Disaggregating the Two Prongs of Article 13(b) of the Hague Convention to Cover Unsafe and Unstable Situations

By Lauren Cleary

The Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) is a treaty designed to coordinate a uniform response to international child abductions. It establishes a civil remedy for a left-behind parent seeking the return of his or her child after the child has been wrongfully removed to or retained in another state that is also a party to the Convention. The Convention requires the courts of a signatory state to order the prompt return of a wrongfully removed or retained child to his or her state of habitual residence unless the responding party can prove that one of the defenses available under the Convention is satisfied.

Article 13(b), which provides the most frequently cited defense available under the Convention, 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.” To this end, U.S. courts agree that one situation in which Article 13(b) is satisfied is when the child’s return would place him or her in a “zone of war.”

Even though Article 13(b) establishes two alternative bases upon which a court can refuse to order the return of an abducted child, U.S. courts traditionally analyze Article 13(b) claims entirely or primarily under the “grave risk of harm” prong of the defense, ignoring or de-emphasizing the “intolerable situation” prong. This practice results in an extremely narrow interpretation of Article 13(b), especially in the zone of war context. For example, virtually all courts require that the party raising the defense identify a specific risk of harm directed at the individual child to prove that a zone of war exists and that the defense is satisfied. This requirement ignores the fact that a child’s return to a dangerous or unsafe region may expose him or her to an “intolerable situation” even if the party cannot identify a specific threat directed at the individual child.

To protect the children involved in cases under the Convention, this Note argues that U.S. courts must disaggregate the two prongs of Article 13(b). First, the disaggregation of the “grave risk of harm” and “intolerable situation” prongs is required by the plain meaning of the text of the defense, the intent of the framers of the Convention, and the purposes of the Convention itself. Second, disaggregating the two prongs of Article 13(b) allows zone of war to cover unstable and volatile situations, even if a party cannot identify a specific threat of danger directed at the individual child because the limited “intolerable situation” case law allows courts to consider the environment to which a child will be returned. As such, fully analyzing both prongs of Article 13(b) allows U.S. courts to better fulfill their obligations under the Convention and better defend children, a particularly defenseless population.