1. The Hague Child Abduction Convention and Domestic Violence Nicolas Sauvage, Legal Officer Hague Conference on Private International Law

2. HAGUE CONFERENCE 116 Years of history 1893 1955 2009 First Hague Conference Initiative T.M.C. Asser  37 Convention since 1950’s  69 Members (States & EC)  Statute  Establishment of the Permanent Bureau

3. INTERNATIONAL FAMILY LAW CONVENTIONS 1980 Hague Child Abduction Convention 1993 Hague Intercountry Adoption Convention 1996 Hague Child Protection Convention 2000 Hague Protection of Adults Convention 2007 Hague Recovery of Maintenance Convention Based on Co-operation of Contracting States through Central Authority-System

4. Background The Hague Child Abduction Convention: protection of children against abduction Focus The Convention and international abduction by one parent to escape from domestic violence The Child Hague Abduction Convention and Domestic Violence

5. Why a Convention on the Civil Aspects of International Child Abduction? I. The Child Abduction Convention: protection of children against abduction

6. Austria (party to the Convention) Russia (not party to the Convention) Situation without the Convention (example)      Shared custody Manages to obtain exclusive custody As a result, One parent has the right to live with the child in Austria, while the other parent has also the right to live with the child in Russia then starts the spiral of abduction

7. I. The Child Abduction Convention: protection of children against abduction State B (party to the Convention) State A (party to the Convention) Keystone of the Convention  Custody rights Habitual residence Only one State shall decide upon custody rights: The State of the habitual residence of the child

8. I. The Child Abduction Convention: protection of children against abduction Austria (party to the Convention) The USA (party to the Convention) Situation under the Convention (example)      shared custody 1) Interdiction for US courts to decide upon custody rights 2) US courts shall order the return of the child to Austria However, the Convention provides for exceptions to the return of the child   Habitual residence

9. 81 States Parties to the Child Abduction Convention I. The Child Abduction Convention: protection of children against abduction

10. The taking person in Convention cases (2003): –68 % = the mother of the child or the children –68 % = primary or joint primary carer of the child –45 % = not citizen of the State to which the child is removed

11. Return of the child refused by the courts in 13% of applications for return under the Convention (2003) I. The Child Abduction Convention: protection of children against abduction

12. Application of the Convention in the event of international abduction to escape from domestic violence II. International Child abduction to flee domestic violence

13. Austria (party to the Convention) The USA (party to the Convention) Obtaining evidence   Domestic violence is alleged by the mother Habitual residence shared custody 1 ) to establish the existence of domestic violence 2 ) to determine whether there is a safe place of return -Family context -Social context -Rights of the parents -Police / Criminal background -Social services… -Family context -Social context -Rights of the parents / -Police / Criminal background -Social services… II. International Child abduction to flee domestic violence

14. The keystone of the Convention Only one State shall decide upon custody rights = The State of the habitual residence of the child Under very specific conditions in the Convention, a return can be refused by the courts of the State to which the child has been removed. II. International Child abduction to flee domestic violence However, if the courts of a State refuse the return of children in too many cases may undermine the deal made by the States parties in ratifying the Convention may undermine the whole system of co-operation against abduction

15. II. International Child abduction to flee domestic violence Difficult question: How to protect the safety of the child as well as the mother …without undermining the Hague Convention mechanism and the international co-operation in place to protect children against wrongful removal? Answer: Very different approaches have been taken depending on jurisdictions concerned

16. One exception is particularly relevant in domestic violence cases (Article 13 b)) : Return can be refused if the taking person establishes that there is a “grave risk” that the return of the child would expose him/her to “physical or psychological harm or otherwise place the child in an intolerable situation”. II. International Child abduction to flee domestic violence Protection of child and mother and safeguarding the mechanism of the Convention Should the judges admit more flexibility to refuse the return of the child?

17. An increasing number of judges develop specific mechanisms of co- operation in order to ensure a “Safe return”: II. International Child abduction to flee domestic violence Protection of child and mother and safeguarding the mechanism of the Convention Should the judges and Central Authorities look for safe return of the child and the mother? Entail a very high level of co-operation between States and their administrative and judicial bodies Protective and provisional orders (undertaking, mirror orders, safe harbour orders…)

18. No need for radical amendment of the Convention Little support at this point for changes in Article 13 or the basic return procedures II. International Child abduction to flee domestic violence Protection of child and mother and safeguarding the mechanism of the Convention Should the governments improve the Convention, and if so how? The way has been opened for consideration of a Protocol to the Convention to support : –the making (and require the recognition) of protective orders to facilitate safe return –the use of direct judicial communications between judges in Convention cases

19. Thank you for your attention, Hague Conference on Private International Law | Conférence de La Haye de droit international privé www.hcch.net www.hcch.net 6, Scheveningseweg 2517 KT The Hague The Netherlands T +31 70 363 3303 F +31 70 360 4867 E-mail secretariat@hcch.netsecretariat@hcch.net Nicolas Sauvage, Legal Officer Permanent Bureau of the Hague Conference in Private International Law