Family law expert urges 'abduction reversing' Hague Convention to take account of domestic abuse

Sent back across borders to your abuser

Imagine you're a mother in an abusive relationship, and you think the only hope of a better future is for you to flee with your child to another country, where friends or family are. But then, when you get there, you're returned to your previous country - where your abuser is - because of an international treaty signed up to by more than half the world's nations.

The Hague Abduction Convention was set up in 1980 with the best of intentions: to return a child back to the country of their primary carer (usually their mother) if the other, non-resident parent has taken the child against their will to another country.

However, 3 in every 4 cases involve mothers as 'abductors', many of whom have fled domestic violence - and then have to choose whether to return with their children or send their children back alone.

The only glimmer of hope available to these victims is the 'grave risk' defence, but it's rare for the defence to succeed. Mothers often end up in worse situations than before, including being left isolated, homeless, subject to further abuse - or even murdered.

The Forum on the Hague Convention

Legal and governmental representatives from many of the 103 signatory countries gathered last week in Johannesburg to discuss the Convention and the 'grave risk' defence. It was the first time this had happened in the Convention's 44-year history.

The four days of meetings, called the Pretoria Forum on the Hague Convention & Domestic Violence, were co-hosted by the South African government and the University of Pretoria's Centre for Child Law. The Forum was opened by the newly appointed Chief Justice of South Africa, the Honourable Justice Mandisa Muriel Lindelwa Maya, and senior judges from a range of countries addressed the Forum, including two Court of Appeal judges from England and Wales.

The Forum arose from discussions late last year between Dr Christophe Bernasconi (Secretary-General of the Convention's governing body, the HCCH) and Hague Mothers (a legacy project of FiLiA, a women-led volunteer organisation), aimed at ending the Convention's injustices.

Dr Adrienne Barnett is a legal expert on family courts and domestic abuse from Brunel University London and is the UK Lead on the Hague Mothers International Strategy Group. She attended the Forum on behalf of Hague Mothers, speaking at two sessions and moderating one session, and helped shape the Forum itself as part of its Steering Committee.

"The aim of the forum was to generate a dialogue on the way forward and to share perspectives and recommendations to the HCCH and contracting states," Dr Barnett said.

Numerous speakers emphasised the need for domestic abuse to be recognised in every case as leading to a grave risk to the child, as well as the ineffectiveness of 'protective measures' such as restraining orders in preventing further violence and abuse to mothers and children on return.

Dr Barnett also urged states to recognise the human rights of mothers in their own right: "Women's lives should not be sacrificed on the altar of prompt return, as was the case for Cassie Hasanovic, who was stabbed to death in front of her children by her ex-husband after an Australian court ordered the children's return to England."

The voices of mothers

Central to the Forum were the voices of mothers themselves, many of whom attended in person or remotely and spoke about the devastation the Convention has caused to their and their children's lives.

'Faith', whose children were forcibly removed from her care in Australia and bundled onto a plane, told the Forum: "The best 'protective measure' is to let a mother and her children live in her home country, where they are safe and supported by family, friends and community.

"It must be remembered that at the heart of all these injustices are children who want their mothers, but who are having their human rights violated because of abusive men who are weaponising a system that is meant to protect children, against children."

From recommendations to a report

Key recommendations made by Hague Mothers include mechanisms for monitoring the implementation of the Convention, equal access to legal representation for parents, that domestic abuse be recognised in all cases as creating a grave risk for children, and domestic abuse training for all judges and professionals.

Hague Mothers is calling for:

• a specific defence against return in cases of domestic abuse
• a stay on return orders in domestic abuse cases to enable the welfare issues to be litigated while the mother and children are in a safe location
• proper risk assessment and exploration of each child's views
• equality of arms to enable the taking parents as well as the left-behind parents to have legal representation.

The HCCH will be compiling a report in the coming weeks.

Joe Buchanunn, Media Relations +44 (0)1895 268821
[email protected]

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