*Article* **The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence**

**Katarina Trimmings, Onyója Momoh and Konstantina Kalaitsoglou \***

School of Law, University of Aberdeen, Aberdeen AB24 3FX, UK; k.trimmings@abdn.ac.uk (K.T.); onyoja.momoh2@abdn.ac.uk (O.M.)

**\*** Correspondence: konstantina.kalaitsoglou@pinsentmasons.com

**Abstract:** When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims.

**Keywords:** 1980 Hague Convention; domestic violence; international refugee law; 1951 Refugee Convention; best interests of the child; Article 20

#### **1. Introduction**

This article addresses the problem of domestic violence in the context of the 1980 Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ('the 1980 (Hague) Convention'). It is concerned specifically with the position of mothers who have abducted their child(-ren) across international borders and are involved in return proceedings under the 1980 Hague Child Abduction Convention in circumstances where the child abduction was motivated by domestic violence by the left-behind father. In doing so, the article also touches on the interplay between international child abduction law and international refugee law in cases involving allegations of domestic violence (e.g., Hegar and Greif 1994; Norris 2010; Hayman 2018; Al-Shargabi 2022). The role of the 'best interests of the child' principle in child abductions committed against the background of domestic violence is explored before a range of possible judicial and legislative interventions to secure the protection of abducting mothers in return proceedings under the 1980 Hague Convention is examined.

#### **2. The Problem of Domestic Violence in the Context of the 1980 Convention**

The latest statistical analysis carried out by the Hague Conference on the application of the 1980 Convention showed that as of 2015, 73% of the taking persons were mothers, noting an increase of 4% compared to the earliest set of data of 1999 (See Permanent Bureau of the Hague Conference on Private International Law (2017b, pp. 3 and 7)). Further, the number of abducting fathers, which had been reported to be 30% in 1999, had reduced to

**Citation:** Trimmings, Katarina, Onyója Momoh, and Konstantina Kalaitsoglou. 2023. The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence. *Laws* 12: 78. https:// doi.org/10.3390/laws12050078

Academic Editors: Marilyn Freeman and Nicola Taylor

Received: 29 July 2023 Revised: 1 September 2023 Accepted: 4 September 2023 Published: 12 September 2023

**Copyright:** © 2023 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

only 24% in 2015.<sup>1</sup> With hindsight, the 1980 Convention effectively established a global scheme for the return of abducted children under which fathers regularly request return and find themselves successful in approximately half of cases (Permanent Bureau of the Hague Conference on Private International Law 2017b, p. 11). Today, abducting mothers regularly report the existence of domestic violence directed against them, the child or both by the left-behind parent in return proceedings under the 1980 Convention (e.g., Weiner 2000; Brown Williams 2011; Hale 2017; Trimmings and Momoh 2021; Masterton et al. 2022). Although there are no comprehensive statistics, it is suspected that domestic violence is a present issue in as many as 70% of the total parental child abduction cases (Trimmings and Momoh 2021, p. 5; Pérez-Vera 1982, p. 34). Abducting mothers who flee domestic violence and face return proceedings find themselves in a particularly vulnerable position; they are faced with complex and costly cross-border proceedings, and if they do not wish to return, as is the case most times, they must prove to the court that the domestic violence they experienced at the hands of the left-behind father presented a 'grave risk of harm' for their child or otherwise placed him or her in an 'intolerable situation.'<sup>2</sup> If the court mandates the return of the child, the now returning mother is likely to return to the unsafe situation she fled from, become financially dependent on the left-behind father or in more extreme cases, face homelessness (Masterton et al. 2022, pp. 376–81).

In some cases, the abducting mother escaping domestic violence may apply for a refugee status under the 1951 Convention Relating to the Status of Refugees ('the 1951 Refugee Convention') (Zimmermann 2011) <sup>3</sup> in conjunction with its 1967 Optional Protocol Relating to the Status of Refugees ('the 1967 Optional Protocol'). At the European Union level, additional legal instruments may come into play.4 Additionally, soft law instruments such as the principles and guidelines on the human rights protection of migrants in vulnerable situations, which focus on the human rights situation of migrants who may not qualify as refugees but who are nevertheless in vulnerable situations and therefore in need of protection by international human rights law, can also be invoked (Office of the High Commissioner for Human Rights 2018b). Return proceedings under the 1980 Hague Convention may be initiated by the left-behind father either during the asylum proceedings, leading to complex interaction between international family law and refugee law, or after the conclusion of the asylum proceedings, potentially raising the question of whether the principle of non-refoulement5 can be undermined by a return order granted in favour of the left-behind father under the 1980 Hague Convention.

#### **3. The Role of the Best Interests of the Child**

One of the obvious challenges in the operation of the Hague Convention is ensuring that at the heart of the decision-making process the interests of children prevail, especially in cases involving allegations of domestic violence. Where intra-EU cases are concerned,

<sup>1</sup> Other abducting relatives such as grandparents or other increased from 1% in 1999 to 3% in 2015. See Permanent Bureau of the Hague Conference on Private International Law (2017b).

<sup>2</sup> In the sense of Article 13(1)(b).

<sup>3</sup> UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, [137].

<sup>4</sup> E.g., Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast); Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection; and Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted (recast). For a comprehensive analysis of the EU asylum law see Tsourdi and De Bruycker (2022).

<sup>5</sup> The principle of non-refoulement guarantees that 'no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm'. (Office of the High Commissioner for Human Rights 2018a, p. 1).

it was observed that the Brussels IIa Regulation6 carried particular emphasis on the best interests of children (Kruger and Samyn 2016, p. 155).<sup>7</sup> That being said, Kruger and Samyn went further and suggested that the Regulation would be clearer, stronger and more credible if it referred explicitly to the United Nations Convention on the Rights of the Child (UNCRC).8 The Brussels IIa Recast Regulation<sup>9</sup> now in force appears to go further, emphasising in its preamble that matters of parental responsibility shall be 'shaped in the light of the best interests of the child'. This is significant, because over a decade after the adoption of the 1980 Hague Convention, Dyer made a comparison between the number of ratifications of the United Nations Convention on the Rights of the Child and the Hague Convention (Dyer 1993, p. 273).10 At that stage, there were 30 Contracting States to the Hague Convention which was 'less than one fourth' of the UNCRC ratifications.11 Dyer suggested that 'an obvious point' was that the obligations under the Hague Convention 'are more precise and constraining than the obligations described in an "umbrella" Convention like the UNCRC' (Dyer 1993, p. 273). The argument follows that the provisions of the Hague Convention place a heavier burden on Contracting States, being both stricter and more specific in its objectives. Therefore, the 'execution of this obligation requires discipline on the part of the courts' and an 'acceptance of new points of view by both judges and populations' (Dyer 1993, p. 274). In contrast, the UNCRC upholds principles on the rights of children that one would expect to be universally acknowledged, and therefore, there is an ease for States to commit themselves to meeting those obligations. We are now at a stage where these treaties cannot be seen in isolation, a preference for one over the other is uncompelling.

In cases under the 1980 Hague Convention, it is also important to distinguish between the concepts of the best interests of the child generally and the interests of a child involved in return proceedings.<sup>12</sup> In terms of the terminology, the preamble to the Hague Convention refers to the 'interests of children, and the Convention's core philosophy13 is that it is not in the interests of children to be wrongfully removed or retained across international borders; it is generally thus not in the 'best interests' of children to be abducted.14 The Explanatory Report reiterates that 'the right not to be removed or retained' demonstrates one of the

<sup>6</sup> Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1.

<sup>7</sup> See also *Re E (Children)* [2011] UKSC 27 reiterated that the current Hague Convention procedure complies with the UNCRC and ECHR, stating that 'both the Hague Convention and the Brussels II revised Regulation have been devised with the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration'.

<sup>8</sup> See footnote 6.

<sup>9</sup> Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (hereafter "the Recast Regulation").

<sup>10</sup> As of 1 September 2023, the 1980 Hague Convention has 103 contracting parties. See Status Table <https: //www.hcch.net/en/instruments/conventions/status-table/?cid=24> accessed 1 September 2023.

<sup>11</sup> United Nations Human Rights, Status of Ratification: Interactive Dashboard <http://indicators.ohchr.org> accessed 16 June 2023. See Convention on the Rights of the Child: as at 9 March 1993, the CRC received 131 ratifications; as of 16 June 2023, the number of ratifications had reached 196.

<sup>12</sup> The Hague Convention, preamble which provides that signatory States are 'firmly convinced that the interests of children are of paramount importance in matters relating to their custody'. Compare with the provisions under the UNCRC, Article 3.1 stating that 'the best interests of the child shall be a primary consideration'. See also Pérez Manrique (2012, p. 34) and Freeman and Hutchinson (2007), stating that the Convention is premised on the best interests of children generally which requires their future to be determined in their country of habitual residence and not on the best interests of the individual child.

<sup>13</sup> The Hague Convention, Article 1. See (Fiorini 2016, pp. 403–7), the exceptions to the Hague Convention, some of which are meant to protect the best interests of the individual child.

<sup>14</sup> E.g., case law such as *Re R (Minors) (Wardship: Jurisdiction*) (1981) 2 FLR 416 [425] (Ormrod LJ) and *Zaffino v Zaffino* [2005] EWCA Civ. 1012, [2006] 1 FLR 410, citing *Re S (A Minor) (Abduction: Custody Rights)* [1993] Fam 242, [251] (Balcombe LJ). See also *Lozano v. Alvarez* 697 F.3d 41 (2d Cir. 2012), [53] where it was stated that the Hague Convention is shaped in the light of the best interests of the child: 'simply put, the Convention is not intended to promote the return of a child to his or her country of habitual residency irrespective of that child's best interests; the Convention embodies the judgment that in most instances, a child's welfare is best served by a prompt return to that country'.

objective examples of the interests of a child and that the two objectives under Article 1 of the Hague Convention embody the best interest of the child (Pérez-Vera 1982, paras. 24–25; Chamberland 2012). The Explanatory Report further states that the 'true interests' of a child are 'inspired' by a desire to protect children against the harmful effects of international child abduction (Pérez-Vera 1982, para. 24). However, in cases involving domestic and family violence, a departure from this principle may not only be justified but necessary.15 Article 13(1)(b) provides an exception to the return of a child where there is a grave risk of physical harm, psychological harm or an otherwise intolerable situation. Accordingly, in return proceedings involving allegations of domestic violence under Article 13(1)(b), it has often been argued that to return a child in such circumstances would be contrary to their best interests (Chamberland 2012, pp. 27–30).16 In recent times, the publication of the HCCH Guide to Good Practice on Article 13(1) (b) has sought to address head on the issues around the proper and consistent application of the grave risk of harm exception, though it would be premature to assess its utility and impact. Having said that, it has not abated concerns that the grave risk of harm exception is not doing enough to protect victims fleeing from domestic violence and their children. Some may argue that the concerns raised by Vesneski, Lindhorst and Edleson in their research remains true today (Pretelli 2021). Vesneski, Lindhorst and Edleson have argued that court decisions under Article 13(1)(b) were frequently 'against the interests of even battered women and their children'17 and that 'abused women arguing grave risk face a more difficult path' (Vesneski et al. 2011, p. 17).<sup>18</sup> A stronger view advanced by Weiner is that the Hague Convention has become a 'substantial barrier to some women's ability to escape domestic violence' (Weiner 2003, p. 799). Weiner takes the view that it is rarely in a child's best interest to return in the face of serious allegations of domestic violence, arguing that the Hague Convention 'offers too little hope for the domestic violence victim who flees with her children' (Weiner 2003, p. 703).19 Norris also asserts that in cases involving the grave risk of harm exception the courts should 'apply the best interests of the child as its guiding criterion, rather than the need for prompt return' and to ensure that a decision to return a child is not harmful (Norris 2010, pp. 185–86 and 194–95). In recent times, Pretelli weighs in on the concern, arguing that current legal framework 'places women in an impossible situation, in a double bind' (Pretelli 2021, p. 376). One of Pretelli's concluding remarks reflects on the pursuit of achieving universal principles such as the best interests of children including in child abduction cases (Pretelli 2021, p. 393). On the other hand, an opposite view held by Browne is that the best interest enquiry should be avoided as it 'threatens to invite the type of gender stereotype prevalent in custody disputes' (Browne 2011, p. 1222). Nevertheless, any consideration afforded to the best interests of the child principle in Hague Convention proceedings is by no means intended to invoke a detailed examination of welfare issues or

<sup>15</sup> See Pérez-Vera (1982, p. 24) '(...) children must no longer be regarded as parents' property but must be recognized as individuals with their own right and needs'. Black LJ (as she then was) in *O (Children)* [2011] EWCA Civ 12, [8], citing the UK House of Lords case of *Re M (Abduction: Zimbabwe)* [2007] UKHL 55, [24] which makes clear that the individual circumstances of the particular child are what matters.

<sup>16</sup> *Cf* (Browne 2011, p. 1202; U.S. Department of State (1986, para. 10,510) that 'the 13(b) exception "was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child's best interests"'. Referring also to the Ninth Circuit in *Cuellar v. Joyce*, 596 F.3d 505, 509 (9th Cir. 2010) (quoting *Gaudin v. Remis*, 415 F.3d 1028, 1035 (9th Cir. 2005)) that '[t]he exception 'is not license for a court in the abducted-to country to speculate on where the child would be happiest'.

<sup>17</sup> The qualitative study examined women who were domestic violence victims in Hague Convention cases in the US. The study found that 'U.S. courts are reluctant to employ Convention provisions that could prevent children from being returned to their mother's barterer': p 1 and that the US' courts interpretation of Article 13(1) (b) 'frequently leads to court decisions against the interests of even severely battered women and their children.' In the US jurisdiction, see also Norris (2010) and Sthoeger (2011, p. 530).

<sup>18</sup> In comparing the differing standards, that 'clear and convincing' is a significantly greater burden than preponderance.

<sup>19</sup> Weiner goes further to suggests a reform that would stay the remedy of return and enable the taking parent to participate from abroad whilst custody proceedings are initiated in the child's country of habitual residence [698]–[703]. It is stated that this reform would promote a child's best interests under the Hague Convention by providing safety to the taking parent and avoiding a return to their habitual residence if the ultimate outcome in that country would permit the child to be taken abroad [703].

a merits exercise of the custody dispute (Beaumont and Walker 2013; Silberman 2011; Pérez Manrique 2012).20

#### **4. Safeguarding the Protection of Abducting Mothers in Return Proceedings**

When determining whether an exception to return under the 1980 Convention applies, 'it is the situation of the child which is the prime focus of the inquiry';<sup>21</sup> the Convention has no explicit regard to the safety of the abducting mother upon the return. Although it is not mandatory for the abducting mother to return together with the child, the mother (in particular if she is the primary carer),) will typically accompany the child back to the State of habitual residence, even if it means that she has to compromise her own safety. The lack of consideration for the abducting mother's safety in return proceedings involving allegations of domestic abuse is concerning.<sup>22</sup> It highlights the pitfalls of applying the 1980 Convention in isolation from international human rights law—an approach which is contrary to the wider trend towards a more pronounced confluence of private international law and public international law (e.g., Mills 2009). In this context, it has been rightly remarked that as both the public and the private international systems coordinate human behaviour, the values that inform both systems should be the same (Maier 1982). In addressing the problem, this section analyses relevant case-law, whilst making suggestions for judicial interpretations and legislative interventions that have the potential to assist in securing the protection of abducting mothers in return proceedings in child abduction cases committed against the background of domestic violence (See also Trimmings et al. 2023).

