Hague: The lost children

By AnnaJoy David

When families break up, parents often face difficult questions about custody, access and where the children should live. When the parents live in different countries, the problems are multiplied and sometimes states are reluctantly drawn into bitter personal disputes. It is a little-known fact that each year the UK sends around 600 British minors to live in other countries, following the rules of the Hague Convention – the treaty established in 1980 to protect parents and children who find themselves in the midst of such disputes.

In theory, that’s all well and good, but there is a problem. Over the last five years, I have learned the hard way that while some countries stick to the letter of the law – the UK being a prime example – others apply the Convention in a partisan fashion which causes untold anguish to the very people, usually mothers and children, it is supposed to protect. Enter the unfamiliar world of family courts and child abduction units and you will discover straight away that some countries, such as Germany, Spain and the US, almost never return their children to third countries.

The Convention was created principally to avoid abduction by one parent from a child’s principal carer. But because it is interpreted in as many ways as it has signatories (currently 84 member states), the reality for many parents is that children are moved around the world, at the mercy of variable family court systems which are often inexperienced and shockingly unfamiliar with international law relating to minors.

My own nightmare began when I returned from Spain with my child to live with my extended family in London. I am still limited by law from telling my own story in any detail – the brief version is that my former partner came to England and abducted our daughter, then launched a case under the Hague Convention accusing me of abduction and demanding that the child be returned to Spain – but I have learned a great deal about the system and how it fails the very people it was designed to help.

I now know that there is case after case of Hague children, silent victims with no voice who are dragged through courts across the globe for years. Having spent five years in this nightmare myself, and having had to mortgage everything to pay astronomical legal bills, I was fortunate in the end: I recently won the right to keep my daughter with me in England. But I have come to believe that the current judicial process allows the convention to be used as a means of legitimised abduction by secondary carers, and that it is in desperate need of reform.

The world has changed dramatically since 1980. More British nationals live abroad and form relationships which produce children but which may not last until those children are grown up. Good laws and treaties take into account the way the world adapts; bad ones – which Hague has come to be – are blunt instruments that leave no scope for common sense and the circumstances of individual cases when they are presented before a court.

So wrapped up in all the layers of international family law and treaties and years of litigation are children who face living in limbo for years, with a principal carer distracted by endless meetings with lawyers and court appearances. It is quite clear that this tortuous process has negative effects on the children, whose parents are actively encouraged to fight each other through the technical terms of the Convention in order to establish under which nation’s jurisdiction (obviously the one more favourable to their case) the child’s fate will be determined.

This is a terrible process for everyone involved, and I am convinced the British government should take a fresh look at Hague and come up with a better system. From my own experience, I would begin by proposing the following reforms:

* When Hague is called on by a parent to return a British minor, Article 13 of the Convention should be a key consideration by the British family courts when considering an application. The article gives scope to the court considering a Hague return by allowing it to consider welfare issues and issues of risk.

* If British children are returned to the British judicial system they should be allowed to monitor the process through the country and court system it has been sent to. Courts should be allowed to recall the child if the process is not being adhered to under the terms of the treaty and if irregularities are evident. This may well avoid the wrong laws being applied to the child. In essence our family courts need teeth to be able to intervene to ensure that British children are given a fair, non corrupt, level playing field when their custody is being considered.

* Proper financial and language support should be given to the child and the principal carer whilst they await their hearing. The costs should be borne by the state that calls for them to be sent to the host country.

* Countries who seek for British children to have their custody determined in their jurisdiction should have specialised family courts with experienced judges in international law to hear the case so that we can avoid a lottery for children when determining their future. Cases should be determined within a fixed period not exceeding more than 6 months.

* Under the Brussels 11 treaty, children’s opinions are allowed to be admitted in court so that they can be considered by the family judge within Hague proceedings. It must be obligatory that all EU member states who are Hague signatories apply this law to children who are seven years and older.

* Due consideration should be given to the child’s extended family, their residence, cultural identity and religion.

In a modern world where we travel frequently, live in different places, even commute to work from one country to another, we need to consider better ways of doing things. At the end of the day parents who separate and live in different states need to be forced to compromise. If they are unable to then the law must oblige them to for the sake of the children. At the very heart of this it is the children’s needs and rights that are the only consideration and not some technical understanding of habitual residence or the parents’ desire to have it all their own way.

A different version of this post appeared in Tribune.