## Facts

- A Belgian father and U.S. mother married, lived in the United States and Belgium, and had children who were habitual residents of Belgium.
- The mother submitted multiple affidavits (including from family and a friend) alleging years of severe domestic violence by the father, often in the children’s presence, including choking, beatings, and threats.
- The mother alleged the father physically disciplined the older child and assaulted the mother when she intervened.
- The mother alleged the father threatened to kill the children if she took them to the United States.
- The mother asserted Belgian police declined to intervene unless she obtained medical verification of injuries.
- During a trip to the United States with the children, the mother decided not to return to Belgium; the father returned to Belgium and sought the children’s return under the Hague Convention and ICARA.
- In U.S. federal court, the mother opposed return under Article 13(b), contending return would expose the children to a grave risk of physical or psychological harm.

## Issues

1. Whether the mother’s affidavit evidence could satisfy, by clear and convincing proof, the Hague Convention Article 13(b) “grave risk” defense on the existing record.
2. Whether a court may order return based on the assumed capacity of the habitual-residence country’s legal system to protect the children, without examining how protection will work in practice for these children.
3. Whether summary judgment is proper, or whether the court must conduct an evidentiary hearing to assess credibility, risk, and the adequacy of protective measures before ordering return.

## Decision

- The Seventh Circuit reversed the grant of summary judgment ordering return and remanded.
- The court held that the mother’s submissions, if credited, amounted to clear and convincing evidence of a grave risk of harm to the children.
- The court ruled that, where serious domestic-violence-based Article 13(b) claims are raised, the district court should hold an evidentiary hearing to determine both the gravity of the risk and whether safeguards will actually protect the children if returned.
- The court rejected the district court’s reliance on the mere existence of foreign legal remedies as sufficient to defeat a grave-risk defense.

## Legal Principles

- Under Article 13(b), “grave risk” depends on both the probability of harm and the magnitude of harm if it occurs.
- A district court should not order return in a serious Article 13(b) domestic-violence case without an evidentiary hearing to assess credibility, future risk, and the adequacy of protective measures.
- Courts must evaluate whether children will be protected in fact upon return, not merely whether protective mechanisms exist in theory in the habitual-residence country.
- Although the Convention’s goals and comity support a narrow construction of Article 13(b), child safety can require denying return or declining to rely on conditions or undertakings that may not be enforced effectively.

## Conclusion

The Seventh Circuit held that severe, substantiated allegations of domestic violence may establish a grave risk under Article 13(b) and that courts must conduct fact-finding before ordering return, rather than resolving the case on summary judgment based on assumed foreign protections.


Van de Sande v. Van de Sande, 431 F.3d 567 (7th Cir. 2005)