Domestic abuse as a defence to child abduction under the Hague Convention

While child abduction — the unlawful removal or retention of a child (under 16 years old) from the jurisdiction in which they normally reside without the permission of everyone with parental responsibility or an order of the court — is a criminal offence, the Hague Convention 1980 remains in place to assist with the swift return of children from any member state.

Here, Jo-Anna Jellings explains how a domestic abuse defence can be used to block a child’s return under the Hague Convention and what needs to be satisfied for this to be successful.

Defences to the Hague Convention

The Hague Convention enables summary proceedings to take place that seek to establish where the children usually live (or are habitually resident) and return them without a full welfare analysis being undertaken as to where they may be best placed.

There are a few defences available that may prevent the court from ordering the return of children — even if they’re found to have been habitually resident in another country (and therefore abducted). 

One of these relates to the perceived ‘grave’ risk of harm to the parent or children in the event that their return is ordered. One factor often raised in relation to this is domestic abuse. It’s important to note that the burden of proof lies on the person who opposes the return to substantiate the defence. 

In the event that the court establishes a grave risk of harm, it won’t automatically order that the children don’t return. Instead, it then looks at whether there are any safeguards that can be put in place to minimise the risk and enable an order to return. 

Allegations of domestic abuse

In the case of A (minors), Re [2023] EWHC 3537 (Fam), this exact issue was considered. The case included allegations of domestic abuse — such as violence and controlling coercive behaviour — that involved members of the extended family as well as the father. It was asserted that the impact of this on the mother’s mental health would impact her ability to care for the child. However, there was a history to this case in that there had been previous proceedings in relation to the child in Ireland. In these proceedings, the mother didn’t make any allegations in respect of domestic abuse and an order was made in respect of the child arrangements for the child to see the father. The mother brought the child over to England and the father brought proceedings for the summary return of the child to Ireland under the Hague Convention 1980. In response to this, the mother raised her defence of a grave risk of harm resulting from domestic abuse. The court determined that while there was a grave risk, safeguards could be put in place by way of undertakings to protect against these risks that were sufficient to make it safe to return — and that the Irish courts would be in a position to make further protective orders if required. As such, this defence was unsuccessful and a return was ordered. 

This case demonstrates that even where a grave risk of harm is deemed to be present, this can’t guarantee that a return won’t take place. It’s necessary to show that no protective measures would be adequate to address the risk, which has restricted application in practice. This flags and avoids the purpose of the Hague Convention 1980 being potentially undermined by claims of domestic abuse being raised by one party solely to defeat a return. It also highlights the caution to be exercised in such cases and the public policy decision behind this approach.

Restrictive defences

With this in mind, it’s clear that while there are defences to the Hague Convention 1980, these will be applied restrictively and conservatively. The judgment specifically highlighted that it would be “harmful if abductors are able to find safe havens in other jurisdictions”. 

This provides a useful reminder that it’s essential for any potential defences to be pleaded fully and appropriately from the outset where they apply. 

If you’re served with abduction proceedings, seek urgent expert legal advice from one of our accredited solicitors.

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