Hague Convention: Court of Appeal takes into account mother's experience of violence; new Good Practice Guide
Tue 14 Jul 2020
In a significant decision, the New Zealand Court of Appeal has found in favour of a mother who left Australia with her child, fleeing her violent partner.
The mother is a New Zealand citizen. She was living in Australia with a violent partner, the father of the child. In 2017, the mother and child returned to New Zealand to escape the violence. The father, who remained in Australia, sought the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention).
The father had made an application under the Convention for the child to be returned to Australia. The Court of Appeal found that returning the child to Australia would risk placing the child in an intolerable situation. This is one of the exceptions to returning a child under the Convention. The Court took into account the mother’s experiences of violence from the father. It also considered the lack of protection and support which could impact the mother’s wellbeing and ability to parent effectively.
The Courts of New Zealand have published the full Court of Appeal judgement (case number  NZCA 209).
The case was initially considered in the New Zealand Family Court. The Family Court declined the father's application on the basis that given the "… mother’s vulnerability and issues associated with her mental health and her entitlement to benefits and legal aid in Australia, it is inevitable, in my view, this would place [H, the child] in an intolerable situation if it was ordered he is to return to Australia." The Family Court Judge considered a number of factors affecting the mother's vulnerability which included the ongoing violence and her fear of her former partner.
The father appealed to the New Zealand High Court. The High Court concluded that the risk of an intolerable situation had not been established and therefore ordered that the child should be returned to Australia. The mother then went to the Court of Appeal.
The Court of Appeal set aside the High Court order and declined the application for the child to be returned to Australia. The Court of Appeal concluded there was a grave risk that returning the child to Australia would place the child in an intolerable situation.
The Court took into account the impact on the child if the mother (as the primary caregiver) was not able to effectively parent as a result of the negative impacts of family violence:
"The mother fears for her safety in Tasmania, where she will be living in proximity to the father and will probably be forced to interact with him to some extent in connection with arrangements concerning H. This fear is well grounded in fact. The father was recently convicted for assaulting the mother and for breaching family violence orders and bail conditions. His breaches of family violence orders and bail conditions also provide substantial objective support for her concern that the orders that the Australian courts can make provide no assurance of effective protection. This is not a criticism of the Australian court system. The unfortunate reality is that where a perpetrator of family violence is not willing to respect court orders, there is only so much that any legal system can do to protect the victim. That is true in Australia as it is in New Zealand."
The Court also took into account the lack of adequate financial support, legal support, social support, and housing if the mother returned to Australia. The Court identified that collectively these impacts posed significant risks to the mother's mental health and risk of substance misuse, which could affect her parenting:
"If these concerns do materialise, we consider that the situation would be intolerable for H. This young child cannot be expected to tolerate the loss of effective parental care from his mother, if her mental health deteriorates and she returns to alcohol abuse."
The Court went on to note:
"We accept that there are other possible arrangements for care of H in Tasmania. But we are satisfied that the scenario in which the mother is incapable of functioning as an effective parent, as a result of a deterioration in her mental health and/or recurrence of alcohol abuse, would be intolerable for H. She has been his primary carer throughout his life. In this scenario she would be incapable of properly caring for him — either as a primary caregiver or, quite possibly, at all. That is not a situation that H can be expected to tolerate."
Background information on the Hague Convention
The Hague Convention is an international agreement signed by a number of countries including New Zealand. If one parent takes or keeps a child overseas without the agreement of the other parent, it enables the 'left behind' parent to apply to have the child returned to the country they usually live in.
In recent years, media has highlighted stories in New Zealand and Australia where women leaving violent relationships with their children have been forced to return to the country where they were previously living after a Convention application by the violent partner/parent.
The Convention does not explicitly take into account the wellbeing of the parent or the impacts of family violence.
The Convention does outline exceptions that allow for a decision that a child not be returned. Specifically, Article 13(1)(b) of the Convention allows for an exception when "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
Guide to Good Practice
The Hague Conference on Private International Law has recently published the Guide to Good Practice Child Abduction Convention: Part VI - Article 13(1)(b) (2020). It provides guidance to judges, central authorities, lawyers and other practitioners working in the field of international family law who are faced with the application of Article 13(1)(b). The Guide includes information related to domestic violence against either the child or the parent. The Guide specifically lists domestic violence as possible grounds for the Article 13(1)(b) exception, stating:
"Assertions of a grave risk resulting from domestic violence may take various forms. The taking parent may claim that there is a grave risk of direct harm because of physical, sexual or other forms of abuse of the child. It may also be asserted that the grave risk results from the child's exposure to domestic violence by the left-behind parent directed to the taking parent. In some situations, the grave risk to the child may also be based on potential harm to the taking parent by the left-behind parent upon return, including where such harm may significantly impair the ability of the taking parent to care for the child." (page 37)
The Guide also addresses the availability, adequacy and effectiveness of measures protecting the child from the grave risk if they were returned to the country where they were usually living, noting:
"In some instances, however, courts may deem such legal protection and services to be insufficient to protect the child from the grave risk, for example where the left-behind parent has repeatedly violated protection orders, which may put the child at grave risk of physical or psychological harm, or given the extent of psychological vulnerability of the child." (page 39)
Related research and information
Previous research has explored how domestic violence has been considered in cases involving the Hague Convention. It has identified a number of issues that the Guide to Good Practice seeks to address. For more information, see the work of the US-based Hague Domestic Violence Project which has reports, a practice guide for lawyers and advocates and examples of bench guides.
Also see the following research:
Domestic violence and child participation: contemporary challenges for the 1980 Hague Child Abduction Convention, Journal of Social Welfare and Family Law (Marilyn Freeman and Nicola Taylor, 2020)
The Hague Convention on the Civil Aspects of International Child Abduction 1980: the New Zealand courts' approach to the "grave risk" exception for victims of domestic violence, Victoria University of Wellington Law Review (Allie Maxwell, 2017)
Australia's embrace of the 1980 Hague Abduction Convention: How the judiciary's narrow interpretation of the "grave risk of harm" exception harms abused taking mothers and their children, Masters Thesis (Gina H. Masterton, 2016)
The Hague Convention and Domestic Violence: Proposals for Balancing the Policies of Discouraging Child Abduction and Protecting Children from Domestic Violence, Family Law Quarterly (Shani M. King, 2013)
In 2013, Sudha Shetty and Jeffrey Edleson presented Seeking Safety Across Borders: Battered Women’s Experiences with the Hague Convention in American Courts (PDF, 744 KB) at the Children, child maltreatment and intimate partner violence: Research, policy and practice conference organised by the Clearinghouse in Wellington.
Work of the Backbone Collective on the Family Court and violence against women and children
NZFVC Reading guide for the 'family justice' system review (2018).