![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
ABSTRACT
International human rights law sets out the right to life and freedom from torture and ill-treatment. This includes the positive obligation of states to prevent, protect and punish acts of private individuals that threaten the life and limb of another person. Permeating through many areas of law, this duty of due diligence is particularly important for women and children who require protection from abuse perpetrated by intimate partners or family members. The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence details these obligations, including in family law. Based on the work of the convention’s independent monitoring body (GREVIO), this article offers a categorisation of factors and mechanisms that thwart women’s and children’s rights in family law proceedings, resulting in unsafe child contact regulation after intimate partner violence. It shows the shared nature of these factors across several European jurisdictions and places them in context with the interpretative work of international human rights bodies and the European Court of Human Rights. Situating the discussion in the context of growing anti-feminist movements seeking to expand patriarchal notions of family authority, it argues for an understanding of family law processes as a setting for human rights violations.
Acknowledgements
This article was produced during my O’Brien Research Fellowship at the Centre for Human Rights and Legal Pluralism of the Faculty of Law at McGill University in 2023 while on sabbatical from my role as Executive Secretary to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. It offers an analysis of Council of Europe and United Nations treaty bodies’ work that reflects my personal assessment, not the official policy or opinion of the Council of Europe. I am grateful to the various Canadian and European experts I exchanged with for their insight into the complexity of custody decisions and intimate partner violence and their encouragement to pursue this research. My particular thanks go to Dr. Helmut Sax of the Ludwig-Boltzmann Institute of Fundamental and Human Rights in Vienna and to Feride Acar, professor emerita, Middle East Technical University, Ankara, and first President of the Council of Europe Group of Experts on Violence against Women (GREVIO), who both provided helpful feedback on earlier drafts of this article. Most importantly, however, I wish to acknowledge the efforts of the many lawyers and legal professionals, researchers, women’s rights NGOs and survivors that shine a light on human rights concerns around family law decisions in the context of domestic violence.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 ‘Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210)’, opened for signature on 11 May 2011.
2 World Health Organization, Violence against Women Prevalence Estimates (Geneva: World Health Organization, 2018), 1.
3 European Union Agency for Fundamental Rights (FRA), Violence against Women: An EU-Wide Survey Main Results (Vienna: European Union Agency for Fundamental Rights, 2014), 71–75.
4 OSCE, ‘OSCE-Led Survey on Violence against Women – Well-Being and Safety of Women’, Main Report (Vienna: Organisation for Security and Co-operation in Europe, 2019), 44.
5 Jonathan Herring, Domestic Abuse and Human Rights (Cambridge Antwerp Chicago: Intersentia, 2020), 159.
6 Christoph Liel et al., ‘Risk Factors for Child Abuse, Neglect and Exposure to Intimate Partner Violence in Early Childhood: Findings in a Representative Cross-Sectional Sample in Germany’, Child Abuse & Neglect 106 (August 2020): 104487, https://doi.org/10.1016/j.chiabu.2020.104487; Stephanie Holt, Helen Buckley, and Sadhbh Whelan, ‘The Impact of Exposure to Domestic Violence on Children and Young People: A Review of the Literature’, Child Abuse & Neglect 32, no. 8 (August 2008): 797–810, https://doi.org/10.1016/j.chiabu.2008.02.004.
7 See Holt, Buckley, and Whelan, ‘The Impact of Exposure to Domestic Violence on Children and Young People’.
8 UNICEF, A League Table of Child Maltreatment Deaths in Rich Nations (Florence, Italy: UNICEF Innocenti Research Centre, 2003), 17.
9 UNICEF, A Familiar Face: Violence in the Lives of Children and Adolescents (New York: UNICEF, 2017), 7.
10 See Holt, Buckley, and Whelan, ‘The Impact of Exposure to Domestic Violence on Children and Young People
11 Nataša Milenković, Nowhere to Turn: Gender-Based Violence against Roma Women (UNDP Istanbul Regional Hub, 2018), 13; Sonali Shah and Caroline Bradbury-Jones, eds., Disability, Gender and Violence over the Life Course: Global Perspectives and Human Rights Approaches, 1st edition, Interdisciplinary Disability Studies (London : New York: Routledge, Taylor & Francis Group, 2018), 5; Ravi K. Thiara and Chris Harrison, ‘Safe Not Sorry – Supporting the Campaign for Safer Child Contact: Key Issues Raised by Research on Child Contact and Domestic Violence’, 2016, 27, https://doi.org/10.13140/RG.2.1.1354.8565.
