The Central Authority for the Hague Convention on International Child Abduction (CGAP) will host in June/2024 the international legal community at Sandton, South Africa, for the Forum on Domestic Violence and the Operation of Article 13(1)(b) of the 1980 Child Abduction Convention. 

Recognizing the significance of Article 13(1)(b) as an exception for the non-return of children, the issue of domestic violence was previously addressed in the Guide to Good Practice on Article 13(b) issued in 2020. 

In the context of the Guide, the term “grave risk of exposing the child to physical or psychological harm” as referred to in Article 13(1)(b) to support the non-return of children to their habitual residence country, would always be interpreted restrictively as an exception.

Domestic violence, historically overlooked, has gained significant recognition as a heinous crime, reflecting societal progress in confronting violence within intimate relationships, and underscoring the legal impacts of such violence on our children. 

On the other hand, the analysis of the legal conception of domestic violence within Article 13(1)(b) demands meticulous scrutiny due to its inherent complexity, potentially resulting in varying interpretations across different States.

When Article 13(1)(b) of the Convention specifically assesses the risk of the child’s return resulting in exposure to physical or psychological harm or placing them in an intolerable situation, it concentrates on the child’s safety. Nonetheless, this clause recognizes that, under certain conditions, harm to a parent, whether physical or psychological, can affect the child’s welfare.

To prevent misunderstandings, it is crucial that a State only considers domestic violence as an exception if supported by a formal judgment and punitive sentence granted by a competent court in the child’s Country of Habitual Residence recognizing the perpetration of an act of domestic violence by the parent. This serves as substantial evidence, meeting the criteria for exception under Article 13(1)(b) as a grave risk.

A few observations demand attention. Firstly, the notion of a child´s return to the country of habitual residence encompasses broad positive consequences deriving from their social reintegration, extending beyond domestic circumstances. Secondly, repatriation to the home country enables the child to enjoy an array of rights, including access to public education, healthcare, pensions, and other public benefits.

Additionally, the perceived grave risk to the child upon return is not inevitable; the Guide outlines comprehensive legal protections to preserve their well-being and that of the abducting parent. This includes access to various services, assistance, and support options like legal services, financial aid, housing assistance, healthcare, shelters, and protection from law enforcement and the criminal justice system, ensuring their safety upon return.

Regardless of considerations about the presence or absence of domestic violence, it is crucial to remember that international child abduction constitutes an illicit act in itself, marking a deliberate violation by the taking parent of the custody rights of the left-behind parent.

Regrettably, in several international child abduction cases, a disturbing tactic has frequently been observed: the use of baseless domestic violence claims against the left-behind parent, often employed to obscure the illicit act of abduction.

This situation characterizes the Act of Fraudulent Commission of Reality, a deceptive strategy where the taking parent fraudulently accuses the left-behind parent of serious offenses against the children and themselves, leveraging these unfounded claims to trigger the non-return exception under Article 13 of the Convention.

Therefore, any claim of domestic violence should be meticulously handled, ensuring that mere generic accusations, law enforcement reports, or protective orders related to domestic violence claims, are not considered sufficient grounds by itself to impede the return of the abducted children. 

It is important to acknowledge that the exception detailed in Article 13(1)(b), concerning domestic violence, stands as the primary factor contributing to cases of non-return of the children. This is corroborated by findings in the latest Global Report – Statistical Study of Applications Made in 2021 under the 1980 Convention, which revealed that the volume of cases had nearly doubled in comparison to the data from the 2015 statistical study.

Legal advancements are crucial in facilitating the prompt return of children, requiring our unwavering commitment to uphold standards and ensure consistent legal interpretations across different environments. 

Greetings