The Hague Child Abduction Convention and Domestic Violence

Nicolas Sauvage, Legal OfficerHague Conference on Private International Law

HAGUE CONFERENCE

116 Years of history

1893

1955

2009

First Hague ConferenceInitiative T.M.C. Asser

37 Convention since 1950’s

69 Members (States & EC)

Statute Establishment of the

Permanent Bureau

INTERNATIONAL FAMILY LAW CONVENTIONS

1980 Hague Child Abduction Convention

1993 Hague Intercountry Adoption Convention

1996 Hague Child Protection Convention

2000 Hague Protection of Adults Convention

2007 Hague Recovery of Maintenance Convention

Based on Co-operation of

Contracting States through Central Authority-System

Background

The Hague Child Abduction Convention: protection of children against abduction

Focus

The Convention and international abduction by one parent to escape from domestic violence

The Child Hague Abduction Convention and Domestic Violence

Why a Convention on the Civil Aspects of

International Child Abduction?

I. The Child Abduction Convention: protection of children against abduction

I. The Child Abduction Convention: protection of children against abduction

Austria (party to the Convention)

Russia (not party to the

Convention)

Situation without the Convention(example)

Shared custody

Manages to obtain

exclusive custody

As a result,

One parent has the right to live with the child in Austria,

while the other parent has also the right to live with

the child in Russiathen starts the spiral of

abduction

I. The Child Abduction Convention: protection of children against abduction

State B (party to the Convention)

State A (party to the Convention)

Keystone of the Convention

Custody rights

Habitual residence

Only one State shall decide upon custody rights:

The State of the habitual residence of the child

I. The Child Abduction Convention: protection of children against abduction

Austria (party to the Convention)

The USA (party to the Convention)

Situation under the Convention(example)

shared custody

1) Interdiction for US courts to decide upon custody rights

2) US courts shall order the return of the child to Austria

However, the Convention provides for exceptions to the return of the child

Habitual residence

81 States Parties to the Child Abduction Convention

I. The Child Abduction Convention: protection of children against abduction

I. The Child Abduction Convention: protection of children against abduction

The taking person in Convention cases

(2003):– 68 % = the mother of the child or the children– 68 % = primary or joint primary carer of the

child– 45 % = not citizen of the State to which the

child is removed

Return of the child refused

by the courts

in 13% of applications

for return under the

Convention (2003)

I. The Child Abduction Convention: protection of children against abduction

Application of the Convention in the event of international abduction to escape from

domestic violence

II. International Child abduction to flee domestic violence

Austria (party to the Convention)

The USA(party to the Convention)

Obtaining evidence

Domestic violence is

alleged by the mother Habitual residence

shared custody

1 ) to establish the existence of domestic violence

2 ) to determine whether there is a safe place of return

-Family context-Social context-Rights of the parents-Police / Criminal background-Social services…

-Family context-Social context-Rights of the parents / -Police / Criminal background-Social services…

II. International Child abduction to flee domestic violence

• The keystone of the ConventionOnly one State shall decide upon custody rights

=The State of the habitual residence of the child

• Under very specific conditions in the Convention, a return can be refused by the courts of the State to which the child has been removed.

II. International Child abduction to flee domestic violence

However, if the courts of a State refuse the return of children in too many cases

may undermine the deal made by the States parties in ratifying the Convention

may undermine the whole system of co-operation against abduction

II. International Child abduction to flee domestic violence

Difficult question:

How to protect the safety of the child as well as the mother

…without undermining the Hague Convention mechanism and the international co-operation in place to protect children against wrongful removal?

Answer: Very different approaches have been taken depending on jurisdictions concerned

One exception is particularly relevant in domestic violence cases (Article 13 b)) :

Return can be refused if the taking person establishes that

there is a “grave risk” that the return of the child would expose him/her to “physical or psychological harm or otherwise place the child in an intolerable situation”.

II. International Child abduction to flee domestic violence

Protection of child and mother and safeguarding the mechanism of the Convention

Should the judges admit more flexibility to refuse the return of the child?

An increasing number of judges develop specific mechanisms of co-operation in order to ensure a “Safe return”:

II. International Child abduction to flee domestic violence

Protection of child and mother and safeguarding the mechanism of the Convention

Should the judges and Central Authorities look for safe return of the child and the mother?

Entail a very high level of co-operation between States and their administrative and judicial bodies

Protective and provisional orders

(undertaking, mirror orders, safe harbour orders…)

• No need for radical amendment of the Convention • Little support at this point for changes in Article 13 or the

basic return procedures

II. International Child abduction to flee domestic violence

Protection of child and mother and safeguarding the mechanism of the Convention

Should the governments improve the Convention, and if so how?

The way has been opened for consideration of aProtocol to the Convention to support :

– the making (and require the recognition) of protective orders to facilitate safe return

– the use of direct judicial communications between judges in Convention cases

Thank you for your attention,

Hague Conference on Private International Law | Conférence de La Haye de droit international privé

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Nicolas Sauvage, Legal Officer

Permanent Bureau of the Hague Conference in Private

International Law