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International Terrorism and the Hague Convention on Child Abduction

Edwin Freedman – 2002

The widespread use of random acts of terror in Israel which accompany the present Palestinian uprising, or intifada, have dramatically increased the use of the grave risk of physical harm defense provided by Article 13B of the Hague Convention on the Civil Aspects of International Child Abduction.  Until now, the physical harm defense has been primarily raised where there exists specific risks of physical harm due to a violent member of the immediate family, or where the child’s surroundings place him in an intolerable situation from which the requesting state is unable or unwilling to protect him.

Apart from petitions in which Israel is the state of habitual residence. The defense has not been used to claim that the general security situation in a requesting state constitutes a grave risk of physical harm. Fortunately, since the implementation of the Convention, none of the contracting countries have been in a declared state of war. Although random acts of terror have occurred in a number of Hague Convention signatories, it is rare to find a Hague state where sustained acts of terror exist on a wide scale.  Recent events in Israel have made it the subject of the most widespread use of the grave physical harm defense. This article will analyze recent case law in which the return to Israel was opposed based on the Article 13b grave risk of physical harm defense.

Nature of the Harm

Article 13B states that the risk of harm must be grave, but there is no definition of the gravity of the risk. Harm is not defined as severe or even as serious.  However, the courts have read the conclusion of subparagraph “b”, “or otherwise place the child in an intolerable situation”, into the degree of the physical or psychological harm allegedly awaiting the child.

1. The phrase “or otherwise” demands that the agree of the physical or psychological harm also be intolerable.

In conjunction with the general approach of applying a narrow interpretation to defenses under the Convention, the physical harm defense has rarely been successfully argued.

2. The rare instances where the physical harm defense has prevailed involved the use of violence in the immediate environment or sexual exploitation where the courts in the state of habitual residence failed to adequately protect the minor. (see  Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999).

The difficulty in proving the physical danger defense is a result of the tension between the need to prove the likelihood of danger to the individual child and the randomness of terror. Two different tests can be applied to the physical danger defense. One test would assess the security situation in the country as a whole. The other would be to determine whether the there is a grave risk posed by the immediate surroundings of the specific child in question. The burden of proof is a particularly onus one. While all defenses under the Convention are to be narrowly interpreted, both Israel and the United States have adopted regulations requiring clear and convincing evidence to prove an Article 13b defense.

The threat of random physical violence exists in varying degrees in many urban areas in the United States, but it is not this type of physical danger, which was intended to constitute a defense under Art. 13b. The test was best described in the United States Federal Court case of Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060(6th Cir. 1996). The court stated that for purposes of the Convention, grave risk of harm could exist in only two situations. The first situation deals with the risk of intolerable physical harm. The court defined it as “returning the child to a zone of war, famine or disease”. The second situation exists where there is serious abuse or neglect and the country of habitual residence is incapable or unwilling to adequately provide protection to the child.

If the courts were to focus on the specific circumstances of the individual child as opposed to the level of danger in the country as a whole, it could be held that in post-September 11 New York City a child who is to live in a skyscraper may be at grave risk of intolerable physical danger. By the same token, it could be argued that returning a child to a neighborhood with a very high crime rate meets the physical harm defense.

The problems with this test are twofold. First, it requires the court to hear extensive evidence as to the relative levels of violence in particular areas or neighborhoods of the requesting state. It further requires courts to apply culturally biased criteria that are highly subjective. The risk of random violence in certain areas of Washington D.C. or  Los Angeles may be considered intolerable to a judge in a small Scandinavian town.

Second, there is no provision in the Convention, which requires the return of a child to a specific location. In fact, there is no mention, apart from the introduction, of return to the state of habitual residence. Thus, the requesting parent could have changed his or her place of residence between the commencement of the action and its conclusion. It would therefore be an elusive and futile task to determine whether a particular location within a country presents an intolerable physical danger.

The use of the Article 13B physical danger defense involving Israel has been on the rise since the present intifada, which began in September, 2000. Terrorist attacks against civilian targets by the Palestinians have become more commonplace in their conflict with Israel. The last six months have seen a dramatic increase in the use of this defense whenever Israel has been the requesting state. It is safe to say that a physical danger defense is now almost de rigueur in any Hague Convention case in which Israel is the state of habitual residence.

