In December 2024, we were delighted to host a webinar to reflect on the Forum on Domestic Violence and the Operation of Article 13(1)(b) of the 1980 Child Abduction Convention which was held in Sandton, South Africa between 18 to 21 June 2024.
The 1980 Hague Convention, which currently has 103 Contracting States, is generally acknowledged as being a very successful instrument, and undoubtedly it has improved the situation for abducted children since its introduction. However, there are recognised difficulties in its operation, including the way it works in relation to domestic abuse, and the enforcement of protective measures and orders. It is important to note that gender-based violence was not taken into account when the Convention, including the 13(1)(b) exception, was drafted.
The idea to arrange the Forum came about following the recommendation of the Eighth Meeting of the Special Commission (SC) on the practical operation of the 1980 and 1996 Hague Conventions. Nearly 500 delegates from across the world were involved in the Special Commission, culminating in the publication of the Permanent Bureau's Conclusions and Recommendations for future work.
The forum provided an opportunity for a broad range of stakeholders to come together and engage in a constructive dialogue about how international child abduction cases work in practice where there are allegations of domestic abuse. The forum heard from participants representing all relevant perspectives including judges, lawyers, Central Authority representatives, academics, psychologists, trauma experts, left-behind or seeking parents and real-life experiences from victims of domestic abuse. If you haven't read the report on the forum then we recommend you do so in conjunction with this webinar.
In our first webinar on the topic, held a few weeks before the Forum, we discussed the approaches taken in four different countries to the protection of children who have been abducted against a background of domestic abuse. In our follow-up webinar, organised in collaboration with GlobalARRK, we invited a stellar panel of speakers – all of whom participated in the forum - to reflect on the discussions held and next steps for future work in this area:
Dr Christophe Bernasconi
Our first speaker was Dr Christophe Bernasconi, Secretary General of the Hague Conference on Private International Law (the HCCH). Dr Bernasconi explained that the forum should be viewed as the start of a conversation where all interested parties have a seat at the table and the chance to consider how Article 13(1)(b) should be implemented, including those with first-hand experience such as domestic abuse victim/survivors and left-behind parents. He also highlighted the HCCH report on the Sandton forum which is available to HCCH members via its portal. This report reflects the content of the discussions that took place in Sandton without drawing specific conclusions or recommendations. We were grateful that Dr Bernasconi considered our webinar to be part of the forum's important, ongoing conversation.
Dr Ruth Lamont
Dr Ruth Lamont, a reader in Child and Family Law at University of Manchester, then provided a very helpful overview of the key research milestones in the implementation of the 1980 Hague Convention and specifically Article 13(1)(b). She began with the vital work undertaken at the turn of century by Merle Wiener and Miranda Kaye which highlighted that domestic abuse was often the reason for abductions. She then moved onto HCCH's own work which highlighted that most abductions are carried out by women, and Nigel Lowe's statistical work as part of the HCCH's work towards the Special Commission which explored how the Convention had been implemented globally. Dr Lamont also referred to Marilyn Freeman's research which highlighted that most abductors are primary carers.
Dr Lamont highlighted that very little research has been undertaken into the efficacy of protective measures on a return – something that Dr Adrienne Barnett also spoke of later. Dr Lamont also highlighted the significant gap in research into children's experiences of abduction. Dr Lamont ended by commenting that although there is burgeoning research into the area of abduction, there is far less discussed about lawful relocation - a topic that was later raised by Joy Brereton.
Roz Osborne
Next, Roz Osborne, CEO of GlobalARRK, spoke about the post-decision session at the forum. She explained that her and her co-panellists referred to four outcomes of Hague proceedings: non-return, a return order that is unenforced, a return of the taking parent and child and a return of the child but not the taking parent. Regarding unenforced orders, Roz recalled that a left-behind father, Sean, explained that although he had received a return order, this was then later unenforced in Poland. Dr Bernasconi highlighted that sadly the HCCH has no mandate to police the implementation of the Convention in member states. He highlighted that committee meetings and bilateral discussions between states can be crucial when issues like this arise.
