International agreements are never going to be perfect. They seek to manage a vast array of competing interests and various degrees of state power. As a result most agreements muddle through, seeking to achieve as reasonable outcomes as possible. If these can’t be achieved, it is logical for these agreements to either be revised or scrapped completely. This logic should especially be applied to those agreements that in practice now produce the opposite of what they were originally designed to achieve.
This is the case with the Hague Convention on the Civil Aspects of International Child Abduction. Established in the early 1980s it sought to address a serious problem – the transportation of children across state borders against their will or by a non-custodial parent. Yet over the decades the Hague Convention has become something else. Today, three-quarters of Hague Convention cases are brought against mothers who are fleeing domestic abuse with their children. A convention designed to protect children now does the very opposite.
In her address to the United Nations Human Rights Council in June, Reem Alsalem, the special rapporteur on violence against women and girls, stated, “In the current application of the Hague Convention, a child can, and is, returned in many cases to their abusers… this, as any other form of violence against women and girls, cuts across institutions and rights and conventions.”
Late last year the Australian government made a weak attempt at rectifying these problems by making an amendment to its Family Law Act, stating “allegations of family and domestic violence can be considered before return orders are made for children under the Hague Convention.”
Yet the use of the word “can” rather than “must” effectively rendered the amendment useless. Most judges see the Hague Convention as a jurisdictional law, rather than one pertaining to child safety. The word “can” is simply not strong enough to change this line of thinking. Family courts themselves – worldwide – have also become incredibly suspicious of mothers who raise accusations of domestic abuse, something also recently highlighted by Alsalem.
Last week a multi-party Senate committee made further recommendations to amend the Family Law Act so that in any Hague Convention case there should be more consideration of the child’s perspective, including if a child objects to a return order. If applied this would be an important addition to the law, but, again, may come up against a legal wall of courts that simply don’t consider child welfare to be what the Hague Convention is about, or are suspicious of any evidence of domestic abuse brought to their attention.
Over the past couple of months I have been speaking with an Australian First Nations mother who had her daughter forcibly removed and transported to Europe under the Hague Convention last December. Given the history of child removal from First Nations communities in Australia, her story has an added layer of brutality to it.
In light of this case, the Senate committee made further recommendations to amend the Family Law Act to “better recognize and protect the right of Aboriginal and Torres Strait Islander children to enjoy their culture” – something that has been denied to the First Nations child in this case. It also recommended First Nations concepts of kinship and child-rearing practices also be recognized, while also stressing that First Nations people are not subject to more onerous legal expectations because of this.
Additional amendments to the Family Law Act to try and protect mothers and children fleeing domestic abuse internationally would be welcome. It would be an acknowledgment from the Australian government that it understands how deeply flawed the Hague Convention has become, and how it is now harming the people it was initially designed to protect.
Yet this does pose the question of why the government continues to uphold a convention it knows is dangerously flawed. The best explanation I can think of is that it still believes the Hague Convention is important for the quarter of cases that are genuine forms of child abduction. It is, of course, vital that there is some international framework to coordinate and address this serious problem. But at the moment a large number of mothers and children are losing their rights to live free from violence in order to address this minority of cases. This is a callous way to continue.
There’s an opportunity for Australia to show international leadership here and use its influence to create a new convention: one that can address actual forms of child abduction, while also offering concrete protections to mothers and children fleeing domestic abuse. If the Australian government persists with protecting the Hague Convention – with only minor attempts to curb its faults – then its current rhetoric on seriously addressing domestic abuse will ring hollow.