“I didn’t have a chance”: perceptions of the attitudes and roles of legal professionals for women involved in Hague international child abduction cases

ABSTRACT

Studies of lawyers and clients tend to be lawyer centric. How clients see lawyers—their own or those of other parties—is less emphasised. In this article we report the perspective of ten women who had been subject to a Hague Convention on the Civil Aspects of International Child Abduction process. The Convention was created to address removal of children from custodial mothers by non-custodial fathers and aims to ensure the safe return of children to their country of “habitual residence”. However, the Hague Convention process, and the lawyers and courts that administer it, do not adequately respond to situations where mothers are fleeing domestic and family violence with their children. The women we spoke with had all fled domestic and family violence and sought safety by returning to their own country. They had been subject to a Hague Convention process for the return of their child(ren) to the country and custody of their perpetrator and experienced an accusatory, uncaring, hostile legal profession. The women felt that the lawyers were motivated by moral assessments of them and their behaviour. The lawyers were seen as participating and continuing the violence as an agent of the perpetrator and the state.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 See Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, T.I.A.S. 11,670, 1343 U.N.T.S. 89 (entered into force 1 December 1983). Hague Explanatory Report on the 1980 HCCH Child Abduction Convention, Elisa Perez-Vera (April 1981).

2 Australian 2016 statistics show that 2.2 million persons have suffered domestic violence and 3.6 million have suffered emotional abuse from a partner; see: https://www.aihw.gov.au/reports-data/behaviours-risk-factors/domestic-violence/overview. Between 2020 and 2021 about 4,000 women experienced violence at the hands of partners and ex-partners; see: https://www.aihw.gov.au/reports/domestic-violence/family-domestic-sexual-violence-data/contents/what-services-or-supports-do-those-who-have-experienced-family-domestic-and-sexual-violence-use/crime-rates-for-family-and-domestic-violence.

3 In 2016 about 64% of women sought support and help after physical abuse by a male partner; see: https://www.aihw.gov.au/reports/domestic-violence/family-domestic-sexual-violence-data/contents/what-services-or-supports-do-those-who-have-experienced-family-domestic-and-sexual-violence-use/help-sought-after-family-and-domestic-violence.

4 Instead of detailing the Hague Convention here, we refer readers to a fuller discussion of the Convention in “Masteron et al. 2022”.

5 Ethics approval GU Ref No: 2018/234.

6 Note that in September 2021 the Family Court of Australia and the Federal Circuit Court of Australia were merged. When this research was conducted the Family Court of Australia was a standalone court.

7 See https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children. In the UK the Central Authority is located in the Official Solicitor's department which is in the Ministry of Justice.

8 For a recent decision on the concept of model litigants see: Malone on behalf of the Western Kangalou People v State of Queensland [2020] FCA 1188. See also Wheelahan (2016).

9 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) at [78].

10 Hague Convention, Art. 7(g).

11 Hague Convention, Art. 26.

12 See http://www.legalaid.qld.gov.au [accessed 21 March 2021].

13 Legal Aid Qld, Grants Policy Manual (last updated 14 December 2015), https://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual/The-Merits-Test [accessed 21 March 2021].

14 Legal Aid Qld, Grants Policy Manual (last updated 14 December 2015), https://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual/The-Merits-Test [accessed 21 March 2021].

15 Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 (Cth).