Remember Elian Gonzalez?

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Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

What we know is that Elian's mother and father were at least separated - we know this because she made the crossing with her boyfriend. We don't know anything about the state of affairs between Elian and his father before his mother left, or what could have been brought up in any hearing had she survived and successfully obtained Asylum. I don't see much point dwelling on it.

What I wonder is how traumatic this has been for him...being the soul survivor of a ship wreck - even if they were just tubes or tires and an impromptu raft, then the custody battle in the US, being taken away again, by force with weapons drawn, then placed again with his father in Cuba. Let us all consider what is worse. Staying in Cuba (which he ended up there anyway) or being put through all this?