When Protection Becomes Persecution

‘Gravity of Tenderness’ by The Fabler.

“My crime is being a victim of domestic violence in a foreign country.” (Mothers’ Voices, 2023)

TW // Domestic violence

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (HCAC), ratified by 103 states, seeks to secure the prompt return of children wrongfully removed across international borders. Within the EU (except Denmark), its application is complemented by the Brussels IIb Regulation, which further aligns cross-border proceedings. The HCAC operates on the presumption that return to the child’s state of habitual residence is the appropriate remedy, leaving substantive custody decisions to national courts in that state.

The HCAC is implemented primarily by designated national central authorities and domestic courts with jurisdiction to determine whether a removal is wrongful under Article 3 and, if so, order the return of the child to the state of its habitual residence in an expeditious manner, under Article 11. However, the return presumption may sit uneasily with the UN Convention on the Rights of the Child (UNCRC), particularly where return risks exposing children to harm. This tension reflects the paradigm underlying the HCAC’s drafting, which envisioned a non-custodial father abducting a child after being denied access (Beaumont and McEleavy). Today, by contrast, most abducting parents are primary caregiver mothers (Keyes). Despite this shift, the HCAC’s mechanisms and implementation remain largely unchanged.

HCAC contains no safeguards addressing the circumstances of abducting mothers, and its exceptions to return (Articles 12, 13, and 20) are interpreted restrictively (HCCH, paras. 14, 17). Even Article 13(1)(b), which allows non-return where the child faces a grave risk of harm, does not extend to harm suffered by the taking parent; the harm must be to the child. As a result, defences grounded in domestic violence, which are frequently raised (Weiner 2021), face structural limitations. Within the EU, the Brussels IIb Regulation reinforces this return-oriented logic by prioritising return with protective arrangements over refusal of the order (Article 27(3)). This blog post argues that such an approach reflects outdated assumptions about abduction and abductors, and calls for a gender-transformative, domestic-abuse-informed interpretation of the HCAC by national courts and the European Court of Human Rights (ECtHR).

Disharmony with Real World: Mothers’ Testimonies

For mothers fleeing domestic violence with their children, HCAC’s ‘protective’ characteristic has become a legal trap. Research indicates that over 73% of parents charged in Hague custody proceedings are mothers, and the overwhelming majority are primary-carers attempting to escape violence. It is, therefore, reasonable to assume that perpetrators have frequently used HCAC’s protective mechanism as a means to further victimise mothers and their children, an assumption supported by recent research into legal systems as tools of abuse.

This pattern was powerfully illustrated at the Forum on the Hague Convention & Domestic Violence in South Africa, where mothers shared their experiences with in-person and online participants, including judges, lawyers, domestic violence professionals, and human rights advocates. A speaker recounted the case of a mother who had fled severe, ongoing domestic violence, much of it perpetrated in front of her child. Her experience reflected barriers common to many survivors: overlooked forms of abuse (including economic and immigration abuse and coerced isolation), heightened post-separation risk, and unequal access to legal representation. Although the trial court found serious abuse, including death threats, and determined that the child faced a grave risk of harm if returned, it nonetheless ordered return subject to problematic protective measures. The mother pursued years of litigation but tragically died while an appeal was pending. Two years later, the court finally refused return, recognising that the risk of harm could not be mitigated and allowing the child to remain with his maternal family (see here, para. 69).

A survey undertaken in 2024 by FiLiA Hague Mothers and GlobalARRK suggests that the same pattern of forced separation across borders repeats across cases. Another survivor’s testimony reveals a very similar devastating trajectory: escape from violence met with legal punishment and permanent loss of her child.

