The Australian Broadcasting Corporation published a story last week on the Hague Child Abduction Convention. The headline gives a sense of the gist of the story: “Mothers forced to stay in same country as abuser or risk persecution under the Hague Convention.” The Convention, according to one quoted expert, is a “good law gone bad.”
What’s the problem? According to the story, Australian immigration law provides that foreign women who marry Australian men and then leave them “may not be entitled to government support in Australia.” So they may want to return to their own countries, where they may be entitled to support; but if they take their children with them, the husband may have the right, under the Convention, to require the mother and children to return to Australia. The article also points out that it can be difficult for woman whose husband is abusing her to show that the abuse poses a grave risk of harm to their child, which is one of the grounds for resisting an application for return of a child under the Convention.
No one thinks that the law should require an abused woman and her child to remain in an abusive relationship. So why do I think the article’s criticism of the Convention is unfair? Because I think it points at the wrong target. The Convention is, when you get down to it, really about which state has jurisdiction to make a custody determination when the parents don’t agree about custody. The basic answer, subject to exceptions, is that the state of the child’s habitual residence should decide. That seems like a pretty good rule, especially because each state has the right to accept or not to accept the accessions of additional states that sign up to the Convention. The real problem, it seems to me, is that Australian law may not provide quick enough or strong enough remedies for women suffering domestic abuse, or easy enough access to justice to get custody of a child. The problem, in other words, is not with the rule about the governing law and the forum for resolving these issues, but with the domestic law itself.
Now, I am not an expert in the Abduction Convention, and it’s clear from the article that there are expert practitioners who take the other view. But I see similar issues all the time in the Service Convention context particularly, where an unjust result leads to arguments that the court should not apply the Convention in a particular case. In the Service Convention context, sometimes there actually is a pretty good argument to make about the injustice of the situation, because the injustice can result from a state not honoring its obligations under the Convention (as when a state unilaterally refuses to execute requests under the Convention—this is the Russia situation—or where a state inappropriately invokes Article 13 to refuse a request—this is what led to the erroneous outcome in Gurung v. Malhotra). But the problem under the Abduction Convention isn’t that states aren’t complying with the Convention; the problem the article identifies is with the idea that a parent without a right to sole custody shouldn’t be allowed to take the child to another state to adjudicate custody rights.
To sum up: domestic law should provide speedy, effective, and affordable access to justice for women with children seeking to escape an abusive marriage. But it just seems wrong to me to blame an agreement about conflict of laws and the appropriate forum for the failure of domestic law to give access to justice.