12 See Holt, Buckley, and Whelan, ‘The Impact of Exposure to Domestic Violence on Children and Young People.
13 Patrizia Romito, ‘Les Violences Conjugales Post-Séparation et Le Devenir Des Femmes et Des Enfants’, La Revue Internationale de l’éducation Familiale 29, no. 1 (1 October 2011): 87–105, https://doi.org/10.3917/rief.029.0087.
14 Emma Katz, Coercive Control in Children’s and Mothers’ Lives, 1st ed. (Oxford University Press New York, 2022), 24, https://doi.org/10.1093/oso/9780190922214.001.0001.
15 Women’s Aid, ‘Nineteen Child Homicides: What Must Change So Children Are Put First in Child Contact Arrangements and the Family Courts’, 2016; Observatory on domestic and gender violence, Spain, ‘Report on fatalities of gender and domestic violence in the context of a current or former intimate relationship 2021’ (Council of the Judiciary of Spain, December 2022). From 2013 to 2021, 46 children in Spain were killed by their biological fathers or by their mothers’ partners in the context of intimate partner violence, including after separation.
16 Peter G. Jaffe, Nancy K. Lemon, and Samantha E. Poisson, Child Custody & Domestic Violence: A Call for Safety and Accountability (SAGE Publications, Inc., 2003), 16, https://doi.org/10.4135/9781452231730; Ellen R. Gutowski and Lisa A. Goodman, ‘Coercive Control in the Courtroom: The Legal Abuse Scale (LAS)’, Journal of Family Violence 38, no. 3 (April 2023): 527–42, https://doi.org/10.1007/s10896-022-00408-3.
17 ‘Convention on the Elimination of All Forms of Discrimination against Women, adopted by the United Nations General Assembly on 18 December 1979’; ‘Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989’.
18 A/47/38, ‘General Recommendation No.19 on Violence against Women’ (CEDAW Committee, 1992), para. 1.
19 CEDAW/C/GC/35, ‘General Recommendation No. 35 on Gender-Based Violence against Women, Updating General Recommendation No. 19’ (CEDAW Committee, 26 July 2017).
20 CRC/C/GC/13, ‘General Comment No.13 (2011) on the Right of the Child to Freedom from All Forms of Violence’, 17 February 2011, para. 19.
21 Kontrová v. Slovakia, No. 7510/04 (ECHR 31 May 2007); E.S. and others v. Slovakia, No. 8227/04 (ECHR 15 September 2009); Talpis v. Italy, No. 41237/14 (ECHR 2 March 2017); Volodina v. Russia, No. 41261/17 (ECHR 9 July 2019); Tkhelidze v Georgia, No. 33056/17 (ECHR 8 September 2021); Ronagh Mc Quigg, ‘The Evolving Jurisprudence of the European Court of Human Rights on Domestic Abuse’, in European Yearbook on Human Rights (Intersentia, 2022), 1–4.
22 Opuz v. Turkey, No. 33401/02 (ECHR 9 June 2009); Halime Kilic v. Turkey, No. 63034/11 (ECHR 28 June 2016).
23 Bevacqua and S. v. Bulgaria, No. 71127/01 (ECHR 12 June 2008); Levchuk v. Ukraine, No. 17496/19 (ECHR 3 September 2020).
24 Marianne Hester, ‘The Three Planet Model: Towards an Understanding of Contradictions in Approaches to Women and Children’s Safety in Contexts of Domestic Violence’, British Journal of Social Work 41, no. 5 (n.d.): 837–53, https://doi.org/10.1093/bjsw/bcr095.
25 CEDAW/C/ESP/CO/7-8, ‘Concluding Observations on the Combined Seventh and Eight Periodic Reports of Spain’, 29 July 2015; ‘Mid-Term Horizontal Review of GREVIO Baseline Evaluation Reports’ (Council of Europe, 2022), 71–73.
26 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 42; ‘Baseline Evaluation Report on Finland’, 40; ‘Baseline Evaluation Report on Germany’, 64; ‘Baseline Evaluation Report on San Marino’, 39.
