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Patricia Alvarez of The Hague Papers reports on a potentially groundbreaking declaration by the Brazilian Government – one which could be a first step towards safeguarding victims of domestic violence, both mothers and children, who are caught up in Hague proceedings.
Read the article on The Hague Papers here.
The image is reproduced from their article.
An historic Forum on Domestic Violence and the Operation of Article 13(1)(b) was held in South Africa last month (18-21 June 2024). We believe and hope that this unprecedented event will mark a turning point in the implementation of the Convention. Our sincere thanks to Secretary-General Christophe Bernasconi and his colleagues at the HCCH for organising the Forum, and for enabling mothers’ voices to be heard for the first time. It was powerful and profoundly moving.
The whole event was also an inspiring example of the global sisterhood in action.
Fifteen FiLiA Hague Mothers (FHM) members, advisors and partners attended in person, the majority of them as presenters and panel members; others presented online; many contributed to our expert papers that were circulated to attendees; Hague mothers shared their stories; volunteers and staff from FHM, GlobalARRK and Revibra live-tweeted key sessions; online attendees submitted questions and amplified our social media accounts. Every one of you helped to make a difference.
In his opening address, Secretary-General Bernasconi offered the hope that the Forum was ‘just a beginning’. The Brazilian Government’s offer to host a follow-up Forum in 2025 has made that hope a reality. In the interim, and with your help, we will continue to do all we can to raise awareness of the injustices caused by the Convention in cases of domestic violence and to advocate for those affected.
When we formally launched FiLiA Hague Mothers in 2022, we set out to ‘build an international movement for justice’. That international movement came together in South Africa last month. Thank you to every single one of you who made that possible. Together we will make change happen.
A strong opening session at the Johannesburg forum with remarks from Elsabe Schoeman, Dean of the Faculty of Law, University of Pretoria; John Jeffery, Deputy Minister of Justice, South Africa; and Christophe Bernasconi, Secretary General of the Hague Conference on Private International Law (HCCH).
For me, the remarks spoke to the gravity of the issue that we are here to address. We were told it is going to be a hard four days.
The ‘landmark’ nature of this huge, interdisciplinary forum was stressed by Dr. Bernasconi. He referred to the moment as ‘truly historic’ as representatives from all perspectives (legal, academic, judicial, women who have fled intimate partner violence, DV advocates, psychological experts, left behind parents, Central Authorities, NGOs and researchers) come together for a crucial dialogue.
He reflected on the journey that led us to this forum. It was through emails from domestic violence survivors and their advocates that he became aware of problems with The Hague Convention when it comes to women fleeing intimate partner violence. Roz Osborne and Ruth Dineen were named as two of the individuals who convinced him of the need for a ‘dialogue among many voices’, in order that continuing, meaningful evolution of the Convention can occur. He said that at the time the Convention was established, gender based violence was not taken into account. He said that now, too often, we hear of women being ‘Hagued’ and that he is disturbed by this phrase. He believes that the convention needs to evolve. To be effective it must be inclusive, it must evolve. Hence this forum.
He stressed the challenge faced over the next days. The program is rich and designed to engage, but the issue is hard and complex. He urged participants to maintain a safe and respectful environment in order that the dialogue be productive, fruitful, and enforce understanding. It is his hope that at the end of the day we all have the same goal: the appropriate use of The Hague Convention.
For those of us who work with women fleeing domestic violence, the conversation got hard very quickly today.
We know that mothers who risk life and limb to extricate themselves and their children from abusive homes are not abductors, but protectors.
Those of us with long experience accompanying women in situations of intimate partner violence know that mothers are between a rock and a hard place.
In every country they face enormous barriers to leaving their batterers. It takes massive courage to leave an abusive man. It’s terrifying. Women turn to the courts in good faith, too often to find their situations treated with indifference.
Too often to find themselves abandoned and opposed by the very organizations with a mandate to protect them and their children.
Their abusers are rarely effectively sanctioned and restrained by their own domestic courts, leaving them as sitting ducks.
For such mothers, fleeing across international borders with their child or children is a desperate last resort.
It is hard to hear these acts of desperation and courage framed as acts of violence.
It’s hard to hear mothers chastised for ‘taking matters into their own hands,’ when it is precisely the lack of protection in their own jurisdictions that leads to the very difficult decision to flee the country.
