Hague Convention on the Civil Aspects of International Child Abduction Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

The Hague Convention on the Civil Aspects of International Child Abduction was completed in 1980 in the Netherlands. Countries that agree to the Hague Convention are expected to help quickly return abducted children to their country of habitual residence, where other issues, such as custody, can be resolved by local jurisdictions.

Under the Hague Convention, the “left behind” parent files a petition for the return of the child. This parent must prove that the removal was wrongful by showing there was a breach of custody rights and that those rights were being exercised at the time of the removal. Courts first decide where the child’s habitual residence is located, for this determination settles which country’s court has jurisdiction over custody and other issues related to the child. If the court decides that the habitual residence of the child is in the other country, the parent who has taken the child— called the removing parent, taker, or abducting parent— can use one of the six defenses in order to stop the return of his or her child to the country of habitual residence. These include the following: (a) the left behind parent consented or acquiesced to the removal of the child by, for example, sending belongings or even forcibly excluding the child and his or her mother from the habitual residence; (b) the child has reached an age of maturity at which his or her own wishes to stay with the taking parent can be considered; (c) at least 1 year has passed from the date of removal and the child is well settled into a new residence; (d) the left behind parent was not exercising his or her custody rights; (e) returning the child would create a grave risk of physical or psychological harm to the child; or (f) the return of the child would violate his or her human rights, for example, where there are inadequate protections in place in the other country to safeguard the child from an abusive parent. If the court decides that one or more of these situations exist then the order for return of the child most often will not be granted and any further court proceedings will take place in the same country where the petition was heard, that is, in the country to where the child was taken.

When the Hague Convention was completed, it mainly focused on helping the left behind parent because at that time research showed that the typical abductor was the male noncustodial parent who had taken the child to a country where the mother did not have any access to the child. However, recent surveys have shown that 68% of taking parents are now mothers and that many are victims of adult domestic violence fleeing for their safety. Furthermore, other studies have shown that female parents are more likely to abduct when they were the victims of abuse, while male parents are more likely to abduct when they are the abuser. As the Hague Convention now stands, battered mothers may be drawn into Hague proceedings as a respondent to a petition accusing them of child abduction when they were attempting to protect their children and themselves from gravely dangerous adult partners.

Although a few courts have refused to order the return of children when the mother was fleeing her abuser, many courts fail to find or classify this situation as a defense to wrongful removal and the child is ordered to be returned to the country of the left behind parent. Even though the orders do not mandate that mothers return with their children, when the return is ordered, often the mother will follow her children back to the country of the abuser. This may place the battered mother and children back into physical danger. The Hague Convention may be ill equipped to deal with domestic violence today because there is no defense for women fleeing domestic violence with their children. Some judges have recognized children’s exposure to violence as a grave risk and refused to return children. One formal solution would be to change Hague Convention–implementing legislation in each nation, such as International Child Abduction Remedies in the United States, so that it recognizes what the social science literature has found, that child exposure to adult domestic violence may pose a grave risk to a child’s physical and mental health.

Bibliography:

Shetty, S., & Edleson, J. L. (2005). Adult domestic violence in cases of international parental child abduction. Violence Against Women, 11, 115–138.
The Hague Domestic Violence Project: https://gspp.berkeley.edu/global/the-hague-domestic-violence-project

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