The risk of physical danger argument was first used following the disturbances that broke out in Israel in 1996 after the opening of a tunnel under the Old City of Jerusalem located near the Al Aksa Mosque. A mother left her home in Israel with the couple’s four year old daughter for an alleged visit to the United States. The mother notified the father while in the U.S. that she wasn’t returning. In response to the father’s Hague petition, the mother argued that Israel had become a war zone as defined in Friedrich.  She submitted maps and other documents to show the close proximity between the fighting and the marital home. She also referred to the use of random violence consisting of car bombings.

The court rejected the mother’s grave risk defense after hearing evidence regarding the conduct of daily life in Israel. “The court would agree that at this time Israel is experiencing some unrest and that this unrest may be in relative proximity to the family’s residence. However, the court does not find sufficient evidence in this record for Israel to be the “zone of war” contemplated by the Sixth Circuit or the Hague Convention. No schools are closed, businesses are open and Petitioner was able to leave the country. It appears that fighting is limited to certain areas and does not directly involve the city where the child resides.” Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996, at 446).

It cannot be said that the events of last September 11 have had a direct impact on the assessment of grave risk by the various courts.  It can be inferred that the need for stricter security measures, previously common to Israel, is better understood now in other contracting states. The vulnerability of countries once considered beyond the reach of terrorist acts of mass destruction has internationalized the issue of exposure to physical danger.

Courts examining the physical safety defense since Freier for the most part have not done an in depth legal analysis regarding the degree of danger which must be proven to establish the defense. The issue of local or neighborhood security versus risk of danger in general has also not been fully explored.

Most significant in the discussions of the physical danger defense is the refusal of courts to deviate from the general principle that all defenses are to be interpreted restrictively.

The Relativity of Violence

One theme that appears in many of the cases is the lack of good faith in raising the issue. The abducting parent is usually actively involved in making the decision to move to Israel. In some cases, the abducting parent  was the side that initiated the move. In other cases, the parties had been living in Israel for many years; all their children were born and raised there. The sudden concern over the security situation only seemed to develop after the abducting parent was required to defend against a Hague Convention petition.

The case of Cornfeld v. Cornfeld (Superior Court of Justice-Ontario,File No. 01-FA-10575, November 30, 2001) is instructive. The parents had lived for over 20 years in Israel and had five children born and raised there. After the divorce, physical custody of the three minor children was granted to the mother. The mother unlawfully retained the two youngest children in Canada while there on a visit. The third minor child, 16 years old, remained in Israel in the family‘s former residence.

The mother raised the 13B physical danger defense to the father’s petition under the Hague Convention. Her acute concern for the physical safety of her two youngest children was not very convincing in light of the total disregard she displayed regarding the physical safety of her sixteen year old. Despite the submission of testimony by alleged experts on the dangerous security situation in Israel, the court in Ontario had no trouble rejecting her defense. The case introduces what my be coined the voluntary risk test. A parent who knowingly and freely chooses to raise children in Israel cannot suddenly claim that the situation is intolerably dangerous to justify abduction. The court stated, “In my view it is important to consider the environment to which a parent or the parents voluntarily exposed the children previously. In my view, it is fair to conclude on the evidence that living in Israel at any time over the past 25 years had risks of harm associated with it. The parents did not seek to remove their children from that environment” (par. 14, p.2 id).

The court of Appeals For Ontario upheld the findings of the lower court in its rejection of a motion to stay (Docket M28020 of December 4, 2001). Regarding the nature of the test imposed by Article 13b, the mother claimed that the court had laid down a more onerous test than that required by the Convention.

The appellate court relied on the benchmark case of the Canadian Supreme Court, Thomson v. Thomson, (1994) 3 S.C.R.551 which analyzed the psychological harm defense under Article 13(b). The court held that the physical harm defense also requires proof  “on a balance of probabilities that there is a very strong likelihood that harm will occur”. (par. 7, page 4). The importance of the analysis is the application by the court of the standard, which the case law has established in proving the psychological harm test under Art.13b.

