When protection becomes persecution: The Hague Abduction Convention’s failure to protect mothers escaping domestic violence

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (HCAC), ratified by 103 states, seeks to secure the prompt return of children wrongfully removed across international borders. Within the EU (except Denmark), its application is complemented by the Brussels IIb Regulation, which further aligns cross-border proceedings. The HCAC operates on the presumption that return to the child’s state of habitual residence is the appropriate remedy, leaving substantive custody decisions to national courts in that state.

The HCAC is implemented primarily by designated national central authorities and domestic courts with jurisdiction to determine whether a removal is wrongful under Article 3 and, if so, order the return of the child to the state of its habitual residence in an expeditious manner, under Article 11. However, the return presumption may sit uneasily with the UN Convention on the Rights of the Child (UNCRC), particularly where return risks exposing children to harm. This tension reflects the paradigm underlying the HCAC’s drafting, which envisioned a non-custodial father abducting a child after being denied access (Beaumont and McEleavy). Today, by contrast, most abducting parents are primary caregiver mothers (Keyes). Despite this shift, the HCAC’s mechanisms and implementation remain largely unchanged.

HCAC contains no safeguards addressing the circumstances of abducting mothers, and its exceptions to return (Articles 12, 13, and 20) are interpreted restrictively (HCCH, paras. 14, 17). Even Article 13(1)(b), which allows non-return where the child faces a grave risk of harm, does not extend to harm suffered by the taking parent; the harm must be to the child. As a result, defences grounded in domestic violence, which are frequently raised (Weiner 2021), face structural limitations. Within the EU, the Brussels IIb Regulation reinforces this return-oriented logic by prioritising return with protective arrangements over refusal of the order (Article 27(3)). This blog post argues that such an approach reflects outdated assumptions about abduction and abductors, and calls for a gender-transformative, domestic-abuse-informed interpretation of the HCAC by national courts and the European Court of Human Rights (ECtHR).