Gender-based violence as an exception of grave risk to the Hague Convention on International Child Abduction

The case of Juana Rivas, which has captured the attention of the press and the public over the past few months, has also fostered a debate among legal practitioners focused on reviewing the functioning of the cooperation mechanisms that exist for the management of international child abduction cases.

This is a problem that has increased in the last decade, primarily due to the increase of binational couples and cross-border movements. The Criminality Statistics System (SEC in Spanish) statistics collected in the January 2017 report on missing persons in Spain issued by the Ministry of the Interior’s Secretariat of State of Security speak for themselves. In 2016, 263 cases of child abduction were identified, with Catalonia being the autonomous community most affected by this problem with 57 cases. In 2016, the number of pending child abduction claims increased to 2,341.

Whether it is because court decisions tend to favor their own citizens, or because court decisions considered to be harmful are evaded (Fernández Rozas), the fact is that the unauthorized movement of children has increased.

As we know, Spain is a party to the Hague Convention of 25 October 1980, on the Civil Aspects of International Child Abduction. Article 3 states that “the removal or the retention of a child is to be considered wrongful where: a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” These rights of custody “may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

Although the Convention establishes the return of the child as a principle, Article 13 establishes a series of exceptions: (i) the child’s integration into their new environment, (ii) the commencement of the proceedings more than one year after the date of the wrongful removal or retention, (iii) not actually exercising custody rights at the time or giving consent (iv) grave risk that the child’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. 

This last exception brings us back to the case of Juana Rivas. 

Apparently, in May 2016, after having spent three years on the island of Carloforte (Italy) with her partner Francesco Arcuri, Juana Rivas flew to Spain with their children claiming the need for a vacation, but did not return. She claimed to have been a victim of abuse during the time she spent on the Italian island with her partner.

Arcuri initiated the return proceedings provided for by the Hague Convention, and in December 2016, the Court of First Instance No. 3 of Granada ordered the immediate delivery of the children to their father. This decision was upheld by the Provincial Court of Granada in April 2017, despite the gender-based violence claim that Juana Rivas had filed at the Guardia Civil station in Maracena on July 12, 2016.

Most case law agrees that situations involving gender-based violence can be included in the exception of grave risk contained in the aforementioned Article 13 of the Convention. In terms of European Court of Human Rights (ECHR) case law that examines the application of this exception, the ruling closest to Juana Rivas’ case is perhaps the case of Karrer v. Romania (21 February 2012).

Mr. Karrer had married a Romanian woman with whom he had a daughter. After separating, the mother moved to Romania with their daughter, claiming the father had violent behavior. The Austrian courts (home of the child) granted custody to Mr. Karrer, who initiated the Hague Convention’s return proceedings. In the first instance, the Romanian courts ruled that the return of the child must proceed since there were no signs of abuse of the child. In the second instance, the Romanian courts ruled that the child would suffer significant physical and psychological harm if she was returned to Austria, considering Mr. Karrer’s alleged violent behavior. Therefore, Mr. Karrer decided to sue Romania before the ECHR, alleging a violation of his right to family life under Article 8 of the European Convention on Human Rights. 

In its decision, the ECHR questioned the application of Article 13b of the Hague Convention, which the Romanian courts had exercised in order to deny the child’s return. In order to apply the exception of grave risk, the child’s situation must be assessed. The assessment carried out by the Romanian authorities in order to analyze the effects of returning the child and the possibility of causing her grave physical and psychological harm was incomplete and not very thorough. In summary, grave risk must be proven in order to apply this exception.

Regulation (EC) No 2201/2003 of 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (also known as the Brussels II bis Regulation) was also applicable to this case. Article 11.4 already provides for this circumstance: “A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to the secure the protection of the child after his or her return.”

As Calvo Caravaca and Carrascosa González remind us, comparative jurisprudence deems there to be grave risk when the applicant for the return of the child has a history of abuse of the child or their mother, sexual abuse, severe alcoholism, drug use, severe depression or frequent criminal convictions, or the child is deeply afraid of the father. Therefore, behaviors constituting gender-based violence perfectly fit the exception of grave risk, as long as they are proven to the court.
 

Celsa Núñez, Managing Partner at ICN LEGAL

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