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ANITA has two children. She hasn’t seen them for more than seven years.
Rebecca was forced to return her two-year-old son to his abusive father in Los Angeles. She returned with him only to discover that her husband had obtained custody of their son. She had lost all parental rights.
Another mother is on the run with her child in the United States. She lives a hand-to-mouth existence, a permanent outlaw.
Each of these women — and there are many more like them — have fallen foul of the Hague Convention on the Civil Aspects of International Child Abduction.
The convention was intended to deal with a parent taking their children across national borders without the permission of the other parent. It was particularly aimed at fathers.
However, in over 70 per cent of cases the legislation is now being used against mothers, many fleeing domestic violence and sexual abuse. The cases are brought by the perpetrators of that violence with support from the state.
Intended to protect the child from harm the law is a terrifyingly blunt instrument. It is simple, focusing only on whether or not the child was taken across international borders without the permission of the “left behind” parent.
The wider circumstances are deemed irrelevant. It’s swift — children are usually returned to their country of “habitual residence” within six weeks. And it’s entirely uninterested in the real-life outcomes for mothers and their children.
Australian mother Cassandra Hasanovic was on her way to a domestic violence shelter in Kent with her two children when she was murdered by her estranged husband.
She’d been ordered back to Britain by the Hague Convention. In the weeks prior to her death she was “unravelling with fear,” convinced that her husband intended to kill her.
Hannah, a British citizen, is living in temporary housing in Sydney with her young daughter. They are destitute. Her violent ex-husband has used the Hague Convention to prevent her return to Britain; her visa conditions mean that she is unable to access government support in Australia, and unable to work.
Barrister Gina Masterton first became aware of the Hague Convention when it was used against her sister. She has just completed a PhD on the topic and is clear that the law enables violent or controlling fathers to continue their abusive behaviour.
It is, she says, “a good law gone bad.”
Masterson has interviewed many mothers who are victims of the Hague. All fled with their children after many years of abuse — physical, sexual, emotional and economic. Some were in fear of their lives, others fearful for their children.
Leaving an abusive relationship is dangerous. Women do not do this on a whim, or after a minor argument. Yet their testimony is not considered to be relevant except in the most extreme of cases.
Cases such as the rare ruling by an Australian court that a mother was not required to return her children to their abusive Greek father.
More than three years of physical abuse had resulted in the mother being diagnosed with “positional vertigo” caused by repeated trauma to the head.
The condition causes “significant suffering … distress, deterioration in quality of life … and in some cases long-term disability.”
The court also heard that her older child had been subjected to violence, and that the mother faced a “very serious risk” of being incarcerated on her return since the father was determined to bring abduction charges against her.
Domestic violence leading to brain damage, child abuse, and the serious risk of incarceration for the primary carer. The bar for non-return has, as Masterson put it, “been set very high.”
This mother can be considered lucky. The defences that can be used to make a case for not returning a child are very limited. Domestic violence in itself is not one of them.
A mother’s best hope is Article 13b, an exception to the otherwise automatic return of the child if there is “a grave risk that the return of the child would expose the child to physical or psychological harm or place the child in an intolerable situation.”
“Grave risk” is not defined and the fact that the mother herself may be at grave risk of physical or psychological harm is not seen as an issue for the child.
Nor is what many might consider the “intolerable” possibility of the child being separated from its mother, often for many years.
When asked why the UN and the judiciary were so disinclined to acknowledge serious defects in the Hague legislation, one academic replied “politics and the patriarchy.”
Anyone who has had dealings with family court custody cases, in Britain or elsewhere, will recognise the impact of the latter.
Women are unsupported, routinely disbelieved, and often branded “unstable” or mentally ill, accused of deliberately alienating their children from their fathers.
When international politics is added to the mix, women and children become collateral damage. Judges in one country are loath to suggest that a woman might not receive justice if they return to the father’s country, even when the return is to countries where women’s rights barely exist, or where religious and social attitudes stand in the way of any possible equality before the law.
And all too often the abuse — physical, emotional, economic — continues for years after the Hague judgement, regardless of the jurisdiction.
Unsurprisingly, when the Hague decrees that the child must be returned to the father’s country, most mothers will return too — in spite of the very real risks to their safety.
Their situation then becomes precarious in the extreme. They face an escalation of violence and abuse from the child’s father, and economic hardship and potential homelessness if they try to leave the relationship, or if they are thrown out of the marital home.
Labelled by the courts as a child abductor, mothers are branded a risk to their own children. This puts them at a serious disadvantage in any subsequent custody battle — one they will have to fight in a foreign court.
Even having lost custody, mothers will invariably try to remain in the foreign country in order to have any hope of being part of their children’s lives.
But at least a quarter of these mothers have no support in the father’s country, no family, limited finances, no legal representation, and, depending on the jurisdiction, no visa to remain in the country or to work there.
Eventually, they are left with no choice but to leave their child and go home alone. For many it will be years before they can even see their child again; some lose all contact.
And the child — who was supposed to be protected by the Hague Convention — lives with the abuser, potentially losing all connection with their maternal family, culture, heritage and even language.
This injustice cannot be allowed to stand.
The Hague Mothers FiLiA legacy project will aim to amplify the voices of the women who are victims of The Hague Convention, to raise awareness of the issues, and to work with lawyers, domestic violence experts, children’s organisations, women’s groups, and Hague mothers to put right the injustices perpetuated by this legislation. Our initial focus is on Britain, the US and Australia.
For more information about FiLiA visit www.filia.org.uk.
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