27 ‘Baseline Evaluation Report on Germany’, 64.
28 ‘Baseline Evaluation Report on Portugal’, 47.
29 Maria José Magalhães et al., Improving Legal Responses to Counter Femicide in the European Union: Perspectives from Victims and Professionals (Luxembourg: Publications Office of the European Union, 2023), 25; ‘Baseline Evaluation Report on North Macedonia’, 64.
30 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 59; ‘Baseline Evaluation Report on Cyprus’, 56; ‘Baseline Evaluation Report on Italy’, 60; ‘Baseline Evaluation Report on Malta’, 48; ‘Baseline Evaluation Report on Montenegro’, 41; ‘Baseline Evaluation Report on Portugal’, 47; ‘Baseline Evaluation Report on San Marino’, 39; ‘Baseline Evaluation Report on Slovenia’, 48.
31 Szilassy, Eszter et al., ‘Working Together, Working Apart: General Practice Professionals’ Perspectives on Interagency Collaboration in Relation to Children Experiencing Domestic Violence’, in Domestic Violence and Protecting Children: New Thinking and Approaches (Jessica Kingsley Publishers, 2015), 214–31.
32 ‘Baseline Evaluation Report on Albania’, 57; ‘Baseline Evaluation Report on Belgium’, 58; ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 81–84; ‘Baseline Evaluation Report on Croatia’, 70–72; ‘Baseline Evaluation Report on Cyprus’, 72,74; ‘Baseline Evaluation Report on Denmark’, 53; ‘Baseline Evaluation Report on Estonia’, 59; ‘Baseline Evaluation Report on Finland’, 54; ‘Baseline Evaluation Report on France’, 67–68; ‘Baseline Evaluation Report on Georgia’, 66; ‘Baseline Evaluation Report on Germany’, 85; ‘Baseline Evaluation Report on Iceland’, 67; ‘Baseline Evaluation Report on Italy’, 73; ‘Baseline Evaluation Report on Luxembourg’, 49; ‘Baseline Evaluation Report on Malta’, 37; ‘Baseline Evaluation Report on North Macedonia’, 82–85; ‘Baseline Evaluation Report on Monaco’, 37; ‘Baseline Evaluation Report on Norway’, 64; ‘Baseline Evaluation Report on Slovenia’, 66; ‘Baseline Evaluation Report on Spain’, 68; ‘Baseline Evaluation Report on Sweden’, 53–55; ‘Baseline Evaluation Report on Switzerland’, 63.
33 ‘Baseline Evaluation Report on Türkiye’, 99–101. With effect of 1 July 2021, Türkiye withdrew from the Istanbul Convention and is no longer a state party to this convention.
34 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 84; ‘Baseline Evaluation Report on Cyprus’, 72; ‘Baseline Evaluation Report on Poland’, 75–76; ‘Baseline Evaluation Report on Portugal’, 60; ‘Baseline Evaluation Report on Slovenia’, 65; ‘Baseline Evaluation Report on Sweden’, 54–55; ‘Baseline Evaluation Report on Switzerland’, 63.
35 ‘Impact of COVID-19 on Women’s Access to Justice’ (Strasbourg: Council of Europe, 2022), 19.
36 ‘Baseline Evaluation Report on Germany’, 64.
37 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 80; ‘Baseline Evaluation Report on Denmark’, 51; ‘Baseline Evaluation Report on Cyprus’, 71; ‘Baseline Evaluation Report on Georgia’, 63–64; ‘Baseline Evaluation Report on Montenegro’, 54; ‘Baseline Evaluation Report on Poland’, 57; ‘Baseline Evaluation Report on Romania’, 69–70; ‘Baseline Evaluation Report on San Marino’, 47–48; ‘Baseline Evaluation Report on Serbia’, 53; ‘Baseline Evaluation Report on Slovenia’, 64–65; ‘Baseline Evaluation Report on Spain’, 67; ‘Baseline Evaluation Report on Switzerland’, 27–28.
38 See for example ‘Baseline Evaluation Report on Belgium’, 56.
39 ‘Baseline Evaluation Report on Germany’, 84; ‘Baseline Evaluation Report on Italy’, 71–72; ‘Baseline Evaluation Report on Malta’, 60; ‘Baseline Evaluation Report on Türkiye’, 97.
