Maria Wright discusses the 1980 Hague Child Abduction Convention in eprivateclient
Maria’s article was published in eprivateclient, 21 March 2024, and can be seen here.
Developing better solutions for children under the 1980 Hague Child Abduction Convention
The 1980 Hague Child Abduction Convention is an international treaty designed to protect children from the harmful effects of international parental child abduction. It is based on a presumption that it will usually be in a child’s best interests to be returned promptly so that the authorities and courts in the country where they usually live can decide issues relating to their future care.
There are several exceptions which may mean that a court is not required to order a child’s return after an abduction. 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’.
It is now clear that a large cohort of parents who abduct children are primary carers for children, many of whom have experienced domestic abuse in their relationships and have fled with their children. Often these parents are returning ‘home’ to extended family in the UK. Taking parents in these situations may be incredibly vulnerable, terrified at the prospect of returning with their child to the country of their previous residence and fearful that they will not be protected from further abuse or harassment in that country.
Taking parents who have experienced domestic abuse will often try to resist applications for the return of children, arguing that there is a grave risk that a return would expose their child to harm. However, the ‘grave risk’ exception is a difficult one to establish.
The 1980 Hague Convention gives rise to a swift procedure which does not investigate the merits of any custody dispute. In most cases, courts must evaluate the future risk of harm to the child within a short timeframe, often without hearing oral evidence. The rationale for this approach is to ensure that disputed issues of fact, relevant to the child’s long-term care, are determined in the country where the child usually lives. For parents who have experienced domestic abuse and are seeking refuge with family in the UK, the idea of litigating these issues overseas will be a difficult to contemplate.
As the family courts in England and Wales 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 October 2023, the Eighth Meeting of the Special Commission on the practical operation of the 1980 Hague Child Abduction Convention. 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 the subject of extensive discussions at the Special Commission.
The Special Commission’s conclusions and recommendations
1. Forum on domestic abuse
In 2020, a Good Practice Guide on the Article 13 (1(b) exception was published by the HCCH. In light of submissions made to the HCCH by organisations representing the interests of victims of domestic abuse, it is now 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 about protective measures to ensure that children are safe if they are returned to the country they usually live in.
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. The Conclusions and Recommendations note that undertakings are not always enforceable overseas. Instead, in some cases, the court can make orders to protect the child, which can be recognised and enforced in the child’s home country.
3. Lawful Relocation
If an order is made that a child must return home after an abduction, there will often follow an application by the taking parent to relocate lawfully with the child under the domestic family law system. The Conclusions and Recommendations urge Contracting States to 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 lawful international relocation of children globally.
Conclusion
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. The recent Special Commission raises the question of how we can apply a more nuanced understanding of domestic abuse within the confines of an abduction case, to achieve better solutions for children with international connections.
