An ‘instrument of harm’? Where parental conflict meets armed conflict: a children’s rights focussed analysis of the judicial interpretation of the ‘grave risk of harm’ defence under Article 13(b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction in situations of war.

This chapter presents the findings of an analysis of fifteen published judgments in which a defence to a summary return was raised under Article 13(1)(b) of the Hague Convention on the Civil Aspects of International Child Abduction, on the basis of armed conflict in Ukraine or Israel. As applications are typically decided in favour of the left-behind parent, this chapter examines whether decisions uphold and protect the human rights of the child or whether an instrument designed to secure the protection of children from the harmful effects of international child abduction can, in some circumstances, itself be turned into an ‘instrument of harm’. The analysis sheds light on the arguments raised (including proximity to the conflict, the nature of the threat/identity of the aggressor, the functioning of civil society and parental anxieties around armed conflict) and case characteristics which influence the likelihood of a successful defence. It also considers the practicalities of gathering and producing probative evidence, in proceedings where the changing nature of armed conflict poses questions about the reliability and currency of written and oral evidence. The cases drawn on assist the authors in critically considering issues of vulnerability, safety, home and identity. The chapter makes a distinct and timely contribution to the literature on children’s rights and offers guidance to practitioners who may be presented with similar cases.