Elevating Indirect and Psychological Harm: The Eleventh Circuit’s Expanded Interpretation of the “Grave-Risk” Defense under the Hague Convention

Introduction

In Israel Bassat v. Sapir Swissa Dana, the United States Court of Appeals for the Eleventh Circuit confronted a recurring dilemma in international child-abduction litigation: when does domestic violence directed primarily at one parent create a “grave risk” of harm to the child sufficient to override the Hague Convention’s mandate for prompt return?

The dispute arose after Sapir Swissa Dana removed the parties’ two Israeli-born daughters, A.B. (10) and G.B. (9), to South Florida with the father’s initial consent in the aftermath of the October 7, 2023 Hamas attack. When the agreed 60-day stay lapsed, Israel Bassat demanded the children’s repatriation pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction and its U.S. implementing statute, the International Child Abduction Remedies Act (“ICARA”). The district court ordered the children returned to Israel, rejecting Dana’s affirmative defenses of (1) the Convention’s grave-risk-of-harm exception and (2) the mature-child exception.

On appeal, the Eleventh Circuit reversed, holding that Dana carried her clear-and-convincing burden on the grave-risk defense. Crucially, the Court emphasized that indirect and psychological dangers—stemming from intimate-partner violence and a pattern of threats—can satisfy Article 13(b) even where the abusive parent has not routinely assaulted the children themselves and the petitioner-parent denies wrongdoing. This commentary explores the court’s reasoning, the precedents marshaled, and the broader implications for Hague Convention jurisprudence.

Summary of the Judgment

District-court disposition: Ordered prompt return; found neither grave-risk nor mature-child defenses fully applicable.
Appellate holding: Reversed and remanded. The panel (Rosenbaum, Branch, Lagoa, JJ.) determined that Dana proved by clear and convincing evidence that repatriation would subject the children to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.
Key facts relied upon:
- Undisputed protective order previously entered by Israeli court against Bassat and his current wife.
- Testimony from Dana and both children describing multiple incidents: arson of apartment building, Molotov cocktail attack on grandmother’s home, tire-slashing, stalking, repeated physical assaults on Dana (some in children’s presence), and a pattern of threats against family and neighbors.
- G.B.’s in-camera testimony that Bassat “hit us” and “every time that he would come visit us, he would hit us.”
Legal conclusions:
- District court clearly erred in overlooking or mischaracterizing the children’s testimony regarding direct violence.
- Domestic violence directed at the mother—and the resulting atmosphere of fear—can constitute a grave risk to children even absent frequent direct assaults on them.
- Psychological and indirect harms fall squarely within Article 13(b)’s protection.

Analysis

1. Precedents Cited and Their Influence

Pfeiffer v. Bachotet (11th Cir. 2019) – Reaffirmed standards of review (clear error for facts; de novo for law).
Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008) – Found grave risk where father abused mother in child’s presence; cited as conceptual foundation for linking spousal abuse to child harm.
Gomez v. Fuenmayor, 812 F.3d 1005 (11th Cir. 2016) – Emphasized that serious violence toward a parent may be turned against a child; the Court here extends Gomez by stressing psychological dimensions.
Hanley v. Roy, Chafin v. Chafin, Lops v. Lops, Calixto v. Lesmes – Collectively outline the Convention’s purpose, burden-shifting framework, and limited scope of custody determinations.
Abbott v. Abbott, 560 U.S. 1 (2010) – Supreme Court precedent on ICARA burdens; referenced to contextualize the treaty’s pro-return bias.
Berenguela-Alvarado v. Castanos, 950 F.3d 1352 (11th Cir. 2020) – Reminder that Article 13 defenses must be “narrowly construed”; the panel nevertheless found the evidence here met that narrow window.
District-level cases (Reyes Olguin, Sadoun) and Second Circuit authority (Ermini v. Vittori, Blondin) – Cited as persuasive support that repeated domestic violence and resultant fear justify non-return.

