Women's rights and child abductions under the Hague Convention

Abstract

The Hague Convention on Civil Aspects of International Child Abduction is a multinational treaty designed to protect children internationally from the harmful effects of parental abduction. The Convention requires a mandatory return of a child who was wrongfully removed or retained outside the country of her habitual residence unless a narrow defense preventing return can be proven. When drafted, it was assumed that most abductors would be non-custodial parents disappointed by an adverse custody decision in the home country. It is now clear that women have been disproportionately affected because in many, if not most, U.S. cases, the respondents, that is, the parents accused of the abduction, are the children's primary caregivers. When the child's home country is not willing or capable of protecting the mother and the child, they are forced to flee from often near-lethal danger. Therefore, many cases brought under the Hague Convention involve severe domestic violence. The Hague Convention allows courts to deny the return if it would expose the child to a “grave risk of physical or psychological harm.” Nonetheless, a limited judicial understanding of domestic violence, coupled with societal gender biases, has impeded the application of this defense. Several recent developments discussed in this essay reflect a growing understanding of the lasting traumatic impact of domestic violence on these child victims.