Exception of grave risk in international child abduction

When can it prevent restitution?

When a parent discovers that their child has been taken to another country without consent, or that there is a plan to do so, it is called child abduction.

The 1980 Hague Convention is indeed designed to facilitate the swift return of the child to the State of their habitual residence. But that rule is not absolute.

The Convention itself provides for exceptions, and the most debated in practice is that of Article 13.1.b): the so-called grave risk . Its importance is such that the HCCH published a guide to good practices specifically dedicated to this exception in 2020, which confirms its significance in international family litigation.

What is the grave risk exception and what is it intended to prevent?

The grave risk exception allows the court of the State to which the child has been taken not to order the return when the party opposing it demonstrates that the return would expose the child to grave physical or mental danger , or place the child in an intolerable situation.

Therefore, this is not an open clause to re-examine the entire family relationship, but a safety valve to prevent returns incompatible with the protection of the minor.

It is important to understand the starting point; the Convention was not created to decide with whom the child should permanently live. Its purpose is to swiftly correct an unlawful removal or retention and return the substantive custody dispute to the State of the child's habitual residence.

The HCCH guide itself points out that these procedures are summary and do not resolve the substance of the custody right.

When can a judge halt restitution due to serious risk

The key is not in just any risk, but in a real and sufficiently intense risk.

The guide clarifies that the word "serious" qualifies the risk.

Furthermore, the analysis does not end with the mere existence of a problem: the court must assess whether that problem, in the event of a return, would place the minor in a physically dangerous, psychologically harmful, or intolerable situation.

This exception usually appears in cases of domestic violence, child abuse, abuse, severe threats, extreme neglect, or circumstances that make a safe return unfeasible.

The HCCH expressly recognizes that there may be serious risk when the child has suffered direct violence , when he or she has been exposed to violence against the abducting parent or, in exceptional cases, when the harm directed against that parent seriously affects the child himself or herself.

Additionally, it notes that the mere existence of domestic violence is not sufficient in itself to prove the exception. The court must analyze the specific impact on the child and determine whether that impact meets the threshold required by Article 13.1(b). This prevents any serious allegation from automatically resulting in a denial of restitution.

A serious risk can also be alleged when the return would entail a particularly damaging disruption for the child , for example, if the parent who took the child proves that they cannot return for objective and serious reasons, or when the context of the country of habitual residence poses a severe danger to the child. However, again, the analysis is case-by-case and requires specific evidence.

What this procedure does not decide

One of the most frequent mistakes in these cases is confusing restitution with permanent custody . They are not the same thing.

The Convention provides that, once an unlawful removal or retention has been reported, the requested State must not decide on the merits of custody rights until it has been determined that return is not warranted under the Convention, unless a request for return under the Convention itself is not submitted within a reasonable time; furthermore, a decision on return does not prejudge the merits of the custody claim.

This means that a parent can lose the argument about restitution and still keep the custody argument open before the competent court of the country of habitual residence.

Nor should the serious risk be confused with the child's opposition . Article 13 itself distinguishes between these two aspects: the risk referred to in section 1(b) is one thing, and the child's opposition to the return, and their being of sufficient age and maturity for their opinion to be taken into account, is another. These are different paths, although they sometimes appear together in the same legal proceedings.

What evidence can support the exception and what evidence cannot?

The burden of proving the exception falls on the one who opposes the restitution , which in many cases will be the parent who moved or retained the child.

Furthermore, it emphasizes that generic or vague statements will rarely be sufficient: the court needs detailed, consistent facts supported by useful evidence for an urgent procedure.

This has a very important consequence. In this area, verifiable documents and facts carry more weight than broad but imprecise accounts.

• Medical reports.
• Complaints
• Protection resolutions.
• Well-defined psychological reports.
• Threatening messages.
• History of serious breaches.
• Solid evidence of lack of effective protection.

They may be relevant.

Instead:

• Unsupported suspicions.
• General complaints about the couple's relationship.
• Moral assessments of the other parent.

They usually have little success in restitution proceedings.

Furthermore, even when the court finds elements of danger, it must still examine whether there are adequate and effective protective measures in the State of habitual residence of the child.

The guide explains that these measures may include protection orders, police support, social services, safe accommodation, or other specific responses. If these measures effectively neutralize the risk, restitution can proceed.

What changes if the case is between Spain and another European Union member state?

When the theft occurs between Spain and another EU Member State other than Denmark, the 1980 Hague Convention applies together with Regulation (EU) 2019/1111 , known as Brussels II ter.

This regulation, which strengthens the speed of the procedure, stipulates that cases will be resolved in the first instance, except in exceptional circumstances, within a maximum of six weeks , and extends this accelerated approach to appeals. It also recognizes the child's right to express their opinion in accordance with their age and maturity.

It should be noted that the Hague Convention ceases to apply when the child turns 16; in the EU, Chapter III of Regulation (EU) 2019/1111 complements this restitution regime for children under 16.

But the most delicate change lies in Article 27. If a court is considering denying return solely on the grounds of Article 13.1(b), it must not do so when it is established that the necessary measures have been taken to protect the child after return. Furthermore, the court may communicate with the competent authorities of the child's habitual residence and, if it orders return, may issue provisional measures, including precautionary measures, to protect the child, provided that this does not unduly delay the proceedings.

Conclusion

The grave risk exception is not a shortcut to transforming the return proceedings into a full custody trial, but neither is it a decorative clause. It is a demanding and extremely important exception when the return could place the child in a situation incompatible with their physical or psychological safety.

The problem is that it only works properly when it is understood precisely: it requires facts, concrete evidence, analysis, and a technical assessment of the available protective measures.

FAQ's

RRYP Global, lawyers specializing in international child abduction and international custody.