11 May 2020
Risque grave - art. 13(1)(b)
Recours rejeté, retour ordonné
The parents lived in Ecuador an had one child. They separated and in 2018 the mother took the child to the USA. The father applied for the return of the child to Ecuador.
The mother argued there was a grave risk of harm to the child and that Article 13(1)(b) applied.
The District Court found that the child would be at risk of harm if he were to return but that ameliorative measures in Ecuador were sufficient to protect him, such as litigation in Ecuadorian courts. The court ordered the return of the child.
The mother appealed the decision.
The Court of Appeals upheld the District Court decision and ordered the return of the child.
The court held that where the return of the child would put them in the sole physical custody of their abuser, in order to properly weigh the safety of the child the court should examine the full range of ameliorative measures, including those that are enforceable when the respondent parent has chosen not to return.
In this case the district court did not simply order the return without any ameliorative measures. Rather, the district court ordered the parties to negotiate the terms of the repatriation, and report back to the court on the terms on which they had agreed.
The mother failed to show that these measures or the protection of the Ecuadorian courts are inadequate.