40 ‘Baseline Evaluation Report on Albania’, 44; ‘Baseline Evaluation Report on Belgium’, 43–45; ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 58–59; ‘Baseline Evaluation Report on Cyprus’, 55–56; ‘Baseline Evaluation Report on Georgia’, 47–48; ‘Baseline Evaluation Report on Germany’, 63–68; ‘Baseline Evaluation Report on Iceland’, 50; ‘Baseline Evaluation Report on Monaco’, 29; ‘Baseline Evaluation Report on North Macedonia’, 62; ‘Baseline Evaluation Report on Norway’, 49; ‘Baseline Evaluation Report on Poland’, 58; ‘Baseline Evaluation Report on San Marino’, 38–39; ‘Baseline Evaluation Report on Slovenia’, 47–48; ‘Baseline Evaluation Report on Switzerland’, 48–50.
41 ‘Baseline Evaluation Report on Austria’, 38; ‘Baseline Evaluation Report on Estonia’, 44; ‘Baseline Evaluation Report on Italy’, 62; ‘Baseline Evaluation Report on the Netherlands’, 43; ‘Baseline Evaluation Report on Portugal’, 47; ‘Baseline Evaluation Report on Romania’, 52; ‘Baseline Evaluation Report on Spain’, 53; ‘Baseline Evaluation Report on Sweden’, 43.
42 A/HRC/53/36, ‘Report of the Special Rapporteur on Violence against Women and Girls, Its Causes and Consequences – Custody, Violence against Women and Violence against Children’ (United Nations, 13 April 2023), paras 18 and 73; A/HRC/17/30, ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers’ (United Nations, 29 April 2011), para. 22; ‘3rd General Report on GREVIO’s Activities’ (Strasbourg: Council of Europe, 2022), paras 79, 82–83; ‘Impact of COVID-19 on Women’s Access to Justice’, 19–20.
43 ‘Baseline Evaluation Report on Andorra’, 17; ‘Baseline Evaluation Report on Belgium’, 13; ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 77; ‘Baseline Evaluation Report on Italy’, 14; ‘Baseline Evaluation Report on Finland’, 49; ‘Baseline Evaluation Report on Montenegro’, 41–42; ‘Baseline Evaluation Report on the Netherlands’, 30–31; ‘Baseline Evaluation Report on Norway’, 15 and 62; ‘Baseline Evaluation Report on Poland’, 67; ‘Baseline Evaluation Report on Serbia’, 54; ‘Baseline Evaluation Report on Slovenia’, 50; ‘Baseline Evaluation Report on Spain’, 62; ‘Baseline Evaluation Report on Switzerland’, 14.
44 ‘Baseline Evaluation Report on Iceland’, 50; ‘Baseline Evaluation Report on Slovenia’, 47; ‘Baseline Evaluation Report on Spain’, 62.
45 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 59; ‘Baseline Evaluation Report on Denmark’, 41; ‘Baseline Evaluation Report on Germany’, 66; ‘Baseline Evaluation Report on Iceland’, 49; ‘Baseline Evaluation Report on Italy’, 60; ‘Baseline Evaluation Report on the Netherlands’, 31.
46 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 59; ‘Baseline Evaluation Report on Denmark’, 41; ‘Baseline Evaluation Report on Italy’, 60; ‘Baseline Evaluation Report on Malta’, 47; ‘Baseline Evaluation Report on the Netherlands’, 43; ‘Baseline Evaluation Report on Spain’, 53; ‘Baseline Evaluation Report on Switzerland’, 49.
47 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 59; ‘Baseline Evaluation Report on Italy’, 55; ‘Baseline Evaluation Report on North Macedonia’, 63; ‘Baseline Evaluation Report on Romania’, 50; ‘Baseline Evaluation Report on San Marino’, 38; ‘Baseline Evaluation Report on Serbia’, 42; ‘Baseline Evaluation Report on Sweden’, 43; ‘Baseline Evaluation Report on Switzerland’, 49.
48 ‘Baseline Evaluation Report on Serbia’, 42; ‘Baseline Evaluation Report on Switzerland’, 49.
49 Laura Monk and Erica Bowen, ‘Coercive Control of Women as Mothers via Strategic Mother–Child Separation’, Journal of Gender-Based Violence 5, no. 1 (February 2021): 23–42, https://doi.org/10.1332/239868020X15913793920878; Herring, Domestic Abuse and Human Rights, 172, 179.