2. Legal Reasoning of the Court

Standard of Proof and Review
Dana bore a “clear and convincing” burden. On appeal, the panel applied de novo review to the mixed question whether the facts satisfied Article 13(b), while scrutinizing factual findings for clear error.
Error in Factual Findings
The district court incorrectly stated that “neither [Dana] nor the Children testified that [Bassat] had physically harmed the Children.” The appellate panel pointed to G.B.’s unequivocal description of being hit and observed that the lower court failed to discredit that testimony.
Indirect and Psychological Harm Suffices
Expanding on Gomez, the panel reiterated that Article 13(b) encompasses more than direct bodily injury. Threats, arson attempts, Molotov cocktail attacks, and vehicular sabotage—all allegedly perpetrated by Bassat—create an “intolerable situation.” The Court stressed that witnessing violence against a parent can itself inflict grave psychological harm.
Pattern and Context Matter
A single isolated incident may not meet the “grave” threshold, but Bassat’s alleged conduct constituted a pattern of violence and intimidation, corroborated by an Israeli protective order. Such repeated behavior transforms risk from speculative to palpable.
Mother’s Subjective Statements Not Dispositive
The panel dismissed the notion that Dana’s occasional willingness to leave the children with Bassat or her statement that she did not fear direct harm negated the objective risk. Article 13(b) turns on the child’s exposure, not the parent’s fear level.

3. Impact on Future Litigation

Broader Reading of “Grave Risk” in the Eleventh Circuit
The decision sets a clear precedent that indirect threats, environmental violence, and psychological trauma are within Article 13(b)’s ambit. District courts must now thoroughly analyze testimonial evidence of domestic violence, even when children were not the primary targets.
Heightened Scrutiny of District-Court Fact-Finding
Appellate courts will intervene where lower courts mischaracterize or overlook critical testimony, signaling to district judges the necessity of explicit credibility assessments.
Strategic Implications for Practitioners
Respondent-parents may focus on demonstrating patterns of coercive control, threats to caregivers, and resulting psychological harm. Conversely, petitioners must prepare to rebut indirect-risk evidence vigorously.
Intersection with Domestic-Violence Policy
Aligns the Convention with modern domestic-violence research recognizing that children suffer severe harm from witnessing parental abuse.
Potential Limitation of “Mature-Child” Reliance
Although the Court did not reach Article 13’s mature-child exception, its grave-risk ruling may reduce practitioners’ reliance on a child’s stated preference—often harder to prove—when credible evidence of violence exists.

Complex Concepts Simplified

Hague Convention (1980): A multinational treaty requiring member states to return children wrongfully removed or retained across borders to their “habitual residence” so that custody can be decided there.
ICARA: U.S. statute implementing the Hague Convention, providing federal jurisdiction and procedural rules for petitions.
Grave-Risk-of-Harm Defense (Art. 13(b)): An exception allowing courts to refuse return if repatriation would expose the child to serious physical or psychological danger or otherwise create an “intolerable situation.” Must be proven by clear and convincing evidence.
Mature-Child Exception (Art. 13): Allows non-return if the child objects and is old enough and mature enough that their views should be honored. Proof by a preponderance of evidence.
Standards of Review: Clear error – deference to trial court’s factual findings unless “left with the definite and firm conviction” of error. De novo – appellate court decides legal questions anew.
Burden-Shifting Framework: Petitioner first shows wrongful removal; respondent then must establish an affirmative defense. If no defense is proven, return is mandatory.

Conclusion

The Eleventh Circuit’s decision in Bassat v. Dana amplifies the protective reach of Article 13(b) by holding that a documented history of violence toward the custodial parent—combined with credible testimony of direct assaults on a child—meets the “grave risk” threshold, even where the abusive parent contests the allegations and the other parent previously acquiesced to some contact. District courts must now evaluate domestic-violence evidence holistically, weigh psychological harm equally with physical danger, and explicitly address child testimony. The ruling harmonizes the Convention’s objectives with contemporary understandings of family violence, ensuring that the treaty’s pro-return bias does not eclipse the fundamental safety of children.

Practitioners and judges alike should heed the precedent: indirect violence can be just as grave, and the psychological well-being of children stands on equal footing with their physical safety in Hague Convention analyses.