The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence
Abstract
:1. Introduction
2. The Problem of Domestic Violence in the Context of the 1980 Convention
3. The Role of the Best Interests of the Child
4. Safeguarding the Protection of Abducting Mothers in Return Proceedings
4.1. Case-Law Analysis and Suggestions for Appropriate Judicial Interpretations
4.1.1. The ‘Grave Risk of Harm’ Exception (Article 13(1)(b)) (See (Permanent Bureau of the Hague Conference on Private International Law 2020, paras 57–59))
The Correlation between Domestic Violence Directed towards the Mother and a Grave Risk of Harm to the Child (See (Permanent Bureau of the Hague Conference on Private International Law 2020, paras 57–59))
Assessment of Allegations of Domestic Violence in Return Proceedings (See (Permanent Bureau of the Hague Conference on Private International Law 2020, paras 43–48 and 50–54))
Protective Measures (See Permanent Bureau of the Hague Conference on Private International Law 2020, paras 43–48)
Evidence-Related Matters (See (Permanent Bureau of the Hague Conference on Private International Law 2020, paras 50–54))
4.1.2. The ‘Child Objections’ Exception (Article 13(2))47
4.1.3. Human Rights Considerations (Article 20)
4.2. Legislative Interventions
4.2.1. Global Level
Amending the 1980 Hague Convention
Adopting a Protocol to the 1980 Hague Convention
4.2.2. Domestic Level
4.3. Alternative Avenue: ADR/Mediation
5. Conclusions
Author Contributions
Funding
Informed Consent Statement
Conflicts of Interest
References
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1 | Other abducting relatives such as grandparents or other increased from 1% in 1999 to 3% in 2015. See Permanent Bureau of the Hague Conference on Private International Law (2017b). |
2 | In the sense of Article 13(1)(b). |
3 | UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, [137]. |
4 | E.g., Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast); Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection; and Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted (recast). For a comprehensive analysis of the EU asylum law see Tsourdi and De Bruycker (2022). |
5 | The principle of non-refoulement guarantees that ‘no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm’. (Office of the High Commissioner for Human Rights 2018a, p. 1). |
6 | Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1. |
7 | See also Re E (Children) [2011] UKSC 27 reiterated that the current Hague Convention procedure complies with the UNCRC and ECHR, stating that ‘both the Hague Convention and the Brussels II revised Regulation have been devised with the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration’. |
8 | See footnote 6. |
9 | Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (hereafter “the Recast Regulation”). |
10 | As of 1 September 2023, the 1980 Hague Convention has 103 contracting parties. See Status Table <https://www.hcch.net/en/instruments/conventions/status-table/?cid=24> accessed 1 September 2023. |
11 | United Nations Human Rights, Status of Ratification: Interactive Dashboard <http://indicators.ohchr.org> accessed 16 June 2023. See Convention on the Rights of the Child: as at 9 March 1993, the CRC received 131 ratifications; as of 16 June 2023, the number of ratifications had reached 196. |
12 | The Hague Convention, preamble which provides that signatory States are ‘firmly convinced that the interests of children are of paramount importance in matters relating to their custody’. Compare with the provisions under the UNCRC, Article 3.1 stating that ‘the best interests of the child shall be a primary consideration’. See also Pérez Manrique (2012, p. 34) and Freeman and Hutchinson (2007), stating that the Convention is premised on the best interests of children generally which requires their future to be determined in their country of habitual residence and not on the best interests of the individual child. |
13 | The Hague Convention, Article 1. See (Fiorini 2016, pp. 403–7), the exceptions to the Hague Convention, some of which are meant to protect the best interests of the individual child. |
14 | E.g., case law such as Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 [425] (Ormrod LJ) and Zaffino v Zaffino [2005] EWCA Civ. 1012, [2006] 1 FLR 410, citing Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242, [251] (Balcombe LJ). See also Lozano v. Alvarez 697 F.3d 41 (2d Cir. 2012), [53] where it was stated that the Hague Convention is shaped in the light of the best interests of the child: ‘simply put, the Convention is not intended to promote the return of a child to his or her country of habitual residency irrespective of that child’s best interests; the Convention embodies the judgment that in most instances, a child’s welfare is best served by a prompt return to that country’. |
15 | See Pérez-Vera (1982, p. 24) ‘(…) children must no longer be regarded as parents’ property but must be recognized as individuals with their own right and needs’. Black LJ (as she then was) in O (Children) [2011] EWCA Civ 12, [8], citing the UK House of Lords case of Re M (Abduction: Zimbabwe) [2007] UKHL 55, [24] which makes clear that the individual circumstances of the particular child are what matters. |