#### *4.1. Case-Law Analysis and Suggestions for Appropriate Judicial Interpretations*

4.1.1. The 'Grave Risk of Harm' Exception (Article 13(1)(b)) (See (Permanent Bureau of the Hague Conference on Private International Law 2020, paras 57–59))

Article 13(1)(b) contains the 'grave risk of harm' defence, which, at its core, will exempt the abducting parent from returning the child to the State of his/her habitual residence if there is a grave risk that on return the child would be exposed to a *'physical or psychological harm'* or be otherwise placed in *'an intolerable situation.'* It is typical for abducting mothers who have fled domestic violence to seek to rely on Article 13(1)(b) to resist a return application by the left-behind father. In 2015, the 'gave risk of harm' defense was the 'most frequently relied upon ground for refusal' and was amongst the reasons for judicial refusal in 25% of applications (Permanent Bureau of the Hague Conference on Private International Law 2017b, p. 16). Despite being frequently invoked, Article 13(1)(b) contains integral key terms such as 'grave risk' and 'intolerable situation' which are undefined by the Convention, thus relying on domestic courts for interpretation (Brown

<sup>20</sup> See debate relating to the *Neulinger & Shuruk v. Switzerland* (Application no. 41615/07) Grand Chamber [2010]: Re E (Children) [2011] UKSC 27, [26]; see also *Re M & Anor* [2007] UKHL 55. Browne has argued that to blur the best interests standards as between custody cases and the Hague Convention would undermine the rights of the left-behind parent; see Browne (2011, p. 1196). A distinction has been drawn in case law as to considerations of the best interests of the child in Hague Convention proceedings and a wider comprehensive welfare assessment: e.g., *Whallon v. Lynn* 230 F.3d 450 (1st Cir. 2000). Alternatively, the best interests of the child principle has been considered as part of a discretionary/balancing exercise as distinguished, e.g., by Thorpe LJ in *Cannon v. Cannon* [2004] EWCA Civ 1330 [2005] 1 FLR 169 [38]: 'for the exercise of a discretion under the Hague Convention requires the court to have due regard to the overriding objectives of the Convention whilst acknowledging the importance of the child's welfare (particularly in a case where the court has found settlement), whereas the consideration of the welfare of the child is paramount if the discretion is exercised in the context of our domestic law'.

<sup>21</sup> See Permanent Bureau of the Hague Conference on Private International Law (2017a, paras. 52 and 132) and Domestic and Family Violence and the Article 13 Exception (Permanent Bureau of the Hague Conference on Private International Law 2011b, para. 140).

<sup>22</sup> It is no exaggeration to say that the disregard for the safety of the returning parent has caused serious trauma to countless mothers whose children have been ordered to return to their State of habitual residence in circumstances involving a pattern of violent behaviour by the left-behind father against the abducting mother. Information based on correspondence received by the authors from abducting mothers from a variety of jurisdictions. See also resources available at Filia, 'Hague Mothers: A Filia Legacy Project', available at: <https://www.hague-mothers.org.uk/> accessed 21 July 2023.

Williams 2011, p. 62).23 Through years of application and with knowledge of the drafters' intention that Article 13(1)(b) should have restricted application, courts have discerned the a number of principles pertaining to the interpretation and application of this defence (Pérez-Vera 1982, paras. 7 and 34; Trimmings and Momoh 2021).

The Correlation between Domestic Violence Directed towards the Mother and a Grave Risk of Harm to the Child (See (Permanent Bureau of the Hague Conference on Private International Law 2020, paras 57–59))

Most courts have adopted a 'literal interpretation' and only in the past decade did the UK Supreme Court draw a connection between domestic violence directed towards the mother and a grave risk of harm to the child (Hale 2017, p. 7; Quillen 2014, p. 632; Brown Williams 2011, p. 62).24 Internationally, not all courts acknowledge that the former is directly related to the latter (Zashin 2021, p. 585).<sup>25</sup> Accordingly, the existence of domestic violence alone is insufficient to satisfy the grave risk of harm defence (Trimmings and Momoh 2021, p. 6). Instead, 'the key question is whether the effect of domestic violence on the child upon his/her return' will have such an impact as to place him/her in grave risk of harm (Trimmings and Momoh 2021, p. 6). The Article's limited reach is particularly manifested in the word 'intolerable' which has been interpreted to denote 'a situation which this particular child in these particular circumstances should not be expected to tolerate',26 and which is beyond the 'tumble, discomfort, and distress' that is acceptable for a child to tolerate.27 An 'intolerable situation' could be one where the child is harmed by exposure to domestic violence in the form of physical or psychological abuse towards a parent (Permanent Bureau of the Hague Conference on Private International Law 2020, para. 58).28 The Hague Conference Permanent Bureau of the Hague Conference on Private International Law 2012 on Article 13(1)(b) further includes the potential risk of harm upon the return of the child and circumstances where the grave risk of harm manifests itself in the form of 'significantly impairing the ability of the taking parent to care for the child' (Trimmings and Momoh 2021, p. 5; See also Permanent Bureau of the Hague Conference on Private International Law (2020, para. 57)).

Additionally, the UK Supreme Court has held that it is irrelevant whether the risk is the result of objective reality or of the abducting mother's subjective perception of reality.<sup>29</sup> Accordingly, anxieties of an abducting mother about a return with the child which are not based on objective risk to her but are nevertheless of such intensity as to be likely, if returned, to affect her mental health so as to destabilise her parenting of the child to a point where the child's situation would become intolerable, can found the grave risk of harm defence under Article 13(1)(b).30 It is not important whether the mother's anxieties are reasonable or unreasonable.<sup>31</sup> This means that if the court concludes that there is a grave risk of harm to the child, the source of the risk is irrelevant. Therefore, the grave risk of harm defence may successfully be established, for example, "where a mother's subjective

<sup>23</sup> The undefined terms have led to inconsistent interpretations.

<sup>24</sup> Prior to this development, domestic violence directed to the mother was a bifurcated issue to domestic violence directed to the child, and only the latter was relevant to 'gave risk of harm' in the context of Article 13(1)(b). In the case of *Yemshaw v. London Borough of Hounslow* [2011] UKSC 3 [2011] 1 WLR 430, a connection between the two was drawn.

<sup>25</sup> "Commentators have found that only in "a few Hague Convention cases have judges accepted that children's exposure to their mother's [sic] victimization at the hands of an abusive partner represents a grave risk of harm to the children". See Quillen (2014, p. 632).

<sup>26</sup> *Re D (A Child) (Abduction: Rights of Custody)* [2006] UKHL 51 ('Re D') [52]; *Re S (A Child) (Abduction: Rights of Custody)* [2012] UKSC 10, [27].

<sup>27</sup> *Re E*, note 8, [34].

<sup>28</sup> Ibid, [34] and [52]; This interpretation is in line with the *trauvax preparatoirs* of the Convention. See the Domestic and Family Violence and the Article 13 "Grave Risk" Exception in the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: A Reflection Paper (Permanent Bureau of the Hague Conference on Private International Law 2011b, p. 35).

<sup>29</sup> *Re E*, note 8, [34]; and *Re S*, note 27, [31].

<sup>30</sup> See footnote 29.

<sup>31</sup> *Re S*, note 30, [34].

perception of events leads to a mental illness which could have intolerable consequences for the child."<sup>32</sup> The court shall, however, examine an assertion of intense anxieties not based upon objective risk very critically, and shall consider whether it can be dispelled through protective measures.33

#### Assessment of Allegations of Domestic Violence in Return Proceedings (See (Permanent Bureau of the Hague Conference on Private International Law 2020, paras 43–48 and 50–54))

When assessing the granting of a (non)-return order under Article 13(1)(b), courts in the UK<sup>34</sup> and internationally<sup>35</sup> have mainly followed the so-called 'protective measures approach' or variants of it. The said approach is a two-step assessment and at the first instance, involves the court considering the following question: 'If [the domestic violence allegations] are true, would there be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation?'<sup>36</sup> If the court answers in the affirmative, the court 'will consider whether protective measures to mitigate the harm are available in the requesting State' (Trimmings and Momoh 2021, p. 6). The court will grant a non-return order 'only if the protective measures cannot ameliorate the risk'; in all other circumstances, the court will entrust the resolution of the merits of the issues to the courts of the requesting State, assuming that they are best-suited to deal with the substantive questions (Trimmings and Momoh 2021, p. 6).

The 'protective measures approach' suffers from pitfalls that typically jeopardise domestic violence victims. By design, the approach is paradoxical in that it 'relies on the availability of adequate and effective measures as a substitute for determining facts' (Trimmings and Momoh 2021, p. 7). An assessment of 'grave risk' and available protective measures cannot reasonably come before exploring whether domestic violence exists and if it does, what risks it encompasses (Trimmings and Momoh 2021, p. 9).

An alternative approach, which is considered more appropriate, has been termed as the 'assessment of allegations approach'(Trimmings and Momoh 2021, p. 7).37 Under this approach, the court will first seek to determine, to the extent possible within the confines of the summary nature of the return proceedings, the merits of the disputed allegations of domestic violence. Once the assessment of allegations has been carried out, the court will determine whether a grave risk of harm exists. Only afterwards, as part of the exercise of discretion,<sup>38</sup> the court will assess availability of protective measures. This approach is based on the premise that it is necessary to assess the disputed allegations in order to evaluate the risk. Admittedly, this approach may raise concerns over the length of the proceedings; however, speed should not take priority over the proper assessment of risk and consideration of the safety of the child and the abducting mother. Indeed, the emphasis

<sup>32</sup> See footnote 27.

<sup>33</sup> *Re S*, note 30, [27].

<sup>34</sup> *Re E*, note 8. The 'protective measures approach' has been referred to with approval and/or explicitly followed in a number of cases that involved allegations of domestic violence, both in England and Wales (High Court and Court of Appeal) and Scotland (Court of Session). These cases included *In the Matter of A (A Child) (Hague Abduction; Art 13(b): Protective Measures)* [2019] EWHC 649 (Fam), *H v K (Abduction: Undertakings)* [2017] EWHC 1141 (Fam), *TAAS v FMS* [2017] EWHC 3797 (Fam), *BvP* [2017] EWHC 3577 (Fam), *CH v GLS* [2019] EWHC 3842 (Fam), *ZvD* (Refusal of Return Order) [2020] EWHC 1857 (Fam) and *AX v CY* [2020] EWHC 1599 (Fam); England & Wales; *Re F (A Child)* [2014] EWCA Civ 275; *In the Matter of M (Children)* [2016] EWCA Civ 942; and *GCMR Petitioner* [2017] CSOH 66. See also Trimmings and Momoh (2021, p. 6).

<sup>35</sup> The UK is not the only jurisdiction following the 'protective measures approach;' other jurisdictions, such as the US, have followed identical or highly similar methodologies. For instance, in the case of *Blondin v. Dubois* 189 f.3d 240, 248 (2d Cir. 1999), the United States Court of Appeals, Second Circuit remanded the matter 'for further consideration of the range of remedies that might allow both (emphasis added) the return of the children to their home country and their protection from harm.' *Blondin v. Dubois*, note 41, [10].

<sup>36</sup> *Re E*, note 8, [36].

<sup>37</sup> This approach has been sanctioned by the English Court of Appeal: *Re K (1980 Hague Convention) (Lithuania)* [2015] EWCA Civ 720 and *Re C (Children) (Abduction Article 13(B))* [2018] EWCA Civ 2834 and has also been endorsed also by the English High Court: *Uhd v McKay* [2019] EWHC 1239 (Fam).

<sup>38</sup> The leading UK authority on the exercise of discretion is the Supreme Court decision in the case of *Re M (Children) (Abduction: Rights of Custody)* [2007] UKHL 55.

on speed may encourage judges to minimise or ignore allegations of domestic violence rather than determining them, leaving thus an unassessed risk of harm. Importantly, this approach seems to be supported by the jurisprudence of the European Court of Human Rights, specifically the case of *X v Latvia*<sup>39</sup> where the Grand Chamber introduced the concept of 'effective examination'(Beaumont et al. 2015; Momoh 2019, pp. 650–56). As Judge Albuquerque explained in his concurring opinion, 'effective examination' means a 'thorough, limited and expeditious' examination. Accordingly, it is recommended here that a 'thorough, limited and expeditious' examination of disputed allegations of domestic violence be carried out by the judge in return proceedings.40

#### Protective Measures (See Permanent Bureau of the Hague Conference on Private International Law 2020, paras 43–48)

There is a further note to be made regarding the scope of 'protective measures' available, as their robustness is what the domestic violence victim and the child will rely on upon their return. In the UK, the Practice Guidance on case management of child abduction cases 'distinguishes between protective measures that "are available" and protective measures that "could be put in place," making clear the potential extensive scope of the exercise' (Munby 2018; Trimmings and Momoh 2021, p. 11). In England and Wales, when assessing the availability and effectiveness of 'protective measures' the courts have included 'general features' of the requesting State's legal system such as 'access to courts and other legal services, state assistance and support, including financial assistance, housing assistance, health services, women's shelters and other means of support to victims of domestic violence' (Trimmings and Momoh 2021, p. 11).<sup>41</sup> The expansive understanding of 'protective measures' may mean that the court's assessment is not focused on the measures that can facilitate the protection to a returning domestic violence victim such as 'decisions of courts and/or other competent authorities (as appropriate)'.42

In the extent of 'protective measures' available, common law courts will further include the so-called 'undertakings', which may be defined as 'promises' sometimes granted by the left-behind parent that aspire to address the reasons behind the taking parent resisting return (Trimmings and Momoh 2021, p. 12; Brown Williams 2011, p. 66; Zashin 2021, p. 577). 'The concept of undertakings is a judicial creation and is not included or defined in the 1980 Convention' (Zashin 2021, p. 577). In reality, undertakings are not effective because they are regularly breached by their grantors<sup>43</sup> and suffer from limited enforceability since they are not recognised in civil law jurisdictions (Trimmings and Momoh 2021, p. 13). Therefore, in deciding what weight should be given to protective measures, the judge must take into account the extent to which they will be enforceable in the State of habitual residence. In intra-EU child abduction cases recognition and enforcement of protective measures can be facilitated by either the Brussels IIa Recast Regulation and/or the Protection Measures Regulation.44 Outside of the EU, in cases where the State of habitual residence and the State of refuge are both contracting parties to the 1996 Hague Convention,<sup>45</sup> this Convention

<sup>39</sup> *X v Latvia (GC)* Application no. 27853/09 (EctHR, 26 November 2013).

<sup>40</sup> For related practical matters such as evidence, burden of proof, and factors to consider, see POAM Project Team, POAM Project Team (2020, para. 5.1.3).

<sup>41</sup> *In the Matter of A (A Child) (Hague Abduction; Art 13(b): Protective Measures)*, note 40.

<sup>42</sup> See footnote 41.

<sup>43</sup> A research study conducted by a UK child abduction charity 'Reunite' revealed that 'undertakings were issued in just over half of the cases studied'. The majority (67%) of undertakings were beached, and non-molestation undertakings had been broken in 100% of the representative sample of cases in which they had been given. The study also showed that left-behind parents were often instructed by their lawyers to agree to the undertakings that were sought in the return proceedings because the legislation in the requesting State was different and 'undertakings mean nothing'. See Freeman (2003, pp. 31 and 33). See also Brown Williams (2011, p. 67) and Trimmings and Momoh (2021, p. 12).

