Van De Sande v. Van De Sande

Brief Fact Summary

Jennifer Van De Sande (Defendant) had lived in Belgium with her abusive husband and refused to return there, keeping her children with her in the United States.  Davy Van De Sande (Plaintiff) sought to have the children returned under the Hague Convention’s provisions against child abductions.  A federal district court granted summary judgment for Plaintiff.

Synopsis of Rule of Law

A court in a nation where an abused parent abducted her children should conduct an evidentiary hearing before ordering the return of the children, so as to determine whether the children, if returned to their home country, would face grave risk of harm and inadequate safeguards for protection.

Facts

Davy Van De Sande (Plaintiff) and his mother abused his wife and daughter verbally and physically while they resided in Belgium.  They went to visit Jennifer Van De Sande’s (Defendant) family in the United States and she chose to not return to Belgium and instead keep her children in the United States.  Plaintiff threatened to kill her, the children, and her entire family.  Defendant’s father called the police and had Plaintiff removed from the house.  Plaintiff returned to Belgium and petitioned a Belgium court for the return of his children, according to the Hague Convention’s provisions against child abductions.  Meanwhile, Defendant petitioned a U.S. federal court to excuse return, on grounds that returning would place the children at grave risk of physical or psychological harm.  The district court granted summary judgment for Plaintiff, on the ground that there was no indication that the Belgian legal system could not or would not protect the children.

Issue

Should a court in a nation where an abused parent abducted her children conduct an evidentiary hearing before ordering the return of the children, so as to determine whether the children, if returned to their home country, would face grave risk of harm and inadequate safeguards for protection?

Held

(Posner, J.)  Yes.  A court in a nation where an abused parent abducted her children should conduct an evidentiary hearing before ordering the return of the children, so as to determine whether the children, if returned to their home country, would face grave risk of harm and inadequate safeguards for protection.  The gravity of a risk involves the probability of harm as well as the magnitude of the harm if the harm occurs, and the probability that Plaintiff or his mother might cause actual physical injury to the children is not negligible.  The court must be satisfied that the children will indeed, not just in theory, be protected if returned to the custody of their abuser.  Until then, the children must be kept protected.  In cases of child abuse, the balance shifts against “return plus conditions,†and even though comity mandates a narrow interpretation of the “grave risk of harm†defense, the safety of the children is paramount, and an evidentiary hearing is justified.  Reversed and remanded.

Discussion

The Hague Convention requires the prompt return of a child abducted to another country.  The exception in this case required Defendant to show by clear and convincing evidence that return would cause grave harm to the child, and that the Belgian court could not protect the child.  Given that her only evidence was affidavits by her and her family, she may not have met her burden.