The continuing challenge of the 1980 Hague Convention - a judicial perspective

A tension arises in the operation of Article 13(1)(b) of the 1980 Hague Convention between the need to adopt a summary process to meet the Convention aim of ensuring a prompt return of the abducted child to the State of their habitual residence, and the need to ensure a procedurally and forensically robust examination of whether the child would thereby be exposed to a grave risk of physical or psychological harm or otherwise placed in an intolerable situation. This tension is increased in cases where the grave risk is said to be grounded in domestic abuse comprising a subtle pattern over time of coercive and/or controlling behaviour that may never rise to specific and identifiable incidents of physical harm. As we come to understand more about this form of domestic abuse, this chapter examines the arguments in favour of a more detailed fact-finding exercise being undertaken in those cases involving disputed allegations of domestic abuse comprising coercive and/or controlling behaviour.