International Hague Child Abduction Grave Risk Lawyers

Hague International Child Abduction by MacLean Law

MacLean Law is a leading International Hague Child Abduction Grave Risk lawyers firm. Lorne MacLean, KC is a fellow of the prestigious International Academy of Family Lawyers (“IAFL”) and he specializes in UHNW international family matters as well as international Hague Convention and non-Convention international child custody and parenting disputes including those involving wrongful removal and retention of children.

MacLean won a rare stay of return of the children to Mexico in the BC Court of Appeal under Hague section 13 (b) grave risk exception, pending leave to the Supreme Court of Canada in the difficult case involving two autistic children and the lack of therapeutic services to support them in Mexico versus Canada.

MacLean Law also handles foreign order recognition and stays of enforcement cases and we recently won a number of victories in a BC and Texas cross border child parenting dispute. S.S.C.M. v A.C.W, 2025 BCSC 1331 (CanLII) is significant for its clarification of jurisdictional principles in international child custody disputes, as the court affirmed that children residing in British Columbia for years under a court order are habitually resident in the province, establishing BC as the proper forum for parenting issues (S.S.C.M. v A.C.W, [para 7, 177]).

MacLean leads a tier 1 UHNW family team of International Hague Child Abduction Grave Risk Lawyers. MacLean together with Fraser MacLean and Sophie Bartholomew handle these time sensitive international wrongful child removal and child retention disputes with the urgency they require.

What Is The Goal Of The Hague International Child Abduction Convention? Tel: 604 602 9000

The Hague Convention on the Civil Aspects of International Child Abduction aims to secure the prompt return of children wrongfully removed or retained in a contracting state and to ensure that custody and access rights are respected (I.K. v D.N, 2024 BCSC 1748 (CanLII), [34]; J.N.C. v A.G.H, 2024 BCSC 1783 (CanLII), [131]).

An order for return is not a custody order but seeks to restore the status quo before the wrongful removal (J.N.C. v A.G.H, [132]). If a child has been wrongfully removed or retained, the court generally must order their return unless certain exceptions apply (J.N.C. v A.G.H, [138]).

Grave Risk Exception (Article 13(b)) Tel: 604 602 9000

A recent 2026 BC Court of Appeal decision in Beri v Sachdeva refused to return children to California under section 13 (b), after concluding there was an immediate safety concern for the child given the practical implications of a return order, particularly concerning the primary caregiver’s ability to remain in the foreign jurisdiction and the foreign court’s capacity to address serious allegations of family violence.

The British Columbia Court of Appeal addressed the ‘grave risk’ exception under Article 13(b) of the Hague Convention in Beri v. Sachdeva, 2026 BCCA 20, paragraphs 66-96. The Court concluded that returning the child to California would pose a grave risk of harm (Beri v. Sachdeva, 2026 BCCA 20, [95-96]). This decision was based on factors including family violence, the mother’s immigration status, the risk of separation from the primary caregiver, and concerns about the ability of the foreign court to protect the child (Beri v. Sachdeva, 2026 BCCA 20, [67-91]).

The Court found that Mr. Beri’s behavior was threatening and dangerous, and despite his treatment efforts, significant doubts remained about his ability to refrain from relapse (Beri v. Sachdeva, 2026 BCCA 20, [95]). Evidence highlighted coercive controlling violence and an escalation of violence after separation, emphasizing the significant risk of further abuse (Beri v. Sachdeva, 2026 BCCA 20, [85], [89-91]).

While California’s legal system is similar to British Columbia’s, the Court noted doubts about its adequacy in protecting the children due to the family circumstances and historic abuse (Beri v. Sachdeva, 2026 BCCA 20, [83]).

The decision also acknowledged immigration concerns, specifically uncertainties regarding Ms. Sachdeva’s ability to return to California with the children (Beri v. Sachdeva, 2026 BCCA 20, [67-74]). These uncertainties raised doubts about whether the children’s protection could be ensured if they were forced to return without their primary caregiver (Beri v. Sachdeva, 2026 BCCA 20, [67-74]). The Court felt the immigration aspect of return issue was not determinative given a lack of evidence and focused on the grave risk aspect.

Ultimately, the Court deemed the risk of physical or psychological harm significant enough to justify the application of Article 13(b) and dismissed the appeal, affirming the trial judge’s decision (Beri v. Sachdeva, 2026 BCCA 20, [95-96]).

