A recent 60 Minutes story has generated significant discussion about Hague Convention proceedings, with online headlines referring to an international treaty, “forcing children to live with their dangerous dads.”

In our view, that headline does not accurately reflect how Hague Convention matters are determined.  Watch the full episode on 9Now.

It risks reducing a highly complex area of law to a simple proposition unsupported by the legal framework. Hague Convention proceedings are not about automatically returning children to abusive parents, nor are they determined without careful consideration of allegations of family violence.

More importantly, headlines of this nature may discourage victim-survivors from seeking safety or obtaining legal advice because they fear that doing so will inevitably result in their children being returned to an unsafe situation.

That would be a devastating outcome.

The reality is that Hague Convention matters are far more nuanced than a headline can convey.

The Hague Convention on the Civil Aspects of International Child Abduction provides a framework for cases where a child is wrongfully removed from, or retained outside, their country of habitual residence in breach of another person’s rights of custody.

The Convention exists because genuine international child abduction does occur. Every year, there are cases where children are removed from one country to another in circumstances entirely unrelated to family violence. The Convention seeks to ensure that parenting disputes are generally determined in the country where the child ordinarily lived before the removal or retention, and where the relevant evidence and connections are usually located.

Importantly, however, the Convention also recognises that family violence exists.

One of the most significant exceptions to the return of a child is where there is a grave risk that the child would be exposed to physical or psychological harm, or otherwise placed in an intolerable situation, if returned.

These cases are often incredibly difficult. Courts must carefully assess the evidence before them and recognise that family violence frequently occurs behind closed doors, without independent witnesses or extensive corroborating material.

Often, the people who truly know what has occurred are the victim-survivor, the children and the alleged perpetrator. Courts recognise these realities and understand that family violence does not always present with the kind of evidence that people might expect in other areas of law.

At the same time, courts must determine these matters based on the evidence before them. Family violence allegations are taken seriously, but they must still be carefully assessed within the legal framework established by the Convention.

For that reason, these matters receive significant judicial scrutiny. The Court’s role is not to conduct a full parenting trial or determine long-term parenting arrangements. Rather, it applies the Convention framework, including the recognised exceptions, and carefully considers evidence of risk, family violence and the availability of protective measures.

The suggestion that Hague Convention proceedings simply result in children being returned to abusive parents does not reflect the reality of the legal process.

A Hague return order is generally an order returning a child to their country of habitual residence so that parenting issues can be determined there. It is not ordinarily a final parenting order requiring a child to live with the other parent.

Importantly, the Convention itself contains safeguards and exceptions, including protections relating to situations where there is a grave risk that a child would be exposed to harm or placed in an intolerable situation if returned. The Court may also consider whether protective measures available in the country of habitual residence are capable of addressing identified risks.

The idea that Australian courts approach these matters in a mechanical or clinical way, without carefully considering allegations of family violence and the safety of children, is simply incorrect. These are some of the most serious and difficult decisions that courts are asked to make, and they receive significant judicial scrutiny.

In our experience, Australian courts take allegations of family violence extremely seriously. They understand the devastating consequences that can flow from getting these decisions wrong and give careful consideration to the evidence before them.

Most importantly, if you are experiencing family violence, you should not assume that seeking safety will automatically result in your children being returned to another country or placed in the care of a perpetrator.

That is not an automatic consequence of the law, and it is not how these matters are determined.

Every case is different. The facts matter. The evidence matters. The timing matters.

It is also important to recognise that seeking safety and unilaterally relocating children across international borders are not always the same legal issue. Where possible, urgent protective and legal options should be considered before relocation occurs.

If you are considering relocating with a child, whether within Australia or internationally, we strongly recommend obtaining specialist legal advice before taking any steps. Good legal advice can help you understand your rights, your obligations and the legal protections that may be available to you, as well as ensure that the Court has the best possible evidence before it.

No one should remain in an unsafe situation because of a misunderstanding about how the law operates.

If you or someone you know is experiencing family violence, seek support and obtain legal advice as soon as possible.

Author: Alyson Gale, Partner, Resolve Conflict Lawyers & Mediators