The federal government has announced reforms designed to stop women who flee domestic violence from being deported back into unsafe situations after a First Nations woman pleaded for help to stop her daughter being returned to Europe under a decades-old international agreement.
The Hague convention on the civil aspects of international child abduction, now more than 40 years old, is designed to stop one parent removing a child from a country without the other parent’s consent.
But it has drawn widespread criticism for its use in cases of domestic violence where one parent is fleeing an unsafe or violent environment with their child. Experts say that, prior to Monday, courts that consider Hague abduction cases were not able to properly consider domestic violence issues.
The federal attorney general, Mark Dreyfus, announced on Monday that the government had amended the law to make it clear that allegations of “family and domestic violence can be considered before return orders are made for children under the Hague convention”.
“The regulations make clear that family and domestic violence is a relevant consideration under the ‘grave risk’ defence and a court does not need to be satisfied that such violence has occurred or will occur before it is taken into account,” he said in a statement.
The regulations make it clear that family and domestic violence is a relevant consideration and that a court does not need to be satisfied that such violence has occurred or will occur before taking it into account.
“Australia fully respects our international obligations under the Hague convention. These regulations affirm that protection from family and domestic violence is an important consideration in proceedings,” he said.
One First Nations woman, who cannot be identified, recently lost a bid to have a case heard by the high court to stop her daughter being sent back to Europe. The woman was in a relationship with a man, became pregnant and was intending to give birth in Australia, but says he coerced her into visiting him.
She alleges domestic violence occurred and she fled the situation with her daughter at the first opportunity possible to return to Australia. The man is now applying for the child to be returned to him using The Hague abduction convention. She says the law is being used to force her and her First Nations daughter back into an unsafe situation.
Asked how she felt when she first found out about the convention, the woman told the Guardian “betrayal is the enduring emotion”.
“Betrayed that there are no warnings signs at international airports letting mothers know that behind government walls they have signed away our rights to return home, even if domestic violence, pandemics, and/or medical complications force you to give birth overseas.”
The woman fought the decision through the courts, but says the law instructs judges to ignore the best interest of the child. She recently lost a special leave application to the high court.
She sought an urgent response from the attorney general, Mark Dreyfus.
She describes the situation facing her daughter as a continuation of the stolen generations.
The new laws will not apply to her case though, as they are not retrospective.
Her case was taken up by Julian Leeser, the shadow attorney general, who said it underscored the lack of weight courts give to domestic violence when dealing with Hague convention matters.
“I have been working with the government to see if there are any means by which this matter can be resolved – because we must ensure that no stone is left unturned in this matter.”
Experts are also sounding the alarm about the convention in such cases.
Gina Masterton, a postdoctoral research fellow at the Queensland University of Technology, specialises in Hague abduction cases. She describes the process women go through as “being Hagued”.
She said the convention was being “weaponised” by abusive ex-partners.
“The Hague convention, drafted to address the issue of noncustodial fathers removing children, can precipitate significant harm to women who have crossed international borders with their children while fleeing family and domestic violence,” Masterton wrote in briefing paper this year.
“This is because abusive ex-partners can weaponise the convention by filing return applications that position mothers as abductors of their own children.”
Experts have been warning about the situation for years. In 2014, Michael Salter, a University of New South Wales associate professor, warned that the convention was “trivialising domestic violence and child abuse” and perpetuating stereotypes of women as unstable and mentally ill.
“The Hague convention was drafted during a time in which there was little empirical data on child abductions, child abuse, or domestic violence,” he said.
