Published on July 5th, 2022
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.
As the federal Attorney-General’s Department states, ‘The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country.’
Australia is one of the original 23 signatory nations to the 1980 agreement, named after the Dutch capital where it was signed. Today there are 101 nations in the Hague Convention, including Brazil, Canada, Fiji, Greece, Israel, New Zealand, South Africa, Turkey, the UK, and the US. Ten other nations, including Russia and Iraq, have acceded to the convention, but do not yet have it in force.
The agreement’s original intention was to provide mothers with an avenue to retrieve a child 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 had been taken without permission and should be returned.
However, the Hague Convention has now developed into a legal weapon that is being used against mothers trying to escape domestic violence or coercive control in another country and flee to their homeland with their children.
The Hague Convention is incorporated into Australian family law, under ss65Y 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.
In October 2020, an ABC News story highlighted how the Convention, designed ‘as a means to combat a prevalence of men who were kidnapping children after a marriage breakdown and taking them back to their home countries, 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 in a straightforward marriage breakdown, but when domestic violence is involved, it’s a different story.’
Statistics show that more than 73 percent of parental child abduction cases around the world involve women trying to get back to their own country.
According to the Annual Report of 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 finalized. This compares to 145 applications received and 113 finalized in the previous year. Globalarrk, a charity working with around 200 families a year in this situation, reports that 91 percent 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 traveling and face the prospect of giving up custody of their children if they try to leave the country. In effect, as Masterson states, the ‘abusers use children to continue controlling their former partners.’
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 appropriate authority to notify the Family Court of returning cases’ and ‘to give greater prominence to considerations of family violence.
As it stands, the Hague Convention provides an insufficient opportunity to consider domestic violence or coercive control when considering the return of a child.
This needs to change.