Victims of domestic abuse living abroad and wanting to return to the UK to seek refuge with their children could be given greater legal protection and support following analysis of the Hague Convention.
The government has announced it will investigate how domestic abuse plays a role in international child abduction cases, The Guardian reports, with an aim to support victims – particularly mothers – battling to remove their children from an abusive situation while facing accusations of abduction from their partner.
Analysis of the Hague Convention is to be carried out by the Ministry of Justice’s private international family law team and will focus on cases held in the high court in London between 2024 and 2025 under the 1980 convention.
The review of the convention could look to “disprove” assumptions that in every case child abduction is a harmful act, as well as to overturn the rule that children must be returned immediately for overseas courts to decide their futures.
Carolina Marín Pedreño, partner and head of the children department at Dawson Cornwell commented that statistically “the majority of parents who remove children unlawfully are mothers” and in many of those cases the mother has returned with the child to her country of origin following the “breakdown of the family, often after experiencing domestic abuse in the country in which she had been living”.
Pedreño explained a mother’s decision to leave can be based on financial vulnerability, isolation, and the need for support from family members, this being a reality of many modern cross-border families she states.
“Historically, evidence of abuse within the relationship may have been placed before the court in Hague proceedings, but the impact of that abuse may not have been recognised as giving rise to a grave risk to the child within the meaning of Article 13(b),” she said.
“Since the Convention was drafted, there has, however, been a significant development in our understanding of domestic abuse and its impact, both on the direct victim and on children who live with and experience that abuse. A child living in a household affected by domestic abuse may be a victim of that abuse even where it is not physically directed at the child. The effects of coercive control, intimidation, financial abuse and the wider dynamics of an abusive relationship can be profound and damaging for children.
“Our social and, in some jurisdictions, legal understanding of those effects has developed considerably over the last decade. That development must be reflected in the way risk is assessed in Hague Convention proceedings.”
Pedreño presented another side to the debate, saying: “Equally, practitioners must be alive to any perception that unlawful removal may provide an easier route into funded litigation. The fact that Hague return proceedings may attract legal aid and specialist representation can be a significant factor in the practical dynamics of these cases.
“The challenge is to strike the right balance: protecting children and survivors of domestic abuse and ensuring that allegations of abuse are properly examined, while at the same time maintaining the integrity of the Convention so that unilateral removal is not inadvertently encouraged.”
She further highlighted the importance of keeping the child at the centre of the assessment into the Hague Convention, noting that she welcomes the Supreme Court’s recent recognition of the importance of the child’s position in these cases.
Lisa Smart, a Liberal Democrat MP and long-term campaigner of the Hague Convention said the analysis was long overdue, telling The Guardian: “A parent – often but not always the mother – who escapes to this country to protect themselves and their children from violence should not find themselves faced with a legal mechanism that treats them as a wrongdoer. Yet that is precisely the situation too many find themselves in.”
The Home Office has stated there is currently no timeline for research to be carried out, The Guardian revealed, however it is there to provide “robust evidence to inform possible future government policy on the effective operation of the Convention”.
