saw this post on the Hague Domestic Violence Project website, linked from Professor Edleson's website, which sounded eerily similar to the arguments made by the abductors of Sean Goldman in Brazil. Seems to me this is dangerous stuff -- abusing the "best interests of the child" argument through the "grave risk" exception under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction, which by most accounts was designed to be interpreted rather narrowly by courts asked to consider it. I remember the now infamous judge in Brazil, Superior Court Justice Nancy Andrighi, ruling in the Goldman case, when Sean's mother was alive, that under Article 13(b) Sean should stay in Brazil because he was "settled in his new environment, had friends at school, etc," hardly a credible interpretation of Article 13(b).
http://www.haguedv.org/ECHR Says Hague Rulings Must Consider Child's Best InterestsThe European Court of Human Rights ruled in the case of NEULINGER AND SHURUK v. SWITZERLAND that the best interest standard applies to decisions on return of a child and that full consideration must be given to the merits of claims that the child will be at risk under Article 13(b) of the Convention. This decision is persuasive authority for countries around the world because the Court has argued that international human rights standards arising from the Convention on the Rights of the Child, the Declaration of the Rights of the Child and regional human rights instruments require that when risk is assessed under Article 13(b) reference to 'best interest of children' means that the interest of an individual child before the court must be taken into account and be paramount.
I also found an academic paper from 2004 which is very well written and explains in depth some of the abuses of the Article 13(b) exception.
http://www.kentlaw.edu/honorsscholars/2004students/liseminar.htmQuote:"Consequently, courts in contracting countries have consistently ruled that they are not to engage in a custody determination such as who is the better parent in the long run[17] or speculate where the child would be happiest,[18] and the Article 13(b) exception should be narrowly construed so that it would not be used as a vehicle to litigate the child’s best interests.[19]
Conclusion: In most cases, the prompt return mechanism established by the Hague Convention is an effective means to deter and rectify international child abduction so as to protect children’s best interests. In order to preserve the integrity of this mechanism, courts in many jurisdictions have carefully avoid engaging in determination of the merits of underlying custody disputes. One result of such a cautious altitude is the extremely narrow interpretation of Article 13(b) “grave risk of harm” exception. While courts need to narrowly interpret this provision so that abducting parents do not have the opportunity to use it as a pretext to litigate the custody disputes, thereby undermining the prompt return mechanism, most courts have interpreted this exception in an extremely narrow manner, which makes it excessively difficult to use it to protect abducted children when their return would truly pose a grave risk of harm to them. The extremely narrow interpretation is based on the misunderstanding that the purpose of the Hague Convention is prompt return and Article 13(b) should be subject to this purpose. However, as a careful study of the text and drafting history of the convention demonstrates, the Convention’s purpose is to protect the interests of children and Article 13(b) should be interpreted in accord with this purpose. Courts should not blindly reject the invocation of Article 13(b) in favor of prompt return. Instead, they should determine on a case-by-case basis whether there is a grave risk of harm and whether Article 13(b) should be used to protect the child from the harm."