“I was a victim of domestic violence during my marriage. My husband isolated me, controlled our finances, and dictated my social interactions. He abused me financially and psychologically, threatened to kill me, and, ultimately, he raped me. He neglected our child and restricted necessary expenses. I decided to leave during a holiday, initially with his agreement, but he soon filed a Hague Convention claim, which changed everything. Despite ongoing investigations against the father, my child was taken by force, and returned to his care. I endured a two-year criminal trial for kidnapping. Before the Hague case, I was the primary care-giver. Post-return, contact with my child is limited to video calls, and I can’t visit the country I left. My child was told they might only see me again when grown up.” (Mothers’ Voices, 2023)

Another survivor shared her highly vulnerable position, far from home and attempting to deal with domestic abuse in all its forms, as well as difficulties related to employment, financial support, work permits, and residence status. For many mothers, ‘abduction’ seems to be the only ‘way out’:

“I lived in a country where I had no friends and no family, without work and unable to speak the language. Every single government sector I went to, pleading for help, failed to assist me. I left to save my life.” (Mothers’ Voices, 2023)

These stories (and there are many like them) demonstrate a recurring pattern in which mothers, despite being primary carers with close bonds to the child, are faced with an impossible choice under the HCAC. They either accept separation from their child or they return to the country they fled and risk criminal prosecution, lack of legal status, financial support, and increased exposure to domestic violence.

Disharmony between Legal Frameworks: The ECtHR’s Approach

The HCAC and the European Convention on Human Rights (ECHR) have never operated in full harmony (Vladimir Ushakov v Russia, Dissenting Opinion of Judge Dedov, para. 2). The ECtHR has adjudicated numerous HCAC-related cases, which reveal a consistent pattern: in approximately 80% of them, the taking parent is a mother, typically a foreign national or migrant and the child’s primary carer with custody rights.

Applications are usually framed as violations of the left-behind parent’s right to respect for family life under Article 8 ECHR. The ECtHR affords national authorities a wide margin of appreciation in applying the HCAC, focusing primarily on whether procedural obligations were met rather than on the substantive human rights position of the mother and child. In practice, this often means that fathers’ rights are prioritised even though mothers invariably hold either sole or shared custody rights and are usually living separately with their children. It is also worth noting that this is a tendency driven partly by the statistics: it is overwhelmingly fathers who bring cases to Strasbourg, and it is therefore fathers whose rights the ECtHR is called upon to protect under the HCAC’s presumption in favour of prompt return (Djajić).

The ECtHR largely defers to the HCAC’s presumption in favour of prompt return, without sufficiently interrogating its suitability in cases involving domestic violence or coercive control. Even where grave-risk allegations are raised, the ECtHR limits its review to whether national courts conducted an “effective examination” under Article 13(b) (X v. Latvia, para. 118), which in practice, sets the bar too low to adequately protect mothers and children. ECtHR has accepted that this standard was satisfied where domestic courts relied on protective measures in the receiving state (O.C.I. and Others v. Romania; Voica v. Romania; Verhoeven v. France). This approach consistently fails to recognise the gender dimension of return procedures under the HCAC and minimises or ignores the compound vulnerabilities of victim-survivor mothers.

Confronting the Legal Framework’s Blind Spots 

The disinclination to acknowledge the gendered nature of the majority of abduction cases, and the tendency to minimise risk, is echoed in the context of national courts handling the Hague cases. Testimonies provided to FiLiA Hague Mothers demonstrate that, even in the face of evidence of domestic violence and coercive control, the rights of the father are typically upheld, with only minimal consideration given to the circumstances and vulnerabilities of abducting mothers.

This risk minimisation is most evident in relation to Article 13(1)(b) HCAC, which provides for a defence of ‘grave risk’ or ‘intolerable situation’ which, if proven, enables courts to refuse to return the child to their habitual residence. However, a failure to define these risks precisely, or to acknowledge the extent and impact of domestic abuse, including post-separation abuse, has led to a situation where “children and custodial mothers are being sent back to a dangerous or abusive father from whom they fled”.

Previous research demonstrates that children are harmed both physically and psychologically by domestic violence, even when not directly targeted, and that the harms can be lifelong (e.g. Brandt, Katz, Edleson). Given this evidence, it should be deemed intolerable for a child to have to live with any form of violence, and children’s best interests cannot be separated from the safety of their primary carer. In abduction cases, however, the forced separation of mother and child is not considered reason enough to prevent a return order being made.

