The "grave risk" defence

Curia has pointed out: When a parent invokes Article 13 of the Hague Convention, the exceptional circumstances must relate to the child. It is not the specific circumstances of the abducting parent but those of the child that may justify an exceptional refusal of return.

 If a parent relocates with the child without the consent of the other, the court will order the child's return at the request of the parent left behind. A refusal to return can only be applied for in very exceptional circumstances. An important principle is that a refusal to return must be justified by the particular circumstances of the child, not the parent.
 

In cases of wrongful removal, it is common for the applicant to ask the court to dismiss the application for return on the grounds that the child would suffer physical or psychological harm or otherwise be placed in an intolerable situation if returned to the country from which he or she was removed.
The taking parent will often allege domestic violence or psychological or physical abuse, or that the left-behind parent worked full-time, leaving the abducting parent to care for the child alone and in isolation, or that the left-behind parent was aggressive and abusive, creating a situation of financial dependency that made the other parent vulnerable.
In many cases, however, the parent making such allegations cannot prove that a police report has been previously filed or other action has been taken against the abusive parent in the child's habitual residence.

So it is one parent's word against the other's.

The courts tend to be very strict in this kind of situation because Article 13 of the Hague Convention lays down an exception rule.

I have recently dealt with several cases where the return of a child was ordered despite the fact that the abducting parent claimed abuse and could prove that it was impossible to live with the parent left behind because of their verbal or physical aggressive behaviour.

In one case in Scotland the parents had a conflictual relationship, domestic abuse was witnessed by the neighbours and required several calls to the police. The cases were also reported to child protection services as well. The father was in custody during those days when the mother left the country for Hungary, and the condition of his release was that he was not allowed to contact the mother. In the return proceedings, the mother claimed that she had not had the opportunity to discuss the relocation with the father because of the restraining order and that she and the child would be at risk of abuse if she returned to Scotland.

The court nevertheless ordered the return because, after consulting the Health and Social Care Partnership, it was satisfied that appropriate protective measures could be taken in the best interests of the child.

The Brussels II B Regulation provides for the application of stricter rules than the Hague Convention if the parent claims physical or psychological harm or other intolerable circumstances if the child is returned.

If it is established that adequate protective measures have been taken in the Member State of habitual residence in the best interests of the child, return cannot be refused.

Hungarian judicial practice is in line with this principle, as confirmed by several decisions of the Curia. The Curia has pointed out in several decisions that it is not the specific circumstances of the abducting parent but those of the child that may justify an exceptional refusal of return. The concept of return must be interpreted broadly. Restoration of parental custody that has been violated does not, by definition, aim at restoring the parents' former lifestyle, but merely at returning the child to his or her former environment.

In this particular case (Pfv.21034/2021/4. page 62 - text is in Hungarian) the abducting parent argued that she could not return to the United Kingdom and provide suitable conditions for the children because she had already given up her lifestyle there. She stated that she no longer had a job or a home, that she did not want to move back and that the children could not be placed with the father. The courts always point out, as in this case, that the situation created by the parent's own conduct cannot automatically be considered a ground for refusal on the grounds of the child's best interests. This cannot be inferred from Article 13 of the Hague Convention. Indeed, it would defeat the purpose of the Hague Convention if the best interests of the child were automatically linked to the insoluble situation created by the abducting parent's own conduct.

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