Exception To Immediate Return Under Hague Child Abduction Convention

Our International Hague Child Abduction Grave Risk lawyers point out that a key exception under Article 13(b) of the Hague Convention allows a judicial or administrative body to refuse to order the return of a child if the person opposing the return establishes that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (I.K. v D.N, [39]; Taddeo v Ouellet, 2025 BCSC 2050 (CanLII), [66]).

What Must Be Proven Tel: 604 602 9000

The party resisting the child’s return bears the onus of proving the grave risk of harm on a balance of probabilities (I.K. v D.N, [64]; J.N.C. v A.G.H, [142]; Domestic Violence and International Child Abduction at the Border of Canadian Family and Refugee Law). This requires credible evidence that meets a high threshold (Batten v Batten, 2021 BCSC 2507 (CanLII), [55]).

High Standard for Harm: The Supreme Court of Canada has interpreted “grave risk” to mean that the harm itself must amount to an intolerable situation (I.K. v D.N, [61]; Batten v Batten, [55]). The risk must be substantial and not trivial, and greater than the ordinary risks associated with separating a child from one parent and placing them with another (I.K. v D.N, [61]; J.N.C. v A.G.H, [142]; Domestic Violence and International Child Abduction at the Border of Canadian Family and Refugee Law). The word “grave” modifies the “risk,” not necessarily the “harm,” but the harm must be weighty (Taddeo v Ouellet, [69]).

Individualized Assessment: The assessment of harm must be individualized, focusing on the specific circumstances of the child involved, rather than a general assessment of the society to which the child would be returned (I.K. v D.N, [62]; J.N.C. v A.G.H, [143]). The child’s age and vulnerabilities may be relevant (I.K. v D.N, [62]).

Family Violence: Domestic violence against a parent may be considered to create a “grave risk” of harm to the child, even if the violence is not directly aimed at the child (Domestic Violence and International Child Abduction at the Border of Canadian Family and Refugee Law). Psychological abuse can be as pernicious as physical abuse and can qualify as a grave risk of harm under Article 13(b) (Taddeo v Ouellet, [74]).

Intolerable Situation: An “intolerable situation” can arise from various factors. For instance, if a primary caregiver cannot legally remain in the returning state, lacks housing, income, or employment prospects, and thus cannot care for the child, separating the child from that caregiver could create an intolerable circumstance and grave psychological harm (I.K. v D.N, [68-73], [75], [78]). Similarly, if a child would be returned to a place where they have no home and their custodial parent has no income or apparent prospects for meaningful employment to support them, this can constitute an otherwise intolerable situation (Taddeo v Ouellet, [84], [100], [102]).

The Ability of Foreign Court to Protect Matters

A critical aspect of proving grave risk is demonstrating that the authorities in the returning state cannot protect the child from the alleged harm (I.K. v D.N, [63]; Batten v Batten, [55]).

Presumption of Protection: There is a presumption that highly developed legal systems, such as those in Europe, USA the Commonwealth and elsewhere, can make orders to protect a child if a judge is persuaded of the basis for such orders (Batten v Batten, [76]).
Rebutting the Presumption: The party opposing the return must prove, on a balance of probabilities, that the foreign authorities are incapable of protecting the child from physical or psychological harm (Taddeo v Ouellet, [83]).
Examples:
- In one case, despite credible allegations of family violence, the court found no grave risk because the foreign court had demonstrated its capacity and willingness to protect the child and parent through robust interim orders (Taddeo v Ouellet, [99]). The evidence did not satisfy the court that the foreign authorities lacked the capacity to enforce those orders (Taddeo v Ouellet, [81], [83]).
- Conversely, a court declined to order a child’s return where the mother’s immigration status, lack of housing, and inability to work in the foreign jurisdiction meant she could not care for the child, leading to a grave risk of separation or the child being taken into care (I.K. v D.N, [68-73], [78]). The court also expressed grave concern about the child’s safety with the father given allegations of violence and credibility issues (I.K. v D.N, [79-88]).
- In another instance, the court found no grave risk from alleged family violence or controlling behavior, implying the foreign legal system was capable of addressing such concerns (J.N.C. v A.G.H, [301], [307], [310]). Similarly, a court found no grave risk in returning a child to France, relying on the presumption that the French legal system could protect the child (Batten v Batten, [69], [76]).

These principles highlight the stringent requirements for establishing a grave risk exception under the Hague Convention, particularly concerning the nature of the harm and the proven inability of foreign authorities to provide adequate protection.