The knowing commitment criteria was adopted by the District Court of Zweibruecken, Germany in the matter of Watkins v. Watkins, docket no.1F 3709/00, January 25, 2001.

The Watkins case is of particular importance as both parents are American born and raised. The father, who served in the U.S. military, had agreed to a special contract whereby he was assigned to a post in Israel for a minimum period of two years. His wife, an officer in the U.S. Air Force reserves, agreed to move to Israel for the duration of the assignment. The family arrived in Israel in June, 2000.

Four months later, the mother went to Germany, their previous station, to fulfill her reserve duty. She took their young son as well. At the completion of her reserve assignment, the mother announced that she is returning to the U.S.

The father filed a Hague convention petition for the return of his son to Israel. After finding that the child’s habitual residence was in Israel, the court addressed the risk of physical harm defense raised by the mother. The court succinctly states: “in particular, the respondent needs to be alerted to the fact that the violent disturbances in the Near East have occurred not only since October, 200 but already at a point in time when it was in accordance with their life plan to live in Israel”. (page  4, Watkins).

The court found significance in the mother’s prior agreement to relocate. The mother knew when she agreed to move to Israel that there were risks regarding terrorist attacks. What makes this of particular significance is the dates. When the Watkins moved to Israel in June, 2000, the Camp David negotiations still a month away. Terror attacks were a rare occurrence. The current intifada began in September, 2000. The unlawful retention occurred at the end of November, 2000. By the time of the courts decision in January, 2001, terrorism had increased significantly. The mother could claim that she would not have agreed to relocate to Israel had the level of violence in June been as great as it was in November. By rejecting the mother’s defense, the court in Watkins sent a clear message that the parent’s choice of habitual residence cannot be unilaterally altered even in states that are subject to increased acts of terror. The mother filed an appeal, but withdrew it voluntarily.

The courts are unwilling to use random acts of terror, even when they have become a common occurrence, as a defense under the Convention.

Specific Versus General Risk

The issue of a general risk of physical harm due to terrorist attacks versus specific harm to the child in question was discussed by the Paris District Court of Family Affairs in Azoulay v. Benatouil, RG no. 0143442 decided on December 21, 2001. The child was unlawfully retained the mother while visiting by France from his habitual residence in Israel. The abducting mother raised, inter alia, the physical harm defense due to the security situation in Israel.

No specific documents were submitted by the mother to show the exact situation in Israel and the risk that the child in question would be exposed to physical harm. “Consequently, this general risk of a terror attack, while it is in no way proven that Tal’s home or her neighborhood, or the location of her school are particularly exposed, cannot nullify international regulations. It should be noted that the mother has clearly never raised anxiety on this subject with her relatives, several of whose declarations have been filed“. (Benatouil p.5).

The court’s brief discussion of the grave risk of physical harm defense sets two different criteria for weighing the evidence. First, the court is supporting the requirement that the defense must prove specific grave risk to the child in question. Implicit to this argument is that if the school or neighborhood of the abducted child were repeatedly subject to terrorist attacks, grave risk may be proven. As mentioned above, this line of analysis is problematic and appears to be
beyond the confines of a Hague Convention proceeding. Since no case has used this analysis to reject a Hague petition for return, I surmise that courts use the analysis as it is a convenient basis for rejecting the defense, I is unclear whether courts would be prepared to make judgments regarding the number and extent of terrorist acts in a specific neighborhood as a basis for accepting the defense.

The second criteria relied on by the court is not Convention based. This is rather the general principle of clean hands, most familiar to proceedings in equity. A parent, who lived in Israel without ever having raised concerns regarding the risk of physical harm, will not be permitted to exploit the security situation by arguing that it constitutes a defense under the Convention. It would be interesting to see to what extent the courts would use this reasoning when the abducting parent raises the physical harm defense against an abusive left behind parent who displayed act of violence over an a period of years. Perhaps there is an unspoken element of blame, which the courts are considering in their analysis. A physically abusive parent has no one to blame but himself, while neither parent has control over acts of terror.

