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. 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. This final installment of a three-part article explains.

33 minute read January 30, 2008 at 01:27 PM
By
Bari Brandes Corbin and Evan B. Brandes
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).

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