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Family violence and Hague Convention: does treaty need urgent reform?

By June 25, 2021February 23rd, 2024No Comments

Family violence and Hague Convention: Troubling aspects of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) have to come light again. A recent NZ-Australia relocation case has once more led to calls to reform the international Hague Convention for modern times. It’s one of those unresolved family law issues that surfaces in the news from time to time.

The treaty was drafted over 40 years ago with the aim of ensuring the fast return of children abducted by a parent and taken across international borders without the consent of a left-behind parent. It currently has 101 signatory countries. In recent years it has suffered from regular criticism that it is prosecuting mainly women. Some of these women are fleeing family violence. Several years ago The Conversation took up the issue. But in the intervening time, nothing much has changed. So why are people arguing the Hague Convention needs to be urgently redrafted? Let’s take a brief look.

A recent NZ case is prompting experts to again ask if the international treaty is still “fit for purpose”. In the matter, a New Zealand mother who left Australia with her kids fleeing family violence is fighting to not have to return her children under the Hague Convention. The father was convicted in NZ on family violence charges. In Australia, the family courts had imposed a family violence order stopping the father from contacting her. Last month the NZ Family Court ordered the woman to return the children to Australia, a decision she is appealing.

The problem is that the Hague Convention doesn’t factor in the issue of family violence at all. Family violence was simply not on our collective radar in the 1970s the way it is now. As such, there was no mention of family violence in the wording of the Hague Convention. However statistics show that in the past decades, over 73% of parents removing children to another country are women. This means most of the so-called “abductors” are mothers who are their children’s primary carer. And applying the law without considerations of potential defences based around family violence is like applying the law with blinkers on. Experts say results can be “catastrophic” for women and children fleeing abuse.

Nowhere to run

Non-Australian women can be caught in a predicament where if they stay in Australia, their visa conditions mean they are unable to access government support and housing, hindering the choice to leave an abuser. Or, if they leave and try to return home with their children (for government and family support), they can be accused of international child abduction under the Hague Convention. Meanwhile, abusers often use the court system to continue abuse (systemic abuse).

Risk issues for child

One of the other major criticisms of the Hague Convention is the fact that there is no consideration of the child’s situation on returning home.

This means there could be serious risk issues if the abducting parent was actually fleeing family violence and is now required to hand the child back to an alleged perpetrator without any certainty over how the child is to be protected going forward.

In some countries now, including England and Wales, it is now routine for left-behind parents to first give undertakings and provide arrangements for protective measures for the child, to ensure their welfare when they return ‘home’ and before local courts are able to be involved. But such undertakings are certainly not common to all countries, and there’s no mechanism for the enforcement of those undertakings if they are breached once a child is returned.

Many countries also don’t require the abducting parent to travel with the child back to the original home country to deliver them back to the left-behind parent, but instead simply expect the children to be collected by the left-behind parent. It’s argued this could cause problems for the child, such as trauma over the sudden loss of the abducting parent (whom they often love dearly).

The “best interests of the child” test, applied in Australian family law cases, is not the test applied in Hague cases. For a legal device that was designed to protect children, many feel it is now failing them.

Is there any solution?

In Australia, Hague Convention cases are implemented through the Family Law Act 1975 and the Australian Family Law (Child Abduction Convention) Regulations 1986. At present, the Hague Convention phrasing is replicated word-for-word in the Family Law Act. Experts do note there are some exceptions in Australia’s Regulations which may be able to be raised in family violence related Hague cases. However, in practice, lawyers say the bar has been set too high by courts and conditions are too hard to meet.

One Australian academic, Gina Masteron of Griffith University Law School, says there are steps the Australian Government can take. She recommends the ‘grave risk’ provisions in the Australian Family Law Act be expanded to incorporate family violence perpetrated against a mother. This would give abused mothers a better chance of defending a Hague Convention return application. In the US, progress has been made in this regard. There was a substantial change to US law allowing courts to consider family violence as a defence under the Convention.

It is hoped that Australia’s current phase of family law reform will confront this continuing issue.

Do you need help with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law. You might like to read our previous blog on other issues around the Hague Convention, or the Attorney-General’s factsheet on the Hague Convention.

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