The Hague Convention on the Civil Aspects of International Child Abduction is meant to protect children from abduction that may result in violence and danger too, but since it does not recognise the difference between abduction and mothers escaping with children from domestic abuse, it leaves a gaping hole for injustice to be committed.
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Parental child abductions often stem from conflicts over divorce and child custody. Such conflicts take on an international dimension in cases of bi-national marriage. It was to remedy such abductions that the Hague Convention on the Civil Aspects of International Child Abduction was drafted.
When drafted, the convention was laden with an assumption that when a father found himself losing a custody battle, he would try to take the child away.
However, current figures reveal that in 73 percent of the cases, it is the mother who takes the child away. Pertinently, 91 percent of these mothers are victims of domestic violence.
At present, the convention does not offer any substantive protection to mothers fleeing from domestic violence with their children.
The convention, which was drafted with the primary goal of ensuring best interests of the child, has failed itself in cases involving domestic violence.
The convention was passed and unanimously adopted in 1980 by the Hague Conference on Private International Law. The number of signatories to the convention has climbed to 103 over time.
India is not among them. India's position on the convention was made apparent in a 2018 report by the Justice Rajesh Bindal committee, which recommended that India not sign the convention for various reasons, including impact of domestic violence on children.
The convention provides for a civil legal remedy for child abduction by aiming to return an internationally abducted child from one contracting State to another as expeditiously as possible for the custody adjudication in their country of "habitual residence".
Habitual residence is understood to be the place where the child last lived with both the parents.
Defending the decision of non-ratification, an official of Women and Child Development ministry stated that "signing [convention] would be to the disadvantage of Indian women in that there were far more cases of Indian women escaping bad marriages abroad and returning 'to the safety of their homes' in India than non-Indian women who are married to Indian men leaving India with their children, and that the majority of such cases involved women fleeing, not men."
Each contracting State to the convention is required to appoint a "central authority" to receive requests from other contracting States for assistance in identifying an abducted child and enabling the child's prompt return.
The convention is applicable only for prompt return of children below the age of 16 years.
The remedy offered by the Hague convention is subject to limited exceptions, the most commonly argued of which is the "grave risk" exception in Article 13(b).
According to this exception, the return of a child may be refused where "there is grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position".
It would seem obvious that risk arising from domestic violence, of which children may be direct or indirect victims, should be included in this exception.
However, the term "grave risk" is not defined in the convention, and while it has been interpreted in a variety of ways, the usual interpretation has been narrow: to provide for the protection of the child from only substantial irreparable harm such as that caused by "war, famine or disease".
Domestic violence is not per se termed to be a grave risk. It is left to judicial discretion to decide on the 'severity' of domestic violence to categorise it as grave or not.
Article 18 of the convention states that "the provisions of this chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."
As a result, courts may exercise discretion and order a return even when a defence is established, if such an order would further the convention's overarching aim of the prompt return of the abducted child. Only 12 percent of cases where Article 13(b) is invoked as an exception are successful.
In most circumstances, where there is evidence that a child's return will place them in danger, courts, rather than refusing the return the child, have imposed non-enforceable 'undertakings' that place conditions on the return of the child in an effort to assure their safety.
These efforts to 'minimise' the risk based on by and large false promises by abusers are of no avail. Rather, the exception in 13(b) has increasingly become a significant legal advantage for perpetrators of domestic violence.
Owing to these failings of the convention, protective mothers who take children overseas to prevent violence or abuse and to ensure the safety of their children are increasingly becoming the subject of a petition under the Hague convention.
'Protective mothers' is a term used in the literature on child abuse to refer to women who take proactive steps to protect their children from abuse and violence. For these women, their primary motive for abduction is to protect themselves and their children from domestic violence and child abuse.
It is, therefore, critical to recognise that a woman who abducts a child in order to flee domestic violence is acting in the best interests of the child. Just as abduction may be in a child's best interests if it saves them from harm, the prompt return may be detrimental if it exposes the child to the dangers of domestic violence.
The preamble to the Hague convention asserts that the interests of children are of "paramount importance" in matters relating to their custody.
However, in its current form, the convention does not serve the best interests of children in cases of domestic violence. The wording of the undefined exception of "grave risk" in the convention gives ample room for subjective interpretation by the judiciary in every case.
It is high time that under the exception of "grave risk", domestic violence should be explicitly included in the wording of the law leaving no room for judicial discretion. The Hague convention as it exists has become a haven for abusers.
The convention places emphasis on fathers' rights but none on their responsibilities. Mothers, particularly 'protective mothers', are left without financial support or maintenance for the basic requirements of their children, such as school fees.
The convention has evolved into a tool for abusers engaged in a pattern of harassment. The convention is being abused to reunite women and children escaping violence with their abusers, criminalising mothers and frequently resulting in child custody loss.
Reforming the convention is thus a traversing public policy concern that should be addressed without delay by the Eighth Special Commission gathering in October 2023 to consider the multilateral treaty.
A campaign in this regard has been launched in India by Leela Lebowski, a Hague mother herself through an organisation called Far from Home. A petition on the issue has been flagged by them. It already has more than 33,000 signatories.
Leela's journey serves as a stark testament to how the Hague Convention can unwittingly transform into a tool wielded against survivors. Her story encapsulates the depths of her struggle against extreme domestic violence, where her child also suffered profound abuse.
Fearing for their lives, Leela's decision to seek refuge in India was met with her politician husband's relentless exploitation of the Hague Convention's provisions. Through an arduous legal battle that culminated in a victorious stand before the Supreme Court, Leela ultimately reclaimed her child from the clutches of abuse and manipulation.
However, her story illustrates the chilling reality that even in non-signatory countries like India, the systemic biases within the judicial framework, where, in her own words, "judiciary is extremely compromised and are not very kind to women who face domestic violence," can exacerbate the plight of women facing domestic violence.
She fittingly questions "Who is the convention working for? Not the children it claims to protect."
Furthermore, in an podcast episode focused on ameliorative measures employed in domestic violence cases, Leela emphasises that a court's determination of a significant risk to children should not be attempted to be repaired by any false assurances.
There should be no hunt for 'protective measures' with which the court sends the child back with the hope that things will work out.
It is past time for domestic violence cases to be carved out as an explicit exception to prompt return of children to their "habitual residence", which is generally taken to be the place of father's residence.
It is time to acknowledge, as Leela Lebowski has asserted, that abductions in domestic violence cases are not 'parental abductions' but rather 'flights to safety'.