Grave Risk – Art. 13(1)(b)
A grave risk defence should be based upon serious and convincing evidence. In ordinary circumstances, a parent’s refusal to accompany a child back to the place of habitual residence from which the child had been unlawfully removed was not a valid or acceptable reason for not making an order. In most cases, a mother could be reassured by appropriate conditions as to safety so that the child would not be placed at risk, and thus could return in those circumstances. In this case there was a grave risk that his return would expose the child to physical or psychological harm or otherwise place him in an intolerable situation. There was evidence the child would suffer some psychological harm in being separated from his mother. The harm was severe enough to invoke Article 13(b). The psychological harm to the child amounted to an intolerable situation, even though its cause was mostly related to the mother. There had been a genuine threat to the mother, which had put her quite obviously and rightfully in fear. The mother feared for her safety if she returned to Israel. The mother was taken to Israel on false pretences, sold to the Russian Mafia and resold to the father who forced her into prostitution. She was locked in, beaten by the father, raped and threatened. The mother was genuinely in a state of fear and could not be expected to return to Israel. It would be wholly inappropriate to send the child back without his mother to a father who had been buying and selling women and running a prostitution business.
Settlement of the Child – Art. 12(2)
The application for return was brought more than a year after the wrongful removal. The child was settled in his new environment. Removing him from his new home would be detrimental. The child had lived only 14 months in Israel, as compared to 9 months in Byelorussia and 26 months in Canada.