16 | Cf (Browne 2011, p. 1202; U.S. Department of State (1986, para. 10,510) that ‘the 13(b) exception “was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child’s best interests”’. Referring also to the Ninth Circuit in Cuellar v. Joyce, 596 F.3d 505, 509 (9th Cir. 2010) (quoting Gaudin v. Remis, 415 F.3d 1028, 1035 (9th Cir. 2005)) that ‘[t]he exception ‘is not license for a court in the abducted-to country to speculate on where the child would be happiest’. |
17 | The qualitative study examined women who were domestic violence victims in Hague Convention cases in the US. The study found that ‘U.S. courts are reluctant to employ Convention provisions that could prevent children from being returned to their mother’s barterer’: p 1 and that the US’ courts interpretation of Article 13(1) (b) ‘frequently leads to court decisions against the interests of even severely battered women and their children.’ In the US jurisdiction, see also Norris (2010) and Sthoeger (2011, p. 530). |
18 | In comparing the differing standards, that ‘clear and convincing’ is a significantly greater burden than preponderance. |
19 | Weiner goes further to suggests a reform that would stay the remedy of return and enable the taking parent to participate from abroad whilst custody proceedings are initiated in the child’s country of habitual residence [698]–[703]. It is stated that this reform would promote a child’s best interests under the Hague Convention by providing safety to the taking parent and avoiding a return to their habitual residence if the ultimate outcome in that country would permit the child to be taken abroad [703]. |
20 | See debate relating to the Neulinger & Shuruk v. Switzerland (Application no. 41615/07) Grand Chamber [2010]: Re E (Children) [2011] UKSC 27, [26]; see also Re M & Anor [2007] UKHL 55. Browne has argued that to blur the best interests standards as between custody cases and the Hague Convention would undermine the rights of the left-behind parent; see Browne (2011, p. 1196). A distinction has been drawn in case law as to considerations of the best interests of the child in Hague Convention proceedings and a wider comprehensive welfare assessment: e.g., Whallon v. Lynn 230 F.3d 450 (1st Cir. 2000). Alternatively, the best interests of the child principle has been considered as part of a discretionary/balancing exercise as distinguished, e.g., by Thorpe LJ in Cannon v. Cannon [2004] EWCA Civ 1330 [2005] 1 FLR 169 [38]: ‘for the exercise of a discretion under the Hague Convention requires the court to have due regard to the overriding objectives of the Convention whilst acknowledging the importance of the child’s welfare (particularly in a case where the court has found settlement), whereas the consideration of the welfare of the child is paramount if the discretion is exercised in the context of our domestic law’. |
21 | See Permanent Bureau of the Hague Conference on Private International Law (2017a, paras. 52 and 132) and Domestic and Family Violence and the Article 13 Exception (Permanent Bureau of the Hague Conference on Private International Law 2011b, para. 140). |
22 | It is no exaggeration to say that the disregard for the safety of the returning parent has caused serious trauma to countless mothers whose children have been ordered to return to their State of habitual residence in circumstances involving a pattern of violent behaviour by the left-behind father against the abducting mother. Information based on correspondence received by the authors from abducting mothers from a variety of jurisdictions. See also resources available at Filia, ‘Hague Mothers: A Filia Legacy Project’, available at: <https://www.hague-mothers.org.uk/> accessed 21 July 2023. |
23 | The undefined terms have led to inconsistent interpretations. |
24 | Prior to this development, domestic violence directed to the mother was a bifurcated issue to domestic violence directed to the child, and only the latter was relevant to ‘gave risk of harm’ in the context of Article 13(1)(b). In the case of Yemshaw v. London Borough of Hounslow [2011] UKSC 3 [2011] 1 WLR 430, a connection between the two was drawn. |
25 | “Commentators have found that only in “a few Hague Convention cases have judges accepted that children’s exposure to their mother’s [sic] victimization at the hands of an abusive partner represents a grave risk of harm to the children”. See Quillen (2014, p. 632). |
26 | Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 (‘Re D’) [52]; Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [27]. |
27 | Re E, note 8, [34]. |
28 | Ibid, [34] and [52]; This interpretation is in line with the trauvax preparatoirs of the Convention. See the Domestic and Family Violence and the Article 13 “Grave Risk” Exception in the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: A Reflection Paper (Permanent Bureau of the Hague Conference on Private International Law 2011b, p. 35). |
29 | Re E, note 8, [34]; and Re S, note 27, [31]. |
30 | See footnote 29. |
31 | Re S, note 30, [34]. |
