In October last year, a group of lawyers, academics, domestic and family violence (DFV) professionals and mothers launched the Hague Mothers Legacy Project. . . . Based in the UK, US and Australia, these women are bringing their expertise to bear on what must be one of the thorniest legal issues: how to change an 53-year-old international treaty so that it protects the rights of vulnerable mothers and children.
To understand why any court would order that a child should be taken from a mother and returned to an alleged abuser in another country, it’s necessary to look at the origins of the Hague Convention.
When it was drafted in 1980, it was thought that international child abductions most commonly occurred when men – often wealthy men – were unsuccessful in custody battles. The Convention was designed to enable children to be found quickly and returned to their mothers.
But according to Miranda Kaye, an academic in the Faculty of Law at UTS in Sydney, who is a member of Hague Mothers’ international steering group, the authors of the Convention didn’t think about what unintended consequences it might have – “that in fact, it was going to be women fleeing”.
In 1980, society had little understanding about the complexities of domestic violence and coercive control. While the numbers of Hague abduction matters heard in Australia are fairly small – around 100 cases a year – it’s estimated that DFV is a motivating factor in about 70% of abductions by custodial mothers. Yet nowhere in the Convention is there a single reference to domestic violence or coercive control.
For years, Cassandra Hasanovic had been terrified of her husband and, in 2007 after he sexually assaulted her, she fled with her children to Sydney where she had relatives. But Hajrudin Hasanovic triggered a Hague application for the children to be returned to the United Kingdom and an Australian court ordered they be sent back. Hague Mothers believe the Convention cost Cassandra Hasanovic her life.
Anna Kerr, founder and principal solicitor of the Feminist Legal Clinic in Sydney, believes women and girls need to be told early the implications of relationships with men who are citizens of other countries. “Once they’ve fathered their children, there is no escape,” Kerr says. “I think very few women realise that when they conceive a child, they are potentially giving up many human rights, including freedom of movement. Until that child is grown up, their lives may be ruled by the man who impregnated them… many women underestimate the extent to which their lives are going to be controlled in this way.”
In December 2022, the Attorney-General, Mark Dreyfus, announced amendments to Australian legislation that addresses the Convention to make it clear that allegations of DFV can be considered under the ‘grave risk’ defence before return orders are made.
Yet experts like Miranda Kaye and Gina Masterton say the amendment does nothing to address the systemic inequalities in the Hague system.
Hague Mothers believe many women have seen no option but to return to abusive relationships, just to stay close to their children. Other custodial mothers separated from their children live with daily trauma and distress.