Grave Risk – Art. 13(1)(b)
The evidence of the parents was deeply divided as to the nature of their life and the treatment of the children while they lived in the Netherlands. The children were interviewed by a pediatrician and a social worker. The court found that it was highly likely that the father engaged in a pattern of excessive corporal punishment with respect to all of the children and domestic violence towards the mother. The court acknowledged the possibility that the mother and older child had fabricated their allegations of violence, and had then influenced the younger children, but it concluded that this was unlikely. The court stated that the most important interpretative principle with regard to the exceptions under the Convention was that they be interpreted narrowly. During the course of the proceedings the court received a letter from the Dutch Ministry of Justice which noted that steps would be taken by the Child Protection Board to place the children in foster care pending an investigation. In the light of this the court concluded that the grave risk exception had not been made out. It further noted that the Dutch child protective authorities would have better access to information and could complete a more detailed investigation. The court accepted that psychological disturbance could result from the children returning, but while it considered that this risk could be considered serious, it did not warrant being described as grave. The court concluded by noting that if it were New York children who were the alleged victims of domestic violence their return to the United States would be expected. The court rejected the argument that it would be intolerable to split the children. It held that if the siblings were to be separated that would only stem from the choice of the older child.
Objections of the Child to a Return – Art. 13(2)
At 15 the court found that the half sister had attained an age and degree of maturity at which it was appropriate to take into account her view and to give it virtually conclusive weight.
