GPSolo Magazine - September 2005

The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases

The 1980 Hague Convention on the Civil Aspects of International Child Abduction, as currently applied, imposes unnecessary hardships on domestic violence victims and their children. These difficult cases require better solutions, and this article suggests how they can be accomplished. Courts need only return to the original structure and purposes of the Convention and inform themselves about the realities of abusive relationships.

The Convention was written to remove the advantages of self-help in child custody cases. Its primary goal was to defeat an abductor’s hoped-for advantages. Its solution for most cases was to restore the status quo ante as expeditiously as possible by returning the child to its habitual residence. The courts of that place, it was believed, would be in the best position to deal with the merits of any custody dispute.

Although the basic scheme of the Convention leaves the hearing on an individual child’s best interests to the courts of the habitual residence, its exceptions are intended as a deviation from this norm. Each defense to return addresses a concrete factual situation in which an individual child’s best interests are meant to control the outcome of the proceeding.

The Convention’s authorized exceptions are precise. They encompass return petitions from those who have not actually been serving as the children’s primary caretakers, petitions from those whose custody would entail unacceptable risks for the child, and petitions from those with whom a mature child does not wish to live. In all likelihood, these petitioners will ultimately fail in their quests for custody, and it is not difficult to understand why the drafters chose a different rule for them. Return is not required in these cases and, if it is denied, petitioners who continue to press custody requests will be heard in the courts of the child’s new home.

The Convention aims to remedy a child’s “traumatic loss of contact with the parent who has been in charge of his upbringing.” In some cases, however, there are what have been called objective, justifiable reasons for a child’s removal. The first, most general of these exceptions concerns situations in which the child has not suffered a loss of her primary care-giver. The Convention provides no obligation to return a child to his former habitual residence if the abductor is the child’s custodian, and the person left behind holds only access rights. Similarly, even if the person left behind holds a theoretical right to custody, if he or she has not actually been exercising custody, the child will remain with the de facto custodian—the abductor.

Next, even if the petitioner holds a custody right and was actually exercising custody, there is no blanket guarantee that the child will be returned. Instead, specific, enumerated defenses were adopted, including several that are particularly relevant to domestic violence cases:

  • the return petition is filed one year or more after the wrongful act and the child is settled in its new environment (Article 12);
  • there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13(b));
  • a child who has attained an age and maturity that make it appropriate to take account of the child’s views objects to return (Article 13, ¶ 2); and
  • the return is not permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms (Article 20).

Widespread inattention to this history has caused much of the current difficulty in domestic violence cases. The consequence is that many petitioners obtain return orders even though it is unlikely that the child’s best interests could be served by an award of custody to them—a situation the drafters sought to avoid.

The courts’ appropriate concern that the Convention’s exceptions not be permitted to swallow the return rule has sometimes developed into an improper disregard for the Convention’s intended protections against danger.

Somewhat more complex but equally troubling deviations from the Convention’s scheme also appear in cases that consider a child’s objection to return. The cases reveal both instances of inappropriate attention to the wishes of young children and—on the other hand—refusals to consider the custody wishes of older children, even in cases of apparent abuse. Each of these common errors disregards the drafters’ scheme.

Some U.S. courts have developed new doctrines that are unsupported by the Convention and are likely to impose unjustifiable hardships. For example, in Blondin v. Dubois, 189 F.3d 240, 249 (2d Cir. 1999) (Blondin II), the second of four decisions in the case, the federal appellate court imposed a second test for a court to apply after it has found that a return would place the child in grave danger of harm. This new inquiry is a search for any possible way to return the child to its country of habitual residence while avoiding the proven danger—solutions that may range from return in the abductor’s care to return into foster care.

Sometimes, however, the very return in the abductor’s care that is expected to ameliorate danger to a child exposes the abductor to danger. Nothing in the Convention suggests such a trade-off. But Australian and English courts have nonetheless returned children in the care of mothers who were under death threats, assuming that these women and their children would find refuge in battered women’s shelters pending resolution of their custody disputes. Further, some courts are willing to return children to foster care, believing that this can protect them from dangers that would result if they were returned to the petitioning parent’s care. Either of these orders victimizes the child while also imposing a grave risk of psychological harm or placing the child in an intolerable situation.

Next, the text of the Convention and the intention of its drafters are violated by courts that impose returns when a petition is filed a year or more after the wrongful event, and the child is settled in a new environment. The drafters considered it unwise to require that a child in this situation, even one who had been hidden by an abductor, be uprooted for a custody trial. Instead, they decided that it was best for the child to remain in the current, settled surroundings pending a local decision on the merits. Indeed, because of the likely harm to a child from removing custody from an established primary caregiver, the Convention’s drafters believed that custody on the merits would ultimately be awarded to many or most of these abductors.

Access cases provide the other setting in which return orders (even discretionary ones) are not permitted under the Convention. As in the case of delayed petitions for the return of a child who has become settled, litigation is left to the courts of the refuge state. This drafting decision, too, has been distorted—in this case, by courts that hold that ne exeat orders (travel restrictions) confer custody rights on the visiting parent. A fair reading of the legislative history and of the import of travel restrictions is to the contrary. In states that confound these custody and access issues, noncustodial parents can force the return of a child although access rights are all that the parent wants or can reasonably expect. And the custodial parent and child must now return for litigation that was never thought sufficiently important to require that disruption.

Carol S. Bruch is a research professor of law and professor emerita at the University of California, Davis. She can be reached at Professor Bruch’s research was supported by the University of California, Davis, and the UCLA Center for the Study of Women.

For More Information About the Section of Family Law

- This article is an abridged and edited version of one that originally appeared on page 529 of Family Law Quarterly, Fall 2004 (38:3).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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