Domestic Violence: The Hague Convention and Removal of Children from the Country

Last updated August 2012

Mothers who flee with their children because of domestic violence may have few other options to ensure their safety and that of their children in the face of their partner’s violence. Yet when their flight takes them across international boundaries, they become vulnerable to being legally treated as an “abducting” parent by the courts under the Hague Convention. [i]

 
The purpose of the Hague Convention[ii] is to provide a uniform international law for handling cases in which children are abducted from one country to another. Member countries are expected to quickly return children to their country of “habitual residence,” where issues such as custody will be decided. One exception to the requirement that a child be immediately returned to the country of habitual residence is that the forced return would subject the child to a grave risk of harm.[iii] While the Hague Convention does not require that the child have actually been previously physically or psychologically harmed in order to find a grave risk of harm, courts have been reluctant to accept exposure to domestic violence, in the absence of violence towards the children,  as a reason not to return children to another country.
 
A recent exception to courts’ unwillingness to find grave risk of harm in the case of exposure to domestic violence is the decision of the United States District Court for Minnesota in the case of Acosta v. Acosta.[iv] The Acosta court found a grave risk of harm to the children where domestic abuse shows a propensity for violence and there are other risk factors. The court held that the father’s history of violence in the presence of the children, escalation of violence, suicide threats, and estrangement from the children was sufficient evidence of a high risk of harm to the children.
 
Recommendation:
·         In applying the Hague Convention, courts should consider a parent’s history of violence against the other parent and the potential for future physical and psychological harm to the children in deciding whether children should be forced to return to the country of the abusive parent.

[i] Edleson, J.L. , et al., “Multiple perspectives on battered mothers and their children fleeing to the United States for safety, A study of Hague Convention cases,”Executive Summary, (2010), http://www.haguedv.org/reports/summary.pdf.
[ii] Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501 (1981).
[iii] The Hague Domestic Violence Project, http://www.haguedv.org/about/hague-and-dv.html.