Domestic abuse and international child abduction – developing better solutions for children under the 1980 Hague Child Abduction Convention

Every few years, the Hague Conference on Private International Law organises Special Commissions which aim to examine how well its legal instruments are operating in practice.

In October 2023, the Eighth Meeting of the Special Commission on the practical operation of the 1980 Hague Child Abduction Convention and 1996 Hague Child Protection Convention took place in the Hague. Nearly 500 delegates from across the world were involved in the Special Commission, culminating in the publication of the Permanent Bureau’s Conclusions and Recommendations for future work to improve the way these instruments work for children with international connections.

Domestic abuse in the context of international child abduction was a significant issue discussed at the Special Commission. Here we offer a broad summary of the way that domestic abuse issues are considered in the context of international child abduction in England and Wales, and how the Conclusions and Recommendations of the 2023 Special Commission may impact on future practice in this area.

The 1980 Hague Convention

The 1980 Hague Child Abduction Convention operates between Contracting States to secure the return of children who are wrongfully removed or retained away from the country of their habitual residence, in breach of a left-behind parent’s rights of custody. It is based on a presumption that it will usually be in a child’s best interests that they be returned promptly so that the authorities and courts in the country where they usually live can decide issues relating to their future care.

However, there are a number of exceptions which may mean that a court is not required to order a child’s return. In particular, Article 13 (1) (b) of the Convention provides that a court may refuse to return a child where ‘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’. Where the Article 13 (1) (b) exception is established, the court has a discretion over whether or not to return the child, and the exercise of this discretion may take into account a broad range of factors.

Domestic abuse and the ‘grave risk’ exception

The profile of ‘taking’ parents has changed over time. The most recent statistical analysis of abduction cases prepared by Nigel Lowe and Victoria Stephens for the 2023 Special Commission identified a trend in the increase in taking parents being primary or joint primary carers for the abducted child (‘88% of taking persons in 2021 were the primary or joint-primary carer of the children involved. This can be compared with 80% in 2015, 72% in 2008 and 68% in 2003’).¹

This change is reflected in the cases we encounter as lawyers specialising in abduction cases. Practitioners will no doubt have encountered a category of abduction case with one or more of the following features.

A parent has come to the UK with their child, either to escape an abusive relationship in the other country, or to seek the support and care of extended family in the UK as they try to navigate a separation from an abusive partner overseas. The left-behind parent instigates proceedings under the 1980 Hague Child Abduction Convention for the child’s return, which may also be coupled with a criminal complaint or custody proceedings in their home country. The taking parent is terrified at the prospect of returning with their child to the country of their previous residence and fearful that they will not be adequately protected from further abuse or harassment in that country. They may be in poor mental health and it may even be difficult for the parent to contemplate returning with their child if the court decides the child must return. Domestic abuse may feature in the context of a child abduction case in a number of ways. However, it is often the case that parents plead the Article 13 (1) (b) exception and resist the return of the child on this basis.

The ‘grave risk’ in a case of this nature may relate not only to direct physical/emotional harm perpetrated by the left-behind parent to the taking parent, but also to the potential impact on the parent’s ability to care for the child if they are returned caused by a deterioration in that parent’s mental health. It may be argued that protective measures can be put in place which would lessen any grave risk of harm in this context – undertakings (promises given by the left-behind parent to the court) may be given in relation to their behaviour towards the other parent. Information may be provided to the court about the social and judicial services available in that country which can protect the taking parent and the child.² There has, over time, been a significant increase in returns being refused on the basis of Art 13 (1) (b), either as a sole ground or combined with other exceptions for return.³

Nonetheless, the 1980 Hague Convention is intended to give rise to a swift procedure which does not investigate the merits of any custody dispute. As a result, it has been argued on a number of occasions that Contracting States, in their application of the 1980 Hague Child Abduction Convention, have failed to treat the best interests of a child as a primary consideration in breach of Article 3.1 of the UN Convention on the Rights of the Child.⁴ The European Court of Human Rights has subsequently ruled that the application of the Convention operates to uphold a child’s best interests through the proper application of the exceptions to return.⁵ Nonetheless, concerns continue to be expressed by international institutions, including the Committee on the Rights of the Child and the UN Special Rapporteur on Violence Against Women and Girls⁶, as to the impact of the Abduction Convention on children’s welfare.

As the family courts in England and Wales generally are beginning to treat domestic abuse and its impact on future care arrangements for children in a more evolved and nuanced way, the approach to domestic abuse allegations in abduction cases may seem stark. In most cases courts are required to undertake an evaluation of future risk within a very short timeframe, often without hearing oral evidence from the parties or undertaking an enquiry into the complex family dynamics leading up to the abduction. The reason for this approach is to ensure that the determination of disputed issues of fact which are relevant to the child’s long-term care are determined in the country of the child’s habitual residence. However, for parents who have experienced domestic abuse and see themselves as having returned ‘home’ to the UK, the idea of litigating these issues overseas will be a difficult to contemplate.

The way forward – the Special Commission’s conclusions and recommendations

1. Forum on domestic abuse and the good practice guide

There has long been a concern about the way domestic abuse issues are dealt with in an abduction context, leading to the production by the HCCH of Good Practice Guide on the Article 13 (1) (b) exception published in 2020.⁷ This guidance is repeatedly referred to in the 2023 Conclusions and Recommendations.

