Between Protection and Parental Rights: The Hague Abduction Convention, Domestic Violence Allegations and Article 13(1)(b)

The Hague Convention on the Civil Aspects of International Child Abduction aims to deter international parental child abduction and ensure the prompt return of wrongfully removed or retained children to their country of habitual residence. However, the Convention’s Article 13(1)(b) “grave risk” exception reflects legal complexities when allegations of domestic violence are raised against seeking parents (also referred to as ‘left behind’ parents) as a defence against the child’s return. Variations in judicial interpretations of “grave risk” and inconsistent domestic violence laws across signatory states create disparities in case outcomes, challenging the Convention’s goal of uniform application. This paper examines how variation in how courts assess such claims can result in unpredictable rulings that affect both the child’s return and also the rights of seeking and taking parents. Through an analysis of case law and international legal instruments, this paper explores the tension between ensuring child welfare and procedural fairness for parents. To address this tension, this paper makes recommendations for expanded and enhanced judicial communications and continued harmonisation of legal approaches to evaluating domestic violence claims under the Convention. Keywords: Hague; child; abduction; convention; parents