring in the region.
It is undisputed that on March 16, 2002, a Palestinian gunman
opened fire and killed two people, including a 17-year-old
student, in the City of Kfar Saba. Each and every witness
called to testify acknowledged that Kfar Saba is less than
five miles from plaintiffs home in Raanana. Witnesses
also acknowledged that another Palestinian bombing occurred
in Netanya, a city only 15 miles from Raanana. Since the hearing
on March 18, the violence in the region has steadily worsened.
On March 22, 2002, a Palestinian suicide bomber killed three
Israelis and wounded 40 more in Jerusalem. See Jerusalem
Bomber Kills 3 and Shakes U.S. Peace Effort, N.Y. Times
at A1, Mar. 22, 2002. On March 28, 2002, another Palestinian
suicide bomber blew himself up in a crowded hotel dining room
in Netanya as more than 200 people gathered for the Passover
holiday meal. See Bomb Kills At Least 19 in Israel as
Arabs Open Beirut Meeting, N.Y. Times at A1, Mar. 28,
2002. The incident, kill[ed] at least 19 and wounded
more than a 100 others, many of them children. Id. On
April 1, 2002, another suicide bomber detonated himself in
a popular café in Haifa, a town in Northern Israel.
See Sharon Says Israel is in a War After Suicide Bombing
Kills 14; More Tanks Move in West Bank, N.Y. Times at
A1, Apr. 1, 2002. The blast killed 14, wounded 40 others and
was described as among the deadliest of the 18-month
conflict. Id. On April 10, 2002, a bomb exploded on
a commuter bus near Haifa, killing at least five people and
injuring 20 others. See Ambush Kills 13 Soldiers: More
dead today as bus blast kills at least 5 near Haifa,
Minneapolis Star Tribune at A1, Apr. 10, 2002. On April 12,
2002, a female suicide bomber blew herself up at a bus stop
in Jerusalems crowded outdoor market, killing six people
and wounding many others. See Bomb Rips at Peace Effort,
Minneapolis Star Tribune at A1, Apr. 13, 2002. The escalating
violence prompted the State Department to issue travel warnings,
telling Americans not to travel to Israel, the West Bank or
Gaza and advising American residents in Jerusalem to leave
the city. See State Department issues new travel warning
for Americans in Israel, 2002 WL 3319550, NBC News:
Today, Apr. 3, 2002. Most recently, on May 7, 2002, 15 people
were killed in a suicide bombing of a gambling club in Rishon
le Zion, Israel, located 10 miles south of Tel Aviv. See 15
Killed by Suicide Bomber; Sharon Cuts Short U.S. Visit After
a Meeting with Bush, N.Y. Times at A1, A14, May 8, 2002.
The Court takes judicial notice of these events in consideration
of this issue.
The court then distinguished Freier v. Freier, 969
F. Supp. 436, 443 (E.D. Mich.1996), where the court held that
unrest in Israel was insufficient to establish the grave risk
defense, noting that significant differences exist between
the violence occurring at the time Freier was decided
and the violence occurring in Israel today. Today, violence
has permeated areas that were previously unaffected
by the conflict. Furthermore, the type of violence, through
suicide bombings, has placed civilians, including children,
at much greater risk. The level and intensity of violence
occurring in Israel today thus goes well beyond some
unrest described in Freier. Thus, the
current situation in Israel meets the zone of war
standard contemplated by the Sixth Circuit in Friedrich.
It is proper that courts recognize when a state of war exists
that would pose a grave risk of harm to a child. The current
situation in Israel, where more civilians have been killed
in the two months (as of this writing in June) than in the
previous five years is testament to the fact that Israel is
in a state of siege. Does this mean, however, that any child
wrongfully removed from Israel need not be returned? Israelis
would certainly testify that while the country is dangerous,
it is possible to live there unaffected.
Indeed, think about the current situation in the United States.
Attorney General John Ashcroft gives daily warnings about
terrorist attacks, and warns that a future attack is inevitable.
Does this mean any child can be removed from New York or Washington?
What about removing a child from Northern Ireland?
On the other hand, the court in Escaf v. Rodriquez
failed to appreciate the danger to Americans in Colombia by
requiring that there be a specific threat against this specific
child. Not even the court in Silverman or Friedrich
required such a standard of proof.
As our globe becomes more war torn, the courts will have
to formulate what constitutes a zone of war. As
it now exists, such standards do not exist other than a body