posted on September 21, 2012 15:11
The Hague Convention is widely seen as serving a noble goal – the return of “abducted” children to their loving parents left behind. What is less well known is that, in a disturbing number of Hague cases, children are being removed from a loving and protective parent and returned to the abusive parent from whom they fled. Empirical research shows that 69% of “abducting” parents are mothers, 88% of these are primary or joint custodians, and, according to many Hague countries, many, if not the majority, of these parents assert they are fleeing abuse of themselves and/or their children. Yet – cutting edge research demonstrates that even when courts know the left-behind parent has been violent to the fleeing parent, they still typically order the children returned. Too often, this results in children being awarded to their abusive parents. In the worst cases, some mothers who returned with their children were murdered by the father who won the Hague case.
The Convention itself sought to make children’s best interests the priority – and therefore stated that mandatory return should not be required in some cases – including those where the left-behind parent is not a custodial parent, and in cases where there is “grave risk” to the child. However, the Convention’s careful attempt to ensure that children not be removed from their primary caregiver or returned to dangerous situations is often ignored, both by courts and by the Department of State. For instance, in one case in which DV LEAP was involved, the trial court found that the child faced grave risk of harm, including potential death, from return to his father’s country, the appellate court ruled that the child must be returned nonetheless, and new “conditions” fashioned to protect the child. Even if there were any conditions that could assure the child’s safety, such conditions typically depend on the left-behind parent’s compliance, and are notoriously useless, ignored, and unenforceable.
“Anti-abduction” advocates argue that custody issues are not decided in a Hague case: all the Convention determines is which country decides those issues – the child’s “habitual residence” or the country where the children are found (often the home country of the mother). However, sending the children of fleeing victims back to the country of their abuse is a recipe for disaster: Many mothers, such as Jacquelyn Abbott in the Supreme Court case Abbott v. Abbott, report that they fled because they and their children could not be safe where they were. Sadly, many courts – both here and elsewhere – are reluctant to restrict fathers’ access to their children even when the mothers or children report abuse.
Unfortunately, until very recently, the abuse concern has been largely ignored by the State Department, which has acted solely as a zealous advocate against “abductions.” Some personnel have even denied publicly that many mothers who take their children and leave a country are actually fleeing abuse. For instance, a State Department representative told a Japanese audience that he was unaware of a “single case” of a Japanese mother returning to Japan to flee abuse from an American father. (Specialists in this area know of multiple such cases.)
The good news is that the Department has now, for the first time, acknowledged the seriousness of domestic violence in Hague cases, recommended that it should be addressed in the Hague judicial manual, and in judicial training. This is a welcome first step; but only a first step. All nations, especially the United States, must take seriously the “grave risk” defense to return, which has been incomprehensibly ignored in Lura Calder’s case. The Convention puts children first: So should all courts, and Hilary Clinton’s Department of State.