The federal government is considering changing the law to ensure victims of domestic violence are not forced to send their children back to abusive partners under the requirements of an international treaty.
The Hague Convention on the Civil Aspects of International Child Abduction was drafted more than 40 years ago, to ensure one parent could not remove a child from a country without the consent of the other parent.
However, many women argue that it forces them, and their children, to return to dangerous situations.
Article 13 of the Hague abduction convention states the return of a child can be rejected if the court decides there is a “grave risk of harm” or that the child’s return would place him or her in an “intolerable situation”.
However, Gina Masterton — a lawyer based in Brisbane who wrote her PhD thesis on the Hague convention — said that this is rarely applied in Hague cases involving domestic violence, because judges treat the convention as a jurisdictional law, even if significant evidence of domestic violence has been produced.
“Domestic violence to the mother is not considered by the courts to be abuse [of] the child.
When a court rules the child must be returned to the country they had fled, the mother is often faced with an unbearable predicament.
“The court can never order a mother to return and that’s what the judges like to say … they say: ‘You don’t have to go back, we’re ordering that the child is returned’,” Dr Masterton explained.
However, according to Dr Masterton, in most cases, mothers do return with their children because they don’t want to be separated from them, especially if they’re young.
“Out of the 10 women I interviewed for my PhD, only one woman didn’t return and she said that was because she knew she’d get killed if she did go back,” she said.
In one tragic case in 2008, English woman Cassandra Hasanovic — who had fled to Australia with her two sons — returned to the UK under the Hague abduction convention. She was then stabbed to death by her husband.
More than 90 countries are signatories to the Hague abduction convention and, with so many jurisdictions to consult, it’s a complex and lengthy task to amend.
However, Dr Masterton and campaigners are seeking several changes to Australia’s Hague Regulations in the Family Law Act, including adding a specific domestic violence defence, and restricting fathers with extensive criminal histories from filing return applications.
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