Reevaluating Domestic Violence in Child Abduction Cases

Dr. Maurício Ejchel

The prevailing narrative in legal and academic discourse frequently identifies parents involved in international child abduction as escaping domestic violence. This interpretation supports the adoption of domestic violence as an exception under Article 13(1)(b) of the 1980 Hague Convention, potentially influencing legal precedents soon.

Addressing domestic violence in the context of international child abduction requires a balanced consideration of both the taking parent’s and the left-behind parent’s perspectives. This consideration must include the recognition that the left-behind parent, having their child taken by the other parent, effectively experiences domestic violence.

Redefining child abduction as a manifestation of domestic violence, we recognize that such acts often involve coercion or deceit, directly inflicting profound emotional and psychological distress on the parent left behind. The sudden and forceful severing of the parental bond, denying one parent access to their child, embodies a stark violation of the trust and safety typically found within domestic settings.

This traumatic event is not isolated; it can be part of broader patterns of harm that unfold within the family environment.

Abduction not only involves physical violence but also inflicts significant psychological distress on the left-behind parent, affecting their emotional stability, work life, and overall well-being, destabilizing their emotional equilibrium, disrupting their work life, and compromising their health. Additionally, the financial burden of pursuing legal recourse across international borders can be substantial, placing further strain on the affected parent.

The impact of this trauma extends beyond the immediate family unit, affecting extended family members and the broader societal context. The deliberate alienation of the child — a critical component of the abduction — not only deprives the child of contact with the left-behind parent but also erodes the familial and social bonds that are essential for healthy development.

This systematic isolation reflects a deeper aspect of domestic violence, where control and manipulation are exerted through the exploitation of emotional connections, inflicting long-term damage on both individual and communal levels.

This question challenges the prevailing discourse and invites a broader examination of domestic violence’s impact, extending beyond the immediate context of the abduction to consider the ongoing trauma and victimization experienced by the left-behind parent. 

This shift in perspective underscores the necessity for legal systems and protective measures to address the needs of all family members affected by abduction and domestic violence. It highlights the importance of a unified scheme in legal proceedings and policy formulations, one that considers the diverse ways domestic violence can influence and be influenced by the act of child abduction.

Current interpretations of ‘grave risk of harm’ under the 1980 Hague Convention predominantly focus on the immediate physical and psychological threats to the child upon return. This interpretation should be expanded to consider the longer-term psychological impact and potential exposure to domestic violence by the taking parent. Legal frameworks and judicial techniques need to incorporate this broader understanding to ensure decisions truly reflect the child’s best interests and the multifaceted nature of domestic violence.

The effectiveness of protective measures and undertakings, especially those designed to safeguard abducting parents in return proceedings, requires rigorous scrutiny.

The UK’s judicial procedure to handling child abduction cases motivated by domestic violence offers valuable insights. The pioneering practices of UK courts, including their nuanced handling of protective measures and undertakings, provide a model that other jurisdictions could consider.

The complexities of international parental child abduction cases, especially those entwined with domestic violence, demand a globally harmonized judicial strategy.

Courts must adopt a child-centric perspective that thoroughly assesses all dimensions of ‘grave risk of harm’, including the potential for domestic violence by taking parents. To better protect children legally in challenging situations, there must be a transition to more inclusive protective measures, grounded in a refined understanding of the impacts of domestic violence.

*This article expresses my point of view on this sensitive topic and should not be taken as an endorsement of the heinous crime of domestic violence. Instead, it is intended as a doctrinal discussion that seeks to also consider the protection of the rights of the left-behind parents in cases of child abduction.

Dr. Mauricio Ejchel is a highly qualified international lawyer based in São Paulo, Brazil. He graduated from the Law School of the Catholic University of São Paulo and holds a postgraduate degree in International Relations. In 1995, Dr. Ejchel was admitted to the Brazilian Bar Association and went on to establish MF Ejchel International Advocacy in 1996.

As a well-known commentator on legal matters, Dr. Ejchel is an expert in family law, international divorce, and Hague child abduction cases. He has appeared on several Brazilian TV networks and is a columnist for Radio Justice, affiliated with the Brazilian Supreme Court. Dr. Ejchel’s in-depth knowledge of international legal affairs has earned him a reputation as a respected authority in the field.

Dr. Ejchel is also a prolific writer, having authored numerous legal articles in both Portuguese and English. His steadfast dedication to safeguarding the interests of his clients has earned him a reputation as an accomplished and proficient barrister in Brazil.

With over 27 years of legal experience, Dr. Ejchel provides strategic counseling, directs mediation, and manages complex cases. He has contributed to legal cases in several countries and provided expert opinions in foreign courts. Dr. Ejchel’s dedication to protecting the interests of his clients is at the core of his legal practice. He believes that realization is based on a deep understanding of the law, navigating the Judiciary, awareness of his client’s needs, and a dedication to providing legal services.