It is hard to see the power dynamics of the abusive relationship, and a patriarchal society, rendered invisible. The words ‘power’ and ‘control’ were infrequently used, if at all. How is it that abusive men get to run the show? How is it that women and children are made to pay the price for men’s violence? For what other crime are victims forced to stay in contact with the perpetrator? These are questions we need to be asking.
The afternoon session, “Lived experiences of abduction cases involving DV” was profound, honest, brave and riveting. It went off like a bomb in the room, exploding any safe intellectual distance from the subject. We heard voice after voice after voice of abused mothers who have been revictimized, first by the courts, then by the Hague Convention.
Some mothers appeared by video. Some came in person. All spoke at incredible cost to themselves in order that we might be moved in our hearts to recognize the plight of the battered mother and take action to protect her and her children.
Why is it such a big ask?
Some of the words I heard today from ‘Hagued’ mothers:
“It was never about my son. It was all about power and control over me.”
“Women are encouraged to leave, but then set straight back.”
“It’s the strength of the mother that causes her to fight.“
“What is the line that needs to be crossed in order for a woman to get protection?”
“If there are children, they know they can still control us.“
“The safety of children depends on the courts believing mothers.”
“‘Grave risk of harm?’ These are active war zones.”
“Men who abuse women should not be able to dictate where the victims of their abuse live.”
“It is clear a war is being waged against mothers, and the battlefield is the Hague Convention.”
“These cases are not outliers.”
Here are some of the points that stood out for me today:
A man can win custody of a child even though he has
a) kept his pregnant partner in a shed
b) stopped to do a drug deal on the way to the hospital when his pregnant partner is in labour
c) beaten the mother of his child.
It is not necessarily traumatic for a child not to have a relationship with two parents. It is essential to have one solid attachment.
It is harmful to separate a child from his or her primary attachment.
Abuse is not linear, it is not always physical, and there is not always physical evidence to point to.
Domestic violence amounts to inhuman and degrading treatment of women. It is a human rights issue.
What about the human rights of mothers? Do mothers have a right to lives of safety? Do we have obligations to mothers in their own right? It’s not only a matter of the impact on the kids.
Training in intimate partner violence must include understanding abusive men’s tactics, which include counter-allegations, parental alienation claims, and accusing their partners of having mental health problems and being unfit mothers.
Women who are doing everything in their power to protect their children are quite unjustly being named as criminals. ‘Taking’ mothers are criminalized and stigmatized.
The options for women are to stay in the country and take the abuse, or flee and be labelled a criminal and an abductor.
Migrant women are particularly vulnerable to criminalization.
Some of the words I heard today:
“How much risk is acceptable when it comes to women and children’s lives? How much abuse is too much abuse? How much is acceptable? Where is the line?”
“The Hague Convention is the worst human rights violation I’ve ever seen. Maybe it worked 40 years ago, but it’s not working now. The Hague Convention is not fit for purpose.”
“The convention is now being used as a tool to abuse victims. Women are being hung like witches in the Salem witch trials.”
“I would like to see a revolution come out of this conference.”
The Johannesburg Forum has put the plight of ‘Hagued Mothers’ before the world.
The forum showed us that we have at hand all the evidence, expertise and goodwill required to turn this situation around.
But it seems to me we haven’t yet grasped the power structure. Until we start to recognize and confront the patriarchal power structure bearing down upon women’s lives, this injustice will continue. Because we don’t know how to read it. Failing to see it, we will be unable to stop it.
Men’s abuse of women via The Hague Convention is just another form of male violence against women, albeit a particularly cruel form.
Until we start to recognize the fundamental rights of women and begin to protect them as women, and in their central role as mothers, these injustices will continue.
“Men their rights and nothing more; women their rights and nothing less.” –Susan B. Anthony.
In a hugely significant interview for Uruguayan newspaper La Diaria, one of the originators of the treaty Judge Elisa Pérez-Vera told journalist Patrícia Álvares:
“If I had to write it today, I would think that one of the circumstances that judges can take into account when affirming that there is an exception to the return of the child to the place of habitual residence, is precisely the existence of an abuser, of a father who exercises gender violence on the mother, and normally also in a vicarious way, on the abducted child.”
