As the Convention sets out, the conditions under which return may not be ordered when a child has been wrongfully removed are:1) If the other parent or carer did not have custody in the first place (or consented to the child being moved)
2) If the return would pose “grave risk” of harm to the child or put them in an “intolerable situation”
In practice, the bar for the second provision is incredibly high, usually amounting to a credible threat of suicide on the part of either mother or child.
I admired Lisa’s determination to fight the case and believed as much as she did that a return order would leave her in reasonable fear of her safety and the child’s. The Hague Convention was disadvantageous to someone in her situation, and while her experience of domestic abuse had clearly been profound, I had seen more severe cases where judges had still ordered the child to be returned. In one of my previous Hague Convention cases, I represented a mother whose daughter had made allegations of sexual abuse against her father. He, in turn, argued that the mother had coached her, and she was ordered by the judge to be returned to his custody.
The next day, we returned to hear the judgment. It was as I had feared: Lisa and her child would have to return to where they had fled from a few months earlier. As I confirmed it to them, we were standing outside the courtroom, in a foyer with barristers and their clients filing past, the noise of many conversations merging into a busy hum. In the seconds after her fate had been confirmed, Lisa put her back against the wall and slowly slid to the floor, her head between her knees. Her loud sobs and wheezing breaths rasped above the low murmur as she hyperventilated. This woman’s worst nightmare was now happening, spelled out in a court order. The law had deemed that she must be sent back into an environment where she felt she would face serious risk of harm.
This is the reality of the Hague Convention and how it has become weaponised against mothers like Lisa. A woman can demonstrate that she was abused, that her child witnessed it, and she is scared that there is nothing to protect her from that abuser if they are compelled to return. She can show that, after being returned, she will be economically reliant on that man. All that may still be disregarded simply because a legal framework that was drafted over 40 years ago encourages the court not to view the whole picture but to focus on one specific part of it.
Typically, I would never hear from or about a client like Lisa after we part ways. In Lisa’s case, this was punctured several months after the final hearing when I received a message from her mother. She painted a shocking picture of what had happened when Lisa complied with the return order. The father had not upheld either of his two most important undertakings – to drop both the criminal charges against her and his custody application. After arriving back in Australia, Lisa had been arrested and now found herself in legal hell in both family and criminal courts, as well as facing continued uncertainty over her immigration status. She now feared she would lose her child for good. Could I do anything to help? The short answer was no.