How Hague Convention Cases are tried in the USA?
If the petitioning parent is proved to have consented to the child being taken to live in the new jurisdiction, this will act as a complete defense in a Hague case.
The key to the consent inquiry is the petitioner's subjective intent. In many cases a parent allows a child to be taken out of the habitual residence and then there is a dispute as to whether the permission was for a temporary visit or permanently. In such cases it is critical to focus on what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. The burden of proof rests with the respondent to establish that the petitioner harbored a subjective intent to permit the respondent "to remove and retain the child for an indefinite or permanent time period."
Acquiescence by the left-behind parent is also a defense to a Hague petition, but it is far harder to prove than consent. It requires formalities, such as testimony in a judicial proceeding, a convincing written renunciation of rights or a consistent attitude of acquiescence over a significant period of time.
Child's Objections and the Hague Convention
Another exception is that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. For this exception, there is a two-fold test:
i) Does the child object to being returned to its place of habitual residence; and
ii) Has the child obtained an age and degree of maturity at which it is appropriate to take account of its view?
In assessing the maturity level of the minor child, the court must consider the extent to which the child's views have been influenced by an abductor, or if the objection is simply that the child wishes to remain with the abductor.
There is no defined age at which the Convention considers children sufficiently mature enough for their views to be taken into account. It depends entirely on the child.
One Year and Settled
It is also an exception that more than one year has elapsed from the date of the alleged wrongful removal or retention to the date that a Hague case is commenced, and that the child is now settled in the new environment.
Many courts in the United States, but not in other countries, have ruled that if a child has been concealed so that the left-behind parent does not know where the child is located the one year period does not start to run until the parent learns of the child's location.
Human Rights Exception to the Hague Convention
Another possible defense is that the return of the child "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." This provision was intended to deal with the rare occasion when the return of a child would utterly shock the conscience of the court or offend all notions of due process, but it is almost never utilized by the courts.
The Grave Risk of Harm Exception in the Hague Convention
the Hague Convention provides that a court is not bound to order the return of the child if the petitioner establishes that 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.
The grave risk of harm "defense" is raised in almost every Hague case but it is successful only in a handful.
The language of the exception is extremely loose. Since a parent who takes a child away from the other parent invariably has a reason to blame that parent, counsel for a respondent is always required to consider the exception and often there is enough evidence to at least make out a viable claim. On the other hand the exception requires proof of "grave risk" by clear and convincing evidence.