International Child Abduction and Domestic Violence

Causes of International Child Abductions


I read this this morning in my google alerts:

"

MOTHERS are responsible for seven out of 10 international parental child abductions, an Australian study has found. And the most common reason for the abduction is flight from an abusive relationship.

"

My first reaction was "hello, mens rights at it again" but the article comes from Australia and the study is that of the International Social Science Australia entitled "Learning From The Links Between Domestic Violence And International Parental Child Abduction".

Now I haven't read the paper so I cannot comment on the conclusions but I do believe it will be a fair assumption to say that 70% of the respondents CLAIM domestic violence exists rather than it ACTUALLY being shown to exist - a much smaller proportion will have justifiable domestic violence as an element of the motivation to abduct than in fact.

The issue of domestic violence and international child abductions is difficult to navigate - one jurisdiction/party's justifiable flight from harm is anothers international child abduction.

The Hague Convention deals with issues such as domestic violence through Article 13(b) which allows a presiding judge to exercise discretion (note discretion not requires) to refuse to allow a return of a child that has been wrongfully removed from a country of habitual residence in those circumstances where there is a grave risk of physical and psychological harm to the child which is "intolerable".

By intolerable, consider this analogy that I was given by David Thelen of The Committee for Missing Children - you hold your outstretched palm above a candle, as you slowly bring your hand down you feel the heat of the flame but that is tolerable, as you bring your hand closer it starts to be painful until your hand is so close to the flame that you are actually burning - that is intolerable.

In this instance, The Hague Convention actually should result in the return of children whose mothers claim to be victims of domestic violence as this would for the most part not satisify the extremely high mark of "intolerable". I read a case last year where a mother fleeing from Venezuela after a hit man had been hired to kill her satisfied the test and though she had internationally abducted the children involved they were not returned due to the danger.

In Sheila Kay Fuith-v-Karl Ernest Hindle re ERH (a minor) I argued that Emily Rose should not be sent to Florida on the basis that the adoption attempt/sale of Emily, placing Emily into the care of a convicted child sex offender and medical neglect for her eye condition represented a an intolerable situation for the purposes of Art 13(b) of The Hague Convention. It was rejected as not satisfying the test.

Domestic violence features in the vast majority of international child abduction cases almost as a matter of course, what needs to impressed is that domestic violence only of the highest viciousness is regarded as a justification for international child abduction and by that it means the threat must be against the children and not the mother.

Clearly there is some way to go with the Hague Convention, but the debate that is raging particularly in America, on article 13(b) and interests of the child creeping into the otherwise summary proceedings to return a child, are likely to taint Hague Convention proceedings with procrastination and dogmatic complications on top of those implicit with the international dimension.

Generally, the vast majority of domestic violence allegations, founded or not, are not a proper justification for international child abduction - international child abduction is child abuse not child protection.

Tech Tags: international+child+abduction Australia American UK Venezuela domestic+violence Hague+Convention article +13(b) intolerable David+Thelen Emily+Rose Karl +Hindle Sheila+Kay+Fuith