32 | See footnote 27. |
33 | Re S, note 30, [27]. |
34 | Re E, note 8. The ‘protective measures approach’ has been referred to with approval and/or explicitly followed in a number of cases that involved allegations of domestic violence, both in England and Wales (High Court and Court of Appeal) and Scotland (Court of Session). These cases included In the Matter of A (A Child) (Hague Abduction; Art 13(b): Protective Measures) [2019] EWHC 649 (Fam), H v K (Abduction: Undertakings) [2017] EWHC 1141 (Fam), TAAS v FMS [2017] EWHC 3797 (Fam), B v P [2017] EWHC 3577 (Fam), CH v GLS [2019] EWHC 3842 (Fam), Z v D (Refusal of Return Order) [2020] EWHC 1857 (Fam) and AX v CY [2020] EWHC 1599 (Fam); England & Wales; Re F (A Child) [2014] EWCA Civ 275; In the Matter of M (Children) [2016] EWCA Civ 942; and GCMR Petitioner [2017] CSOH 66. See also Trimmings and Momoh (2021, p. 6). |
35 | The UK is not the only jurisdiction following the ‘protective measures approach;’ other jurisdictions, such as the US, have followed identical or highly similar methodologies. For instance, in the case of Blondin v. Dubois 189 f.3d 240, 248 (2d Cir. 1999), the United States Court of Appeals, Second Circuit remanded the matter ‘for further consideration of the range of remedies that might allow both (emphasis added) the return of the children to their home country and their protection from harm.’ Blondin v. Dubois, note 41, [10]. |
36 | Re E, note 8, [36]. |
37 | This approach has been sanctioned by the English Court of Appeal: Re K (1980 Hague Convention) (Lithuania) [2015] EWCA Civ 720 and Re C (Children) (Abduction Article 13(B)) [2018] EWCA Civ 2834 and has also been endorsed also by the English High Court: Uhd v McKay [2019] EWHC 1239 (Fam). |
38 | The leading UK authority on the exercise of discretion is the Supreme Court decision in the case of Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55. |
39 | X v Latvia (GC) Application no. 27853/09 (EctHR, 26 November 2013). |
40 | For related practical matters such as evidence, burden of proof, and factors to consider, see POAM Project Team, POAM Project Team (2020, para. 5.1.3). |
41 | In the Matter of A (A Child) (Hague Abduction; Art 13(b): Protective Measures), note 40. |
42 | See footnote 41. |
43 | A research study conducted by a UK child abduction charity ‘Reunite’ revealed that ‘undertakings were issued in just over half of the cases studied’. The majority (67%) of undertakings were beached, and non-molestation undertakings had been broken in 100% of the representative sample of cases in which they had been given. The study also showed that left-behind parents were often instructed by their lawyers to agree to the undertakings that were sought in the return proceedings because the legislation in the requesting State was different and ‘undertakings mean nothing’. See Freeman (2003, pp. 31 and 33). See also Brown Williams (2011, p. 67) and Trimmings and Momoh (2021, p. 12). |
44 | Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters 2013 OJL 181 4 (hereafter ‘Protection Measures Regulation’). |
45 | Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (adopted 19 October 1996, entered into force 1 January 2002) HCCH 34 (hereafter ‘1996 Hague Convention’). |
46 | For detailed guidance see POAM Project Team (2020, para 5.1.3). |
47 | It should be noted that Contracting States take different approaches to child participation in child abduction cases. See European Parliament, ‘The Child Perspective in the Context of the 1980 Hague Convention’, 2020, p. 15, Available at: <https://www.europarl.europa.eu/RegData/etudes/IDAN/2020/659819/IPOL_IDA(2020)659819_EN.pdf> accessed 1 September 2023. |
48 | In the UK, this approach can be traced back to a 2006 House of Lords decision and is recommended here as a model to follow by other contracting states. Re D, note 30. |
49 | See footnote 48. |
50 | See for example (Lowe and Stephens 2017a, Part I; Lowe and Stephens 2017b, Part II; Lowe and Stephens 2018, Part III). According to the Global report, the sole and multiple reasons for refusal based on Article 20 was 2 cases out of a total of 185 (see Annex 5 and 6). According to the regional report, refusal in ‘regulation’ cases amount to 1 case (and 1%), with 0% in non-regulation cases. |
51 | Such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1989 Convention on the Rights of the Child and the 2006 Convention on the rights of Persons with Disabilities. |
52 | In the United Kingdom, the 1998 Human Rights Act gives effect to rights and freedoms guaranteed under the ECHR. |
53 | The Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul, 11/05/2011. |
54 | See INCADAT, the HCCH International Child Abduction Database which contains and enables the search of child abduction case law, case law summaries and analyses, including references to house publications such as Guides to Good Practice and the Judges’ Newsletter. From a pool of 65 cases that engage Article 20, with 10 from the jurisdiction of the United Kingdom, England and Wales, and Scotland (https://www.incadat.com) as of 30 June 2023. |
