Goldman School of Public Policy - University of California, Berkeley

The Hague Convention and Domestic Violence

What is Domestic Violence?

Domestic violence is often defined in various ways depending on the jurisdiction in which you live. For the purposes of our research, we use the following definition:

Domestic violence, also known as intimate partner violence, is a pattern of coercive behavior that is used by one person to gain power and control over another. It may include the use of physical and sexual violence, verbal and emotional abuse, stalking and economic abuse. Sexual, emotional and psychological intimidation may also occur.

To learn more about the work our research team has performed, visit our section entitled Project Reports.

The Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction was completed in October 1980 and put into effect in the US through passage in 1988 of the International Child Abduction Remedies Act (ICARA). The Hague Convention establishes international law for handling cases in which children are abducted from one country to another. Member states are expected to help quickly return abducted children to their countries of "habitual residence." It is in the child’s country of habitual residence where other issues such as custody are expected to be resolved by local criminal justice system (Hilton, 1997).

Exceptions to the Required Return of the Child

The Hague Convention acknowledges several exceptions to the otherwise mandatory return of the child to his or her country of habitual residence: more than a year has passed since the child had moved from his original habitual residence; the left behind parent acquiesced or consented to the child’s removal; a forced return would put the child in grave risk; or the return would go against international standards for protecting human rights and fundamental freedoms. It is the grave risk defense under Article 13(b) of the Hague Convention on which our team focuses our efforts.

Domestic Violence Is Not Yet Seen as a Grave Risk to the Child

Article 13(b) of the Hague Convention states, “A court need not return a child if the return would pose a grave risk … that … return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” There is significant social science evidence to suggest that violence against the mother will expose a child to the possibility of psychological and/or physical harm (see Edleson, 1999). Domestic civil and criminal law often takes this exposure into account, but in Hague Convention cases there is a general reluctance to acknowledge this as an acceptable reason for not returning a child back to another country.

The Effects of Forcing a Return in Cases Involving Domestic Violence

Current training curricula for judges and lawyers on the Hague Convention equate violence against women to "a custody issue," and insist that it should be settled in the child's country of habitual residence (Hoff, 1997 and OJJDP, 2002). Yet, decisions taken under the Hague Convention may effectively determine child custody by requiring children to be returned to the "left behind parent," who may be a perpetrator of violence against the child's mother.

Also, mothers who fled to a safe haven are viewed perpetrators abduction under national and international laws. The forced return of the child often forces the mother to choose to return with her child at her own expense. This may put her and her child back in a violent situation without the support of social and criminal justice services.

What Should You Do if You Are Involved in a Hague Convention Case?

If you are a respondent mother in a Hague use this site as a resource.  If you are an attorney, judge or advocate, use this site as a resource and contact us if there is information that you think would be helpful for us to add.