Pérez-Vera also acknowledged the lack of equality of arms for mothers forced to fight for custody in a foreign country, even before court costs are taken in to account:
“Indeed, litigating in one’s own country, before one’s own court, has an extra bonus of advantage over the foreigner. I think xenophobia is latent in many of us, even if we don’t realise it, even if we believe we are not xenophobic, in the end, there is more tendency to believe the national than the foreigner. I think it works at all levels. Not only before a judge but also before the police, before any institution. Let’s think: the national plays at home. It is like football. Playing at home is always an advantage.”
We very much hope that attendees at the Pretoria Forum (June 19-21) which will consider issues of domestic abuse and the Hague Convention, will take account of this thoughtful and important interview. Mothers and children who are victims of abuse need to be safeguarded by the Convention, not further abused.
Our thanks to La Diaria for permission to republish, and to Patrícia Álvares for the original article and the English translation. Patrícia Álvares can be contacted via The Hague Papers website.
Image is shared from the original article.
“Sometimes going back [to Brazil] is the only way to ensure that they will stay alive and to protect their children. If you are in a place where you don’t have a support system, you don’t have a network, you don’t know that you can stay there … they can’t file a complaint. They are stigmatised by the system, by the government, by the courts, by the state.”
Sally Jackson in conversation with Janaina Albuquerque of Revibra Europa, a network of legal experts and psychologists who provide advice and support to Brazilian victims of domestic abuse. They have considerable experience of Hague cases, and of the additional barriers faced by migrant women in negotiating the court hearing and the aftermath. We’re delighted to be working in partnership with them – thank you for your time and expertise Janaina!
Listen to the podcast:
We’re delighted to feature this guest blog from Right to Equality whose founder and CEO, Dr Charlotte Proudman, represented the mother in a recent UK case which helps set a precedent that domestic abuse is serious and can create a situation where the child is at grave risk if returned to their abuser. Dr Proudman is also a barrister at Goldsmith Chambers and Senior Research Associate, University of Cambridge.
While originally intended to protect children from being taken abroad by fathers without custody, the Hauge Convention has, by this point, drifted away from its original purpose. The Hague Convention considers a child abducted if taken across borders by a parent without the other’s consent, regardless of domestic abuse. As of 2021, roughly 75% of taking persons were mothers. According to the European Parliament’s Committee on Legal Affairs Report, ‘There are no comprehensive statistics regarding the number of abduction cases which involve domestic violence, but researchers have recently stated that ‘it is suspected that domestic violence is a present issue in as many as 70% of the total parental child abduction cases.’ Domestic abuse may make taking parents feel that flight is the only option. Despite the high rates of domestic violence presence, the Convention will often require the child to be returned. There is a myth that returning children will not face harm, in part because of the lack of (or inability to) follow up on cases. In reality, the harms are real and active – in some cases, mothers or children are killed, and frequently those returned to alleged abusers are greeted by heart-breaking fates.
‘Hagued’ is an increasingly common term these days for mothers who are harmed by the Convention. Three types of harm have been identified for ‘Hagued’ mothers, including ‘further intimidation and abuse by an ex-partner through contact necessitated by court proceedings; punishment through a court system that positions the woman as a ‘child abductor’ and may engender adverse custody arrangements; and homelessness caused by lack of support structures, income and financial independence’ (Centre for Justice). Research collecting survivors’ experiences details how they flee, hoping for safety for themselves and their children, yet are forced to return to danger. Women and children fleeing had faced:
severe and sustained exposure to domestic violence prior… For the majority of the women, this violence included serious physical assaults against them, coupled with a degree of threatening behavior that led the women to believe that their lives and/or those of their children were in danger. They were usually isolated from family members and friends, prevented by their husbands from having independent access to financial resources and/or exposed to threats based on their immigrant status (The Judge’s Newsletter)
The 1980 Hague Convention has negatively impacted mothers who are survivors of domestic abuse and who flee with their children for safety. In 1994, the Australian Law Reform Commission recommended the risk of domestic violence be deemed an intolerable situation, but the reform was never enacted 1. Given the serious concerns about the operation of the Hague Convention for victims of domestic abuse and violence, recommendations for change have been raised by Dr Adrienne Barnett with FiLiA Hague Mothers. Right to Equality supports their efforts. FiLiA Hague Mothers call for the following changes to the Hague Convention:
These reforms also call for the Convention to include a DV-aware Protocol, a change to domestic laws that implement the Convention in its contracting states, the strengthening of the Guide to Good Practice re Article 13(1)(b), the improvement to approaches by the courts in contracting states, and the provision of legal aid to taking parents. Many mothers encounter disadvantages in custody battles: they are frequently stranded in a foreign country with little support, facing the peril of losing all contact with their children, all while combating the label of ‘kidnapper’.