50 A/HRC/53/36, ‘Report of the Special Rapporteur on Violence against Women and Girls, Its Causes and Consequences – Custody, Violence against Women and Violence against Children’ (United Nations, 13 April 2023); Jenny Birchall and Shazia Choudhry, ‘“I Was Punished for Telling the Truth”: How Allegations of Parental Alienation Are Used to Silence, Sideline and Disempower Survivors of Domestic Abuse in Family Law Proceedings’, Journal of Gender-Based Violence 6, no. 1 (February 2022): 115–31, https://doi.org/10.1332/239868021X16287966471815; Fiona Morrison, E. Kay M. Tisdall, and Jane E. M. Callaghan, ‘Manipulation and Domestic Abuse in Contested Contact – Threats to Children’s Participation Rights’, Family Court Review 58, no. 2 (April 2020): 403–16, https://doi.org/10.1111/fcre.12479; Joan S. Meier, ‘U.S. Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations: What Do the Data Show?’, Journal of Social Welfare and Family Law 42, no. 1 (2 January 2020): 92–105, https://doi.org/10.1080/09649069.2020.1701941; Linda C. Nielson, ‘Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights?’ (Fredericton/Vancouver, 2018); see also Romito, note 16.
51 Michelle Bemiller, ‘When Battered Mothers Lose Custody: A Qualitative Study of Abuse at Home and in the Courts’, Journal of Child Custody 5, no. 3–4 (15 December 2008): 245, https://doi.org/10.1080/15379410802583742; Birchall and Choudhry, ‘“I Was Punished for Telling the Truth”’, 123; Linnéa Bruno, ‘Contact and Evaluations of Violence: An Intersectional Analysis of Swedish Court Orders’, International Journal of Law, Policy and the Family 29, no. 2 (August 2015): 177, https://doi.org/10.1093/lawfam/ebv002; Simon Lapierre et al., ‘The Legitimization and Institutionalization of “Parental Alienation” in the Province of Quebec’, Journal of Social Welfare and Family Law 42, no. 1 (2 January 2020): 39, https://doi.org/10.1080/09649069.2019.1701922.
52 ‘3rd General Report on GREVIO’s Activities’ (Strasbourg: Council of Europe, 2022), 46; ‘Baseline Evaluation Report on Iceland’, 49; ‘Baseline Evaluation Report on Cyprus’, 176; ‘Baseline Evaluation Report on Poland’, 57.
53 ‘Baseline Evaluation Report on Andorra’, 46; ‘Baseline Evaluation Report on Belgium’, 43–45; ‘Baseline Evaluation Report on Croatia’, 52–53; ‘Baseline Evaluation Report on Cyprus’, 56; ‘Baseline Evaluation Report on Estonia’, 44; ‘Baseline Evaluation Report on France’, 52–53; ‘Baseline Evaluation Report on Germany’, 65–66; ‘Baseline Evaluation Report on Iceland’, 49; ‘Baseline Evaluation Report on Italy’, 60; ‘Baseline Evaluation Report on Luxembourg’, 38; ‘Baseline Evaluation Report on Poland’, 56; ‘Baseline Evaluation Report on Romania’, 51; ‘Baseline Evaluation Report on Spain’, 53.
54 Bemiller, ‘When Battered Mothers Lose Custody’; Meier, ‘U.S. Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations’; Linda C. Nielson, ‘Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights?’
55 Hunter, Rosemary, Burton, Mandy, and Trinder, Liz, ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (Ministry of Justice, June 2020).
56 European Union Agency for Fundamental Rights, Child-Friendly Justice: Perspectives and Experiences of Professionals on Children’s Participation in Civil and Criminal Judicial Proceedings in 10 EU Member States (Luxembourg: Publications Office, 2015), 49–50, https://data.europa.eu/doi/10.2811/91391.
57 Jeanette Cossar, Marian Brandon, and Peter Jordan, ‘“You’ve Got to Trust Her and She’s Got to Trust You”: Children’s Views on Participation in the Child Protection System: Children’s Views on Participation’, Child & Family Social Work 21, no. 1 (February 2016): 110, https://doi.org/10.1111/cfs.12115.
