Each year, over 2,000 parents invoke the Hague Convention on the Civil Aspects of International Child Abduction (HCCA) to force the return of their children to their habitual residence. This international treaty was designed to prevent noncustodial parents (at that time, predominantly fathers) from kidnapping their children and taking them to a foreign country. However, increasingly, it is mothers and primary caregivers who are fleeing with their children, many in response to domestic violence. Currently, there is no provision for domestic violence under the terms of the HCCA, forcing mothers to make the heartbreaking decision of whether to return to their abuser or to relinquish custody of their children to a violent partner.
You fell in love abroad, relocated to your partner’s country, and had children together. Then your partner turns violent and controlling. Your partner’s family turn their backs and the country you live in provides no help. What would you do? Most people would say “Take the children and run!”
However, what many parents in this situation do not realize is that the moment they transport the children over international borders, they become a fugitive, pursued by law enforcement and the legal apparatus of both their home country and the country they have fled.
What permits this injustice? It is a little-known international treaty called The Hague Convention on the Civil Aspects of International Child Abduction (HCCA). Passed in 1980, and ratified by the US in 1988, the HCCA aimed to prevent “a parent removing children from their daily and habitual environment and, especially, from the person who had the custody rights… At the time of drafting the HCCA, the abducting parent used to be the father (non-custodial parent).” However, according to a 2021 study (1) conducted by the Hague on the use of the Convention, a growing percentage (75% in 2021) of the parents charged with the abduction of their children are women and the vast majority (94%) are the “primary carer” or “joint primary carer” of the child.
The HCCA lacks a provision for addressing cases of abuse. There is a “grave risk of harm exception” but that only applies to the child, not the mother. The Convention is also supposed to take into consideration the wishes of the child, but since the majority of the children are 5-7 years of age, (in the words of the 2021 study) this is “not without significance with regard to listening to children in child abduction proceedings and having regard to children’s objections to returning.” Under the HCCA, the moment a mother takes the child from their country of habitual residence, she is regarded as an “abductor” and the children can be forcibly returned to the abusive parent, even if the abuse is well documented or the abusive parent has a criminal record. It is, says researcher Gina Masterton a “good law gone bad.”
Masterton conducted her PhD on the subject of Hague Mothers after her own sister was forced by the Convention to return her one year old son to her abusive husband. In 39% of Hague cases, the children are returned to the petitioning parent. Mothers usually follow, says Masterton, because they cannot bear to be separated from their children. In fact, 9 out of the 10 mothers she interviewed for her doctorate returned to the abusive partner. When the women go back, not only do they face escalated abuse but also the prospect of being charged with kidnapping and thrown into prison. Mothers may have to fight for visitation rights because often the father has been granted custody by the domestic courts in her absence. Without a work visa and unable to return to the marital home, these women may end up homeless and destitute.
An international team of academics, lawyers and Hague Mothers have come together in a campaign to advocate for changes to the HCCA. They have launched a research project to collect the stories of mothers fleeing domestic violence in HCCA cases in an effort to document the problem. The research findings are not yet public, but some of the stories gathered by this project and from previous media coverage illustrate the dire circumstances faced by domestic violence victims caught up in HCCA cases.
Anita, a British citizen, has not seen her children since 2015 after they were returned to her abusive ex-husband in the US. She says “I went from being a single mother to childless in under 72 hours following a Hague Convention case… With no job, support, family, healthcare, credit score, job history, accommodation, vehicle and, worst of all, no kids living with me, I was forced to leave the USA.”
Sarah Marie, a US mother, says, “The last time I saw my children was the night the Mounties put a loaded gun to my head in a Canadian Airbnb, and I found myself charged with two felony counts (facing up to 10 years in prison) for “abducting” my own children for fleeing domestic violence perpetrated against both myself and my two young sons. It’s now been three years since I’ve seen or been allowed any type of contact with my boys.”
One mother interviewed for the Hague Mothers campaign says “The trial was a farce. Her father kept a straight face as he denied ever having abused me or my daughter. His word seemed to be enough for the judge who also disregarded testimony from a child psychologist that my daughter had suffered abuse by her father… Later that same day, the US Marshals arrived at my mother’s house and took my daughter from my arms, kicking and screaming, shaking and begging for help. And her father threw her in his car and drove away.”
In December 2022, the Australian press covered the story of a First Nations mother who fought against returning her two-year-old child to an abusive husband. Like many Hague Mothers, she had no idea that the desperate act of escaping domestic violence could result in her losing custody of her child.
“… there are no warnings signs at international airports letting mothers know that behind government walls they have signed away our rights to return home, even if domestic violence, pandemics, and/or medical complications force you to give birth overseas.”
Sometimes, the Hague’s order for a mother to return turns into a death sentence. Ruth Dineen, Hague Mothers International Coordinator writes that “Australian mother Cassandra Hasanovic was on her way to a domestic violence shelter in [the UK] with her two children when she was murdered by her estranged husband. She’d been ordered back to Britain by the Hague Convention. In the weeks prior to her death she was ‘unravelling with fear,’ convinced that her husband intended to kill her.”
One Hague Mother involved in the campaign pointed out that unlike any other criminal proceeding, when a Hague Mother goes before the court she has no presumption of innocence because in the eyes of the law she has already kidnapped the child. Other mothers attested to the fact that even if a mother can afford legal fees (many cannot) most lawyers have never heard of the Hague Convention, and the mother may have to educate the lawyer herself. Consequently, the lawyer is often woefully unprepared to argue the mother’s case.
The Hague Mothers campaign has written an open letter to the Hague Court to consider changes to the Convention, including making exceptions for domestic violence and coercive control. The letter was timed to coincide with the Eighth Special Session to Review Operation of the Hague Convention on the Civil Aspects of International Child Abduction which took place on October 10, 2023. In response, the Hague Secretary General assured the group that domestic violence will be added to the agenda, but turned down their request to attend the meeting, citing “protocol.”
Hague Mothers around the world are anxiously awaiting the outcome of the Special Session. If the delegates fail to make changes to the blanket application of the Hague Convention despite the presence of documented domestic violence and coercive control, mothers and children will continue to live in danger and suffer brutal separations as the result of a well-intentioned law that has been weaponized by violent and abusive men.
Louise Godbold
References
- Lowe, K. and Stephens, V., “Global Report – Statistical study of applications made in 2021 under the 1980 Child Abduction Convention”, Hague Conference on Private International Law, 2023
- De Ruiter, A., “40 years of the Hague Convention on child abduction: legal and societal changes in the rights of a child” Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 660.559, 2020
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