The grave risk exception details that ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’.2
This can include three different types of risk:
In the 1980 Child Abduction Convention Guide to Good Practice, Part V1, Article 13(1)(b) Hague Conference on Private International Law (2020) paragraph 33, the risk of grave harm extends to include, in some cases, the taking parent wherein the harm to the parent could, in exceptional circumstances present risk to the child:
The wording of Article 13(1)(b) makes clear that the issue is whether there is a grave risk that the return would ‘expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. But harm to a parent, whether physical or psychological, could, in some exceptional circumstances, create a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Article 13(1)(b) exception does not require, for example, that the child be the direct or primary victim of physical harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child.
One potential defence available is the Article 13b grave risk defence, frequently utilised by survivors of domestic abuse. However, in England and Wales, the courts tend to apply this defence to an incredibly high standard, resulting in numerous children and their mothers being compelled to return to the jurisdiction of their abusers. As we move towards the changes so desperately needed to protect victims of abuse and mothers protecting their children, it’s important to utilise case law to make progress in establishing legal protections.
Right to Equality director Dr Charlotte Proudman recently represented a mother who was a victim of domestic abuse in a case where she had fled with her child from Italy to England. The father submitted a Hague application for return to Italy, but the mother was successful in her opposition.
Submission to UNSR VAWG.
Reem Alsalem, the UN Special Rapporteur on violence against women and girls recently completed a fact-finding visit to the UK. Our submission included the stories of two Hague mothers whose lives and freedom of movement are now entirely controlled by their abusive ex-partners, enabled by international law.
“I fear that freedom from his abuse may never come. If there are children involved, abusers know that they can still manipulate and control our lives through the legal system, finances, and the children themselves.”
Our proposals included:
Our thanks to the mothers who shared their stories with us.
A powerful documentary featuring Sammie and Lydia, co-founders of the New Zealand Hague Collective which helps other protective mothers navigate this terrifying international law.
Their experiences were traumatic; their situations desperate. And yet the Hague Convention sent them back to their abusers. Their courage in sharing their stories, and their generosity in deciding to use their experience to help others, is beyond inspirational. We are proud to know them.
https://www.haguecollective.co.nz
UN Special Rapporteur on violence against women and girls Reem Alsalem has declared violence against women a ‘national threat’ in the UK. That includes the ‘institutional violence’ of the courts. In a statement at the end of a 10-day visit to the country she goes on to say:
‘Entrenched patriarchy at almost every level of society, combined with a rise in misogyny that permeates the physical and online world, is denying thousands of women and girls across the UK the right to live in safety, free from fear and violence.’
FiLiA Hague Mothers came in to being almost two years ago, inspired by a chance meeting with a formidable Hague mum, and the realisation that the well-intentioned Hague Abduction Convention is being used to further control domestic abuse victims. That understanding led to a conversation with FiLiA’s CEO Lisa-Marie. And that conversation resulted in the subsequent launch of our campaign to end the injustices of the Convention, specifically for mothers and children who are victims of domestic abuse.
The campaign is now active, and increasingly influential, across the world. All participants contribute their knowledge, time, and passion on a voluntary basis and, other than support from FiLiA to set up and maintain our website, we remain unfunded.
Our members include Hague mothers, lawyers, academics, domestic abuse professionals, women’s rights and children’s rights experts, psychologists, media specialists, and feminist activists. We advocate for victim/survivors, raise awareness through presentations, webinars, media articles and research papers, create resources for mothers and professionals, lobby politicians, and signpost mothers to both formal and informal survivor-led support groups.
We have grown organically – and somewhat randomly! Now we need to establish a sustainable and democratic structure that will enable all participants to contribute fully, and ensure that we remain true to FiLiA’s mission: to build sisterhood and solidarity; amplify the voices of women: and defend women’s human rights. Soooo…
Especial thanks to the many Hague mothers who are working with us to end the injustices of the Hague. You continue to inspire us with your courage and determination.