55 | Cf where a compelling argument may be made that the 1951 Refugee Convention and/or the Istanbul Convention is engaged and thus Article 20. |
56 | See for example, Re M, note 44, Re K (Abduction: Psychological harm) [1995] 2 FLR 550 (of note, in Re K Article 20 had not yet been enacted into English domestic law until the 1998 Human Rights Act came into force in 2000). |
57 | Re M, note 44. |
58 | G (A Child: Child Abduction) [2020] EWCA Civ 1185. |
59 | Ibid, para. [41]. |
60 | G v G (international child abduction) [2021] UKSC 9. |
61 | Ibid, para. [155]. |
62 | 1951 Refugee Convention, Article 33 (Prohibition of Expulsion or Return). Article 33 states: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. |
63 | SN & HM and 3 Dependants (Divorced Women—Risk on Return) Pakistan v. Secretary of State for the Home Department, CG [2004] UKIAT 00283, para [34]. |
64 | Walsh v Walsh 221 F.3d 204, 221 (1st Cir. 2000). |
65 | State Central Authority, Secretary to the Department of Human Services v Mander, No. (P) MLF1179 of 2003, p. 25 (INCADAT database). |
66 | Friedrich v Friedrich (Friedrich II) 78 F.3d 1060, 1069 (6th Cir. 1996). |
67 | See footnote 66. |
68 | To include an application in respect of the child, either individually or as a dependant. |
69 | See FE v YE [2017] EWHC 2165 (Fam), E v E (Secretary of State for the Home Department intervening) [2017] EWHC 2165 (Fam); [2018] Fam 24; F v M [2018] EWHC 2106 (Fam); [2018] 3 FCR 301; Cf In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27. |
70 | FE v YE [2017] EWHC 2165 (Fam), paras 14, 17–21. |
71 | G (A Child: Child Abduction), note 66. |
72 | G v G (International Child Abduction), note 68. |
73 | AMRI v KER [2011] ONCA 417. |
74 | Sanchez v RGL (2015) 761. F.3d 495. |
75 | See also GB v VM, 2012 ONCJ 745; and Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002). |
76 | M.A.A. v. D.E.M.E., 2020 ONCA 486, Canada. |
77 | As of 19 June 2023, there are 103 Contracting Parties to the Convention. See Hague Conference on Private International Law, ‘Status Table’ (HCCH 2023). |
78 | 1969 Vienna Convention of the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UN Treaty Series 1155 331, Art 40. |
79 | The possibility of a Protocol to amend or supplement the 1980 Hague Convention was considered by the Permanent Bureau of the Hague Conference during the Sixth Special Commission to review the operation of the Convention in June 2011. See Permanent Bureau of the Hague Conference on Private International Law (2011a). The idea was, however, not pursued and a soft law instrument in the form of a Guide to Good Practice was drafted instead. See Guide to Good Practice on Article 13(1)(b) (2020, pars 57–59). Unfortunately, domestic violence is addressed only marginally in three brief paragraphs. |
80 | Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022. |
81 | When referring to ‘mediation’ in this journal, the authors always refer to elective mediation, where the parties provide their informed consent to the process. The authors do not consider mandatory mediation to be appropriate in the context of international child abduction cases involving domestic violence. |
82 | See, e.g., Re E, note 8, [53]. |
83 | It must be noted that perpetrators of domestic violence can propose mediation with the ulterior motive of delay (use of mediation as a ‘delay tactic’). See, e.g., González Martín (2014, p. 322). |
84 | For instance, Scottish courts, if satisfied with adequate evidence, have an array of types of Protective Orders available to help the victim into safety. See Scottish Government (2018). |
85 | It must be noted that child abduction might be prosecuted as a crime and in that case, the abducting mother will not benefit from a more favourable outcome in mediation. |
86 | See, e.g., Oral Evidence submitted to the House of Commons in relation to the appropriateness of mediation in cases involving domestic violence, Question 14. (House of Commons Justice Committee 2023). |
87 | It must be noted that the child can be equally involved in the mediation and the mediator can hold private meetings with the child to ensure the child’s voice is heard. As with the parties, the mediator is under the obligation to not disclose information the child reveals unless the mediator has his or her consent, thus fostering a safe environment. See Vigers (2011, pp. 23 and 78–79). |
88 | See footnote 87. |
89 | See, e.g., Question 14 in the Oral Evidence submitted to the House of Commons in relation to the appropriateness of mediation in cases involving domestic violence. (House of Commons Justice Committee 2023). |
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Trimmings, K.; Momoh, O.; Kalaitsoglou, K. The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence. Laws 2023, 12, 78. https://doi.org/10.3390/laws12050078
Trimmings K, Momoh O, Kalaitsoglou K. The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence. Laws. 2023; 12(5):78. https://doi.org/10.3390/laws12050078
Chicago/Turabian StyleTrimmings, Katarina, Onyója Momoh, and Konstantina Kalaitsoglou. 2023. "The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence" Laws 12, no. 5: 78. https://doi.org/10.3390/laws12050078