<sup>44</sup> Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters 2013 OJL 181 4 (hereafter 'Protection Measures Regulation').

<sup>45</sup> Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (adopted 19 October 1996, entered into force 1 January 2002) HCCH 34 (hereafter '1996 Hague Convention').

should be utilised to facilitate cross-border recognition and enforcement of protective measures in return proceedings. However, where the State of habitual residence is not a party to the 1996 Convention, extreme caution should be exercised by the judge when protective measures are sought.

Even where a legal mechanism for cross-border circulation of protective measures exists, judges should be guarded when considering making a return order conditioned on such measures. In particular, they should be wary of the fact that protection orders are often breached, and that satisfactory follow-up measures by relevant authorities in the State of habitual residence may be lacking. In any case, employment of protective measures with a view to making a return order should never be considered in cases where it has been established that there is a future risk of severe violence.

#### Evidence-Related Matters (See (Permanent Bureau of the Hague Conference on Private International Law 2020, paras 50–54))

Abducting mothers pleading 'grave risk of harm' also grapple with more practical issues. The burden of proof that 'grave risk of harm' exists, rests with the party resisting return. However, there is no internationally agreed standard required for the purposes of Article 13(1)(b), and many times evidence of harm caused is unavailable or uncorroborated. This is an issue exacerbated by the fact that in many jurisdictions domestic violence directed to the mother is a bifurcated issue from harm caused (directly) to the child (Brown Williams 2011, p. 65). Even if evidence is recoverable, the policy of immediate return under the Convention contravenes the need of the court to assess the evidence, a procedure that would require time (Brown Williams 2011, p. 66). Nevertheless, the POAM project Best Practice Guide on the protection of abducting mothers in return proceedings sets out detailed guidance for courts and other authorities on matters related to evidence as they arise in return proceedings involving allegations of domestic violence, including an 'evidence roadmap' separately for documentary evidence, oral evidence and on navigating the evidence types.46

#### 4.1.2. The 'Child Objections' Exception (Article 13(2))47

Article 13(2) states: '*The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views'*.

In cases involving allegations of domestic violence, the 'grave risk of harm' defence is often invoked, and in some cases successfully made out, in conjunction with the 'child's objections' defence under Article 13(2) of the Convention (Trimmings et al. 2020, p. 85; Honorati 2020, p. 3). The defence of child objections can of course be made out also independently of the 'grave risk of harm' defence.

Judges in all contracting states should be open to listening to children in return proceedings more frequently<sup>48</sup> and, when reaching a decision on the return application, should attach importance to the child's account of the incidents of domestic violence that occurred prior to the abduction and the impact of these incidents on him/her and/or the abducting mother. For example, in the UK, children as young as seven and half are routinely given the opportunity to be heard in return proceedings. This approach can be traced back to a 2006 House of Lords decision in the case of *Re D (Abduction: Rights of Custody)*<sup>49</sup> and is recommended here as a model to follow by judges in other contracting states.

<sup>46</sup> For detailed guidance see POAM Project Team (2020, para 5.1.3).

<sup>47</sup> It should be noted that Contracting States take different approaches to child participation in child abduction cases. See European Parliament, 'The Child Perspective in the Context of the 1980 Hague Convention', 2020, p. 15, Available at: <https://www.europarl.europa.eu/RegData/etudes/IDAN/2020/659819/IPOL\_IDA(2020)6 59819\_EN.pdf> accessed 1 September 2023.

<sup>48</sup> In the UK, this approach can be traced back to a 2006 House of Lords decision and is recommended here as a model to follow by other contracting states. *Re D,* note 30.

<sup>49</sup> See footnote 48.

#### 4.1.3. Human Rights Considerations (Article 20)

The product of a "laudable attempt" to compromise and resolve opposing views by the Convention's drafters, Article 20 is no mere public policy clause (Pérez-Vera 1982, para. 33; Trimmings and Beaumont 2014; Weiner 2004). It transcends academic arguments on the rule of law and erosion of comity, developing a unique evaluation of factual circumstances when international human rights agreements may disrupt the Convention's objectives. The exception under Article 20 of the 1980 Hague Convention provides that '*the return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.*' Even so, decades since the operation of the 1980 Hague Convention, Article 20 is seldomly utilised and, as it turns out, rarely successfully.50

Article 20 confirms that a refusal to return on human rights grounds is based on the internal laws of the requested state; that is to say that the source and foundation of 'the fundamental principles of the requested state' is to be found in national laws. But in reality, the national laws on human rights of Contracting States to the 1980 Hague Convention are influenced by, if not completely founded on, international treaties. There is a level of certainty and uniformity in human rights standards. The most obvious being the body of international human rights treaties51 created under the auspices of the United Nations as well as the European Convention on Human Rights<sup>52</sup> ('ECHR'). Often interconnected with the laws on immigration, these provisions may be invoked on the basis that the protection of human rights and fundamental freedoms are threatened by war zones, persecution on the basis of race, religion, political stance, nationality or membership of a particular group. There is also a scope to engage other international human rights treaties, such as the 1951 Refugee Convention and the 1967 Optional Protocol and the Council of Europe Convention on preventing and combating violence against women and domestic violence ('the Istanbul Convention').53 In summary, human rights principles applicable in a Contracting State are more likely than not to be a mirror of international agreements.

The majority of available cases54 that engage Article 20 show that the provision is often an anchor to core arguments based on the grave risk of harm or a child's objections. This is because grounds based on domestic violence (on the basis of the abducting parent being a female) and the gravity and impact on the child are usually pleaded under Article 13(1)b).<sup>55</sup> Similarly, grounds based on unsettled political environments for example, may be pleaded under the grave risk of harm. Indeed, the Guide to Good Practice on Article 13(1)b) highlights that risks associated with circumstances in the State of habitual residence such as political, economic or security situations may fall under asserted grave risks of harm (Guide to Good Practice on Article 13(1)(b) 2020, para. 61). As such, reliance on Article 20 is generally sparse in comparison to the other exceptions.

<sup>50</sup> See for example (Lowe and Stephens 2017a, Part I; Lowe and Stephens 2017b, Part II; Lowe and Stephens 2018, Part III). According to the Global report, the sole and multiple reasons for refusal based on Article 20 was 2 cases out of a total of 185 (see Annex 5 and 6). According to the regional report, refusal in 'regulation' cases amount to 1 case (and 1%), with 0% in non-regulation cases.

<sup>51</sup> Such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1989 Convention on the Rights of the Child and the 2006 Convention on the rights of Persons with Disabilities.

<sup>52</sup> In the United Kingdom, the 1998 Human Rights Act gives effect to rights and freedoms guaranteed under the ECHR.

<sup>53</sup> The Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul, 11/05/2011.

<sup>54</sup> See INCADAT, the HCCH International Child Abduction Database which contains and enables the search of child abduction case law, case law summaries and analyses, including references to house publications such as Guides to Good Practice and the Judges' Newsletter. From a pool of 65 cases that engage Article 20, with 10 from the jurisdiction of the United Kingdom, England and Wales, and Scotland (https://www.incadat.com) as of 30 June 2023.

<sup>55</sup> *Cf* where a compelling argument may be made that the 1951 Refugee Convention and/or the Istanbul Convention is engaged and thus Article 20.

Of course, human rights grounds should not exclude invoking an argument based on Article 6 ECHR (right to fair hearing)<sup>56</sup> or Article 8 ECHR (right to private and family life), but this is not what is envisaged under Article 20. These overarching arguments have been considered in cases with courts finding that Convention objectives do take into account and allow for consideration of ECHR values.<sup>57</sup> What is also true is that Article 13(1)(b) in particular, when applied correctly, ensures that the court is not acting in a manner that is incompatible with human rights treaties such as the ECHR. Likewise, the 1989 Convention on the Rights of the Child ('UNCRC') has an integral role to play in upholding a child's fundamental human rights and freedoms in return proceedings, and this appears to be naturally engaged.

The position in case law on the interplay between Article 20 and the protection of human rights pursuant to the Istanbul Convention is underdeveloped with decisions at times reiterating that Article 13(1)(b) is ample to plead domestic violence. In essence, where the overarching defence is based on domestic violence and a compelling public law element cannot be made out, relying on Article 13(1)(b) should suffice. For example, in the case of *G (A Child: Child Abduction)*58, the English Court of Appeal was concerned about unduly extending the scope of Article 20 when it was raised,59 and this was in the context of a principal claim relating to allegations of domestic violence. The UK Supreme Court60 in the same case reiterated that the provision should not be used 'as a way around the rigours of the other exceptions to the return of the child'.61

Nevertheless, aside from an Article 13(1)(b) case on the grounds of domestic violence, a possible subsidiary argument is that domestic violence is a form of persecution pursuant to the 1951 Refugee Convention (Momoh 2023, p. 230). Further to this, women, as a particular social group within the meaning of Article 1A of the Refugee Convention are entitled to seek refuge and rely on the principle of non-refoulment62 where they have fled a country that is unable to protect them or other country where their life would be threatened (UN High Commissioner for Refugees 1990). Indeed, establishing a well-founded fear requires a subjective and an objective element.<sup>63</sup> In the context of return proceedings under the 1980 Hague Convention, the fear of persecution may be the domestic violence perpetrated on the abducting mother, her gender being a protected characteristic, and the lack of adequate protection by the State of habitual residence being an objectively justifiable basis for human rights violations that give rise to an Article 20 case. Inadequate protection by the State of habitual residence has been demonstrated in cases such as *Walsh v Walsh*<sup>64</sup> when the First Circuit refused a return order because the father's perpetual disobedience of orders meant that any protective measures would be ineffective, or in *State Central Authority, Secretary to the Department of Human Services v Mander*, <sup>65</sup> where consideration was given to the left-behind father's behaviour, including a history of disobeying orders and violating undertakings in the home country. In *Friedrich v Friedrich*<sup>66</sup> it was opined that there may be

<sup>56</sup> See for example, *Re M*, note 44, *Re K (Abduction: Psychological harm)* [1995] 2 FLR 550 (of note, in Re K Article 20 had not yet been enacted into English domestic law until the 1998 Human Rights Act came into force in 2000).

<sup>57</sup> *Re M*, note 44.

<sup>58</sup> *G (A Child: Child Abduction)* [2020] EWCA Civ 1185.

<sup>59</sup> Ibid, para. [41].

<sup>60</sup> *G v G (international child abduction)* [2021] UKSC 9.

<sup>61</sup> Ibid, para. [155].

<sup>62</sup> 1951 Refugee Convention, Article 33 (Prohibition of Expulsion or Return). Article 33 states: 'No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion'.

<sup>63</sup> *SN & HM and 3 Dependants (Divorced Women—Risk on Return) Pakistan v. Secretary of State for the Home Department, CG* [2004] UKIAT 00283, para [34].

<sup>64</sup> *Walsh v Walsh* 221 F.3d 204, 221 (1st Cir. 2000).

<sup>65</sup> *State Central Authority, Secretary to the Department of Human Services v Mander*, No. (P) MLF1179 of 2003, p. 25 (INCADAT database).

<sup>66</sup> *Friedrich v Friedrich* (Friedrich II) 78 F.3d 1060, 1069 (6th Cir. 1996).

circumstances where 'the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection'.67

As noted, Article 20 may also be engaged where an abducting parent asserts that theirs (and the child's) human rights and fundamental freedoms are in jeopardy in the State of habitual residence. The argument follows that there is a need for protection in the country of refuge, thus claiming asylum.<sup>68</sup> One of the core arguments that have arisen in English jurisprudence is whether such application, successful or pending, places a bar to a return order being made under the 1980 Hague Convention.69 English court precedent is, arguably, significant in shaping a position that makes clear that a return order would break the principle of *non-refoulement*. In essence, that it would be impossible to make orders of a procedural nature (return orders) which would be in direct conflict with the substantive nature of the relief that is granted under the 1951 Refugee Convention and, indeed, the 1998 Human Rights Act.<sup>70</sup> This position was reiterated in the Court of Appeal71 and subsequent Supreme Court decision of *G v G (international child abduction)*. <sup>72</sup> The case of *GvG* concerned the applicant father's application for the return of the parties' daughter ('G') to South Africa. The respondent mother opposed the return relying on Article 13(1)(b) (grave risk of harm) and Article 13(2) (child objections). Although not formally pleaded in legal arguments, Article 20 was raised on her behalf. The mother relied on facts that included allegations of domestic violence including sexual and racial abuse and aggressive and controlling behaviour, compounded by a vulnerability as a result of her mental health. The mother was also found to be HIV positive, the source of which was a matter of dispute. During the return proceedings, the mother revealed that she had feelings for women but had been brought up to believe that homosexuality was a sin. The mother applied for asylum in England, including the child as her dependant. At trial level, the order of Lieven J stayed the father's return application pending the determination of the asylum application by the Secretary of State for the Home Department. On appeal, it was found that children who have been granted refugee status or have pending asylum applications are protected by the principle of *non-refoulment*; however, it was determined that because G did not have an independent asylum application, a return order could be made. This was overturned by the Supreme Court, which held that a child named as a dependant on a parent's asylum application is also protected from refoulement. This meant that even if a court made a return order, the principle of *non-refoulement* applied so as to prevent the implementation of such an order. The Supreme Court in *GvG* also considered practical and desirable steps to take in future cases where the two Conventions apply. This included acknowledging that the Secretary of State has sole responsibility for both examining and determining claims for international protection. As a result of the decision in *GvG*, the Secretary of State has set up a Specialist Asylum Team to expedite such cases (Home Office 2021).

Despite the suggested uniformity across jurisdictions on the basis that internal laws have drawn inspiration from similar international treaties, a level of discord had previously arisen. Distinguishable from the English jurisdiction were decisions in the US and Canadian courts, where effectively the Hague court got another bite at the cherry. For example, in the Canadian decision of Court of Appeal (Ontario) in *AMRI v KER*73, it was found that even though refugee status had been granted to the mother and daughter, the Hague court may revisit and make a return order, bearing in mind what was considered a mere 'rebuttable presumption' as opposed to a bar to return. In the US Court of Appeal (first

<sup>67</sup> See footnote 66.

<sup>68</sup> To include an application in respect of the child, either individually or as a dependant.

<sup>69</sup> See *FE v YE* [2017] EWHC 2165 (Fam), *E v E (Secretary of State for the Home Department intervening)* [2017] EWHC 2165 (Fam); [2018] Fam 24; *FvM* [2018] EWHC 2106 (Fam); [2018] 3 FCR 301; *Cf In re E (Children) (Abduction: Custody Appeal*) [2011] UKSC 27.

<sup>70</sup> *FE v YE* [2017] EWHC 2165 (Fam), paras 14, 17–21.

<sup>71</sup> *G (A Child: Child Abduction),* note 66.

<sup>72</sup> *G v G (International Child Abduction)*, note 68.

