Domestic violence and child participation: contemporary challenges for the 1980 hague child abduction convention

ABSTRACT

This article addresses two contemporary challenges for the 1980 Hague Child Abduction Convention: (i) domestic violence and (ii) child participation. It also outlines three components of a global socio-legal policy and research initiative undertaken to address these issues and, where relevant, their intersection. The published literature on these topics, including the children’s objections exception, is explored, as are the ways in which these challenges are addressed within some of the 101 Contracting States to the Convention and through the Guide to Good Practice on Article 13(1)(b) of the Convention. Regard is paid to the data provided by the statistical analysis of applications made under the Convention in 2015 by Lowe and Stephens, and the changes which will occur once the Recast of The European Brussels 11a Regulation comes into operation. The likely impact for 1980 Hague Convention abduction proceedings of the UK having left the European Union at 23.00 GMT on 31 January 2020 is contemplated. Other current international initiatives are discussed, including the development of a child-friendly version of the Convention through The International Association of Child Law Researchers. Training is a key to changing attitudes and upskilling family justice professionals to ensure the Convention operates in a fully child-centric way. This will maintain and strengthen the Convention by keeping it ‘fit for purpose’.

KEYWORDS:

• Domestic violence
• child participation
• international child abduction challenges

Disclosure statement

The authors have no conflict of interest.

Notes

1. Domestic violence remains a current concern in abduction cases in Japan where the first author, at the invitation of the Japanese Ministry of Foreign Affairs, delivered a public lecture on 10 June 2019 on her research at the Symposium Commemorating the Fifth Anniversary of Japan’s Entry into the 1980 Hague Convention, at the Ito Research Centre, Tokyo. https://www.mofa.go.jp/fp/hr_ha/page22e_000903.html Domestic violence campaigners continue to advocate for the protection of victims, usually women, while fathers who have been accused of domestic violence feel equally victimised by their treatment regarding this issue. https://www.washingtonpost.com/world/asia_pacific/parental-child-abduction-becomes-a-diplomatic-embarrassment-for-japan-ahead-of-g-7/2019/08/21/1e51a7fa-bf34-11e9-aff2-3835caab97f6_story.html?noredirect=on.

2. Domestic violence continues to raise significant concerns in India. The first author participated in a panel discussion on Interparental Child Removal, Domestic Violence and The Voice of the Child at The India International Centre, New Delhi, on 7 November 2018, where ‘issues arising out of domestic violence which were a major cause in concerns for India not signing the Hague Convention on child removal and its impact on the voice of the removed child’ were examined by the audience of judges, lawyers, academics, and others involved in the field.

3. See also Conclusion and Resolution No. 81 adopted by the 7^th Special Commission on the Operation of the 1980 Hague Convention, held in The Hague from 9–17 October 2017. This recognised the value of evidence-based research to strengthen existing knowledge of the effects of the wrongful removal or retention of children internationally and was the first time a Conclusion and Resolution of this type had been adopted by the Special Commission. https://assets.hcch.net/docs/edce6628-3a76-4be8-a092-437837a49bef.pdf.

4. Council Regulation (EU) 2019/1111 of 25 June (2019) on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELLAR%3A524570fa-9c9a-11e9-9d01-01aa75ed71a1.

5. IACLaR was established by the authors in August 2016 as a research organisation of leading international child law researchers around the globe with a particular focus on, and specialism in, international child and family mobility and transition issues. It was granted observer status at the 7^th Special Commission held in The Hague in October 2017.

6. Paragraph 39 states: ‘The opportunity of the child to express his or her views freely in accordance with Article 24(1) of the Charter of Fundamental Rights of the European Union and in the light of Article 12 of the UN Convention on the Rights of the Child plays an important role in the application of this Regulation.’

7. The authors gratefully acknowledge Victoria Stephens, Maria Wright and Megan Gollop for their contributions to this project.

8. Thanks are expressed to Professor Schuz for providing information about the two approaches to interpreting this exception in Israel; one a wider child-centred approach and the other a narrower approach. The latter was adopted by the Supreme Court in the 2006 case RFamA 672/06 Plonit v Ploni 61(3) PD 247 and this remains the leading case on this issue.

9. Unicef (2006, p. 6) state that there is increased risk of children becoming victims of abuse themselves, and that there is significant risk of ever-increasing harm to the child’s physical, emotional and social development.

10. Thanks are expressed to James Netto, Dawson Cornwell, for the information provided on this issue.

11. Other current initiatives include Minor’s Right to Information in EU Civil Actions (MiRI) – Improving Children’s Right to Information in Cross-Border Civil Cases. This project is led by Universita Degli Studi de Genova Unige, Italy, together with Universitat de Valencia Uveg, Spain, Universiteit Utrecht UU Netherlands, SIA Biznesa Augstskola Turiba, Latvia, The Institute of Private International Law, Bulgaria, and the European Association for Family Law and Succession Law. It is aimed at improving the situation of children involved in civil cases having cross-border implications with particular reference to children’s right to receive adequate information concerning those proceedings, in order to develop common best practices for the child-friendly application of EU law (thanks to Professor Wendy Schrama, Utrecht University, for this information). Additionally, INCLUDE (co-funded by the European Commission and co-ordinated by Missing Children Europe) will gather the views of young people in Cyprus and Hungary on how best to deal with international child abduction cases (thanks to Professor Thalia Kruger, University of Antwerp, for this information).

Additional information

Funding

This work was supported by the University of Westminster under a 2016-2017 Strategic Research Investment Fund Grant; the British Academy under Grant IC160210 Tackling the UK’s International Challenges; and the University of Westminster under a Research Impact Grant.