A case which did differentiate between the levels of anticipated harm between various locations within Israel involved the two minor children of an Australian mother and an Israeli father (Director General, Department of Community Services v Genish-Grant. Family Court of Australia, Sydney Docket No.SY4998 of 2001, December 10, 2001). The parties had moved back and forth between Australia and Israel several times commencing in 1995. They eventually settled on a moshav, a cooperative community, in a rural area in the north of Israel, where they ran a hotel-restaurant complex.

The mother traveled to Australia with the children for a family visit and subsequently refused to return. Her primary defense was the grave risk of physical harm should the children be returned. The mother testified about the anxiety she suffered while they lived in Tel Aviv when a terrorist act occurred there in 1995. There was ample proof that the moshav was far removed from any area struck by terrorists. The court found that “The unrest that is experienced in Israel is not in relative proximity to the family residence.” The court then refers to a statement by the Central Authority counsel “about the need for caution in certain parts of  Israel for example in Jerusalem. However, I accept the evidence of the father and his witnesses as to the situation in the area where the father lives.”(p. 21, Genish-Grant).

It cannot be inferred that the court would have ruled otherwise had the family resided in Jerusalem. Nonetheless, this is a potentially dangerous analysis of the grave risk defense. Courts should avoid as much as possible analyzing the relative safety of one area over another within the same country. Return orders always specify a country and not a specific city or region. The authority of the requested state ceases once there has been a return to the state of habitual residence. Whether the abducted child is returned to his prior home or moves to a different area cannot be a concern of the requested state. Should the courts in the requested state differentiate between different areas within the requesting state, we are liable to see return orders being made conditional upon the child not living within towns or neighborhoods designated as posing a grave risk. Such an order could drag the courts into extensive deliberations involving specifics of terrorist attacks and the review of local maps. This is the kind of deliberation, which should be avoided under the Hague Convention. Additionally, such an order would not be enforceable once the return had taken place. The focus must be on the risk of physical harm in general in the state of habitual residence.

The court in Genish-Grant also made reference to the relativity test. “Israel has had a security issue since 1948 and it continues to experience security issues. The gravity of the security issues has varied.” (Par. 114, p.21, Genish-Grant).   The court adopted the theme, which is common to all of the cases where Israel’s security situation is raised as an Art. 13b defense. If you chose to live in Israel, you had to take into account the security concerns. The use of Article 13b will not be permitted to justify an otherwise unlawful removal. Thc Australian court concluded the issue by stating “I am not satisfied that the mother has established by clear and convincing proof that there is a grave risk of physical harm to the children because of unrest in Israel.” (Par. 114, p.21, ibid).

The distinction between a state in which there are terrorist attacks and a country which is in a state of war, was made in a Danish case. In the matter of Shapira v. Bersa, (case no. FS 2627/2001, Court of Vejle, decided December 7, 2001), the Danish born mother unlawfully removed the couple’s son from Israel on October 13, 2001. The mother claimed that the security situation in Israel frightens her. She argued that after September 11 the situation deteriorated and she could no longer remain in Israel. The plaintiff father argued that while Israel is not as peaceful as Denmark, no significant change in the situation had occurred since their son’s birth in 1994, despite the events of September 11.

In analyzing the mother’s argument, the court held that “The situation in a state in which there are terrorist attacks or where there is a danger of a future terrorist attack does not in itself constitute a real and serious danger to the mental and physical health of a child as described in …. Article 13 of the Hague Convention.

On the other hand, the situation in a country that is in a state of war or combat that is likely to constitute a real and serious danger as described in Article 13b of the Hague Convention  and in section 11 number 2 of the Danish Law can prevent the return of the child”, (p.8, Shapira).

The reasoning in Watkins and Shapira is in line with the stated purposes of the Convention. A parent may feel unsafe in his or her surroundings due to numerous factors. However, it is not the subjective fears of the abducting parent which are at issue. It is not hard to imagine, for instance, the spread of anthrax in a particular state as future grounds for an Article 13B defense.