<sup>73</sup> *AMRI v KER* [2011] ONCA 417.

circuit) in the decision of *Sanchez v RGL*74, it was also found that the grant of asylum was not determinative in return proceedings.75 More recently, however, the Ontario Court of Appeal's decision in the case of *M.A.A v D.E.M.E* <sup>76</sup> found that family courts cannot issue return orders for children if their applications for asylum are still pending. This is an encouraging progress across the Atlantic that aligns with the developments in the English courts and, it is hoped, will become the norm. Evidently, Article 20, like all the other exceptions to return, ought to be interpreted in a restrictive fashion. Having said that, arguably, where friction arises between parental child abduction law and international refugee law, it should be approached from a humanitarian perspective, where due regard is had to the substantive (rather than procedural) nature of the relief sought. It would not open the floodgates as indeed the anchoring of Article 13(1)(b) and Article 20 reminds courts that protection from a well-founded fear of prosecution amply qualifies as a grave risk of harm.

#### *4.2. Legislative Interventions*

Legislative interventions can be contemplated at the global level or the domestic level.

#### 4.2.1. Global Level

#### Amending the 1980 Hague Convention

At the global level, the most extreme but, admittedly, least practicable solution would be for the Hague Conference on Private International Law as the global law-making body in the area of private international law to amend the wording of the 1980 Convention to take account of the concerns over the safety of abducting mothers in return proceedings. This could take, for example, the form of a separate exception to return on the grounds of domestic violence or a wholly separate 'pathway' for applications involving allegations of domestic violence, including provisions related to evidentiary matters; legal aid; the availability of alternative dispute resolutions methods; channels for direct judicial communication; and the availability of psychological and other support services to the abducting mother during the return proceedings. However, as alluded to above, this solution lacks feasibility as the process of amending an international convention is complex in itself and becomes even more challenging where a large number of contracting parties is involved as is the case of the 1980 Hague Convention.77

Amending an international convention refers to the formal modification of the convention provisions affecting all the contracting parties. Such alterations must be effected with the same formalities that attended the original formation of the treaty. Where the convention does not lay down specific requirements to be satisfied for amendments to be adopted (as is the case with the 1980 Hague Convention), amendments require the consent of all the parties.78 The 'stone tablet quality' of international conventions makes it extremely unlikely that the contracting parties to the Convention would come down in favour of a revision of the instrument (Thorpe 2006, p. 10).

#### Adopting a Protocol to the 1980 Hague Convention

An alternative option would be the adoption of a Protocol to the Convention.<sup>79</sup> This form of legislative intervention is more pragmatic than amending the Convention;

<sup>74</sup> *Sanchez v RGL* (2015) 761. F.3d 495.

<sup>75</sup> See also *GB v VM*, 2012 ONCJ 745; and *Gonzalez v. Gutierrez*, 311 F.3d 942, 947 (9th Cir. 2002).

<sup>76</sup> *M.A.A. v. D.E.M.E*., 2020 ONCA 486, Canada.

<sup>77</sup> As of 19 June 2023, there are 103 Contracting Parties to the Convention. See Hague Conference on Private International Law, 'Status Table' (HCCH 2023).

<sup>78</sup> 1969 Vienna Convention of the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UN Treaty Series 1155 331, Art 40.

<sup>79</sup> The possibility of a Protocol to amend or supplement the 1980 Hague Convention was considered by the Permanent Bureau of the Hague Conference during the Sixth Special Commission to review the operation of the Convention in June 2011. See Permanent Bureau of the Hague Conference on Private International Law (2011a). The idea was, however, not pursued and a soft law instrument in the form of a Guide to Good Practice

however, it has other shortcomings. Most importantly, the fact that contracting parties to the Convention are not bound to participate in a Protocol initiative would mean that the safety of abducting mothers would be guaranteed at a restricted scope only. Unfortunately, this would significantly lessen the value of the Protocol. Nevertheless, one can agree with Thorpe LJ that the Protocol would 'at least enable like-minded States to strengthen the Convention *inter se*' and that 'a Protocol with a limited range of operation would be better than no Protocol at all' (Thorpe 2006, p. 10).

#### 4.2.2. Domestic Level

At the national level, contracting parties could adopt new or amend relevant domestic legislation to clarify that allegations of domestic violence including the safety of the abducting mother should be considered before a return order is made for the child under the 1980 Hague Convention. A recent example of such legislative intervention is an Australian piece of legislation,<sup>80</sup> which provides safeguards to mothers and children fleeing domestic violence when Australian courts consider cases brought under the 1980 Hague Convention ('the 2022 Regulations'). The 2022 Regulations make clear inter alia that domestic violence is a consideration under the 'grave risk of harm' exception to return and a court does not need to be satisfied that such violence has occurred or will occur before it is taken into account (The Hon Mark Dreyfus KC MP 2022). It is recommended that domestic legislation includes also supplementary provisions to strengthen the position of abducting mothers who had fled domestic violence and are involved in return proceedings. Such provisions could pertain to matters such as legal aid, availability of ADR channels, and a legal basis for the use of and the functioning of direct judicial communication (see below '*Alternative avenue: ADR/mediation'*).

#### *4.3. Alternative Avenue: ADR/Mediation*

The use of alternative methods of dispute resolution ('ADR'), and specifically mediation,81 for the resolution of domestic family disputes is an alternative avenue to court proceedings. The popularity of ADR, including mediation, has grown significantly over the past decades.

When domestic violence is involved or even suspected as the reason behind an international child abduction, mediation becomes a questionable option.82 Experts point out that mediation can do more harm than good in disputes involving abusive relationships. The concerns are threefold. From the victim's perspective, participating in mediation (or any ADR mechanism) will result in delayed access to the court<sup>83</sup> and therefore court orders to protect the victim.84 For victims that have already distanced themselves from their abuser, mediation can result in a risk of physical or mental harm or even re-traumatisation (González Martín 2014, p. 343; see also Permanent Bureau of the Hague Conference on Private International Law 2012, p. 73). Another group of concerns is related to the integrity of the mediation process. The existence of domestic violence often comes hand in hand with broken-down communication, toxic dynamics and severe power imbalance between the abuser and the victim. Accordingly, during the mediation, the victim might be unable to voice concerns equally to the abuser, leading to a potentially disadvantageous or coerced result. In the context of international child abduction, there are additional dimensions

was drafted instead. See Guide to Good Practice on Article 13(1)(b) (2020, pars 57–59). Unfortunately, domestic violence is addressed only marginally in three brief paragraphs.

<sup>80</sup> Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022.

<sup>81</sup> When referring to 'mediation' in this journal, the authors always refer to elective mediation, where the parties provide their informed consent to the process. The authors do not consider mandatory mediation to be appropriate in the context of international child abduction cases involving domestic violence.

<sup>82</sup> See, e.g., *Re E*, note 8, [53].

<sup>83</sup> It must be noted that perpetrators of domestic violence can propose mediation with the ulterior motive of delay (use of mediation as a 'delay tactic'). See, e.g., González Martín (2014, p. 322).

<sup>84</sup> For instance, Scottish courts, if satisfied with adequate evidence, have an array of types of Protective Orders available to help the victim into safety. See Scottish Government (2018).

that might make the mediation process more challenging; these primarily relate to the cross-border element and, in particular, the cultural diversity, potential language barriers and the need for close cooperation between the Central Authorities of the states involved (González Martín 2014, p. 343). The final type of concern is that of policy. Mediation is founded on the objective of reaching a mutually agreeable solution to a private dispute; therefore, by definition, it arguably becomes inappropriate when domestic violence is present because reaching a private agreement results in 'no-punishment' and even normalisation of domestic violence (González Martín 2014, p. 343; Permanent Bureau of the Hague Conference on Private International Law 2012, p. 73).

Despite the above legitimate concerns, 'mediation has particular advantages over litigation in international child abduction cases,' and 'inherent benefits [...] regardless of the outcome' (González Martín 2014, p. 322; Vigers 2011, p. 71). From the victim's perspective, elective mediation offers a strategic route to an acceptable arrangement. Particularly in cases where the abducting mother returns with the child to the state of habitual residence, mediation can be a significantly better option to litigation. Empirical research into abducting mothers post-Hague proceedings has shown that victims of domestic violence that have fled and subsequently returned (following a return order) face a wreath of issues from returning to the abusive context they fled from, homelessness and domestic litigation on the custody and related issues regarding the child, often resulting in mother–child separation (Masterton et al. 2022, pp. 376–81; Quillen 2014, p. 641). Sometimes, returning mothers might even face 'criminal prosecution, extradition and incarceration' (Alanen 2008, p. 52). The findings demonstrate that victims experience multifaceted and severe consequences for child abduction despite their actions being driven by domestic violence. It is argued that mediation can help ease some of these consequences upon the return of the mother and child and make the experience of return less traumatizing. Mediation is a flexible process that allows the parties to broaden its scope beyond the child's return to consider a broader range of issues such as custody, visitation and living arrangements. The victim can utilize the context of the mediation, and the tools made available there, to reach an agreement that, in hindsight, might be more favourable than a court order.85 Further, 'prosecutors (...) might drop criminal charges once the child is returned to the custodial parent or the parents have stipulated to a valid, enforceable parenting agreement' (Alanen 2008, p. 52; Quillen 2014, p. 641; González Martín 2014, p. 337).

Apart from the more controlled outcome, elective mediation can have the opposite effect from what is feared by specific experts; instead of silencing the victim, it can empower her to make reasonable requests that will improve the entire family's quality of life. It can be forgotten that abducting mothers are victims that have found the courage to flee, and fleeing is the first step in their journey of empowerment. Accordingly, stripping the victims of choice to mediate is counterintuitive.86 When administered by a domestic violence-informed mediator(s), the mediation process can be tailored in multiple ways to allow space for the victim and avoid any further traumatization (González Martín 2014, p. 342). For instance, mediation may not necessarily be delivered face-to-face (Vigers 2011, p. 23). It can instead be delivered entirely online so that the victim feels physically safe. In 'shuttle' mediation, an experienced mediator will make use of techniques such as 'face-saving', whereby the mediator has private meetings with either party and puts forward the parties' requests to each other in a controlled and strategic manner to diffuse high-emotion and promote a mutually agreeable outcome (Whatling 2012, pp. 49 and 157). The entire process is carried out without the parties coming in contact. However, even in the case of face-to-face mediation, the process can be built and tailored in a manner suitable to the specific circumstances, with as many private and joint sessions as necessary to work

<sup>85</sup> It must be noted that child abduction might be prosecuted as a crime and in that case, the abducting mother will not benefit from a more favourable outcome in mediation.

<sup>86</sup> See, e.g., Oral Evidence submitted to the House of Commons in relation to the appropriateness of mediation in cases involving domestic violence, Question 14. (House of Commons Justice Committee 2023).

through the issues.87 In meetings where the victim and the abuser are in the same space, an experienced mediator will be mindful of power imbalance and act as an equaliser, ensuring both sides are heard. In this context, mediation becomes a safe space for 'the victim to have a voice, to not fear repercussions' (Kucinski 2010, p. 318). Reported accounts of past mediations administered under the auspices of Reunite International note that 'the victim often becomes empowered and finds a voice, and grows during the [mediation] process, more so than in a courtroom' (Kucinski 2012, p. 84).88

Mediation cannot occur in a vacuum, and of course, not all cases will be suitable to mediate. It is pertinent that the selection process is performed by an expert who is trained to identify signs of domestic violence and is able to adapt the process accordingly. Further, it is essential that the victim receives independent legal advice on what the mediation process entails and her specific circumstances to aid in deciding. Family mediators are supportive of a case-by-case assessment of suitability; instead of a pre-determined approach, 'informed consent and thorough assessment' can maximise the positive impact of mediation on the lives of victims and their children.89

#### **5. Conclusions**

Over the past nearly fifteen years, the interplay between international child abduction and domestic violence has generated attention and divided positions amongst academic commentators and judges in the Contracting Parties to the 1980 Hague Convention. The change in the profile of a typical parental child abductor, combined with better understanding of the seriousness and impact of domestic violence on the victims and, by extension, their children, has led to increased awareness of the need to safeguard protection of abducting mothers in child abduction cases committed against the background of domestic violence. This article has proposed several measures that could help achieve this objective, ranging from possible legislative interventions at the global level (e.g., a Protocol to the 1980 Convention) to judicial interventions to be employed on a case-by-case basis when applying the exceptions to return available under the 1980 Convention, in particular Article 13(1)(b), Article 13(2) and Article 20. Additionally, the role of Article 20 has been explored in the context of an interplay between domestic violence and asylum claims. This niche area of law would benefit from concentrated and comprehensive research. Nevertheless, it ought to be said that defending a return order on asylum grounds pursuant to Article 20 has earned a standing of its own right. At the very least, it engages the 1951 Refugee Convention, specifically Article 33. Further, it aligns with the observations of Professor Peréz-Vera that to invoke Article 20 is to address the contradiction between the 1980 Hague Convention and domestic human right laws, as well as establishing how such a return would breach the protective principles of human rights (Pérez-Vera 1982, para. 3).

**Author Contributions:** Conceptualization, K.T., O.M. and K.K.; methodology, K.T., O.M. and K.K.; resources, K.T., O.M. and K.K.; writing—original draft preparation, K.T., O.M. and K.K.; writing review and editing, K.T., O.M. and K.K.; supervision, K.T. All authors have read and agreed to the published version of the manuscript.

**Funding:** This research received no external funding.

**Informed Consent Statement:** Not applicable.

**Conflicts of Interest:** The authors declare no conflict of interest.

<sup>87</sup> It must be noted that the child can be equally involved in the mediation and the mediator can hold private meetings with the child to ensure the child's voice is heard. As with the parties, the mediator is under the obligation to not disclose information the child reveals unless the mediator has his or her consent, thus fostering a safe environment. See Vigers (2011, pp. 23 and 78–79).

<sup>88</sup> See footnote 87.

<sup>89</sup> See, e.g., Question 14 in the Oral Evidence submitted to the House of Commons in relation to the appropriateness of mediation in cases involving domestic violence. (House of Commons Justice Committee 2023).

#### **References**


Freeman, Marylin. 2003. The Outcomes for Children Returned Following an Abduction. *Reunite Research Unit*, 1–47.


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**Costanza Honorati**

School of Law, Università degli Studi di Milano-Bicocca, 20126 Milano, Italy; costanza.honorati@unimib.it

**Abstract:** The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child's return and apparently leaves little scope for protecting the child's mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court's judgment in *Golan* v *Saada* is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country's borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child's physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures.

**Keywords:** international child abduction; domestic violence; ameliorative/protective measures

#### **1. Introduction**

USSC decisions in abduction cases are particularly relevant for the application and uniform interpretation of the 1980 Hague Convention. The impact of these decisions reaches far beyond the USA and impacts all Contracting States. To date, the Supreme Court has issued three decisions in abduction cases: *Abbott* v *Abbott*, *Monasky* v *Taglieri*, and the decision discussed in this paper *Golan* v *Saada*. <sup>1</sup> On closer analysis, the last-mentioned decision originates from and aims to solve an internal dispute among US courts, which adopted different positions regarding protection measures and the return of an abducted child. The most immediate effect of the decision was to reverse the directions given by the Second Circuit Appellate Court in the *Blondin* case.2

However, aside from the internal impact within the United States, the USSC decision is of great interest also beyond its borders because of the factual situation underlying

**Citation:** Honorati, Costanza. 2023. Protecting Mothers against Domestic Violence in the Context of International Child Abduction: Between *Golan* v *Saada* and Brussels II-ter EU Regulation. *Laws* 12: 79. https://doi.org/10.3390/

Academic Editors: Marilyn Freeman and Nicola Taylor

Received: 2 August 2023 Revised: 15 September 2023 Accepted: 15 September 2023 Published: 19 September 2023

laws12050079

**Copyright:** © 2023 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

<sup>1</sup> *Golan* v *Saada*, 596 U.S. (2022).

