Hague Convention - "grave risk of harm" part two

In our last Newsdesk item we reported on the ground-breaking US Court of Appeals decision in Ermini v Vittori, and in particular the application of Article 13 of the Hague Convention of the Civil Aspects of International Child Abduction.

Although this is a significant case in the US, it has long been recognised in Australia that Article 13 ought not to be construed narrowly (see DP v Commonwealth Central Authority [2001] HCA 30, where the High Court found that Article 13 ought to have been considered when determining whether to return an autistic child from Australia to Greece.

In the more recent example of State Central Authority v Hotzner (No 2) [2010] FamCA 1041, the Family Court declined to return a 15 year old child who suffered from Attention Deficit Disorder to Israel, on the basis that returning the child would expose him to a grave risk of psychological harm and place him in an intolerable situation.

In this case, the family were members of an ultra-orthodox Jewish community in Israel. The child attended a religious school within that community which was not equipped to address the child's particular education needs. Whilst in Israel the child engaged in a number of antisocial and self-defeating behaviours, such as participation in street gangs, truanting from school and was withdrawn or difficult at home. Upon his arrival and residence in Australia, the child's behaviour significantly improved, as did his academic performance.

Although the Court was not critical of the religious education system in Israel, it found that the child required more support and diversity than that system could reasonably offer him. The Court went onto find that the implications of the child's special needs not being met would be dire in terms of his secondary and subsequent education, his ability to marry and take up a place in the orthodox Jewish community. The Court found this to constitute a sufficiently grave risk to warrant a refusal to return the child to Israel. The Court also refused to return the child's two younger siblings, on the basis that separating the siblings would be psychologically damaging to them.

What is interesting in both the US decision and the decision in Hotzner is the assessment of what constitutes a 'grave' risk or harm. In the US case, the Court embarked on a methodical exercise, first examining the likelihood of the harm materialising, followed by an assessment of the severity or magnitude of the harm. Whilst the Court in Hotzner did not undergo such an explicit examination what constitutes 'grave', it appears to have applied the same elements to its consideration. Arguably however, both cases have applied a consideration not intended by the Convention. In particular, the wording of Article 13 does not require a consideration of the severity or magnitude of the harm itself, rather that the word 'grave' is referrable to the level of risk only.