Hague Convention On The Civil Aspects of International Child Abduction - Limited Defenses To Return

Limited Defenses To Return

The Convention limits the defenses against return of a wrongfully removed or retained child. Those defenses are:

(a) by preponderance of evidence, that Petitioner was not “actually exercising custody rights at the time of the removal or retention” under Article 13; or

(b) by preponderance of the evidence, that Petitioner “had consented to or acquiesced in the removal or retention” under Article 13; or

(c) by preponderance of the evidence, that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings, under Article 12; or

(d) by preponderance of the evidence, that the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the Petitioner and that it is appropriate to heed that objection, under Article 13; or

(e) by clear and convincing evidence, that “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b); or

(f) by clear and convincing evidence, that return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.

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