<sup>2</sup> See below at Section 2.1.3.

the case, one involving undisputed domestic violence. At a time when the fight against domestic violence has finally started to receive the attention it deserves, the need to protect domestic violence victims' sometimes conflicts with the principal aim of the 1980 Hague Convention. This is the first time that a supreme court has been faced with the difficult task of balancing domestic victims' legitimate need for protection with the aim under the Convention of securing the prompt return of the child. By stating that consideration of ameliorative measures is not required by the Convention, the *Golan* decision may appear to suggest a conservative approach, which would appear to be outdated. Last but not least, the *Golan* decision is relevant in terms of the impact it may have on the construction of similar—but not identical—EU rules.

#### **2. The** *Golan* **v** *Saada* **Case**

The facts underlying the decision arise more frequently in practice than one might think when reviewing court decisions. The case also laid bare the inefficiency and inadequacy of the law. It should be pointed out that the child involved in this story, B.A.S. Saada, was abducted and taken to US in 2018 at the age of 2 and a half. Today, after four years of legal proceedings, at the age of 7, notwithstanding the numerous (in total four) return orders issued by the US Hague court, he has still not been returned to Italy, the State where he was previously habitually resident, and a final custody decision is still to be taken. It must now be concluded—in the child's best interests—that he will never be returned.

#### *2.1. The Facts of the Case*

Narkis Golan, a US citizen, and Isaac Saada, an Italian citizen, met in 2014 in Milan. In 2015, Golan moved to Milan in Italy, where the couple married3 and started living together. In June 2016, the couple had a child, B.A.S. The relationship appeared to be abusive from the outset. It is undisputed that Saada behaved unacceptably towards his wife. As the court found, he 'physically, psychologically, emotionally, and verbally abused' his wife; furthermore, he 'called her names, slapped her, pulled her hair, threw a glass of wine in her direction, and threatened to kill her'.4 While the man did not appear to have a history of direct violence or neglect towards B.A.S., much of the acknowledged behaviour was committed in the presence of the child, thus constituting what should today be regarded as indirect violence. Mrs. Golan, who felt very isolated and was apparently also subject to control and restrictions from her parents-in-law,5 sought protection from the Italian police, who referred the matter to the Italian social services. The Italian social services launched an investigation, which resulted in a report noting the highly concerning situation and proposing that Mrs. Golan and the child be placed in a safe house, while the matter was referred to the courts. At that point, Mrs. Golan retracted her statements, declaring that she felt able to handle the situation herself and did not want to leave her home.<sup>6</sup> However, when the opportunity arose, she ran away. In August 2018, after attending her brother's wedding in New York, she disappeared and moved to a confidential domestic shelter. Since then, B.A.S., who is now 7 years old, has been in the USA.

#### *2.2. The Judicial Proceedings in the District and Appellate Court (Second Circuit)*

Mr. Saada promptly sought the return of his son and, in September 2018, applied for a return order before the New York District Court. The Court held that: (a) the retention was unlawful7; (b) there was a grave risk of psychological harm given the clear evidence of

<sup>3</sup> The couple married in Tel Aviv in a religious ceremony, but the marriage was never registered in any country. As a result, Mrs. Golan was unable to work legally in Italy.

<sup>4</sup> All quoted passages are from USDC (E.D.N.Y.) No. 18-5292 (22 March 2019).

<sup>5</sup> USDC (E.D.N.Y.) No. 18-5292 (22 March 2019), p. 44a note 3, explaining how Mr. Saada's grandparents, parents, brother, and sister were living in Milan on different floors of the same building.

<sup>6</sup> Further details at USDC (E.D.N.Y.) No. 18-5292 (22 March 2019), pp. 56a–59a.

<sup>7</sup> The argument raised by the mother that B.A.S. was habitually a resident in the US, as this was the shared intention of the parents, was quickly rejected.

violence towards the mother; (c) the court was required under Second Circuit case law<sup>8</sup> to determine whether there were any ameliorative measures or 'undertakings' that could minimise the risk of grave harm and allow the safe return of the child; and (d) that this was the case since Saada had agreed to the adoption of a package of measures that, taken as a whole,9 would alleviate any risk faced by B.A.S. upon return. On that basis, on 19 March 2019, the District Court ordered the return of the child (*Saada I*).10

On appeal, the Second Circuit vacated the District Court's decision, finding that the ameliorative measures in question would not eliminate the grave risk of harm because they were not directly enforceable in Italy; moreover, the court had not obtained a sufficient guarantee of compliance. The Appellate Court thus instructed the District Court to consider whether the Italian court could itself issue an order prohibiting Mr. Saada from approaching Mrs. Golan or visiting B.S.A. without her consent (June 2019, *Saada II*).11

On remand, the District Court liaised with Italian Central Authority and instructed the parties to petition the Italian courts accordingly. In December 2019, following an application by Mr. Saada, the Court of Milan issued a far-reaching and comprehensive protection order, addressing multiple aspects relating to the protection of the child and the mother and providing support and direction for both parents (although especially for Mr. Saada), including psychological counselling and cognitive behavioural therapy. The order was meant to take effect at the time when Mrs. Golan and B.A.S. actually returned to Italy and would remain applicable for one year, with the possibility of extension thereafter.

Satisfied with this outcome, the District Court again ordered the return of the child (May 2020, *Saada III*).12 Mrs. Golan again appealed to the Appellate Court, which, however, again confirmed the District Court's decision, stressing the ongoing involvement of the Italian courts, and therefore, the return of B.A.S. (October 2020, *Saada IV*).<sup>13</sup>

Mrs. Golan then filed a petition for a rehearing in the Second Circuit, which was denied, and a motion to vacate the District Court judgment, which was also dismissed. Having exhausted all ordinary appeals, Mrs. Golan now turned to the Supreme Court. She filed a petition for a writ of certiorari with the strong support of a number of bodies from various backgrounds. The petition was granted, and the case finally arrived before the highest court in the land. The case before the Supreme Court attracted great interest both within the legal community and amongst the wider public. No more than twelve amicus curiae briefs were filed with the court.14

*2.3. The Legal Question before the USSC: Is Seeking and Crafting Ameliorative Measures Always Required by the 1980 Hague Convention, despite a Determination of Grave Risk?*

The legal question put before the USSC by the petitioner, Mrs. Golan, was precisely defined and limited to a very specific issue. It is important that this be properly understood so as to rightly appreciate the scope of the decision. The relevant issue was

'Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court *is required* to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding' (emphasis added).

<sup>8</sup> See *Blondin* v *Dubois* case, which is discussed below.

<sup>9</sup> These measures included: a \$30,000 allowance for Mrs. Golan; staying away from her until the Italian courts had resolved the matter; starting cognitive behavioural therapy; discontinuing any criminal or civil proceedings that could be pursued in Italy in relation to abduction. In addition to this, Mr. Saada was also required to submit the full record of the New York proceedings to the Italian court deciding on the custody proceedings and to assist Mrs. Golan in obtaining legal status and working papers in Italy.

<sup>10</sup> USDC (E.D.N.Y.), No. 18-5292 (19 March 2019).

<sup>11</sup> USCA, 2nd Circuit, No. 19-820 (19 July 2019).

<sup>12</sup> USDC (E.D.N.Y.), No. 18-5292 (5 May 2020).

<sup>13</sup> USCA, 2nd Circuit, No. 20-1544 (28 October 2020).

<sup>14</sup> All documents and Amicus Curiae *Briefs* can be found at the USSC docket https://www.supremecourt.gov/ docket/docketfiles/html/public/20-1034.html accessed on 1 June 2023.

The question was, therefore, not whether there had been any domestic violence, nor whether the return per se would expose the child to a grave risk. Moreover, there was no discussion as to whether or not the 'package' of protection measures envisaged by the District Court was adequate to protect the child. Although these questions had been discussed in the proceedings and had been addressed by various arguments, the issue referred to the Supreme Court did not concern either the interpretation or the assessment of any of them. The sole question was whether considering ameliorative measures *was a formal requirement* under the convention, or lay at the discretion of the court.

This question originated from the situation existing within the US. Courts dealing with Hague return cases are faced with conflicting case law from federal courts of appeals as to whether, after a finding that there is a grave risk of harm, a trial court *must* consider possible ameliorative measures to facilitate the return of the child.

On the one hand, the First, Eighth, and Eleventh Circuits have indicated that, having established a grave risk of harm, the trial court is *under no obligation* to consider ameliorative measures.<sup>15</sup> In contrast, the Second, Third, and Ninth Circuits *require* a district court to consider—and craft when needed—a full range of ameliorative measures that would permit the return of the child in all situations where a grave risk is established.

The leading decision in this case is *Blondin* v *Dubois*, which was delivered by the Second Circuit in 1999.<sup>16</sup> The case concerned a mother who left France with her children to escape the abusive father, who repeatedly beat her and threatened to take her and the children's lives. The district court found that the requirement of evidence of grave risk on return was met and refused the application for return. However, the Second Circuit Appellate Court annulled that decision and remanded the case to the District Court, directing it to *consider* ameliorative measures that 'might allow both the return of the children... and their protection from harm, pending a custody award in due course by a French court with proper jurisdiction'.17 The court thus referred to its own precedent in the *Blondin II*<sup>18</sup> decision, which required that, where a district court finds there to be a grave risk of harm, it 'must examine the full range of options that might make possible the safe return of the child' before denying repatriation. The Court considered this rule to 'honor the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child's home country'.

This decision was subsequently relied upon by other Circuits,19 thus creating uncertainty and discrimination among petitioners, depending on where they were located when seeking refuge within the US. The petition to the Supreme Court challenged this approach and the resulting situation; not surprisingly, the USSC granted certiorari.

It is important to stress that the relevant question was only whether there may be a requirement to *consider* ameliorative measures. Even if this were to be answered in the affirmative, it would never impinge on the court's discretion to refuse return. Whether to order return or not, and on what conditions, is always in the discretion of the court of first instance. As was pointed out by one of the few amicus curiae filings for the respondent Saada, 'a court may always exercise its discretion to reject ameliorative measures after considering whether or not they will be effective' (Brief for Amici Curiae 2022, p. 15). The issue at stake was by contrast only whether 'the court is *required* to consider ameliorative measures even if the court ultimately decides—as it did in Simcox—that undertakings or protective measures will not be effective and refuses to order the child's return' (Brief for Amici Curiae 2022, pp. 16–17; emphasis added).

<sup>15</sup> See, in particular, the following cases: *Danaipour* v *McLarey*, 386 F.3d 289 (1st Circuit, 2004); *Acosta* v *Acosta* 752 F. 3d 868 (8th Circuit, 2013); *Baran* v *Baran*, 526 F. 3d 1340 (11th Circuit, 2008); for details on decisions, see *Petition for a Writ of Certiorari*, *Golan* v *Saada*, January 2021, at 11–12.

<sup>16</sup> *Blondin* v *Dubois (I)*, 189 F.3s 240 (2d Cir. 1999).

<sup>17</sup> *Idem* at 249–250.

<sup>18</sup> *Blondin* v *Dubois (II)*, 238 F.3d 153 (2d Cir. 2001) at 163 n. 11.

<sup>19</sup> For example, *In re Adam*, 437 F 3d 381(3d Circuit, 2006); *Gaudin* v *Remis*, 415 F.3d 1028 (9th Circuit, 2005). See again *Petition for a Writ of Certiorari*, at 14. The Petition also points to further inconsistencies in case law of state courts at 17–18.

Once the question has been clarified this way, its answer would probably appear to be obvious in other countries. It is submitted here that the question raised is one that is highly specific to the US system because of the specific guidance given by a few appellate courts. In other Contracting States, it would probably not be disputed that a court always retains full discretion over how to handle the case (Chalas 2023).

#### **3. Arguments of the Parties**

The arguments raised by the petitioner Golan, and the amici curiae supporting her position, ran along the following lines:

(a1) A treaty should be interpreted according to its literal text. Although this argument often appears at the outset of acts, it was not consistently applied throughout the respective reasoning.

(b1) Ameliorative measures adopted in the form of undertakings are inefficient because they are not enforceable: They rely on the seriousness of the party making the undertaking and, therefore, on the parties' respective decisions over whether or not to comply.

(c1) Ameliorative measures are highly inappropriate in cases involving men with a past of abusing women because abusive men are inherently unable to comply to court orders.

(d1) In order to protect the child and the mother, crafting appropriate protective measures requires an in-depth knowledge of the case, which is at odds with the need to decide on the Hague proceedings in the most expeditious manner.

(e1) Furthermore, ameliorative measures that are too detailed and specific conflict with the principle that the State with jurisdiction over the merits must retain competence.

The respondent Saada, and the amici curiae filed in support of his position on the return of the child argued mainly along the following lines:

(a2) When interpreting a treaty, the analysis begins 'with the text of the treaty and the context in which the written words are used' (*Air France* v *Saks*, 470 U.S. 392, 397 (1985)).

(b2) The requirement that a court must consider whether ameliorative measures are sufficient to protect the child's safety is inherent within the nature of the question and is supported by the operational framework of the Convention and the accompanying Explanatory Report.

(c2) The United States should follow international practice, special commissions, and guides to good practice. In particular, courts in the United States should look to the *Guide to Good Practice for Article 13(1)(b)* (HCCH 2020) with regard to the assessment of 'grave risk'.

(d2) Ameliorative measures can be effective in protecting the child, as has been shown by other international instruments.

(e2) The mandatory *consideration* of ameliorative measures does not require the court to *adopt* ameliorative measures in order to obtain the return of the child. A court always retains full discretion over whether to order the child's return.

#### **4. The Decision of the USSC: Ameliorative Measures Are Not Required by the Convention, and It Lies in the Court's Discretion to Decide on Them**...

The Supreme Court's decision, which ran to 16 pages, is a very short one. The first eight pages set out the facts at the heart of the dispute whilst the remaining eight develop its legal reasoning.

Firstly, the Court clarified its approach to the interpretation of treaties by referring to the general principle that 'interpretation of a treaty ... begins with its text'. This is a long-established principle in the US legal tradition and is strongly felt by the USSC in its current composition, which is dominated by 'textualist' interpretations.20 This approach

<sup>20</sup> The principle is also rooted in Article 31 of the 1969 Vienna Convention on the Law of Treaties, to which, however, the USA is not a Contracting Party. Article 31, after setting the general rule that a treaty 'shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose', first clarifies what is the context in paragraph (2). Paragraph (3) further after adds that together with the context shall be taken into account: '(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty, which establishes the agreement of the parties

often lies at the heart of decisions concerning rules based on international treaties and clearly implies the rejection of any purposive (i.e., functional) or evolutive interpretation of the treaty.

Based on this understanding, the Court found that the 1980 Hague Convention imposes a general obligation to return the abducted child, but that a Hague court is 'not bound' to order the return of the child whenever a finding of grave risk has been made. In other words, the grave risk defence under Article 13(1)(b) 'lifts the Convention's return requirement, leaving a court with the discretion to grant or deny return'. 'Discretion' thus becomes the key to the decision, and determines its ultimate outcome.

