The Hague Convention on child abduction was drafted to deal with fathers abducting their children across borders after losing custody, but it's applied mainly to mothers fleeing domestic violence, writes Gina Masterton.
Fiona (not her real name) came to Australia from New Zealand as a 19-year-old backpacker. Here, she met a man, got married and had two boys. The domestic violence began after her first son's birth, and Fiona endured it for several years.
In 2017, when her children were eight and 10, Fiona summoned the strength to leave her husband. Not being an Australian citizen, she found she wasn't eligible for government assistance, so Fiona fled back to New Zealand seeking protection and support.
Her husband immediately acted to have the children returned to Australia and, being a citizen, received free legal assistance from the government. Fiona was ordered to return her children to Australia.
This happened because under international law, Fiona's case is considered one of "child abduction". Under the Hague Convention on the Civil Aspects of International Child Abduction 1980, a child is considered "abducted" if he or she is removed by one parent without the other parent's consent.
The Convention was drafted in the late 1970s to deal with fathers abducting their children across borders after losing custody of their children, or believing they would lose custody. It was never meant to be applied to cases involving mothers fleeing domestic violence.
The Convention makes no mention of domestic violence and has no protections for abused mothers. Despite this, for the past couple of decades, 70% of Hague cases have involved mothers fleeing domestic violence. When this law is applied to such cases, the outcomes can be catastrophic for abused women and children.
My research has explored how the Convention affects abused mothers who flee with their children across international borders. I have interviewed ten women, including Fiona, who were ordered to return their children to an abusive situation by Australian and other courts. All felt their voices were not heard and their domestic violence experiences not believed by the courts. They felt they were treated like criminals.
The Sydney Family Court, in 2008, ordered a 24-year-old woman to return her two young sons to the UK, where they had been born. The woman had fled with her children to Sydney where her family lived, after years of abuse. Shortly after her return, she fled again to a refuge with her children. On the way there, she was brutally murdered by her estranged husband, on a public street, in front of her children and mother.
When the Convention was drafted, abductors were assumed to be non-primary carers who were taking the law into their own hands after having lost a custody battle. But it's now been recognised most so-called abductors are mothers who are the children's primary carers.
The Convention is the main international agreement that covers international parental child abduction. It provides an expeditious process to have a child returned to their home country. A child must have been abducted to, or retained in, a Hague Convention member country for the process to work. Nearly 100 countries - including Australia, New Zealand, South Africa, the UK and the US - are signatories.
The Convention came into effect in Australia in 1987. It is implemented through the Family Law Act 1975 and the Australian Family Law (Child Abduction Convention) Regulations 1986. Australia's Central Authority, which is part of the Attorney-General's department, handles all cases of international parental child abduction to and from Australia. Its powers stem from the Convention and the Regulations are strictly enforced by the courts in all cases.
Some exceptions in Australia's Regulations can be raised in domestic-violence related abduction cases. But lawyers I also interviewed in my research have said the bar has been set so high by the courts, these are too hard to meet. Also the "best interests of the child" test, which is applied in domestic family law cases, is not the test applied in Hague cases.
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Fiona's husband was provided with free legal representation. Experienced lawyers worked with their counterparts in NZ to return the children to their father in Australia and the New Zealand Family Court cooperated by ordering the children's return.
Fiona told me that the Convention "discriminates against mothers and kids ... and the judges and lawyers don't really consider the domestic violence the mothers have gone through and that the kids have witnessed."
Fiona and the children returned with just a bag of clothes. She received a small family assistance payment from Centrelink because the children were citizens, but no public housing, access to community services or free legal representation.
Fiona's mother had to move from New Zealand to Brisbane to support her daugher and the children financially, emotionally, and physically. After one year, the Brisbane Family Court awarded Fiona's husband full parental responsibility for the children. Fiona returned to New Zealand, broke and devastated.
To this day, she survives on the generosity of women she befriended on social media who also lost their children to abusive partners. She is still being financially and emotionally abused by her ex, and struggles with anxiety and depression.
What other countries have done
Progress has been made in this area outside of Australia.
In a child abduction case considered by the European Court of Human Rights in 2010, the court held the Convention was obligated to consider general principles of international law and other human rights instruments. It also held the Convention "cannot be interpreted in a vacuum" and that the "best interests of the child must always be paramount."
There has also been a substantial change in US law, which has allowed courts to see domestic violence as a defence under the Convention.
In Australia, mothers fleeing domestic violence with their children still face harsh legal consequences. A woman fleeing with her child across borders within Australia can be penalised if she has violated family court orders without a reasonable excuse. A court may vary the orders, order her to pay the legal costs of the other parent, or a fine, and could even sentence her to imprisonment.
She can also be charged with child stealing. If she is a citizen, she may be eligible to access various community resources, including Legal Aid, for representation.
However, a mother fleeing from overseas to Australia is in a different situation. She will face serious legal consequences under the Convention. The US courts can criminally prosecute a mother who has abducted her child from that country and imprison her. Even if she is an Australian citizen, she may have to represent herself in court if she can't afford a lawyer. Unlike her abusive partner, she has no right to free lawyers.
It's rare for Australia's Legal Aid to fund these defences, as mothers generally don't have a good chance of succeeding in court. My analysis of Hague cases heard in Australia between 2015 and 2018 showed not one case where the mother was represented by Legal Aid.
Rita (not her real name) was an Australian citizen who met an American man in LA, where she had relocated for work, married and had a son. After experiencing domestic violence for two years, she fled back to Brisbane with her two-year old. She was given access to income and other Centrelink services, government housing, Medicare, pro bono legal representation and charity assistance.
Even so, after an application lodged by her husband, the Central Authority and the Brisbane Family Court ordered Rita to return her infant to LA. Rita also returned.
She received no housing, no medical assistance, and no free legal representation. She suffered from anxiety and depression, and could not work. If it had not been for a friend, she would have been homeless. She told me: "Because of the Convention, I could have been sent to federal prison in California, and have lost my son to someone who abused both of us. He had legal custody of my son and I had nothing, just because I tried to keep me and my son alive."
Australia's law makers need to take cases of this nature far more seriously. One step forward would be to add a separate "domestic violence defence" to the Regulations under which the Hague Convention is administered.
In doing so, abused mothers accused of abducting their children would have a better chance of defeating a return application. And our courts would not be able to continue putting women's lives and their children's safety in jeopardy.
Gina Masterton is a PhD candidate, Law School, Griffith University