The Hague Child Abduction Convention and Domestic Violence Nicolas Sauvage, Legal Officer

1. The Hague Child Abduction Convention and Domestic Violence Nicolas Sauvage, Legal Officer Hague Conference on Private International Law

2. HAGUE CONFERENCE 116 Years of history 2009 First Hague Conference Initiative T.M.C. Asser 1955 • 37 Convention since 1950’s • 69 Members (States & EC) 1893 • Statute • Establishment of the Permanent Bureau

3. 1980 Hague Child Abduction Convention 1993 Hague Intercountry Adoption Convention 1996 Hague Child Protection Convention 2000 Hague Protection of Adults Convention 2007 Hague Recovery of Maintenance Convention INTERNATIONAL FAMILY LAW CONVENTIONS Based on Co-operation of Contracting States through Central Authority-System

4. The Child Hague Abduction Convention and Domestic Violence Background The Hague Child Abduction Convention: protection of children against abduction Focus The Convention and international abduction by one parent to escape from domestic violence

5. Why a Convention on the Civil Aspects of International Child Abduction? I. The Child Abduction Convention: protection of children against abduction

6. I. The Child Abduction Convention: protection of children against abduction Situation without the Convention(example) Russia(not party to the Convention) As a result, One parent has the right to live with the child in Austria, then starts the spiral of abduction while the other parent has also the right to live with the child in Russia  Manages to obtain exclusive custody Austria(party to the Convention)    Shared custody

7. I. The Child Abduction Convention: protection of children against abduction Keystone of the Convention State A (party to the Convention) Only one State shall decide upon custody rights: The State of the habitual residence of the child State B (party to the Convention) Habitual residence  Custody rights

8. I. The Child Abduction Convention: protection of children against abduction Situation under the Convention(example) The USA(party to the Convention) 1) Interdiction for US courts to decide upon custody rights 2) US courts shall order the return of the child to Austria However, the Convention provides for exceptions to the return of the child   Austria(party to the Convention) Habitual residence     shared custody

9. I. The Child Abduction Convention: protection of children against abduction 81 States Parties to the Child Abduction Convention

10. I. The Child Abduction Convention: protection of children against abduction The taking person in Convention cases (2003): • 68 % = the mother of the child or the children • 68 % = primary or joint primary carer of the child • 45 % = not citizen of the State to which the child is removed

11. I. The Child Abduction Convention: protection of children against abduction Return of the child refused by the courts in 13% of applications for return under the Convention (2003)

12. Application of the Convention in the event of international abduction to escape from domestic violence II. International Child abduction to flee domestic violence

13. II. International Child abduction to flee domestic violence Obtaining evidence 1 ) to establish the existence of domestic violence 2 ) to determine whether there is a safe place of return • Family context-Social context-Rights of the parents-Police / Criminal background • Social services… The USA(party to the Convention)  Domestic violence is alleged by the mother Austria(party to the Convention) Habitual residence • Family context-Social context-Rights of the parents / -Police / Criminal background • Social services…   shared custody

14. II. International Child abduction to flee domestic violence • The keystone of the Convention Only one State shall decide upon custody rights = The State of the habitual residence of the child • Under very specific conditions in the Convention, a return can be refused by the courts of the State to which the child has been removed. However, if the courts of a State refuse the return of children in too many cases may undermine the deal made by the States parties in ratifying the Convention may undermine the whole system of co-operation against abduction

15. II. International Child abduction to flee domestic violence Difficult question: How to protect the safety of the child as well as the mother …without undermining the Hague Convention mechanism and the international co-operation in place to protect children against wrongful removal? Answer: Very different approaches have been taken depending on jurisdictions concerned

16. II. International Child abduction to flee domestic violence Protection of child and mother and safeguarding the mechanism of the Convention One exception is particularly relevant in domestic violence cases (Article 13 b)) : Return can be refused if the taking person establishes that there is a “grave risk” that the return of the child would expose him/her to “physical or psychological harm or otherwise place the child in an intolerable situation”. Should the judges admit more flexibility to refuse the return of the child?

17. II. International Child abduction to flee domestic violence Protection of child and mother and safeguarding the mechanism of the Convention An increasing number of judges develop specific mechanisms of co-operation in order to ensure a “Safe return”: Should the judges and Central Authorities look for safe return of the child and the mother? Protective and provisional orders (undertaking, mirror orders, safe harbour orders…) Entail a very high level of co-operation between States and their administrative and judicial bodies

18. II. International Child abduction to flee domestic violence Protection of child and mother and safeguarding the mechanism of the Convention Should the governments improve the Convention, and if so how? • No need for radical amendment of the Convention • Little support at this point for changes in Article 13 or the basic return procedures The way has been opened for consideration of a Protocol to the Convention to support : • the making (and require the recognition) of protective orders to facilitate safe return • the use of direct judicial communications between judges in Convention cases

19. Thank you for your attention, Nicolas Sauvage, Legal OfficerPermanent Bureau of the Hague Conference in Private International Law www.hcch.net6, Scheveningseweg2517 KT The HagueThe NetherlandsT +31 70 363 3303F +31 70 360 4867E-mail secretariat@hcch.net Hague Conference on Private International Law | Conférence de La Haye de droit international privé