It thus readily follows that 'nothing in the convention's text either forbids or requires consideration of ameliorative measures in exercising such a discretion'. Moreover, there is no doubt that ameliorative—or protective—measures are not mentioned by the Convention. Thus far, the Court's arguing is unobjectionable and objectively sound. The following passages may, however, appear less convincing.

Responding to the arguments made by the respondent Saada, the Court analysed whether the need to put in place measures to mitigate a grave risk of harm may be considered an 'implicit' requirement, i.e., if the consideration of ameliorative protective measures must be assessed within and form a part of any 'grave risk' analysis.

In doing so, it examined the relationship between ascertaining the existence of a grave risk and the availability of ameliorative measures. The delicate question was whether these constitute two separate issues, arising consecutively, or whether they should be assessed together as one single complex but unitary issue.

This may appear to be a procedural, highly technical, question concerning only the adoption of ameliorative measures. On the contrary, given the special weight afforded to the court's discretion following a finding of grave risk, the way in which such a relationship is construed becomes crucial (Trimmings and Momoh 2021). If the overall circumstances must be examined together, i.e., considering measures that might reduce a prospective, alleged risk before looking into the likelihood of such an allegation, this will have the effect of partly *reducing* the court's discretion following a finding of grave risk. In fact, a court will not even conclude that a grave risk exists, because *even if* there were such a risk, it would be reduced and minimised for the purpose of returning the child. On the other hand, if the two questions are distinct and separate and the court is first required to establish whether there is a grave risk, and only then to investigate the existence of possible ameliorative measures, then there is more scope for the exercise of discretion. The need for—and efficacy of—protective measures is assessed having regard to a risk that has already been found to exist by the court.

This issue was debated at length within the Hague Conference's Special Commission when drafting the Guide to Good Practice on Article 13(1)(b) (HCCH 2020). A first draft, released in 2017 at the Seventh Meeting of the Special Commission, offered national courts two different approaches depending on the facts of the case, national practices, and procedures (HCCH 2017). The result was seen as being complicated and confusing and the final Guide to Good Practice simplifies the position by offering a step-by-step approach. First of all, the court should consider whether the parties' allegations could constitute a grave risk. As it is clarified, 'Broad or general assertions are very unlikely to be sufficient', and a unilateral statement will clearly not imply that a grave risk has been established. The second step, in fact, envisages that:

'the court determines whether it is satisfied that the grave risk exception to the child's return has been established by examining and evaluating the evidence presented by the person opposing the child's return/information gathered, *and* by taking into account the evidence/information pertaining to protective measures available in the State of habitual residence. This means that even where the

regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties'. The rule may be of relevance to other States which are bound by the Vienna Convention.

court determines that there is sufficient evidence or information demonstrating elements of potential harm or of an intolerable situation, *it must nevertheless duly consider the circumstances as a whole*, *including whether adequate measures of protection are available* or might need to be put in place to protect the child from the grave risk of such harm or intolerable situation, when evaluating whether the grave risk exception has been established.' (. . .)

'In cases where the taking parent has established circumstances involving domestic violence that would amount to a grave risk to the child, courts *should consider* the availability, adequacy and effectiveness of measures protecting the child.' (HCCH 2020, p. 31, para 40–41; 59. All emphases added)

On the face of these passages, one might conclude that, in the view of the delegations of the Contracting States that drafted and approved by consensus the 2022 Guide to Good Practice, the existence of a grave risk is dependent and conditional on whether or not 'adequate measures of protection' (i.e., according to US terminology, ameliorative measures) are available.

The US Supreme Court attached very little weight to the work and conclusions of an authoritative and attentive body such as the Special Commission of the Hague Conference, with lip-service being paid to its work in a footnote,21 but clearly not allowing its work to have any impact on the decision itself. Similarly, and in contrast to other USSC opinions, there is here no room for any consideration of the practice of other Contracting States to the 1980 Hague Convention. The Supreme Court concisely affirmed that 'the question whether there is a grave risk (...) *is separate* from the question whether there are ameliorative measures that could mitigate the risk'<sup>22</sup> (emphasis added). Later on, the Court admittedly conceded that these two 'will often overlap' and that 'in many instances, a court may find it appropriate to consider both questions at once'.23 However, this does not alter the previous finding on the breadth of the discretion available to the Hague court. Indeed the Supreme Court took the view that 'the court's discretion to determine whether to return a child (...) *includes the discretion* whether to consider ameliorative measures that could ensure the child's return'.<sup>24</sup> The point was thus quickly resolved by what appeared to be also a reproach of the Second Circuit: 'By imposing an atextual, categorical requirement that courts must consider all possible ameliorative measures in exercising this discretion', the rule affirmed in *Blondin I* in practice 'rewrites the treaty'.25

#### **5.** ...**. and the Guiding Principles for Exercising Such Discretion**

While the above-mentioned conclusion might appear to have resolved the controversial question raised before the USSC, it did not bring the case as a whole to an end. Having acknowledged the broader scope for the court's discretion, the USSC also sought to provide guidance to direct the exercise of that discretion. This is, in the present author's view, the most important part of the decision. It must be noted, however, that strict adherence to the text of the Convention, as proclaimed at the beginning of the decision, is less evident in this second part. In fact, without mentioning it, the court appears to follow a purposive—or functional—interpretation, i.e., an interpretation of the rules that is based on the aims of the convention.

After noting that the text does not contain any reference to ameliorative measures, and having, therefore, drawn the obvious conclusion that there is '*no obligation* to consider'—and still less to order—ameliorative measures, the court went on to hold that a court '*ordinarily should address ameliorative measures* raised by the parties or obviously suggested by the

<sup>21</sup> *Golan* v *Saada*, p. 10, footnote 7.

<sup>22</sup> *Golan* v *Saada*, p. 9.

<sup>23</sup> *Golan* v *Saada*, p. 10.

<sup>24</sup> *Golan* v *Saada*, p. 10–11 (emphasis added).

<sup>25</sup> *Golan* v *Saada*, p. 11.

circumstances of the case, such as in the example of the localized epidemic'<sup>26</sup> (this example was raised by the court itself a few pages before, as one where the risk could be minimised by returning the child to a different part of the country).

The lack of any reference to ameliorative measures within the text of the Convention, which was emphasised in the first part of the decision, was now supplemented and completed by a purposive interpretation of the Convention, which led to the conclusion that these measures—though not mentioned at all—should nonetheless *ordinarily* be addressed whenever they are appropriate in the given case.

The added value (but also the creative part) of the decision is to be found in section B of the decision, where the USSC elaborates on three 'legal principles' that should guide courts when considering/ordering protective measures. In doing so, the USSC clearly departed from a textual interpretation in favour of a more teleological or purposive one.

The purposive approach is first apparent when the USSC identifies the core aim of the Convention, which is found to lie in the 'protection of the interests of children and their parents'. The Court also stated that return must not be pursued at all costs, again reproaching the Second Circuit for having 'improperly elevated return above the convention objectives'.

This is a worthy statement, although it would probably have needed a few more sentences to be properly appraised. While its content is essentially unobjectionable, it is submitted here that this conclusion does not flow directly from the literal wording of the Convention but is *inferred* from its current application and understanding, especially as clarified and developed by the case law of the European Court of Human Rights after the *Neulinger* and *X* decisions (among many: Beaumont et al. 2015; Mc Eleavy 2015).

Moreover, one of the difficulties in applying the 1980 Hague Convention lies in striking the right balance between the interests of children as a category, which is mainly served by their return after abduction, and the interests of the individual abducted child in a given case, which sometimes may be served by not allowing return to the State of habitual residence but rather remaining in the State of refuge. In this regard, to refer to the 'protection of the interests of children' does not really add much clarity or guidance but may, instead, cut both ways. Furthermore, it is submitted here that the juxtaposition between protecting the interests of a child on the one hand and ordering his/her return on the other hand may entail a risk of undermining the structure of and procedures under the 1980 Hague Convention.

Finally, to refer to the (best) interests of the child may appear to be injudicious in view of the widely experienced difficulties in convincing courts seised with return proceedings that they *should not* carry out a proper welfare-interests test before returning the child; that such a test should be limited to the reasons for refusing return; and that return to the State of previous habitual residence *is* in principle in the interest of any abducted child. In sum, as is often the case, the reference to 'best interests' is inherently meaningless, given its indeterminacy.

In practice, the three legal principles offered by the Supreme Court as a guide to the exercise of discretion by courts when considering the need for ameliorative measures are more useful.

The first refers to the need to 'prioritize the child's physical and psychological safety'.27 There is no question that the child's safety is paramount. Indeed, this is included in the idea that the court should (but need not necessarily) refuse return when it is convinced that there is a grave risk, and that grave risk cannot be minimised so as to be acceptable. Obviously enough, if the ameliorative measures proposed are ineffective or if the Court is convinced that they would not succeed in minimising the risk, then the child should not be returned.

<sup>26</sup> See footnote 25.

<sup>27</sup> *Golan* v *Saada*, p. 12.

The judgment then provides some examples of when such a risk can be identified. The following passage is so important that it is worth quoting in full.28

'Sexual abuse of a child is one example of an intolerable situation. See 51 Fed. Reg. 10510. Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child's safety that could not readily be ameliorated. A court may also decline to consider imposing ameliorative measures where it reasonably expects that they will not be followed. See, e.g., Walsh v Walsh, 221 F. 3d 204, 221 (CA1 2000) (providing an example of a parent with a history of violating court orders)'.

From a methodological point of view, it is worth noting that all of these examples are derived from internal US practice, with no reference being made either to the *Perez Vera* Report or to the HCCH *Guide to Good Practice* (HCCH 2017), the principal aim of which was specifically to give Contracting States some directions on how to assess grave risk.<sup>29</sup> In this regard, it is a pity that one of the relevant actors on the Special Commission, and indeed one that is looked upon by other Contracting States in a search for uniformity, has missed the opportunity to support this relevant exercise of international harmony.

The second requirement is that protective measures should not impinge upon the assessment of the merits of the case and encroach upon the competence of the courts of the State of habitual residence. This limitation stems from Article 16 of the 1980 Hague Convention, which posits a clear division of competences between the Hague return proceedings and the custody proceedings to be held in the State of habitual residence. While this clarification certainly makes sense in terms of global guidance, the issue seems unrelated to the *Golan* case, where the prospective protective measures were actually adopted by the Italian court that would have been competent over the decision on custody. However, in past US practice, the courts have at times elaborated measures that have ended up being too intrusive on the substance of custody, access, or maintenance decisions, and the US Supreme Court rightly took the opportunity to clarify the position.30

The third requirement, which refers to the need that consideration of ameliorative measures must not affect the expeditious nature of return proceedings was apparently more relevant to the case at hand. There is no need to emphasise here the importance of expedited proceedings when deciding the return of an abducted child. Indeed, the entire rationale of returning a child to his/her previous State of habitual residence presupposes that both the return order and the actual return will take place within a short space of time. If the child is returned after a considerable length of time, his/her return will entail a new uprooting from the place where the child was forcibly and painfully integrated.

While the principle is undisputed, its practical implementation is often overlooked and disregarded. It is clear from the return proceedings before the District Court how difficult it is to craft and put in place protective measures for the return of the child, especially because these measures need to be effective and enforced elsewhere, i.e., in the State of the child's habitual residence. The situation is especially complex in jurisdictions, such as the US, that are not a party to any international judicial cooperation instruments that may help in ensuring the enforcement of these measures.31

The *Golan* case provides a good example of this. Because the Second Circuit had reversed the first decision of the District Court on the grounds that there were 'insuffi-

<sup>28</sup> *Golan* v *Saada*, p. 13.

<sup>29</sup> See in particular (HCCH 2020) Section 1 on how to assess grave risk (p. 31, para 38 seq) and Section 2 providing examples of grave risk, including relevant cases of domestic violence, at para 55–76.

<sup>30</sup> Again, the USSC refers for guidance to internal practice. See the letter of 10 August 1995 sent by the U. S. Dept. of State to the United Kingdom. See *Golan*, p. 13, note 9.

<sup>31</sup> The US has only signed the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The situation may be different for jurisdictions, such as the UK or Australia, which have ratified the Convention. For the list of Contracting States, see https://www.hcch.net/en/instruments/conventions/status-table/?cid=70 accessed on 1 June 2023. The situation is again different with regard to EU Member States applying the Brussels II-ter Regulation. See below at Section 0.

cient guarantees of performance', on remand, the District Court carried out an extensive examination to ensure that any ameliorative measure put in place would be truly effective. The District Court, therefore, turned to Italian courts—i.e., the courts of the State of the child's previous habitual residence—to ensure that this was the case. An Italian protective order was, indeed, quickly sought (in three months: from September to December 2019). However, another six months elapsed (until June 2020), resulting in a total of nine months, before the (second) decision on return was taken, again by the District Court. It should, however, be noted that, absent any judicial cooperation treaty, if safe return is to be guaranteed, there is no real alternative to seeking protective orders in the State of habitual residence. Considering the way in which the proceedings as a whole developed, it seems that their exceptional length was not caused by the time necessary to obtain an effective protective order in the State where it was actually needed. In order to avoid unnecessary delays, better case management could have been pursued at other stages, including during the final stage when the USSC decided to remand the case for the third time to the (same) District Court in New York.

While all of these directions are useful and relevant, one is struck by the fact that, in a case characterised by undisputed serious violence, the USSC offered only minor guidance on how to handle cases involving domestic violence. The legal reasoning on ameliorative measures is carried out with an eye on the general rule on grave risk and includes only a minor reference, amongst other hypotheses—such as the one quoted above in this paragraph—the impact of domestic violence on the child. This is probably in line with the approach embraced by the USSC in following the 'original' interpretation of the convention. As the 1980 Convention does not refer to such a scenario, the USSC deemed it better to develop its reasoning with regard to the general rule on grave risk. However, a number of authoritative, in particular US-based, legal scholars have long since argued that domestic violence cases deserve a special consideration and should be made the object of special attention (Weiner 2021; Trimmings et al. 2023). Given the strong and lively accusations recently levelled, objecting at how the 1980 Hague Convention is incapable of protecting abducting mothers fleeing from domestic violence, coupled with the initiatives taken to question the Convention as a whole or to establish its inadequacy (Barnett 202332; Trimmings et al. 2023; Weiner 2021; Pahrand 2017), this would have been an ideal opportunity for the USSC—which is a major player in the international arena—to signal its attention and consideration for a social need that can no longer be ignored.

#### **6. The Aftermath of the Decision: The Death of Mrs. Golan and the (Still Pending) Provisional Custody Proceedings Involving B.A.S. in the US**

On remand from the USSC, on 31 August 2022, the District Court issued, for the third time, an order directing the return of B.A.S. to Italy, subject to the conditions set out in that court's original opinion (including the Italian protective order, which the court had ordered the parties to negotiate and which the Italian courts had issued). Mrs. Golan again appealed (for the fourth time) to the Second Circuit Court of Appeals.

