By Michael T. Moran
Domestic violence is unquestionably a contemporary issue of public concern throughout the international community. For example, 1 in 3 women and 1 in 4 men have been victims of physical violence by an intimate partner, and 1 in 15 children have been exposed to domestic violence between intimate partners. Domestic violence is defined as “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.” Domestic violence includes any “physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person.” The abusive partner utilizes these actions or threats to “intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound” the other partner. Domestic violence not only affects the direct victim of the violence, but also children who may witness or experience it firsthand. With the substantial increase of international child abductions, the international community responded with establishing the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”), which has gained international traction due to more countries ratifying, accepting, approving, or acceding to the Convention during its three plus decades of existence.
The Hague Convention on the Civil Aspects of International Child Abduction
On October 25, 1980, the Convention was established to ensure “the secure the prompt return of children wrongfully removed to or retained in any Contracting State.” The Convention was implemented to ensure that the “rights of custody … under the law of one Contracting State are effectively respected in the other Contracting States.” Currently, the Convention has 98 Contracting States, meaning the Convention consists of 98 jurisdictions applying the same law, but likely with slight deviations among jurisdictions with respect to interpreting some of the Convention’s ambiguous provisions. The overarching objectives of the Convention are to discourage international child abduction and to ensure the “swift return to the status quo prior to the abduction of a child.” More importantly, the Convention was instituted “to protect the interests and safety of the child.”
To have a cognizable claim under the Convention, a petitioner must prove that the petitioner’s child was wrongfully removed or retained from the child’s habitual residence. Moreover, the petitioner is required to show that he has a “right of custody” over the child. The petitioner is required to contact the Central Authority in the Contracting State to move forward with an abduction claim under the Convention. Courts shall not conduct a child custody analysis when hearing a case on the basis of a Convention application. Instead, courts shall conduct “the most expeditious procedures available” to return the child to his country of habitual residence.
The Convention sets forth several defenses that the abductor may plead to prevent the return of the child. These exceptions include: (1) Article 12, where the child is well-settled in his new environment and over one year has elapsed from the date of the wrongful removal or retention; (2) Article 13(a), where the petitioner was not exercising his custody rights at the time of removal or retention; (3) Article 13(b), where the child would be exposed to “physical or psychological harm or otherwise place the child in an intolerable situation” (i.e., the grave risk exception); and (4) Article 20, where the home country violates “human rights and fundamental freedoms.” As a result, there is a tension between “discouraging child abduction and protecting victims of domestic violence.” For purposes of this blog post, Article 13(b) will be the main focus because the term “domestic violence” is not mentioned in the Convention, and Convention courts have struggled with determining whether fear of future domestic violence should encompass a grave risk.
Domestic violence against the abductor and/or child should be an explicit or implicit exception to a parent’s Convention petition because of impact the abuse has on the abductor and the child, even if the child is not physically present to witness the abuse. Courts have struggled with domestic violence as an exception to the Convention partly because the face of the abductor has changed since the Convention’s initial passage in 1980. In 1980, the quintessential abductor was portrayed as a foreign-national non-custodial father who abducted the children from their mother and took them to countries with different laws, cultures, and values different from the children’s home country. However, the current trend indicates that mothers have become the abductors in an attempt to return to their home countries with their children after living abroad in an abusive marriage. Mothers have resorted to fleeing their husbands’ home countries because they have found that these countries provide little, if any, assistance to address domestic violence incidents. Abusive fathers, playing the part of the left behind parent, use the Convention’s dictates “as part of their coercive control” to have their children returned to their country. In turn, mothers face the difficult choice of returning to the home with the children or allowing the children to return alone with the historically abusive father.
Another obstacle preventing the inclusion of a domestic violence defense under the Convention is the fact that the grave risk defense, which respondents use as a domestic violence defense, has been narrowly construed. The drafters of the Convention explained that the defense needed to be interpreted narrowly because there was fear that the Convention would be swallowed by its defenses. Moreover, grave risk defenses are fact-intensive and require the appropriate evidence, which often includes direct evidence showing that “the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation.” Legal scholars have noted that children’s exposure to their mother’s victimization to domestic violence does not typically give rise to a successful grave risk defense, even though research shows that “[m]any children physically intervene to protect an abused parent.” Instead of denying the return of the child to the original country of residence, courts will order “undertakings” and “mirror orders,” but these remedies are heavily criticized because they rarely have binding legal force in foreign jurisdictions.
However, courts must be cognizant of domestic violence in the household before the abduction. A court should determine whether (1) the violence was directed at the fleeing parent, child, or both; (2) the child was present at the time of the violence; (3) the child has sustained adverse psychological effects after witnessing the violence; (4) the violence was physical, verbal, and/or psychological; and (5) the degree of violence was extensive. Courts must consider the notion that any domestic violence occurring within a child’s home can have a detrimental impact on the child’s development. Courts should ensure that the child will safeguarded from further violence and will not be adversely impacted emotionally. This determination can be made without conducting a best interests of the child custody analysis, which is to be conducted in a separate family court proceeding. Otherwise, “[m]aking the abuse of the victimized parent irrelevant to an Article 13(b) defense often deprives the victim of the only defense available to her, making the victim feel powerless to protect herself and her children.” Additionally, the abusive father may continue to maintain control over the domestic violence victim by using the children as pawns with years of protracted custody litigation.
