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.

The Hague Convention on the Civil Aspects of International Child Abduction is the main agreement covering international parental child abduction. It provides a process to enable a parent 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. (See Hague Convention on the Civil Aspects of International Child Abduction, Attorney-General's Department.)

Today there are 101 nations in the Hague Convention, including Brazil, Canada, Fiji, Greece, Israel, New Zealand, South Africa, Turkey, UK and the USA. Ten other nations including Russia and Iraq have acceded to the convention, but it is not yet in force.

Hague Convention intended to protect children from abduction

The convention was designed to combat the prevalence of men kidnapping children after a marriage breakdown and taking them back to their home country, where the mother could not get access.

The agreement's original intention was to provide mothers with an avenue to retrieve children 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 was 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 section 65Y 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.

A 2020 ABC News story highlighted how the convention 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 well in a straightforward marriage, but it's a different story when domestic violence is involved. (See Mothers forced to stay in same country as abuser or risk persecution under the Hague Convention, ABC News, October 2020.)

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 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. (See Attorney-General's Department Annual Report 2019-20.)

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.

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, the abusers use the children to control their estranged 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 authority to notify the Family Court of cases returning to Australia and "to give greater prominence to considerations of family violence". (See Family Violence - A National Legal Response (ALRC Report 114).)

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.

Anneka Frayne
Family law
Stacks Law Firm

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