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Defenses to Return under the Hague Convention
The Hague Convention establishes four defenses to the return of a child who has been wrongly taken from its habitual residence: 1) The proceeding is commenced in the responding state more than one year after the wrongful removal or retention, and 'the child is now settled in its new environment' (Article 12); 2) The party now seeking return of the child was not actually exercising custodial rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention (Article 13 (a)); 3) The return of the child would expose him or her to physical or psychological harm 'or otherwise place the child in an intolerable situation'(Article 13(b)); or the child objects to being returned and is of such age and maturity that it is appropriate to take account of his views (Article 13 (b)); and 4) That human rights and fundamental freedom would be abridged if the return were permitted (Article 20).
A respondent who opposes the return of the child has the burden of establishing by clear and convincing evidence that one of the exceptions set forth in articles 13b or 20 of the Convention applies, and, by a preponderance of the evidence, that any other exception set forth in article 12 or 13 of the Convention applies. 42 U.S.C. 11603(e). Importantly, a finding that one or more of the exceptions provided by Articles 13 and 20 are applicable does not make refusal of a return order mandatory. The courts retain the discretion to order the child returned even if they consider that one or more of the exceptions applies (Article 18).
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