The physical harm defense has been used in the past to justify some very unusual arguments. One of the more creative claims raised as a 13B defense came in a petition to return a child abducted to France from his habitual residence in Los Angeles. It was argued that the high levels of smog in Los Angeles placed the child in grave risk of physical danger. Another concerned the reasoning of an Irish mother who abducted her three children from Western Australia. She presented evidence that all three boys were at risk of harm from exposure to sunlight in their habitual residence, as they suffered from sensitivity to the sun.(F.v.F.,High Court, {Northern Ireland}Family Division, May 24, 1993). Both of those arguments were correctly dismissed.

9.11 and 13b

The case on which the terrorist attacks of September 11 had the most direct impact is an Argentinean decision, Altheim v. Altheim, decided on October 5,  2001 by the court in Buenos Aires. The respondent father abducted his son from Israel in June of 2001. The father claimed that ever since the 1995 assassination of Prime Minister Rabin, the level of conflict between Israel and its Palestinian neighbors has risen. He argued that returning the child would place him at serious risk of physical harm, at least until such time as there is a significant improvement in the high risk conditions which he alleged currently exist in Israel. The father used a very politically oriented argument, stating that not only had the peace process been derailed by the assassination, it led to deterioration of the entire socio-economic situation in Israel.

The court pointed out that the entire family moved to Israel in 1997, two years subsequent to Rabin’s assassination. The timing of his move to Israel undermined the sincerity of his allegations regarding the deteriorating security situation. More importantly, the court addressed the issue of terrorism as a relative phenomenon, to which no country is immune. “Unfortunately, acts of terrorism due to political, racial and religious intolerance occur all over the world. As the Prosecutor for minors points out in her judgment on pages 129/131, in the city of Buenos Aires, where Sebastian currently makes his habitual residence, terrorist acts were perpetrated in 1992 and 1994, which, due to their grievous nature, caused outrage around the world”.

Using the relativity analysis of violence, the court describes the situation in Israel in the following terms: “That country has lived under war-like conditions for many years with its Palestinian neighbors, with alternating periods of relative peace mixed with escalating confrontation. Despite this fact, its inhabitants, who have always lived in this manner, continue to carry out their daily activities, as I have stated, even under these particular circumstances in which the country is experiencing.” (Altheim, p.11).

This is the criterion first laid out in Freier.  A country where all of the normal activities of daily life continue as usual; schools, commerce, travel and even entertainment, cannot be said to be in a state of civil strife. The fact that there is a higher risk of exposure to terrorist acts in a particular area or country does not meet the narrow interpretation given to the grave risk of physical danger defense.

The Altheim court, however was ruling in the shadow of the terrorist strikes of September 11. The uncertainty which existed in the aftermath of those attacks made the court hesitate. “This fact has indeed put the entire world in a state of alert, especially countries in the Middle East and those in which a traditional conflict has existed with the Arab world, such as Israel. In this country, there have been escalating and repeated terrorist attacks that have cost the lives of many innocent people. And, although terrorism knows no borders, the reality is that, given the situation today in the world, there is the possibility that, within a short period of time, the events in Israel could worsen and become a serious threat to the safety of a child that is taken to this country, although this might not occur” (Altheim , pages. 11-12).

Although the court concluded by saying that “…there is no doubt in my mind that the minor should be returned Israel…”, it took the cautious route by suspending implementation of the order for two months. It ordered that the child must immediately be returned to Israel on December 5 “should the situation continue to stabilize”. The court did not state what the indices of stability might be. Certainly the security situation in Israel worsened between October and December 5. Yet the child was ordered back to Israel on the appointed date without any further elaboration by the court and did in fact safely arrive home.
The security issue in Israel has also been raised in non-Hague Convention cases. One case in particular, Korn v. Korn, ( 10th Judicial Circuit of Alabama, Civil Action No. DR 01 1348 RAF, January 24, 2002), received wide press coverage, claiming that the Alabama court had reused the return of a child to Israel due to the dangerous security situation.. Unfortunately, there was little similarity between the press reports and the court’s ruling.

Korn began as a Hague Convention case, with the mother unlawfully removing the child from the United States to Israel. The court in Israel ordered the child’s return. A custody proceeding was then conducted by the Alabama court. Along with the mother’s claim for custody, she requested permission to relocate to Israel. Both sides addressed the security issue in the proceedings. The mother’s custody petition was granted, but her request for relocation was denied. The court ruled that it is in the best interest of the child to remain in the U.S., close to both parents. The court added the proviso that should the mother remove the child from the U.S. without court authority, custody would be transferred to the father. Such removal was not limited to any particular country even though the mother had specifically requested relocation to Israel.