Roz then laid out three common myths of return orders: firstly that it is easy to resolve conflicts in the returning country. In fact, she explained the experience of parents who have spoken to GlobalARRK is that it is never a complete return to normal, and that the abused parents can sometimes experience greater violence and abuse following their return as the left behind parent/abuser might be in a more angered state following the removal and return. She explained the second myth is that protective measures are effective and protect mothers. A Hague Mothers and GlobalARRK survey found that 71.4% of mothers with protective measures in place still experienced further abuse on return. Sadly, many mothers said that undertakings were meaningless. Finally, Roz explained the myth that the state of habitual residence will carry out a best interests assessment - according to GlobalARRK data, 20% of respondents were primary care mothers who have been separated from their child. Roz ended by presenting the three key recommendations of the panel: to have better data around post decision outcomes, better funding for support services and joined up systems to ensure that every child gets a best interests decision.
Dr Adrienne Barnett
Dr Adrienne Barnett of Brunel, University of London then provided an enlightening expanded survey on protective measures and risk assessments, highlighting that some countries take what she describes as a "restrictive approach" – highlighted by the 2016 European Parliament paper "Cross Border Parental Abduction in the European Union". This is where they will only investigate the risk of physical violence when considering Article 13(1)(b). Others take a more expansive view which she described as the "progressive approach". These countries will include coercive control and refer to the broader term of "domestic abuse" as seen in the English case of Re E [2011] UKSC 27 and in Re TKJ [2024] EWHC 198 (Fam).
Dr Barnett referenced Expert Paper #5 for the Hague Mother's briefing by Shaknes & Edleson, which found that there was a high degree of recidivism by perpetrators and a study by Jessica Raffal in 2023 which found that 50% of protection orders were breached in New South Wales, Australia. She commented that at a time where domestic abuse is finally being taken more seriously in private law children cases in this jurisdiction, it is important that such allegations are treated the same way in 1980 Hague Convention cases.
Joy Brereton KC
Joy Brereton KC ended with a perspective on relocation as a prevention to abduction. It is acknowledged that the lack of an effective relocation jurisdiction in some countries results in self help and abductions. Joy highlighted the position that many women found themselves in in England and Wales in the past where they were advised not raise domestic abuse issues when applying to relocate, out of fear that it could suggest that they would not promote contact with their abusive ex-partner. Indeed, for many years, domestic abuse was seen as a contraindication to a successful relocation outcome. Joy explained that since the Harm Report, published in June 2020, applicants are now more routinely raising allegations of domestic abuse in relocation cases in England and Wales.
Joy finished by pointing to some "green shoots of hope" in the form of PD12J – a practice direction in England and Wales which guides the court's approach to domestic abuse in private law proceedings concerning children. This can be used to look at the risk of harm not only to the child but also to the parent, realising that domestic abuse directed at the parent impacts the child also and recognising the to protect victim survivors.
Dr Philippe Lorte
Finally, Dr Philippe Lorte, First Secretary of the HCCH, discussed the future work in this area. He reiterated the importance of strengthening relocation laws so that domestic abuse is addressed properly. Dr Lorte confirmed that there will be another forum in the second half of 2025 in Brazil which will come in two parts: the first looking at prevention of abduction and the second looking at practices post-abduction. Dr Lorte was clear that the second forum will not be a repeat of the first forum and that it will be practical and solutions oriented. He highlighted that a key function of the forum must be to address problems and learn good practices from one another. Dr Lorte promoted the HCCH's major drive to raise funds for its project to collate Hague decisions across different jurisdiction.
Dr Lorte also highlighted that the HCCH is organising a meeting of its global network of judges to consider how to promote the Guide to Good Practice in their relevant jurisdictions. He will also be adding an agenda item at the forum to discuss the Guide to Good Practice on its 5-year anniversary.
Finally, Dr Lorte confirmed that the HCCH will be putting together an international conference on relocation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
