The Hague Convention on the Civil Aspects of International Child
Abduction seeks to ensure the prompt return of children who have been
abducted by parents or other family members across national borders.
The abductor, or taking parent, may raise several defenses in response
to a petition for the return of a child, including the grave risk of
harm to a child upon return to her home country and the contention that
the child is well settled in her new environment. Although many
consider the Hague Convention a successful example of the power of
private international law, the narrow interpretation of the defenses
available under the Hague Convention has proved harmful to women and
children who flee across borders to escape domestic violence. This harm
is exacerbated when U.S. immigration status, or lack there of, comes
into play.
This Comment details the interaction of immigration status with two
of the Hague Convention’s defenses to the return of a child, the
Article 13(b) grave-risk defense and the Article 12 “well-settled”
defense. Where appropriate, I assess this relationship through the lens
of the parent escaping domestic violence, given the prevalence and
severity of the problem. I argue that current U.S. Hague Convention
jurisprudence takes immigration status into account when it should not
– in the consideration of the “well-settled” defense – and fails to
weigh immigration status when it should – when an asylum application is
relevant to the assessment of the grave risk defense. In order to
comport with the object and purpose of the Hague Convention, which is
to “protect children internationally from the harmful effects of their
wrongful removal,” and with other international law norms, U.S. courts
must weigh the status of asylum applicants in grave risk
determinations, while they should not deem immigration status a
dispositive factor in the “well-settled” inquiry.