It is concerning that, with a small number of exceptions, the ECtHR has consistently failed to acknowledge the intersectional discrimination faced by victim-survivor mothers trapped by the misuse of the HCAC (see Dissenting Opinion of Judge Mits here, para. 6; Dissenting Opinions of Judge Dedov here and here). Immediate solutions lie within the gender-transformative interpretation and application of existing human rights frameworks such as the ECHR (e.g., the prohibition of torture and inhuman/degrading treatment, the right to private life, and the right to family life), including the child’s right to have a voice in decisions that affect them.

The change of approach appears needed and warranted given that the ECtHR has held that “it is essential also to keep in mind that the Hague Convention is essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis” (Šneersone and Kampanella v. Italy, para. 92) and, by affording national courts a wide margin of appreciation, has correspondingly limited the scope of its own human rights scrutiny.

We argue that the implementation of the HCAC remains predicated on outdated assumptions regarding the nature and harms of abduction, who abductors are, and why they abduct. As demonstrated by the changing demographic of ‘taking’ parents, the prevalence of domestic abuse allegations in these cases, and mothers’ testimonies, these assumptions are not in harmony with reality. Thus, in order to overcome embedded structural limitations, both national courts and the ECtHR must adopt a gender-transformative and domestic-abuse focused approach. To date, there has been little evidence of such an approach in either national courts or the ECtHR. Currently, HCAC’s structural blind spots and its application by national courts are often reproduced and carried over to the ECtHR jurisprudence.

The HCAC’s initial intention was to protect children from being kidnapped by their fathers without the consent of primary-carer mothers. Weaponised by perpetrators, it has moved away from its original purpose and become a means to criminalise and further victimise mothers and their children. As Dr Masterton notes, “[b]eing Hagued invariably puts the mother back in the father’s country – frequently without familial, social, financial or legal support – providing a perfect context for continued violence”.

The question at this stage is not whether international law can protect mothers fleeing violence but rather whether it will. The legal frameworks exist; what is lacking is judicial commitment to interpret them through a gender-transformative lens.

Concluding Recommendations

If victim-survivors of abuse – both mothers and their children – are to be protected, the HCAC mechanisms and the ECtHR must fundamentally shift their approach.  These mechanisms and all actors involved must explicitly recognise the gender dimension of the Hague proceedings and the compounded vulnerabilities of mothers fleeing domestic violence. The statistics demand acknowledgement that systematic gender discrimination is integral to the HCAC’s application. Similarly, the ECtHR must refrain from being solely an enforcement mechanism for the HCAC return orders and focus on acknowledging and upholding the human rights of mothers and children in these cases.

The principles of ‘international cooperation’, enshrined in HCAC, and ‘mutual trust’, derived from Brussels IIb Regulation, cannot be accepted at face value when the safety of mothers and children is at stake. Those implementing the Convention are not immune to patriarchy nor to racism or gender bias and operate within legal systems that perpetuate them. Accordingly, procedural assurances and undertakings have repeatedly failed to protect women returning to countries where they face violence, criminal prosecution, or destitution. Substantive assessment of actual risks and a gender-transformative approach to the law must replace reliance on these theoretical cooperation mechanisms.

Additionally, fathers’ custody rights or presumption of contact must not be conflated with, or prioritised over, the right of mothers and children to life and to live free from torture (mental or physical) or inhuman/degrading treatment. When return orders expose mothers to violence or persecution, fundamental human rights protections must take precedence. The hierarchy of rights matters: custody arrangements cannot trump the prohibition of torture and degrading treatment and the protection of the right to life. Mothers’ rights to family life and children’s rights to maintain relationships with their primary carer must receive equal consideration to fathers’ custody rights. The ‘best interests of the child principle’ necessitates a holistic assessment that includes the safety and wellbeing of the primary carer, rather than the mechanical prioritising of the default return to habitual residence.

Reform of the HCAC must begin with acknowledging that motherhood has become its blind spot, systematically disadvantaging women who seek safety for themselves and their children. As a survivor has noted, “[t]he Hague has defined my life, clouded every single day since I first decided that either I ran with the baby or else he was going to continue hitting me, raping me, that he would eventually kill me. I feared he would kill the children too. His blank rages were not something that were controllable or periodic. I lived under a regime of permanent fear” (Mothers’ Voices booklet, 2023).