Today, three-quarters of Hague Convention cases are brought against mothers who are fleeing domestic abuse with their children. A convention designed to protect children now does the very opposite.
In her address to the United Nations Human Rights Council in June, Reem Alsalem, the special rapporteur on violence against women and girls, stated, “In the current application of the Hague Convention, a child can, and is, returned in many cases to their abusers… this, as any other form of violence against women and girls, cuts across institutions and rights and conventions.”
Late last year the Australian government made a weak attempt at rectifying these problems by making an amendment to its Family Law Act, stating “allegations of family and domestic violence can be considered before return orders are made for children under the Hague Convention.”
Yet the use of the word “can” rather than “must” effectively rendered the amendment useless. Most judges see the Hague Convention as a jurisdictional law, rather than one pertaining to child safety. The word “can” is simply not strong enough to change this line of thinking. Family courts themselves – worldwide – have also become incredibly suspicious of mothers who raise accusations of domestic abuse, something also recently highlighted by Alsalem.
Last week a multi-party Senate committee made further recommendations to amend the Family Law Act so that in any Hague Convention case there should be more consideration of the child’s perspective, including if a child objects to a return order. If applied this would be an important addition to the law, but, again, may come up against a legal wall of courts that simply don’t consider child welfare to be what the Hague Convention is about, or are suspicious of any evidence of domestic abuse brought to their attention.
If the Australian government persists with protecting the Hague Convention – with only minor attempts to curb its faults – then its current rhetoric on seriously addressing domestic abuse will ring hollow.
[Ed: There is an urgent need to introduce to the Hague Convention and to our family law generally a presumption in favour of mothers retaining care of young children of whom they have had primary care unless there is strong evidence to putting in question their capacity to care for them. In the absence of this, women and children will continue to be victimised through the court system by men set on vengeance.]
Source: Australian Lawmakers Tinker Around Hague Convention Flaws – The Diplomat
This requires attention not only on the domestic (Australia as a nation state) level, but on an international level. Of course it carries risk – as in all efforts to ensure that an international law acknowledges women as credible (that is, as persons with equal entitlements and value as men – bearing in mind that the status quo is patriarchal in all nation states and generally) and taking patriarchal power imbalance into account in deliberations). Until the Hague Convention itself recognises the realities of child sexual abuse and the credibility of contentions brought into the family law arena, changes at domestic level can and will always be undermined. Changing the Hague Convention itself won’t stop patriarchal interpretation by courts, but it must surely make a difference and with the change at international level those concerned about the abuse of the Convention will have a better chance.