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Chicago Journal of International Law

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223

Abstract

Each year, thousands of children are taken from their homes to foreign countries by one of their parents (the “taking parent”) without the consent of their other parent (the “left-behind parent”). This phenomenon is frequently referred to as international child abduction. If both the country from which the child was taken and the country to which the child was taken are signatories to the Hague Convention, the left-behind parent can file a petition for return of the child under the treaty. Recently, in a number of courts around the world, taking parents facing Hague Convention litigation have argued that, because of the risks of international travel during the COVID-19 pandemic, their children should not be returned. These taking parents invoke Article 13(b) of the Convention, which provides a defense against a child’s return if there is “a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Taking parents contend that if children are obligated to travel internationally to satisfy return orders pursuant to the Convention, the children will be exposed to the virus and thus face a “grave risk” under Article 13(b).

This Comment argues that courts should adopt a rebuttable presumption against Article 13(b) defenses predicated on the risks of an infectious disease, or “zone of disease” defenses. This construction of the defense does not comport with existing precedent or the goals of the Hague Convention, and refusing to return abducted children on these grounds could lead to serious, longterm harm for the children. Instead, courts should only find a “grave risk” in cases where the child faces a particularized, demonstrable risk of serious complications incident to infection. This Comment encourages courts to fashion responsible and pragmatic protective measures to attach to Hague Convention return orders, ensuring both the safety and the prompt return of children who have been abducted

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