What Australia’s New Law Means for Hague Convention Parental Child Abduction Cases

In the early 1980s, one of the more short-sighted international agreements was devised and implemented. The Hague Convention on the Civil Aspects of International Child Abduction sought to address what seemed like an obvious problem: children being moved across borders without the consent of both parents. Yet the convention unintentionally created a tool for abusive men to use against their former partners and children. The convention generated a way for men to use international law to maintain control, and prevented women and children from fleeing domestic and child abuse. 

Under the Hague Convention a child is considered abducted if they are taken across an international border by one parent without the consent of the other parent. The problem that Hague Convention initially saw was one of disgruntled fathers who may have lost custody cases taking children to their country of origin, or to countries where courts were more sympathetic to paternal authority (although, as I will get to later, that’s essentially everywhere).  

Yet nowadays around three quarters of all cases filled under the Hague Convention are against mothers – most of whom are fleeing domestic violence or seeking to protect their children from abuse. Although Article 13 of the convention does state that an order for the return of a child can be rejected if there is a “grave risk of harm,” most courts ignore this provision because they see the convention as an international law about jurisdiction, not a law about child welfare. 

Recognizing this problem, last month the Australian government implemented a new law that requires Australian courts to consider allegations of family and domestic violence before any return orders are made for children under the Hague Convention. This law should oblige Australian courts to prioritize Article 13 of the convention over any other considerations. 

However, in doing so Australia is likely to set itself up to be in legal conflict with other countries that may consider a case to be their jurisdiction. For example, a family court in another country could decide to grant a father custody or visitation rights with a child while an Australian court, considering allegations of abuse, decides otherwise. 

In recent decades family courts worldwide have become hostile institutions for mothers and children seeking safety from abusive partners and fathers. Mothers are often advised not to bring up allegations of abuse in family court proceedings as this will – bizarrely – decrease their chances of maintaining custody of their children. Courts appear to be instinctively suspicious toward claims of domestic abuse and child abuse, even when there is substantial evidence to collaborate such claims. 

The reason for this is the capture of these courts by a concept called “parental alienation,” which is frequently used by abusive men as a counterclaim to allegations of abuse. This concept relies on two contradictory ideas. The first is that women are habitual liars who concoct stories about abuse in order to sideline fathers, and the second is that even if men are abusive, regular contact with fathers is more important to child development than child safety. These ideas are used interchangeably to justify the “contact at all costs” culture with family court systems that ignores or minimizes abuse. 

The problem has become so pronounced that recently the office of the United Nations High Commissioner for Human Rights established a global call for input to assess just how entrenched this concept has become in custody proceedings, and how it is leading to the “double victimization of victims of domestic violence of abuse.” 

If family courts are abusing the human rights of children and women, the logical conclusion is that these victims could be offered legal protection by other states. To my knowledge there has been only one such case: An American woman and her children were granted asylum in the Netherlands when Dutch courts ruled that their safety could not be guaranteed by the United States’ family court system. 

In shifting its domestic laws to require Hague Convention cases to consider domestic and child abuse, Australia may have set itself on a path to being a state that offers legal protection to mothers and children fleeing abuse. While this has the potential to create bilateral disputes that the previous interpretation of the Hague Convention had sought to avoid, this is not something Australia should shy away from. The importance of this issue – and the continued institutional betrayal of both the Hague Convention and family court systems – requires at least one country to step forward and demonstrate some genuine courage and moral authority. 

Rather than seeing the implications of its new interpretation of the Hague Convention as a potential bilateral minefield, Australia should instead see this as an opportunity to establish itself as a global champion and a safe haven for children and women who have been victims of abuse. It is an opportunity to demonstrate serious leadership in shifting thinking about child abuse and domestic violence away from being mere jurisdictional issues to matters of common humanity.