58 ‘Baseline Evaluation Report on Romania’, 52; ‘Baseline Evaluation Report on Spain’, 53.
59 ‘Baseline Evaluation Report on Malta’, 47–48; ‘Baseline Evaluation Report on Switzerland’, 49.
60 ‘Baseline Evaluation Report on Denmark’, 43.
61 ‘Baseline Evaluation Report on Slovenia’, 47–48; ‘Baseline Evaluation Report on Spain’, 53; ‘Baseline Evaluation Report on Switzerland’, 49.
62 ‘Baseline Evaluation Report on Serbia’, 42.
63 ‘Baseline Evaluation Report on Spain’, 53.
64 Maria Eriksson and Elisabet Näsman, ‘Participation in Family Law Proceedings for Children Whose Father Is Violent to Their Mother’, Childhood 15, no. 2 (May 2008): 259–75, https://doi.org/10.1177/0907568207088426; Lynne Harne, Violent Fathering and the Risks to Children – The Need for Change (Policy Press, 2011), https://doi.org/10.1332/policypress/9781847429179.001.0001; Stephanie Holt, ‘A Voice or a Choice? Children’s Views on Participating in Decisions about Post-Separation Contact with Domestically Abusive Fathers’, in Domestic Abuse and Child Contact (Routledge, 2021); see also Morrison, Tisdall, and Callaghan, note 68; Swedish Gender Equality Agency, ‘Data on Violence Is No Exception – Reporting on the Mapping of Data on Violence or Other Abuse in Custody, Residence and Access Cases’, 2022; Annemarie Graf-van Kesteren, Kindgerechte Justiz: wie der Zugang zum Recht für Kinder und Jugendliche verbessert werden kann, Policy Paper 34 (Berlin: German Institute for Human Rights, 2015).
65 E. Kay M. Tisdall, Fiona Morrison, and Judy Warburton, ‘Challenging Undue Influence? Rethinking Children’s Participation in Contested Child Contact’, Journal of Social Welfare and Family Law 43, no. 1 (2 January 2021): 8–22, https://doi.org/10.1080/09649069.2021.1876305.
66 ‘Mid-Term Horizontal Review of GREVIO Baseline Evaluation Reports’ (Council of Europe, 2022), para. 179; ‘Baseline Evaluation Report on Cyprus’, 35–36; ‘Baseline Evaluation Report on Finland’, 23–24; ‘Baseline Evaluation Report on Georgia’, 47; ‘Baseline Evaluation Report on Germany’, 34–35; ‘Baseline Evaluation Report on Iceland’, 31; ‘Baseline Evaluation Report on Malta’, 27–29; ‘Baseline Evaluation Report on Montenegro’, 26–27; ‘Baseline Evaluation Report on the Netherlands’, 26–27; ‘Baseline Evaluation Report on Norway’, 50; ‘Baseline Evaluation Report on Poland’, 14 and 35–36; ‘Baseline Evaluation Report on Spain’, 32; ‘Baseline Evaluation Report on Switzerland’, 31–32.
67 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 58–59; ‘Baseline Evaluation Report on Cyprus’, 57; ‘Baseline Evaluation Report on France’, 54; ‘Baseline Evaluation Report on Germany’, 65–66; ‘Baseline Evaluation Report on Iceland’, 50; ‘Baseline Evaluation Report on Italy’, 62; ‘Baseline Evaluation Report on Luxembourg’, 38; ‘Baseline Evaluation Report on Malta’, 49; ‘Baseline Evaluation Report on Norway’, 50; ‘Baseline Evaluation Report on Romania’, 51–52; ‘Baseline Evaluation Report on Sweden’, 44; ‘Baseline Evaluation Report on Switzerland’, 50.
68 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 58–59; ‘Baseline Evaluation Report on Belgium’, 44–45; ‘Baseline Evaluation Report on Finland’, 39; ‘Baseline Evaluation Report on France’, 34; ‘Baseline Evaluation Report on Germany’, 65–66; ‘Baseline Evaluation Report on Iceland’, 50; ‘Baseline Evaluation Report on Italy’, 40 and 61; ‘Baseline Evaluation Report on Malta’, 47; ‘Baseline Evaluation Report on Montenegro’, 41; ‘Baseline Evaluation Report on North Macedonia’, 62; ‘Baseline Evaluation Report on Norway’, 49–50; ‘Baseline Evaluation Report on the Netherlands’, 43; ‘Baseline Evaluation Report on Portugal’, 47; ‘Baseline Evaluation Report on Slovenia’, 47; ‘Baseline Evaluation Report on Switzerland’, 50.