Mrs. Golan argued before the Court of Appeals that the District Court abused its discretion by issuing the return order without taking evidence concerning a number of factors that the Supreme Court opinion indicated should be weighed when applying the Convention. These factors included the safety and well-being of her son (who was 6 years old at the time) if he were required to be returned to Italy despite the finding concerning grave risk and other developments, including the fact that the child was on the autistic spectrum. Mrs. Golan also asked the Court of Appeals to dismiss the case and to allow

<sup>32</sup> See the Hague Mothers project (https://www.hague-mothers.org.uk accessed on 1 June 2023). The project's website states: 'Our overarching aim is to end the injustices created by The Hague Convention, specifically for mothers and children who are fleeing abusive relationships'. The aim of 'Phase 4' is to 'Amend the Convention and/or the regulations to protect mothers and children who have fled violence or abuse'. National regulations have already been amended in order to take domestic violence into account in Australia, Switzerland, and Japan.

B.A.S. to remain in the United States pending the resolution of the custody issues, which the parents would address in separate proceedings.

On 19 October 2022, whilst these appellate proceedings were pending, Narkis Golan suddenly passed away. She was 32 years old; B.A.S. was 6 years old at the time (Fidler 2023).

Following Narkis Golan's death, her sister, Morin Golan, took over physical custody of six-year-old B.A.S. and filed a family offense and custody action in the New York State Kings County Family Court. On 20 October 2022, the Family Court issued an ex parte order directing that the child 'not ... be removed from the care of Morin Golan until further court order', that B.A.S.'s passports be held by Ms. Golan and that the child not be removed from the jurisdiction of the Kings County Family Court. The Family Court also issued a temporary order of protection, directing the father to 'stay away' from B.A.S. and the aunt, '[s]ubject to the order of supervised visitation of the Tribunal of Milan.' The Children's Law Center (a charity based in New York) was further assigned to represent B.A.S. interests.

Arguing that the mother's death represented a substantial change of circumstances for B.A.S., Morin Golan and the guardian for B.A.S. submitted that the NY District Court consider the new and unexpected child safety concerns, and refuse his return. The Italian provisional measures were meant to take effect upon the return of B.A.S. *with the mother*. If the child would be returned alone, this would raise entirely unexpected and unaddressed new concerns.33 These included determining where the child was to be placed; dealing with the difficulties he would experience in relating with a father he had not met in the last 4 years; settling in a country of which he had no memory and whose language he did not speak; and difficulties in adapting to a new situation, including his autistic spectrum disorder.

It is difficult to believe that returning the child after 4 years, and under the circumstances described, would be in his best interests. At the moment of the writing the (provisional) custody case is still pending, as are the Hague return proceedings. In the personal opinion of the present author, whatever the right decision would have been at an earlier stage, to return B.A.S to Italy now would represent a grave and substantial failure of the law.

#### **7. The** *Golan* **Decision Seen from the EU and Its Impact on the (Recast) EU Legal System**

As mentioned above, the *Golan* v *Saada* opinion sets a benchmark also outside the territorial boundaries of the United States. The social and political relevance of the issue at stake, as well as the tentative guidelines offered by the USSC undoubtedly make this decision of relevance for all Contracting States to the 1980 Hague Convention, included those that are EU Member States. This paper will now focus on investigating the possible impact that this decision may have within the EU, where the legal framework is different.

While all EU Member States are Contracting States to the 1980 Hague Convention in their own right, the Convention is in some respects applied differently in relations among Member States for two reasons.

First, as is well-known, the 1980 Hague Convention was partially modified by the Brussels II-ter Regulation,34 which supplements and 'complements'<sup>35</sup> Convention provisions. A partial derogation from the Convention is allowed under Article 36 of the Convention, which permits two or more Contracting States to agree between themselves 'to derogate from any provisions' of the Convention 'in order to limit the restrictions' to which the return

<sup>33</sup> Letter of the Children's Law Center addressed to Judge Donnelly, 3 November 2022.

<sup>34</sup> Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) known as the Brussels II-ter Regulation.

<sup>35</sup> Article 22 Brussels II-ter Regulation.

of the child may be subject under the Convention provisions.<sup>36</sup> EU Member States have accomplished this by introducing common 'special' rules for intra-EU abduction cases.

While it is not possible to comment here on the Brussels II-bis and II-ter rules, it may be useful to recall that the general idea underlying the special rules enshrined in the Brussels II system is to reinforce the return obligation,<sup>37</sup> something that has been claimed to protect the interests of States more than those of children (Freeman and Taylor 2022). This is accomplished in several ways. First, a court cannot refuse return unless the person seeking the return of the child has been given the opportunity to be heard (Article 27(1) Brussels II-ter). A genuine opportunity to be heard must be offered to the child as well (Article 26 Brussels II-ter), and this will have an impact, among other things, on the application of Article 13(2) of the 1980 Hague Convention. Secondly, the use of the grave risk exception under Article 13(1)(b) is limited. Even when the court is convinced that this defence is available, nonetheless, it '*shall not* refuse to return the child' if it is satisfied that adequate arrangements have been made to secure the protection of the child upon his or her return (Article 27(2)). Such adequate arrangements may be proposed by the party seeking the return of the child, or by the court on its own initiative. Thirdly, even when the court in the State of refuge refuses the return, the court in the State of habitual residence may make use of the special mechanism under Article 29, empowering that court to adopt a decision on custody entailing the return of the child. Any such decision will override the decision on non-return in the State of refuge and must be enforced, subject only to limited exceptions.

The following analysis will focus on the role and special responsibility borne by the court in the State of refuge, as established by Article 27(3) and (5). These two provisions direct the State of refuge to ensure that adequate arrangements are taken in the State of habitual residence or to issue provisional protective measures enforceable in that State in order to safeguard the return of the child. Such measures will accompany the return of the child to his or her place of habitual residence and will produce effects and be enforced there.

Before turning to the legal analysis of the technical rules, however, it is important to note another key difference between the Regulation and the Convention. In contrast with the Convention, the Regulation sets out rules for both return proceedings and custody proceedings. Based on this structure, the Regulation creates a special relationship between the court of the State of habitual residence and the one in the State of refuge. Courts in different EU Member States are united by reciprocal trust in the level of legal protection granted in other Member States as well as the common effort to ensure the best solution for the child's welfare. It is important to emphasise that EU Member States share common values, a similar level of protection for fundamental rights and comparable standards in the administration of justice. They also share and agree on common policies that have an impact on the application of the Convention, such as, for example, mainstreaming policies for the protection of children and protection against domestic violence. This circumstance qualifies the approach of EU Member States when dealing with intra-EU abduction cases. It is probably easier to order the return of a child if the sending court trusts the ability of the receiving court to assess the best interest of the child against standards similar to those that the sending court applies in its own forum.

Some twenty years have not passed since the EU became involved in combating violence against women, and only the most relevant instruments can be noted here. Following a request made by the European Parliament in 2010,38 the Commission proposed the

<sup>36</sup> Article 36 of the 1980 Hague Convention provides that: 'Nothing in this Convention shall prevent two or more Contracting States, in order to limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction.'

<sup>37</sup> See generally the system of Regulation No 2201/2003 (Brussels II-bis) and its recast Regulation No 2019/1111 (Brussels II-ter), insofar as the rules of the two instruments are inspired by the same rationale. The following paragraph will focus on the rules currently in force under Brussels II-ter.

<sup>38</sup> The European Parliament resolution of 26 November 2009 on the elimination of violence against women, [2010] OJ EC 285/53 of 21 October 2010; the European Parliament resolution of 5 April 2011 on priorities and outline of a new EU policy framework to fight violence against women, [2012] OJ EC 296/26 of 2 October 2012.

adoption of Directive 2011/99/EU on the European protection order (EPPO)39 as well as Regulation No 606/2013 on mutual recognition of protection measures in civil matters.<sup>40</sup> While both instruments are more general in scope, they were clearly aimed at providing protection to women who are exposed to intimate/domestic violence. Subsequently, as part of the Gender Equality Strategy 2020–2025,41 measures were announced to prevent forms of violence against women and domestic violence, protecting victims and prosecuting offenders. In 2022, the EU Commission launched a proposal for an EU directive on combating violence against women and domestic violence,<sup>42</sup> which is currently passing through approval procedures. Finally, the Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence43, which was signed by the EU as early as 2017, was finally approved by the Council on 1 June 2023 and will enter into force for the EU on 1 October 2023.44 The topic clearly remains at the top of the EU agenda.

On a different level, legal studies and research projects dealing with domestic violence in general, or more specifically, with the interaction between domestic violence and abduction,45 have in recent years contributed to increasing awareness and exploring more efficient solutions. Without repeating what has already been discussed elsewhere, one might summarise the following common arguments:


<sup>39</sup> Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order.

<sup>40</sup> Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters.

<sup>41</sup> COM(2020)152 final.

<sup>42</sup> COM(2022) 105 final of 8 March 2022. The proposal focuses more on a criminal law approach, even though violations of human rights and forms of discrimination are also considered. On the proposal and for further references, see (Bergamini 2023).

<sup>43</sup> The Convention is promoted by the Council of Europe and was opened for signature on 11 May 2011; it is currently in force today in 37 Contracting States. It has been signed by all EU Member States, and 21 of them have also ratified it in their own right. (see https://www.coe.int/en/web/conventions/full-list?module= signatures-by-treaty&treatynum=210 accessed on 1 June 2023). For the position of the EU see below.

<sup>44</sup> Council Decision (EU) 2023/1075 and Council Decision (EU) 2023/1076 of 1 June 2023, on the conclusion, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence, respectively, with regard to institutions and public administration of the Union. The underlying rationale for the two decisions is that both the EU and Member States have competence in the fields covered by the Convention, and the EU can only adopt the Convention with regard to its own sphere of competence. Furthermore, a Code of Conduct was also adopted, setting out the internal arrangements for practical cooperation and cooperation between the EU and the Member States on various aspects of the implementation of the Convention (ST/8113/2023/INIT, in [2023] OJ C 194/03). The decision of the Council authorising the ratification is supposed to put some pressure on the six remaining EU Member States: Bulgaria, Czechia, Hungary, Latvia, Lithuania, and Slovakia.

<sup>45</sup> See the POEM (Mapping the legislation and assessing the impact of Protection Orders in the European Member States) and the POAM (Protection of Abducting Mothers in Return Proceedings: Intersection between Domestic Violence and Parental Child Abduction) projects. The results of the former are accessible here: http://poems-project.com/ accessed on 1 June 2023, and those of the latter here: https://research.abdn.ac. uk/poam/resources/reports/ accessed on 1 June 2023 and in Trimmings et al. (2022)). See also POAM Best Practice Guide 2022.

iv. Although the 1980 Hague Convention protects (only) the child from the risk of harm upon return, it is now recognised that witnessing domestic abuse causes substantial harm that can have long-term effects on the welfare and development of children, leading to post-traumatic stress disorder and behavioural issues. This amounts to a psychological harm or an intolerable situation for the child, which is covered by Article 13(1)(b).46

Against this backdrop, the Brussels II-ter Regulation seeks to strike a balance between taking account of the need to protect the child and the mother, and the opposite need to comply with the Convention's obligation to return the abducted child, both building on and innovating beyond the previous experience of the Brussels II-bis Regulation.

#### **8. The Responsibility of the State of Refuge under Brussels II-ter: From 'Adequate Arrangements' to 'Provisional and Protective Measures'**

As with the Convention, the burden of the legal obligation and responsibility to decide whether or not to return the child lies with the State to which the child is removed. However, in contrast with the Convention, the Regulation requires that, when complying with this obligation, the court shall always ensure that the return of the child is 'safe'. The concept of 'safe return' must be construed differently from that of the best interests of the child. Assessing the best interests of the child over the long run is not the primary concern of the courts of the State of refuge, and this task should be left to the courts of the State of habitual residence.

In order to do so, the Regulation equips the courts in the State of refuge with two additional tools, which are not expressly provided under the Convention: assessing adequate arrangements that could potentially be put in place in the State of habitual residence under Article 27(3), and directly adopting provisional protective measures under Article 15, which, according to Article 27(5), will be recognised and enforced exceptionally in the State of habitual residence.

Article 27(3) Brussels II-ter is modelled on the previous Article 11(4) Brussels II-bis and provides that, where a court considers refusing to return a child solely on the basis of Article 13(1)(b) of the Hague Convention, it cannot do so:

'if the party seeking the return of the child satisfies the court by providing sufficient evidence, or the court is otherwise satisfied, that adequate arrangements have been made to secure the protection of the child after his or her return.'

Recital (45) clarifies what qualify as 'adequate arrangements' for the purposes of the rule. These include a court order from the State of the child's habitual residence prohibiting the applicant from coming close to the child; a provisional and/or protective measure allowing the child to stay with the abducting parent who is the primary carer until a decision has been made on the merits in relation to custody; the indication of available medical facilities for a child in need of medical treatment.47 Other examples are mentioned in the 2022 Practice Guide (Practice Guide 2022, p. 125 at 4.3.5.1.2), such as secure accommodation for the parent and the child, the termination of criminal proceedings against the abducting parent, and covering the abducting parent's living costs. These measures must be properly put in place in the given case, and not simply generally available under the law of the State of habitual residence (Practice Guide 2022, p. 125 at 4.3.5.1.2, further clarifying that judicial measures only need to be enforceable but not necessarily final).

While the content and breadth of such measures may depend on the circumstances of each individual case, a typical feature of all 'adequate arrangements' is that they must be adopted by an authority—a court, a child welfare authority, a social service—in the State

<sup>46</sup> As the UK Supreme Court held in *Re E (Children)* [2011] UKSC 27, 'it is now recognised that violence and abuse between parents may constitute a grave risk to the children'. A child should thus not reasonably be expected to tolerate 'exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent' (para. 52 and 34).

<sup>47</sup> Useful reference can also be made to HCCH 2020, paras 43 et seq.

of habitual residence of the child. In practice, these measures are mostly sought by the party seeking the return of the child or are offered by the Central Authority of the State of habitual residence. They may also be suggested by the court of the State of refuge on its own motion, but even in this case, the court has no power to craft or order them and must rely on arrangements made by and in the State of habitual residence.48 On the other hand, such measures do not raise any PIL issue with regard to their recognition or enforcement, as they are ordered by an authority of the State where they will be enforced.

On the contrary, it falls within the competence and duties of the court in the State of refuge to assess whether the proposed arrangements are 'adequate', i.e., effective for the purpose of securing a safe return.49 Interestingly, the State of refuge is not under any obligation to establish adequate arrangements, which by contrast are simply one of the various legal tools the court can—but not necessarily needs to—rely on in order to comply with the State's international obligations (for a different view, see Chalas 2023). The point is not addressed in the Regulation itself and has never been analysed by the CJEU. However, the *2022 Practice Guide* clearly affirms that 'Adequate arrangements *may* be considered by the court of first instance or by the court of the higher instance in the Member State of refuge' (Practice Guide 2022, p. 125 at 4.3.5.1.2). In sum, in many respects, including this last relevant point, 'adequate arrangements' may be said to correspond to the 'ameliorative measures' within US legal practice noted above.

Article 27(5), by contrast, will have a much more powerful impact. This provision should be regarded as one of the most significant innovations introduced by the Brussels II-ter Regulation in the area of international child abduction. This new rule vests the courts in the State of refuge with an exceptional power to take protective measures that have extraterritorial effects and are enforceable in all EU Member States.50 The gap in protection that is inherent to the Hague Convention,51 and which also existed under the previous Brussels II-bis Regulation, which did not allow such protective measures to circulate, has now been filled by the new provisions of the Brussels II-ter Regulation (Wilderspin 2022).

