Ending Violence Articles

By Karen Lewis, Ending Violence Committee and AODVC Liaison

The Americans Overseas Domestic Violence Crisis Center (AODVC) provides support to American victims of domestic violence in foreign countries, helping them to be able to live their lives free of abuse either in the foreign country or back in the United States. One of the largest barriers that these survivors often face in trying to escape to safety is enforcement of a treaty meant to keep children safe.

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty, which establishes international law to protect children from the harmful effects of abduction and retention across international boundaries, by providing a procedure to bring about their prompt return. In the U.S., it is enforced according to the International Child Abduction Remedies Act (ICARA), passed in 1988. Member states are expected to help quickly return abducted children to their countries of "habitual residence," where other issues such as custody are expected to be resolved by the local justice system. As of March, 2014, over 90 countries have signed on to the Hague Convention.

Imagine a child is abducted by his own parent to another country; the "left-behind" parent, often an estranged spouse, is understandably angry, scared and grateful for enforcement of an international convention which brings the child home safe. Now, imagine that a different child and her mother are victims of domestic violence. Fearing for their lives, they flee their abuser and return to caring relatives in the mother's home country. The "left-behind" parent - this time an abusive husband - contacts local authorities and demands assistance in retrieving his family. Under the Hague Convention, little distinction is made between these two cases; a petition can be filed by the "left-behind" parent to return the child to his or her country of habitual residence, and the parent who sought to protect herself and her child from harm must return the child to her abuser.

AODVC's case managers work with women seeking to flee to safety in America with their children on a regular basis. Though the names and countries have been changed to protect the victims' identities, the stories of Jessica, Sara and Amanda (see sidebar) are all based on real clients of AODVC. When a woman calls the hotline, a case manager comprehensively assesses her situation, and if there are children involved, offers her a consultation with an international family lawyer, who can help her understand whether the Hague convention applies to her specific situation, and how an attorney might or might not be able to help her defend a Hague case.

Jessica's case illustrates the worst-case scenario, in which a young child is returned to a potentially abusive situation; more often than not, the escaping parent doesn't even have visitation rights. There are several exceptions to the Hague Convention, which have been raised by victims of domestic violence, listed below. Sara's lawyer was able to successfully defend her case to allow her to keep her youngest child in the U.S. However, many victims are deterred from attempting to escape to safety by the Hague petition and are either stuck in the abusive family situation or must create new lives for themselves and work with the legal system in the foreign country in order to remain near their children. Fortunately for Amanda, she had another option, to return to another country in which she also had citizenship, but this is not an option for most survivors.

Hague Article 3(a): Removal of the child is wrongful because the child's habitual residence is not the requesting state.

Hague Article 12: Where a child has been wrongfully removed or retained in terms of Article 3, one year has passed since the child had been removed from the petitioning state. The child has become well-settled in a new environment.

Hague Article 13(a): The state is not bound to order the return of the child if the left behind parent has acquiesced or consented to the removal of the child by the requesting party.

Hague Article 13(b): There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Hague Article 13 unnumbered: The child need not be returned if the child objects to being returned and is of an age and maturity to understand the situation."

Hague Article 20: The return of child would violate principles of human rights and fundamental freedoms.

The burden of proof rests with the abducting parent, who is required to provide "clear and convincing evidence" of abuse of the child; courts do not recognize that children's exposure to adult domestic violence poses a "grave risk" of physical and/or psychological harm to a child. Interestingly, the Japanese government has deliberated for years about signing on to the convention, and only did so with the caveat that children exposed to adult domestic violence would be considered at "grave risk" of harm in that country, which may set a precedent for other countries.

In April, 2014, international family lawyers in the US are planning to submit an appeal to amend the U.S. federal law, ICARA, to ensure that U.S. law and policy properly distinguish between parental "abduction" and "flight to safety." Hoping that this new legislation will pass and further support American victims of domestic violence wishing to return to safety from overseas, AODVC and international family lawyers continue to provide them with the education and support to make the best decisions they can in their individual circumstances.

For further information:   

http://gspp.berkeley.edu/global/the-hague-domestic-violence-projectwww.hcch.net