69 ‘Baseline Evaluation Report on Italy’, 62; ‘Baseline Evaluation Report on Croatia’, 53–54; ‘Baseline Evaluation Report on Germany’, 65; ‘Baseline Evaluation Report on Poland’, 56; ‘Baseline Evaluation Report on Romania’, 51.
70 ‘Baseline Evaluation Report on Austria’, 38; ‘Baseline Evaluation Report on Montenegro’, 33; ‘Baseline Evaluation Report on North Macedonia’, 44; ‘Baseline Evaluation Report on Serbia’, 41; ‘Baseline Evaluation Report on Slovenia’, 47.
71 Kirsteen M. Mackay, ‘The Approach in Scotland to Child Contact Disputes Involving Allegations of Domestic Abuse’, in Domestic Abuse and Child Contact (Routledge, 2021):77–92.
72 ‘Baseline Evaluation Report on Malta’, 47–48; ‘Baseline Evaluation Report on Romania’, 52.
73 ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 59; ‘Baseline Evaluation Report on Malta’, 48; ‘Baseline Evaluation Report on Montenegro’, 41; ‘Baseline Evaluation Report on Slovenia’, 48; ‘Baseline Evaluation Report on Spain’, 53.
74 ‘Baseline Evaluation Report on France’, 53; ‘Baseline Evaluation Report on Poland’, 56.
75 ‘Baseline Evaluation Report on Austria’, 38; ‘Baseline Evaluation Report on Cyprus’, 57; ‘Baseline Evaluation Report on Luxembourg’, 38; ‘Baseline Evaluation Report on Malta’, 48; ‘Baseline Evaluation Report on Spain’, 53.
76 Kirsteen M. Mackay, ‘Child Contact as a Weapon of Control’, in The Routledge Handbook on Gender and Violence (Routledge, Taylor & Francis Group, 2018):145–55; ‘Baseline Evaluation Report on Luxembourg’, 31.
77 See note 95Kirsteen M. Mackay, ‘The Approach in Scotland to Child Contact Disputes Involving Allegations of Domestic Abuse’, 77–92.
78 ‘Baseline Evaluation Report on Belgium’, 58; ‘Baseline Evaluation Report on Bosnia and Herzegovina’, 87; ‘Baseline Evaluation Report on Malta’, 64–65; ‘Baseline Evaluation Report on Poland’, 79; ‘Baseline Evaluation Report on Romania’, 77.
79 ‘Baseline Evaluation Report on Albania’, 62; ‘Baseline Evaluation Report on Germany’, 90; ‘Baseline Evaluation Report on Montenegro’, 57; ‘Baseline Evaluation Report on Romania’, 78; ‘Baseline Evaluation Report on Sweden’, 56.
80 ‘Baseline Evaluation Report on Cyprus’, 76; ‘Baseline Evaluation Report on Italy’, 77–78; ‘Baseline Evaluation Report on Malta’, 64–65; ‘Baseline Evaluation Report on Norway’, 66–67.
81 ‘Baseline Evaluation Report on Norway’, 67.
82 CRC/C/GC/14, ‘General Comment No. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Art. 3, Para. 1)’, 29 May 2013, paras 89–90.
83 CRC/C/GC/13, ‘General Comment No.13 (2011) on the Right of the Child to Freedom from All Forms of Violence’, para. 56.
84 CRC/C/GC/12, ‘General Comment No.12 (2009) on the Right of the Child to Be Heard’, 2009, para. 20.
85 CRC/C/GC/13, ‘General Comment No.13 (2011) on the Right of the Child to Freedom from All Forms of Violence’, para. 54.
86 See for example CEDAW/C/AUT/CO/9, ‘Concluding Observations on the Ninth Periodic Report of Austria’, 30 July 2019.
87 CEDAW/C/GC/35, ‘General Recommendation No. 35 on Gender-Based Violence against Women, Updating General Recommendation No. 19’.
