Hague Convention - "grave risk of harm" exception extended to loss of a child's ability to learn to talk, write and even read

We have previously reported on the 1980 Hague Convention of the Civil Aspects of International Child Abduction.

In circumstances where a parent opposes the mandatory return of an abducted child, as is required by signatory countries to the Hague Convention, that parent bears the onus of establishing one of the exceptions. This article addresses Hague Convention Article 13(b). The article provides that a court need not return a child to his country of habitual residence if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

In the past week the US Court of Appeals for the Second Circuit, citing an Australian High Court case, delivered judgment in the case Ermini v Vittori---F.3d---, 2014 WL 3056360, C.A.2, July 08, 2014. The Court held, relying on Article 13(b) that a severely autistic child would be exposed to a grave risk of harm if he was returned to his country of habitual residency.

The parents of the child travelled to New York from Italy for the purpose of medical treatment and education for their child. The mother retained the child in the USA, the father made an application under the Hague Convention to have the child returned to Italy. The mother said the child had significantly progressed as a result of the treatment: he may one day be in a position to lead an independent and productive life. The Italian medical system did not offer the same medical treatment and the US Appeal Court held that the return of the child would result in his "ceasing to be able to learn to write or to talk and would most likely never learn to read".

To date the Article 13(b) exception has been, for the most part, used in circumstances where a child faced a "grave risk of harm", for example in international child abduction disputes, involving applications to return a child to an area in danger of terrorist attacks and regional conflicts.

This was the first occasion where the US Court of Appeals of the Second Circuit had to consider this kind of psychological harm. In reaching its decision the US Court of Appeal commented that it was significant that sister signatories to the Hague Convention had found the risk of harm in removing an autistic child to be sufficiently grave to invoke the Convention's affirmative defence. This is where the court referred to Australia case DP v Commonwealth Cent. Auth., [2001] HCA 39.

In the case DP v Commonwealth Cent. Auth. the child had been removed by the mother from Greece.

Of note is that in both cases the child was suffering autism and had a sibling. The siblings were not covered by Article 13(b) as they were not at risk of any kind. However, in both Courts the siblings were permitted to remain with their brothers in order to protect the sibling relationship.