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Is the Hague Convention on child abduction harming women?

20th Jan 2022

If you have had the misfortune of being involved in a situation involving child abduction across international borders, you will have heard of the Hague Convention.

As the federal Attorney-General’s Department states, ‘The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country.’

Which countries are part of the Hague Convention?

Australia is one of the original 23 signatory nations to the 1980 agreement, named after the Dutch capital where it was signed. Today there are 101 nations in the Hague Convention, including Brazil, Canada, Fiji, Greece, Israel, New Zealand, South Africa, Turkey, the UK and the US. Ten other nations, including Russia and Iraq, have acceded to the convention, but do not yet have it in force.

Hague Convention intended to protect children from abduction

The agreement’s original intention was to provide mothers with an avenue to retrieve a child taken out of the country by their father. It was a quick and relatively easy process. An application to a court citing the convention led to a quick assessment of whether a child had been taken without permission and should be returned.

However, the Hague Convention has now developed into a legal weapon which is being used against mothers trying to escape domestic violence or coercive control in another country and flee to their homeland with their children.

Hague Convention used as weapon against mothers

The Hague Convention is incorporated into Australian family law, under ss65Y and 65Z of the Family Law Act 1975, with penalties of up to three years in jail.

However, there is no mention of domestic violence in the convention, as there was little awareness of the problem when the agreement was developed 40 years ago.

In October 2020, an ABC News story highlighted how the Convention, designed ‘as a means to combat a prevalence of men who were kidnapping children after a marriage breakdown and taking them back to their home countries’, is now being used as a tool of abuse.

In the article, Queensland academic Gina Masterton described the Hague Convention as a ‘good law gone bad’. Having interviewed many women, Masterton said the process ‘can work in a straightforward marriage breakdown, but when domestic violence is involved, it’s a different story.’

Victims of domestic violence unable to flee with children to safety of home country

Statistics show that more than 73 per cent of parental child abduction cases around the world involve women trying to get back to their own country.

According to the Annual Report of the Attorney-General’s department, during 2019–2020, 127 new applications were received under the Hague Convention for the return of children who have been abducted to or from Australia. Of these, 114 applications were finalised. This compares to 145 applications received and 113 finalised in the previous year. Globalarrk, a charity working with around 200 families a year in this situation, reports 91 per cent are mothers trying to leave with their children to escape abusive partners.[i]

But under the Hague Convention, they are obstructed by a legal system preventing them from travelling and face the prospect of giving up custody of their children if they try to leave the country. In effect, as Masterson states, the ‘abusers use children to continue controlling their former partners.’

Hague Convention must give more consideration to impact of domestic violence on children

In 2010, the Australian Law Reform Commission tabled a report on family violence containing recommendations for reform. These included that ‘the Family Law (Child Abduction Convention) Regulations should be amended to provide appropriate authority to notify the Family Court of returning cases’ and ‘to give greater prominence to considerations of family violence’.

As it stands, the Hague Convention provides insufficient opportunity to consider domestic violence or coercive control when considering the return of a child.

This needs to change.

For more information, please see Domestic coercive control could soon be criminal in Australia.

This is an edited version of an article first published at Stacks Law Firm.

Anneka Frayne is the Director of Stacks Law Firm in Tamworth, working in family law, wills and estates and disputes and litigation.

 

 

 

 

Tags: Family Law Domestic Violence Hague Convention on the Civil Aspects of International Child Abduction international law