However, in light of submissions made to the HCCH by organisations representing the interests of victims of domestic abuse, it is now being proposed that a forum be convened to consider the operation of Article 13 (1) (b) in this context. The forum will be representative of the interests of parents and children who are impacted by this issue, and may inform the future work of the HCCH.

2. Protective measures

Contracting States have been encouraged to provide information – publicly available where possible – about protective measures.⁸ Protective measures can be ‘ordered’ but can include services as well as protective orders – “a broad range of existing services, assistance and support, including access to legal services, financial assistance, housing assistance, health services, shelters and other forms of assistance or support to victims of domestic violence, as well as responses by police and through the criminal justice system.” There is an emphasis on the importance of considering protective measures at an early stage.⁹

The Conclusions and Recommendations note that ‘voluntary undertakings are not easily or always enforceable, and therefore may not be effective in many cases.’¹⁰ Courts in England and Wales have been fond of using undertakings to provide a ‘soft landing’ for children returned to the state of their habitual residence, and this observation in the Conclusions and Recommendations is helpful in identifying that they may not always be effective. It is noted that where the country the child will be returned to is a Contracting State to the 1996 Hague Convention, the court can make orders (where appropriate) to protect the child, which can be recognised and enforced in the child’s home country.¹¹

3. Relocation applications

If a child is returned to the state of their habitual residence, there will often follow an application by the taking parent to relocate lawfully with the child. The efficacy of a country’s relocation jurisdiction is therefore of vital importance, not only in deterring abductions but also in the context of the child’s ongoing protection from future harm. If, for example, a parent is likely to suffer a deterioration in their mental health as a result of an order for return, protracted relocation proceedings which do not adequately consider the child’s best interests will compound this risk.

The Special Commission has recommended that the ‘expeditious determination of international family relocation applications may strengthen the aim of the 1980 Child Abduction Convention of deterring international child abduction and encouraged the promotion of the Washington Declaration on International Family Relocation ….’ ¹² It is hoped that – in light of this – Contracting States will look at the adequacy of their family law systems in dealing with relocation cases through the lens of the 1980 Hague Abduction Convention, as the two categories of case go hand in hand. In short, there needs to be better solutions for supporting the international relocation of children globally.

Conclusion

For practitioners in this area, we can use the Conclusions and Recommendations of the 2023 Special Commission as opportunity to think about how we can achieve the best results for the families we work with within the ambit of the 1980 Hague Abduction Convention.

It is undeniable that domestic abuse is a common feature of abduction cases. The same is true in a domestic private law context – the Nuffield Foundation’s recent report on private law proceedings identified that domestic abuse was an issue in between a half and two thirds of cases.¹³ How can we apply a more nuanced understanding of domestic abuse within the confines of an abduction case? Practitioners who have dealt with abduction cases for a long time may recall an approach to domestic abuse in abduction cases which focused on physical harm and thresholds of seriousness. Undoubtedly the approach has moved on since these days, and the UK Supreme Court has clearly acknowledged on previous occasions that a grave risk of harm can arise in a variety of ways, including through the taking parent’s subjective beliefs and fears about a future risk. What we can perhaps take from the most recent Special Commission is the need to think about protective measures in a more concrete way – what measures are available and are they real, and enforceable; how can we work with lawyers in other jurisdictions to provide a ‘joined-up’ approach to support families navigating a family separation across national borders.

¹ Nigel Lowe and Victoria Stephens, ‘Global Report – Statistical study of applications made in 2021 under the 1980 Child Abduction Convention’ Prel. Doc. No 19A of September 2023[45]
² Re E [2011] UKSC 27
³ Nigel Lowe and Victoria Stephens, ‘Global Report – Statistical study of applications made in 2021 under the 1980 Child Abduction Convention’ Prel. Doc. No 19A of September 2023 [83].
⁴ Neulinger and Shuruk v Switzerland (Application No 41615/07) (ECtHR, 6 July 2010). See also Lara Walker, ‘The Impact of the Hague Abduction Convention on the Rights of the Family in the Case-Law of the European Court of Human Rights and the UN Human Rights Committee: The Danger of Neulinger’ (2010) 6 Journal of Private International Law 649; Linda J Silberman, ‘The Hague Convention on Child Abduction and Unilateral Relocations by Custodial Parents: A Perspective from the United States and Europe-Abbott, Neulinger, Zarraga’ (2018) 63 Oklahoma Law Review 733. McEleavy considers the change in the ‘profile’ of taking parents over the years, and how this may have contributed to a movement to change the approach to a child’s best interests in this context. Peter McEleavy, ‘The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?’ (2015) 62 Netherlands International Law Review 365, 402.
⁵ X v Latvia (Application No 27853/09) (ECtHR, 26 November 2013).
⁶ E.g No 121/2020 of the UN Committee on the Rights of the Child under the Optional Protocol on a Communications Procedure; Reem Alsalem, ‘Report of the Special Rapporteur on violence against women and girls, its causes and consequences’ UN Human Rights Council, April 2023, A/HRC/53/36 [36] – [39].
⁷ 225b44d3-5c6b-4a14-8f5b-57cb370c497f.pdf (hcch.net)
⁸ Special Commission Conclusions and recommendations (2023) [23]
⁹ Ibid [24]
¹⁰ Ibid [31]
¹¹ Ibid [34]
¹² Ibid [53]
¹³ nfjo_whos_coming_to_court_England_full_report_FINAL-1-.pdf (nuffieldfjo.org.uk) [9]