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Family Law Reader

Family Law Reader

July 2002

“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 court’s decision in Silverman v. Silverman, and held that Israel is not a zone of war under Article 13(b) of the Hague Convention. Full opinion.

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 Dep’t of Community Services (Australia 2002). [Full 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 Convention’s Goals Being Achieved?, 2 Indiana J. Global Legal Studies 553 (1995).

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 child’s 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 Int’l 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:// conventions/reports28e.html>; Elisa Pérez-Vera, Explanatory Report, ¶ 34, at 434 in 3 Hague Conference on Private Int’l 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 child’s 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. at 10,509.

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 child’s 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) cases?

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 father’s current wife testified that while she and the father had lived in Colombia, they had been harassed by security officials, the father’s office was robbed, and he was threatened with kidnaping.

The mother testified that she was confident of her son’s 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 plaintiff’s 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 Jerusalem’s 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.

IV. Analysis

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 count.

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