The Hague Convention is frequently criticised for failing to adequately protect children in cases involving abuse — but is that really the case? In this article, Chartered Legal Executive Rebecca De Stefano explores concerns that the convention prioritises the swift return of children to their habitual residence at the expense of their safety and wellbeing. She examines whether the current legal framework properly accounts for domestic abuse, modern forms of coercive control, and the complexities of international family disputes — and considers whether the convention strikes the right balance between preventing abduction and protecting vulnerable children.
Article 13(b) of the Hague Convention 1980 provides an exception to the general rule that abducted children must be returned to their country of habitual residence.
Specifically, it states that a court may refuse to order the return of a child if there is a grave risk that doing so would expose them to physical and psychological harm, or otherwise place them in an intolerable situation.
While Article 13(b) aims to safeguard children's welfare, there are several criticisms and flaws in its current application that warrant consideration:
1.High Burden of Proof
One of the major challenges with Article 13(b) is the high burden of proof placed on the party seeking to prevent the child's return. Courts often set a very high threshold for proving "grave risk", requiring substantial and compelling evidence. This can make it difficult for protective parents – especially survivors of domestic abuse – to prevent the return of their child to an unsafe environment. This stringent standard can leave children vulnerable in situations where evidence of harm may not always be immediately apparent.
2.Inconsistent Application Across Countries
There is a significant variation in how different jurisdictions interpret "grave risk". This may lead to inconsistent outcomes. Some courts apply a strict interpretation, requiring near certain danger, while others take a broader approach, considering emotional harm and the well-being of the child. This inconsistency can lead to unpredictable and 'unfair' outcomes, undermining the Convention's effectiveness in safeguarding children across international borders.
3.Failure to Adequately Protect Domestic Abuse Survivors
In cases where a parent is fleeing domestic abuse, courts often require direct evidence that the child, not just the fleeing parent, is at risk. This ignores research showing that exposure to domestic violence harms children, even if they are not the direct victims. The failure to consider this broader impact on the child can result in inadequate protection for children fleeing abusive situations.
4.Pro-return Bias
While the primary aim of The Hague Convention is to return the children to their habitual residence, this focus on the child's return often overlooks what is truly in their best interests. In some cases, even when there is clear evidence of risk, courts sometimes still order a return, assuming that the country's legal system can handle protection issues. Unfortunately, this assumption is not always accurate, and the child may be placed in dangerous or harmful situations as a result.
5.Lack of Consideration for the Child's Wishes
Although the Hague Convention permits courts to consider a child's objections to return (usually under Article 13), in practice, younger children's voices are often ignored. Even when a child expresses their fear or reluctance to return, their wished may not be given sufficient weight. This failure to listen to children, particularly when they are old enough to understand the situation, can undermine their sense of security and well-being.
6. Delays in Court Proceedings Can Undermine Protection
Delays in child abduction proceedings under the Hague Convention can last months or even years, leaving children in prolonged distress or instability. In some cases, children are returned before a full safety assessment is made, undermining the Convention's protective intent.
Recent case law highlights these issues. In A v B, the court wrestled with harm allegations and children's objections, revealing the difficulty of applying the "grave risk" defence. Similarly, in IG, questions around habitual residence and the scope of Article 13(b) were central.
These cases reflect the need for clearer, more consistent guidelines. Charities like Hague Mothers and FiLiA continue to advocate for a more nuanced approach, particularly in cases involving domestic abuse and its effects on children.
Conclusion
While Article 13(b) play an essential role in protecting children from harm, its strict interpretation, inconsistent application, and failure to fully protect victims of domestic violence highlight significant flaws in the system. It is frequently argued that the children's welfare and safety should be truly prioritised to ensure that The Hague Convention better serves the bets interest of children in abduction cases.
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.
