Webinar: child abduction and domestic abuse
On 6 June 2024, I had the pleasure of co-chairing - together with Amy Rowe of Dawson Cornwell - a webinar on the topic of domestic abuse and international child abduction cases heard under the 1980 Hague Convention, which was organised in collaboration with GlobalARRK.
The event evolved into a fascinating panel discussion on the approaches taken in four different countries to the protection of children who have been abducted against a background of domestic abuse.
We opened by hearing from Roz Osborne, the CEO of GlobalARRK. Roz founded GlobalARRK in 2012. Roz and her team support parents who are either ‘stuck’ in a particular country, unable to relocate with their children, or who have pre-emptively removed their children across borders, often to escape domestic abuse. Roz spoke about her practical case experience and the amazing strides that have been taken in raising awareness of domestic abuse issues in the context of Hague Convention proceedings, leading to the Hague Conference on Private International Law recommending a forum in Pretoria to discuss the issue further.
We were then joined a panel of national speakers:
- Mr. Justice Williams, High Court Judge of the Family Division in England and Wales
- Stephen Cullen, Head of Family Law at Miles Stockbridge, Washington DC, USA
- Damien Greer of Damien Greer Lawyers, Brisbane, Australia; and
- Sirin Yüce of Charles Russell Speechleys, Geneva, Switzerland.
The panellists spoke about the approach to the Article 13 (b) ‘grave risk’ exception under the 1980 Hague Child Abduction Convention. Under this provision, the court is not obliged to return an abducted child if it can be proved that there is a grave risk that doing so would expose the child to physical or psychological harm, or place them in an intolerable situation.
We learned:
- Whilst in England and Wales, Hague Convention cases are heard by specialist High Court Judges, there is no concentration of jurisdiction in the USA, meaning that any federal judge could hear a Hague Convention case, which could be their first experience of hearing a family law case. The system may be very difficult to navigate for a non-specialist. Australia has a federal system but Hague cases are heard by specialist judges in the family court. Like in England and Wales, most Hague Convention cases are dealt with on a summary basis, but there is the possibility of oral evidence.
- There are always challenges for respondents in Hague Convention cases who are without representation. In England and Wales there is non-means tested legal aid for applicants, but not respondents. In Australia sometimes the evidence adduced in the case can be deficient because respondents are acting in person, but in certain circumstances, the court can appoint an independent child lawyer who has a responsibility to assist the court in arriving at its decision. Another option in Australia is that the Central Authority can be appointed to act as a model litigant, meaning that in representing the applicant parent, they are required to adduce all relevant evidence, including evidence that may be unhelpful to the applicant. That might include, for example, a criminal history suggestive of domestic abuse on the part of the applicant parent.
- In Australia, on every matter that comes before the family court, there is an obligation on the parties to fill out a Notice of Family Violence form, setting out any history or concerns of domestic abuse.
- In Switzerland, the approach to evidence is very broad. There can be oral evidence, including from the child if they are of an appropriate age. The Central Authority can coordinate expert evidence. International Social Services (ISS) Switzerland can also provide social reports on the child's situation which can be used in evidence. The approach is inquisitorial, as it is in any children's case in Switzerland, meaning that courts have a wide margin to investigate the child's situation.
- All four jurisdictions had an approach to protective measures in cases where Article 13 (b) was an issue. The approach in the USA is emerging, and remains very discretionary - Stephen referred us to the US Supreme Court case of Golan v. Saada. In Australia, there is an emphasis on protective measures being practical, and not frustrating the return order but rather supporting children to return. In England and Wales, we think carefully about whether protective measures will be effective - something that may have its roots in our use of the EU Regulation Brussels IIa pre-Brexit. Sirin gave us an insight into how practitioners might support children who are being returned by applying for orders in the country that the child is returning to, which will be in place at the point of return. However, there is a consensus that there is a need for greater information on what protective measures are possible in the other country, and the extent to which they can be enforced.
- We have placed a lot of faith in the 1996 Hague Convention in England and Wales as an instrument which might be used to enforce protective measures ordered when a child is returned to another Contracting State. However, this approach does not appear to be fully integrated into practice in Australia and Switzerland, which also apply the Convention. I wondered if we had placed too much faith in the 1996 Hague Convention to protect children returned after an abduction, in the absence of actual concrete evidence of how measures will work on the ground.
- A core idea which came out of our discussion was the need for a ‘knowledge bank’ about protective measures, so that there could be better information about what protective measures could be used in a particular country, how they could be enforced, and what steps would need to be taken to make them fully effective.
The 1980 Hague Child Abduction Convention is not an instrument which is intended to compromise children's welfare. We therefore might learn from the approach taken in other jurisdictions to see how we can ensure it is working effectively, and to develop practical effective solutions which are cognisant of our evolving understanding of the impact of domestic abuse on children.
