As Senior Staff Attorney for Sanctuary’s NGI, I was honored to attend the Second Forum on Domestic Violence & the 1980 Hague Abduction Convention. It was an incredible opportunity to share expertise, best practices, and proposed solutions to challenges. However, it was evident that there is still a lot of work to be done to protect survivors.
As Senior Staff Attorney for Sanctuary’s Narkis Golan International Child Abduction Initiative (NGI), I was honored to attend the Second Forum on Domestic Violence and the 1980 Hague Abduction Convention (the Forum), held this year from October 27-30, in Fortaleza, Brazil.
What is the Hague Abduction Convention?
The Forum’s stated goal was to bring together “all perspectives” to create a dialogue on the Hague Convention on International Child Abduction (“Hague Abduction Convention”), and how it relates specifically to cases involving domestic violence.
The Hague Abduction Convention is a multilateral treaty, wherein partner countries are bound to undertake a legal process for a child whose “left behind” parent accuses the “taking” or “fleeing” parent of wrongfully removing or retaining their child in a new country.
The Hague Abduction Convention was brokered in the 1980s, ostensibly to protect primary caretaker mothers from fathers kidnapping and hiding their children abroad. However, in practice, fathers are more often the petitioning parent. Now, we see that the Hague Abduction Convention is being weaponized by abusers against domestic violence survivors who flee with their children across international borders to safety.
There are certain defenses that the “taking” or “fleeing” parent can allege to prevent their children from being returned in Hague Abduction Convention litigation, such as the “grave risk of harm” defense, which is Article 13(b) under the Hague Abduction Convention. This defense is used when the fleeing parent alleges that the left behind parent committed acts of domestic violence and it is unsafe for the children to return to their former country. The Forum focused on the application of Article 13(b) and the unique considerations that pertain to cases involving domestic violence allegations.
Important Steps Forward at the Forum
The Forum brought together almost 500 participants, including jurists, Central Authority personnel, practitioners, advocates, academics, and non-governmental organizations such as Sanctuary for Families.
Multiple opening speakers, including Brazilian activist and namesake of a groundbreaking domestic violence law, Maria da Penha, emphasized the importance of protecting mothers and survivors in order to protect children.
As participants, we discussed “grave risk of harm cases” and worked through various hypothetical scenarios in breakout groups. It was an incredible learning opportunity to have experts from all different backgrounds sharing their experiences, best practices, and proposed solutions to challenges.
It is undisputed that the grave risk of harm defense is a very difficult case to prove, requiring substantial evidence from foreign countries and experts in the field.
The Forum highlighted why it is critical that the international bench, attorneys, and advocates be provided with robust, trauma-informed education on the Hague Abduction Convention and domestic violence in all its forms.
Respondents alleging the grave risk defense deserve experienced and sensitive representation.
Ongoing Challenges for Survivors
However, it was evident from the Forum that there is still a lot of work to be done.
Throughout the Forum, there was a strong undercurrent suggesting that there is no such thing as a “protective abduction”. This framing denies the courage and strength of a survivor of domestic violence who flees across international borders to protect themselves and their children from abuse.
There was also signaling that the Hague Convention does its job in preventing abductions from taking place. Specifically, many presenters stated that the Hague Convention, when applied correctly, is effective at stopping abductions and thus does not need to be altered. While the existence of the Convention may stop some “abductions” from taking place, this fact alone does not address the underlying issue that survivors fleeing domestic violence often cannot obtain proper protection under the Convention, as it is interpreted in courts today.
At the Forum, protective measures were presented as successful in protecting children who were returned to their former country. A judge can order protective measures, such as orders of protection against the abusive parent, to be put in place upon return to the former country. In practice, we see that these measures are not enforceable in the foreign country.
While well-intentioned, these measures can create a false sense of security that enables judges to decide to return children to unsafe environments.
Until these issues are properly recognized and there is open discussion for change, survivors will continue to face serious problems when courts issue return orders, even orders with so-called “protective measures.”
How Sanctuary’s NGI Helps
In 2024, Sanctuary formed the groundbreaking NGI to increase access to justice for survivors of gender-based violence who find themselves embroiled in complex and traumatic legal battles in the U.S. under the Hague Convention.
Our NGI team works every day to provide legal consultations and representation for respondents who have fled domestic violence, as well as to provide education to jurists and attorneys about domestic violence and the Hague Convention.
Attorneys interested in assisting Hague Convention respondents can contact us directly at GolanInitiative@sffny.org to receive training and further information. If you take a case from the Narkis Golan Initiative as a pro bono attorney, we will guide you through the process so that you feel supported and leave as an expert in Hague litigation.
Are you a survivor of gender-based violence who needs legal assistance with a U.S.-based Hague Convention case? Sanctuary can help.