88 Ibid., para.30.
89 CEDAW/C/GC/33, ‘General Recommendation No.33 on Women’s Access to Justice’ (CEDAW Committee, 2015), paras 26–29.
90 See for example J.I. v. Finland, No. Communication No.103/2016 (CEDAW Committee 5 March 2018) and Angela González Carreño v. Spain, No. Communication No.47/2012 (CEDAW Committee 16 July 2014).
91 See for example CEDAW/C/FIN/CO/8, ‘Concluding Observations on the Eighth Periodic Report of Finland’, 1 November 2022, para. 23; CEDAW/C/ESP/CO/7-8, ‘Concluding Observations on the Combined Seventh and Eight Periodic Reports of Spain’, para. 21; CEDAW/C/GC/35, ‘General Recommendation No. 35 on Gender-Based Violence against Women, Updating General Recommendation No. 19’, para. 30(e).
92 A/HRC/53/36, ‘Report of the Special Rapporteur on Violence against Women and Girls, Its Causes and Consequences – Custody, Violence against Women and Violence against Children’, para. 15.
93 Platform of Independent Expert Mechanisms on Discrimination and Violence against Women (EDVAW Platform), ‘Statement: Intimate Partner Violence against Women Is an Essential Factor in the Determination of Child Custody’, 31 May 2019.
94 See for example the case of I.M. and Others v. Italy, No. 25426/20 (ECHR 10 November 2022).
95 Ibid., paragraph 138.
96 J.I. v. Finland, paragraph 9.
97 CEDAW/C/GC/35, ‘General Recommendation No. 35 on Gender-Based Violence against Women, Updating General Recommendation No. 19’, para. 31 (a) (ii).
98 See J.I. v. Finland, note 58, paragraph 8.8.
99 See S.L. v. Bulgaria, No. Communication No.99/2016 (CEDAW Committee 19 July 2019); Jallow v. Bulgaria, No. Communication No.32/2011 (CEDAW Committee 23 July 2012).
100 Kurt v. Austria, No. 62903/15 (ECHR 15 June 2021).
101 Ibid., paragraph 164.
102 Ibid., paragraphs 174–75.
103 Ibid., paragraph 163.
104 ‘Third Party Intervention by the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) Pursuant to Article 36 Paragraph 2 of the European Convention on Human Rights, Application No. 62903/15, Kurt v. Austria’, 22 January 2020.
105 Elina Aaltio and Sirpa Kannasoja, ‘Achieving Agreement on Service Needs in Child Protection. Comparing Children’s, Mothers’ and Practitioners’ Views over Time and between Approaches’, Journal of Children’s Services 18, no.1 (7 March 2023): 9, https://doi.org/10.1108/JCS-12-2021-0052.
106 Gabriela Keller, ‘Väterrechtler Auf Dem Vormarsch’, Correctiv, 19 September 2023, https://correctiv.org/aktuelles/haeusliche-gewalt/2023/09/19/die-netzwerke-der-vaeterrechtler/; Mélissa Blais, ‘Masculinist Discourses on Intimate Partner Violence: Antifeminist Men Defending White Heterosexual Male Supremacy’, in Men, Masculinities and Intimate Partner Violence (Routledge, Taylor & Francis Group, 2023), 92; Damjan Denkovski, Nina Bernarding, and Kristina Lunz, ‘Power over Rights I: Understanding and Countering the Transnational Anti-Gender Movements’, 2021, 15–17; Neil Datta, ‘Modern-Day Crusaders in Europe. Tradition, Family and Property: Analysis of a Transnational, Ultra-Conservative, Catholic-Inspired Influence Network’, Političke Perspektive 8, no. 3 (23 May 2019): 69–105, https://doi.org/10.20901/pp.8.3.03.
107 ‘Gender Equality and the Istanbul Convention: A Decade of Action, Conference Report’ (Strasbourg: Council of Europe, 2021), 18.
Additional information
Funding
Notes on contributors
Johanna Nelles
Johanna Nelles is a human rights professional specialising in women’s rights and violence against women. Her work focuses on shaping human rights norms for women and children affected by gender-based violence and assessing their implementation. As an O’Brien Research Fellow at the Centre for Human Rights and Legal Pluralism at the Law Faculty of McGill University, she studied the various human rights concerns in child contact regulations brought to light by human rights treaty bodies and academic research.