Although the Hague Convention on International Child Abduction heavily favors the return of the child, there are some exceptions built into the law that allow judges discretion not to return the child under very specific circumstances. The most commonly used exception is when there is a grave risk that returning the child would result in physical or psychological harm or otherwise place the child in an intolerable situation.
The standard of “grave risk” is arguably a vague one and what one person considers intolerable may be normal for another. Therefore there has been some variety to the Hague court decisions that have considered this exception. Two courts that view the same situation have enough leeway under the “grave risk” standard to rule in two different ways. However, while different courts have interpreted this standard is varying ways, as a general rule, this “grave risk” standard is defined very strictly and usually only the most severe cases will result in the child not being returned.
Cases where a child will not be returned to a parent based upon a grave risk of harm include situations where the parent has abused the child in the past or there is clear reason to think that the child’s safety will be in question if returned. Other cases, such as abuse between spouses but not against the children, may not be enough to satisfy the “grave risk” standard for some judges.
Once a ruling of wrongful removal and return is issued by a court under the Hague Convention on International Child Abduction, the officials in that country should work to return the child as quickly as possible to his or her habitual residence. However, this ruling is not a final determination of the custody rights of the child. Rights relating to the custody and residence of the child should be litigated in the child’s habitual residence. Evidence of spousal or child abuse may also play an important role in these custody hearings in the court of the child’s habitual residence.