The court’s ruling in Korn is not unusual under the circumstances of that case. The sole reference in the court’s judgment to the security situation in Israel is one non-conclusive sentence. The court simply states that both sides presented arguments regarding the security situation in Israel. There is no basis whatsoever for the conclusion reported in the press that the court found that it is too dangerous to send a minor child to live in Israel.

A recent California decision also addressed the argument that Israel is a war zone. The child in Rubin v. Rubin resides in Israel by court ratified agreement. The mother sent the child to visit with the father in California. Under the terms of the agreement, the mother is to return the child to California in the event that “active warfare” should break out in Israel. During a winter recess visit by the child, the father filed for a court order forbidding the return of the minor to Israel due to the security situation. The court issued a temporary ne exit order and set the matter down for a hearing. Although the child was subsequently returned voluntarily, the Superior Court in Los Angeles (case no. BD 053249) issued a ruling on January 30, 2002 rejecting the claim that Israel was a war zone and vacating the ne exit order.

The only case where a risk of physical harm defense was successfully raised under the Convention involved a Spanish mother and an Israeli father,( Menachem v. Menachem Ramirez-Orduna, Trial Court No.2 of L’Hospitalet de Llobregat, No. 369/01, January 27, 2002). The mother unlawfully retained the child Spain while on a visit from their habitual residence in Israel. In addition to her other defenses of acquiescence and non-exercise of custodial rights, the mother claimed that the return of the minor to Israel would place her in grave physical danger due to the armed attacks against civilians. The mother further stated that the danger is increased due to the father being a career soldier.

The mother submitted news articles to show that Israel is living in a state of constant terror attacks. Although the state attorney acting on behalf of the Spanish Central Authority represented the father, there was unfortunately no attempt by the Spanish Authorities to seek rebuttal evidence from the Israeli Central Authority.  The court held that the documentation provided by the respondent “are considered proven by their absolute and general notoriety”. CNN. The court reached the conclusion that the evidence manifested “a grave situation of tension and armed conflict … with the increase in indiscriminate attacks causing civilian victims, including children and which is even more serious because of the military profession of the plaintiff…” . Apparently the court was under the impression that children accompany their parents while they perform their military duties in Israel.

The court addressed the issue of the relativity of terror but reached a conclusion contrary to that of all other courts that have dealt with this defense. The court concluded that the danger of physical risk to the minor is not comparable to the possible risks of attack to which she might be exposed “in Spain, or countries like the United States”. The court ruled that the return to Israel is incompatible with the principle of protection of the interests of the minor, which is imbedded in Spanish legislation.

The judgment has been appealed by the father and the case is still pending before the appellate court. It should be noted, however, that the history of Spanish Hague Convention decisions where Israel is the requesting state does not offer encouragement for the success of the appeal.


The grave risk of physical harm defense under Article 13b of the Hague Convention on Child Abduction must meet the same stringent standards applied to all other defenses under the Convention. It would be a grievous error for courts to undertake an analysis of the risks in particular areas of member states.  The courts must determine whether the citizens of the requesting state continue to carry out the usual functions of a civil society; continued commerce, open schools, unfettered channels of communication and freedom of travel are key indices of the level of actual risk. A country such as Iraq during the Persian Gulf War or Bosnia during the height of civil warfare which occurred prior to the intervention of UN forces are states that would constitute a grave risk of physical harm under the Article 13b defense.

Parents who have chosen to live and raise their children in a particular state with a past history of security problems will not be able to use the security situation as a justification for an unlawful removal. There is a high standard for the burden of proof under Article 13b. Both Israel and the United States have adopted the clear and convincing evidence standard. Newspaper reports alone should not constitute the basis for such a determination. The use of terrorism against civilian populations has become an international phenomena and contracting states should proceed with extreme caution before ruling that the return of a minor to another contracting state poses a grave risk of physical harm due to that country’s security situation.