How a law made to stop child abduction is being weaponised against mothers fleeing abuse

In Lisa’s mind, she had done what she had to do, removing her child from an abusive environment, one in which they had witnessed some of her ex-partner’s abuse of her (itself an acknowledged form of child abuse). She had protected herself and her child, doing what any mother would. But she had also, in the eyes of the law, abducted her own child. Now, under the terms of the Hague Convention that governs such cases across national borders, she was faced with the prospect of being ordered to return to Australia, from where she had just fled…

“He’s been abusive to me. I’ve got the evidence.” From a plastic shopping bag I hadn’t noticed until now, she started unpacking sheaves of paper and spreading them over the table in front of us. Photos of her face and body after he had beaten her. Printouts of messages between them. Even on first impression, this appeared shocking, but the only question now was whether she wanted to contest his application for a summary return order.

By the time I met Lisa, the Hague Convention had been in operation for almost 40 years. Originally designed for situations where a father without custody would remove their child and take them abroad, it had drifted some way from its original purpose. Like so many women, Lisa believed that the court would understand her situation, take her concerns seriously and respond accordingly. She could not conceive of how a responsible authority would act so clearly against her child’s interests and welfare.

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.

Unless there is overwhelming evidence that a return places mother or child at grave risk of harm or puts the child in an “intolerable situation”, they will be sent back. When it comes to the threat of further violence, the Convention comes close to suggesting that courts should cover their eyes and say what they cannot see, they will not consider.

The sole nod to safeguarding comes in the form of “undertakings” made by the father as to how they will engage with and support the abducting parent after they return. In Lisa’s case, her ex had committed to providing her with accommodation and supporting her financially for an initial period. He also promised to drop the criminal charges he had levelled against her in Australia and to give up his application for sole custody.

Her spirit, so clear when we first met, had been broken to the point where she no longer wanted to resist. Lisa had been abused and traumatised by her ex-partner, but it was the court order that had finally robbed her of the will to fight. She had stubbornly believed that any fair system must take seriously her account and evidence of abuse, only to see it put its weight behind the case of the man who she claimed had beaten and belittled her.

There could have been no more conclusive evidence of the injustice of the Hague Convention than the sight of Lisa, crumpled on the floor outside the courtroom, utterly broken by the experience of trying to protect herself and her child. By contrast, her ex had only had to submit paperwork and instruct a lawyer to achieve what he wanted. He had not even had to pay for a lawyer, because the applicant parent in child abduction cases receives legal aid.

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.

I had already known just how dangerous the Hague Convention could be in effectively requiring women to return to environments that they believed to be unsafe for themselves and their children (technically, the return order concerns the child only, but few mothers are going to abandon their children in such circumstances). Now I had proof that, having put women like Lisa in harm’s way, it would then do nothing to protect them when the worst happened. The Convention had done its job and “solved” the problem of a child abduction. That this had come at the cost of a woman’s safety and wellbeing seemed not to matter.

‘He Said, She Said: Truth, Trauma and the Struggle for Justice in Family Court’ is published by W&N on 1 May. You can pre-order the book now through Amazon and Waterstones.