Intolerable Situations and Counsel for Children: Following Switzerland's Example in Hague Abduction Cases

Abstract

This article makes two recommendations. First, lawyers should utilize, and courts should accept, a Hague Convention defense that has been neglected: that a child need not be returned if return would create a grave risk of an intolerable situation for the child. This defense is frequently subsumed within another defense, i.e., that a child need not be returned if return would create a grave risk of exposure to physical or psychological harm for the child. The article attempts to disentangle the defenses by clarifying the differences between them. It then recommends that U.S. courts adopt the Swiss interpretation of “intolerable situation” for some cases. The Swiss consider it an “intolerable situation” to return a child to a country if the child will enter foster care because the petitioner is unable or unfit to care for the child and the respondent is a primary caregiver who cannot, or reasonably will not, return with the child. The Swiss interpretation makes the intolerable situation defense relevant to the adjudication of many difficult fact patterns, including cases involving domestic violence victims who flee transnationally with their children for safety.

Second, the article suggests that courts should always appoint a representative for a child in a Hague Convention proceeding, either a guardian ad litem, an attorney for the child’s expressed interest, or both. At present, courts only occasionally appoint a representative. Yet the nature of a Hague proceeding makes it essential that children receive representation as a categorical matter.

These recommendations were prompted by new Swiss legislation that encompasses both of these proposals. Switzerland’s initiative establishes the legitimacy of these reforms and calls attention to a transnational effort, begun in 2006, to make the “intolerable situation” defense more useful, and a European effort, begun in 2003, to give children more of a voice in Hague proceedings.

Keywords: children, lawyers, best interest, intolerable situation, Hague, abduction, Switzerland, law

JEL Classification: K36