Domestic violence is an issue of international concern that Convention courts need to address when determining whether to grant or deny a Convention petition. Even if the children are not directly impacted by the domestic violence, the violence will still detrimentally impact the children’s development. Courts also need to be aware that in addition to ensuring the prompt return of wrongfully retained or removed children, the Convention was established “to protect the interests and safety of the child.” The child’s interests and safety cannot be protected when the child is ordered back to his original country of residence, where signs of past domestic violence against the parent and/or child were likely present. Therefore, evidence of physical or emotional domestic violence against a parent or child should constitute an exception under the Convention’s grave risk exception.
 National Statistics, NCADV, https://ncadv.org/statistics (last visited Mar. 3, 2018).
 Domestic Violence, U.S. Dep’t of Justice, https://www.justice.gov/ovw/domestic-violence (last visited Mar. 3, 2018).
 John Caldwell, Child Abduction Cases: Evaluating Risks to the Child and the Convention, 23 N.Z. U. L. Rev. 161, 179 (2008).
 See Karen Brown Williams, Fleeing Domestic Violence: A Proposal to Change the Inadequacies of the Hague Convention on the Civil Aspects of International Child Abduction in Domestic Violence Cases, 4 J. Marshall L.J. 39, 40–41 (2011).
 The Hague Convention on the Civil Aspects of International Child Abduction art. 1(a), Oct. 25, 1980, 1343 U.N.T.S. 89, 19 I.L.M. 1501 (1980) [hereinafter the Convention].
 Id. art. 1(b).
 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Hague Conference on Private Int’l Law (Aug. 2, 2017), https://www.hcch.net/en/instruments/conventions/status-table/?cid=24.
 Brian Quillen, Note, The New Face of International Child Abduction: Domestic-Violence Victims and Their Treatment Under the Hague Convention on the Civil Aspects of International Child Abduction, 49 Tex. Int’l L.J. 621, 623 (2014).
 Kyle Simpson, What Constitutes a “Grave Risk of Harm?”: Lowering the Hague Child Abduction Convention’s Article 13(b) Evidentiary Burden to Protect Domestic Violence Victims, 24 Geo. Mason L. Rev. 841, 842 (2017).
 The Convention, supra note 7, art. 3.
 Simpson, supra note 11, at 849.
 For example, the Central Authority in the United States is the United States Department of Justice. United States of America - Central Authority & Practical Information, Hague Conference on Private Int’l Law (Jan. 27, 2016), https://www.hcch.net/en/states/authorities/details3/?aid=279.
 The Convention, supra note 7, art. 6.
 Kubera v. Kubera, 2008 CarswellBC 2097, para. 6 (Can. B.C. S.C.) (WL).
 The Convention, supra note 7, art. 2. The Convention does not define the term “habitual residence.” Jeff Atkinson, The Meaning of “Habitual Residence” Under the Hague Convention on the Civil Aspects of International Child Abduction and the Hague Convention on the Protection of Children, 63 Okla. L. Rev. 647, 648 (2011). However, a British family court once defined it as that “there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. . . . All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.” In re Bates, 1989 WL 1683783, *13 (High Ct. J., Fam. Div. Feb. 23, 1989).
 The Convention, supra note 7, arts. 12–13(a)–(b), 20.
 Quillen, supra note 10, at 622.
 Williams, supra note 6, at 44 (“The Convention does not recognize domestic violence against a spouse as a reason to deny the return of an abducted child. In fact, domestic violence is not even mentioned in the language of the Convention.”).
 Roxanne Hoegger, What if she Leaves? Domestic Violence Cases Under the Hague Convention and the Insufficiency of the Undertakings Remedy, 18 Berkeley Women’s L.J. 181, 185 (2003) (opining that “household tensions and the mothers’ emotional distress are detrimental to children’s well-being”).
 Williams, supra note 6, at 42.
 Id. at 42–43. During the late 1990s and early 2000s, the number of mothers abducting their children hovered around 68% and 69%. Id. at 43.
 Id. at 44.
 See the Convention, supra note 7, art. 3.
 Williams, supra note 6, at 44.
 Id. at 58–59.
 Id. at 63.
 Caldwell, supra note 5, at 186.
 Williams, supra note 6, at 63.
 Id. at 65.
 Quillen, supra note 10, 633.
 Williams, supra note 6, at 66. Undertakings are defined as “a voluntary commitment made by the petitioner to perform acts that the parties agree will facilitate the child’s return or to protect the child or mother upon her return to the other country,” and mirror orders provide enforcement of one country’s court orders in another country. Id. at 66, 68.
 Id. at 64. Legal scholars have commented that “courts do need to be sharply attuned to the reality of experience for the victims of violence,” regardless of whether the violence was directed against the child. Caldwell, supra note 5, at 179.
 Williams, supra note 6, at 83.
 Id. “Children are intuitive, and they are aware of and impacted by such abuse when they witness household tensions or a mother’s emotional distress.” Simpson, supra note 11, at 857.
 Quillen, supra note 10, at 623; see also Callicutt v. Callicutt, 2014 CarwellMan 339, paras. 137, 141 (Can. Man. Q.B.) (WL) (holding the mother respondent satisfied “the heavy onus required by Article 13(b), that a return order would place the children at grave risk of physical or psychological harm” as a result of further physical and emotional domestic violence).
 Quillen, supra note 10, at 633.
 Simpson, supra note 11, at 857.
 Id. at 842.