The rule is often described as a further attempt to deter the courts of the State of refuge from refusing to return the child because of a grave risk of harm (Practice Guide 2022, p. 124 at 4.3.5). This is, however, only one side of the story. In the present author's view, it is not only the obligation to return the child notwithstanding the existence of a risk of harm that is reinforced. Far more than this, it is the obligation to ensure that the child's return is actually safe that is spelled out. The provision imposes a *positive obligation* on the court of the State of refuge *to take steps to protect the child* (Honorati 2022, p. 159). In other words, rather than expecting the State of habitual residence to take adequate arrangements, or waiting for

<sup>48</sup> This does not mean that the Court in the State of refuge is entirely passive. Indeed, it may play an active role in the establishment of such measures, and it can also act ex officio. However, there is no formal requirement to do so. The situation is pretty much similar to the one faced by the USSC in the *Golan* case.

<sup>49</sup> Article 27(4) provides that, for the purposes of investigating the adequacy of any adequate arrangement, the court 'may communicate with the competent authorities of the Member State where the child was habitually a resident before the wrongful removal or retention' either directly or with the assistance of Central Authorities (see, however, recital (45), which advises that the court 'should primarily rely upon the parties.'). The 2022 Practice Guide, p. 125 at 4.3.5.1.3 acknowledges that 'It may be difficult for the judge to establish what possible arrangements exist in the Member State of origin, if they have been de facto taken and whether they are adequate to deal with the circumstances that could develop after the return'.

<sup>50</sup> This result does not stem clearly from the rule but is reached indirectly through a rather cumbersome referral to the definition of 'decision'. According to Article 2(1)(b), for the purposes of recognition and enforcement, the notion of decision includes 'provisional, including protective, measures ordered by a court, which by virtue of this Regulation has jurisdiction as to the substance of the matter *or measures ordered in accordance with Article 27(5) in conjunction with Article 15'* (emphasis added). On the other hand, provisional measures taken pursuant to Article 15 by a court that has no jurisdiction as to the substance of the matter will not have any effect outside that State. It must be noted however, that provisional measures will be recognised and enforced in another Member State provided that the party against whom they are taken has been summoned to appear, or at least the decision containing the measure was served on that party prior to enforcement.

<sup>51</sup> In the *Golan* case, for example, the Court of Appeals for the Second District initially vacated the District Court decision as 'many of the undertakings the District Court imposed [on the petitioner Saada] are unenforceable because they need not—or cannot—be enforced until after B.A.S. is returned to Italy', and they were, therefore, considered insufficient to protect the child (USCA, 19 July 2019).

the parent left behind to provide sufficient evidence that such measures are in place, the court must assess the child's needs and, where appropriate, take any necessary protective measures itself. This also implies that when such measures are not available, either because they are not possible in concreto or because they are not effective as they would not be capable of sufficiently reducing the risk of harm, then the court has no alternative but to refuse the return of the child.

Content-wise, provisional measures will very much resemble adequate arrangements (Wilderspin 2022, p. 185). Recital (46) clarifies that such measures can, for example, provide that, once returned, the child will continue to reside with the primary caregiver, or specify how contact with the parent left behind should take place after the child's return. Other examples that have been given include measures akin to anti-molestation/anti-harassment orders (for example, 'not to use violence or threats towards the mother, nor to instruct anybody else to do so, or not to communicate with the mother directly), orders related to the occupancy of the family home (for example, to vacate the family home and make it available for sole occupancy by the mother and the child), orders related to financial support (for example, to pay for the return tickets for the mother and the child or to provide financial support/maintenance to the mother and the child upon their return), and orders related to residence or access to the child (for example, not to seek to separate the mother from the child or not to seek contact with the child unless awarded by the court or agreed) (Momoh 2022, p. 77). Reference may also be usefully made to the *Guide to Good Practice on Article 13(1)(b)* (HCCH 2020, para 43), according to which protective measures can cover a broad range of existing services, assistance, and support, including access to legal services, financial assistance, housing assistance, health services, shelters, and other forms of assistance or support to victims of domestic violence. It should be noted that, in a similar manner to the caution called upon by the USSC in the *Golan* decision, recital (46) recommends that protective measures should not 'undermine the delimitation of jurisdiction between the court seised with the return proceedings under the Hague Convention and the court having jurisdiction on the substance of parental responsibility under this Regulation.'52

All in all, in contrast to what occurs in a purely Conventional situation, the new legal framework established by the Brussels II-ter Regulation not only allows but, indeed, *requires* the court of the State of refuge to take positive action—and responsibility—in order to protect the child from any kind of harm that he or she may suffer upon return.

Notwithstanding this new approach, however, there still is an important gap in terms of protection. This concerns the person who is exposed to domestic violence. The clear wording of Article 13(1)(b) leaves no doubt that the risk of physical and psychological prejudice must apply to the child, not to the mother. Although psychological studies show beyond any reasonable doubt the devastating impact of domestic violence on children, even if they have not witnessed the violence (among many: Lindhorst and Edleson 2012; Katz 2022; POAM Best Practice Guide 2022),53 according to a literal interpretation of Article 27(5), doubts may arise as to whether this provision allows for the adoption of protective measures with regard to a situation involving primarily the mother. It is regrettable that, despite calls from particularly attentive scholars (Trimmings 2013, p. 154), EU lawmakers have not taken the opportunity to clarify this matter. A reference to domestic violence could, at least, have been included in a recital. Instead, although it does provide examples of possible protection measures, recital (46) does not refer, even implicitly, to situations that could involve the mother. As has been note elsewhere:

'the mother is left alone to face a terrible dilemma: either return with the child and go back to the situation of violence she had escaped from, or stay safe and protected, but abandon her child'. (Honorati 2022, p. 160)

<sup>52</sup> A point also underlined by the 2022 Practice Guide at 4.3,5.2.

<sup>53</sup> On the EU level, see the Opinion of the European Economic and Social Committee on Children as indirect victims of domestic violence, [2006] OJ C 325, pp. 60–64.

While legal scholars who have tackled the issue have supported the view that the rule should be construed as also envisaging measures for the protection of the mother (Wilderspin 2022, p. 186; Honorati and Ricciardi 2022, p. 252; and also, although with a different approach Requejo Isidro 2006; Ripley 2008), the current lack of a clear indication and the subsequent flaw in the instrument will only result in the confirmation of the existing tendency before the courts. In most cases, in fact, Hague courts tend to overlook the effects of domestic and intimate violence on mothers and rarely recognise the psychological harm suffered by the child(ren). The sparse research that has investigated how courts use adequate arrangements in practice show that these have been used only in a limited number of cases, especially when compared to the high proportion of cases involving allegations of domestic violence (Trimmings 2013, p. 155 et seq.; Honorati 2020, p. 817).54

This situation should, instead, be handled and considered by the law. It is submitted here that, under the current legal framework, *in most cases where there is an allegation of domestic violence*, the State of refuge should *always consider*—and possibly adopt—some kind of protective measure in order to accompany the child (and the mother) back home safely. This should become part of a settled routine before the courts. Where the court is not fully convinced of the existence of a grave risk of harm but still cannot exclude that the situation may entail some kind of additional risk, the possibility of so-called 'soft landing' measures should be considered. What is important is that the Hague court—which is often a specialised court that deals, mainly or exclusively, with abduction cases—refrains from dismissing an allegation of domestic violence on the mere assumption that such a court should focus on the child only.

#### **9. How Protective Are 'Protective Measures'?**

Before proceeding to the conclusions, an additional disclaimer must be made. The consideration of ameliorative measures or the ordering of protective measures will not always be sufficient to resolve the case. Sometimes they will not be enough.

This issue engages two different levels of analysis. The first one is purely legal. It considers how protective measures can be legally binding and effective—or better: enforceable—in a State different from the State that adopted them. As seen, this issue is now addressed and resolved within the EU by the new Article 27(5) Brussels II-ter Regulation. Outside the EU, courts will need to use some creativity as the 1980 Hague Convention does not deal with the recognition of decisions and, hence, does not provide for a solution. The more obvious solution is to use other international treaties on the recognition of decisions that may be in force between the relevant States. If, for example, both States are Contracting States to the 1996 Hague Convention, Article 11 may be invoked. In other cases, courts may either use mirror-orders—i.e., orders with the same content that are issued in both the State of refuge and the State of habitual residence; or safe harbour orders—i.e., orders issued by the State of refuge or by the State of habitual residence stipulating certain conditions for a safer and less disruptive return of the child. Courts may thus call upon the parties (or the Central Authority) to ask the courts in the State of the child's habitual residence to adopt adequate measures. This is what happened in the *Golan* case, where both parties applied to the Court of Milan seeking a package of measures to be applied upon the return of B.A.S.

Besides the legal issues, however, there is a second level of more substantial concern, which in the opinion of the present author has not been sufficiently considered by legal scholars. This relates to the fact that in some cases, with regard to specific situations involving serious domestic violence, *there is no way* to protect the victim because the tortfeasor is incapable of controlling his behaviour and complying with a binding court

<sup>54</sup> Reference should also be made to the *Parent Survey* conducted under the aegis of the POAM project from February to April 2021 and investigating cases of alleged domestic violence (at https://research.abdn.ac.uk/ poam/how-to-get-involved/ accessed on 1 June 2023). The survey found that, in 83% of the cases investigated, protective measures were not available, advised, or discussed. It also found that the mothers interviewed felt quite strongly about this professed injustice (*Parent Survey Report* para 22).

order. This argument was repeated in Narkis Golan's defence and in some of the Amici Curiae Briefs (such as Brief for Amici Curiae 2021). In particular, it has been stressed that

'Domestic abuse is sometimes mistakenly understood as a series of discrete violent acts, when in fact it is most often an insidious pattern of physical and psychological abuse marked by an ever-present exploitation of control. [. . .]

Perpetrators of domestic abuse use a combination of tactics to maintain and gain power and control over their target, including but not limited to physical, sexual, psychological, emotional, economic, and immigration-related abuse. Using a combination of these modes of abuse, perpetrators gradually begin to exert an insidious but powerful kind of manipulative control over their victims, known as "coercive control". [. . .]

Efforts to craft ameliorative measures are based on the often-erroneous assumption that the abuser, [...] will reform and start to live consistent with a set of conditions wholly out of step with the abuser's past conduct. In reality, serious and persistent abusers generally *do not abandon their abusive conduct*, especially when there is no criminal penalty imposed or close monitoring of their behavior.' (Brief for Amici Curiae 2021, pp. 7, 9)

This is not the appropriate place to define the terms and standards that determine whether and when a violent and abusive man is capable of changing and complying with a court order. It is also acknowledged that this may be a difficult task for a legal scholar. It cannot be denied, however, that there are cases in which there is no appropriate legal protection against an abuser seeking to 'punish the victim's efforts to escape and to re-establish control through even stronger means' (Brief for Amici Curiae 2021, p. 10). It must, instead, be recognised that, in such cases, the only possible defence for the victim is to escape as far as possible. It is certainly not an easy task for a court to separate these particular cases (which are potentially limited in number) from the majority of cases in which a protected return would be the appropriate solution. There is no doubt that a greater awareness not only of the effects of domestic violence on women and children but also of the behavioural dynamics of abusers would be of great help to courts in this difficult task.

#### **10. Conclusions—Advancing the Protection of the 1980 Hague Convention: A Lost Opportunity for the USSC, and a Bad Example for the EU**

The issue addressed in this article, i.e., how to deal with abduction cases that are motivated by domestic violence, seems to divide legal scholars into two mainstream camps. On one side, there are 'feminist' lawyers, sometimes also criminal lawyers mostly active in advocating domestic violence cases, who at times appear to overlook or undervalue the merits and structure of one of the most successful conventions, which is in force among an exceptionally high number of States. On the other side, we have 'internationalist' scholars or Hague Convention 'purists' who appreciate the overall structure and consider domestic violence cases as one single piece in the broader puzzle, which must not undermine the solidity of the general framework.

The time has now come to bridge the gap between the two extremes and the needs associated with each of them. Each and any reasonably supported allegation of domestic violence *must* (and not only should) *always* be taken into consideration by the courts. It is today no longer acceptable that a defence, which is based on alleged domestic violence and shows some piece of evidence, is overlooked or not seriously taken into consideration by the courts, even where this occurs within summary return proceedings and even where (or rather especially where) the evidence provided is poor. Courts are under a duty to guarantee the safety of the child—not only physical safety but also psychological safety as resulting from the emotional balance of the primary caregiver—and this outcome should not be made dependent on the ability of the abducting mother's counsel to argue or to provide sufficient evidence of the case.

Against this backdrop, it is submitted here that this gap could be bridged by relying on ameliorative/protective measures. In most cases (though by no means not in all cases), expeditious, substantively well-defined, and enforceable protection measures will offer the best guarantee that domestic violence cases are not neglected, showing consideration for the risk alleged by the abducting/escaping mother, while at the same time moving within the scope of the 1980 Hague Convention. Of course, a key consideration is that such measures must be effective and enforceable in the State of habitual residence. As has been noted:

The need for cross-border protective measures in return orders has become an essential part of the fabric of 1980 Convention proceedings, and ensuring that we have the right tools for recognition and enforcement is key'. (Momoh 2022, p. 81)

While under the new Regulation this is already the case within the EU, something more needs to be done for other Contracting States. The solution potentially envisaged by the USSC in the *Golan* case is legally sound and should be endorsed—as no Convention provisions formally require any ameliorative or protective measures. Nonetheless, the wrong message may have been given overall, namely that ameliorative measures are not necessary/useful and, at the same time, that domestic violence is not a priority issue for the courts. It is submitted here that the USSC lost the opportunity to send out a clear message that domestic violence is a plague that needs to be fought at all levels and also to provide clearer directions on how to do so within the framework of the Hague Convention. Making continuous references to a literal interpretation of international agreements may have dangerous secondary effects, as this may promote the interpretation that violence committed against the mother is irrelevant. Instead, this would have been a good opportunity to show how to keep this fundamental convention up to date with a changing society and to 'nurture' (Freeman and Taylor 2023) it accordingly so as to stand up for the protection of women.

**Funding:** This research received no external funding.

**Conflicts of Interest:** The author declares no conflict of interest.

#### **References**


Fidler, Nicole. 2023. In Memory of Narkis Golan. *Family Law Quarterly* 56: 271–73.

Freeman, Marilyn, and Nicola Taylor. 2022. Domestic violence as an aspect of 1980 Hague Child Abduction Convention return proceedings. In *Domestic Violence and Parental Child Abduction: The Protection of Abducting Mothers in Return Proceedings*. Edited by Katarina Trimmings, Anatol Dutta, Costanza Honorati and Mirela Župan. Cambridge: Intersentia Ltd., pp. 39–65.

Freeman, Marilyn, and Nicola Taylor. 2023. Contemporary Nurturing of the 1980 Hague Convention. *Laws* 12: 65.

HCCH. 2017. *Draft Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part VI, Article 13(1)(b)*. Prel. Doc. No 3 of June 2017. Available online: https://assets.hcch.net/docs/0a0532b7-d580-4e53-8c25- 7edab2a94284.pdf (accessed on 1 June 2023).


Katz, Emma. 2022. *Coercive Control in Children's and Mothers' Lives*. Oxford: Oxford University Press.


Practice Guide. 2022. *Practice Guide for the Application of the Brussels IIb Regulation*. Luxembourg: EC Commission.


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