International Child Abduction and the Escape from Domestic Violence

Abstract

The article examines the application of the Hague Convention on the Civil Aspects of International Child Abduction to individuals who flee transnationally with their children to escape domestic violence. The article argues that the Hague Convention fails these abductors and their children, and then proposes reform.

The article begins by demonstrating that the Hague Convention is based upon an incomplete image of child abduction. Reformers envisioned the typical abductor as a male noncustodial parent, and believed that children uniformly were harmed by abduction. Given this image, reformers adopted "a remedy of return" that results in the quick return of the child to the child's habitual residence, typically the place from where the abductor has just fled. Recent evidence suggests, however, that the vast majority of abductors are women who are the children's primary caretakers, and many of these women are fleeing from domestic violence. Abduction impacts these children differently from what the drafters had envisioned. Also, these abductors encounter profound safety and fairness issues when the remedy of return is ordered.

The article next assesses how these abductors fare when faced with a Hague Convention petition for their children?s return. The case law demonstrates that the domestic violence victims face enormous difficulty defeating these petitions. Their domestic violence is typically not relevant to the prima facie elements of a Convention case or to the Convention defenses. While the article highlights some of the more helpful case law, and suggests some potential interpretations of the Convention that would aid domestic violence victims, it ultimately recommends a broader solution to the problem than this case-by-case approach.

The article ultimately recommends a two-pronged solution. First, there should be a total defense to the Convention's remedy of return for battered women who are forced to settle abroad with their children. Second, there should be a procedure similar to that found in the United States' Uniform Child Custody Jurisdiction and Enforcement Act for those women who voluntarily go to a foreign country, and then flee to escape from domestic violence. The procedure would allow these victims to litigate issues of custody from the country to which they fled, and delay the return of the children until the abductor lost the underlying case for custody. At this time, the proposed solution appears to be the best hope for addressing domestic violence victims' concerns without undermining the Convention.

Keywords: abduction, child, children, domestic violence, abuse, international

JEL Classification: K36