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.