“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.

1. Introduction: the context of the Hague Convention

Women who flee domestic and family violence across international borders often find themselves facing potentially hostile legal systems and lawyers where they are legally compelled to return with their children under the Hague Convention on the Civil Aspects of International Child Abduction.¹ Informed from a feminist legal location, in this article we present the experiences of ten “Hagued” women who found themselves facing legal systems whose lawyers appeared to follow formalistic approaches to their Hague Convention cases. As we know from the legal profession literature (Sommerlad & Wall 1999; Mather 2003; Cunningham 2013), there are not as many studies of clients’ perceptions of lawyers since the relationship is usually studied from the perspective of the lawyer. Here we reverse this approach and take account of Harden (1992) who warns that over-concentration on the supply side can omit demand decisions over priorities (quoted in Goriely 1994, p. 163). This article examines five legal roles and institutions involved in Hague cases and the women's reactions and responses to them. They are: (1) Central Authority lawyers; (2) courts and judges; (3) legal aid funders; (4) community centre lawyers; and (5) private lawyers. We do apply the caveat noted by Sherr et al. (1994, p. 140) that “clients may only have a partial understanding of legal quality upon which to found any judgement and this may be further hampered by processes of image management by the lawyer”. We further understand the situation between clients and lawyers is complex, leading Mather (2003) to place the interaction on a continuum with client-centredness at one end and lawyer domination at the other. This is compounded by clients often articulating a cluster of demands, some of which may conflict with others leaving lawyers in a quandary as to what decision to take (Melville et al. 2014). Indeed, the women we spoke with felt—and this was reinforced by the comments by the lawyers—that the legal personnel and institutions were not dispassionate legal technicians but motivated by moral assessments of the women and their behaviour. In a context of domestic and family violence these were seen as participating and continuing the violence as an agent of the perpetrator. Our study is necessarily an exploratory one since we have confined ourselves to a limited examination of clients and some lawyers in Australia.

Family lawyers require special skills, empathy, knowledge, and sensitivity. They do not only give legal advice. Research in the UK into family lawyers shows that they also “provide reassurance and practical support, acted to reduce tension, often deal with third parties on a client's behalf, and sometimes provide the parties’ only effective channel of communication” (Eekelaar et al. 2000, p. 184). Even when family members are residents of a single country the separation process can be difficult, but when the partner-parents are attached to more than one country the process is necessarily complex.

Difficulties are further compounded when domestic and family violence becomes a central feature of the breakdown,² in which the women and children need to find safety and protection.³ If they should attempt to seek safe harbour by returning to their countries of origin without the knowledge and consent of the father of their children (and usually the perpetrator of domestic and family violence) their flight becomes subject to the Hague Convention. Because of its age and history, and the relative difficulty in updating it, domestic and family violence is not directly considered in the text of the Hague Convention. Its focus is on abduction, which originally was perceived as conducted by fathers, indeed, referring to the abductor as “he” (Masteron et al. 2022). It is important to note that the Convention is a jurisdictional law rather than a custody law, therefore the best interests of individual children are not the paramount consideration (Fernando 2022). Under the Convention the child should be returned to their country of “habitual residence” (usually where the father-perpetrator lives—and usually his country of origin) for the custody dispute merits to be determined by that country's court (Gray & Kaye 2023, p. 4; Masteron et al. 2022).⁴ Hunter and others have pointed out over a number of years that domestic and family violence is frequently downplayed by courts because of perceived lack of evidence, lack of resources and time to follow up allegations, pro-child-contact culture of courts, and limited recognition given to children's voices in cases (Hunter 2008; Alexander 2015; Easteal & Grey 2013; Hunter et al. 2020). Since the Hague Convention depends on interpretation by domestic courts and related legal actors, in this article we examine the relationships of the women with government lawyers, private lawyers, legal aid funders, law centres, and courts and judges through the women's voices.

The structure of the article is as follows. Section 2 examines the literature on lawyers. This entails tracing back some of the early sociology of the legal profession and professions to show how the scholarship has evolved. While the context of much of the existing research involves studies of US lawyers and clients, we maintain it is relevant and explains the situation which “Hagued” women find themselves in. The sense of powerlessness they felt is a persistent theme of lawyer–client research. Section 3 sets out the context of the research, how it was done, and how participants, both women survivors and Hague lawyers, were recruited. Since the Hague Convention has produced its own legal culture, we show that practice creates dire circumstances for women survivors of domestic and family violence brought within its purview. Drawing upon the concept of “legal systems abuse” we identify how Hague Convention processes can inflict great pain on the women survivors of domestic and family violence. Its jurisdictional and formalistic aspects conflict with the needs of the women and their children for security and stability in their lives. In Section 4 we examine the roles of the different lawyers and institutions involved and their interactions with the women and children fleeing domestic violence. The perspective is that of the women themselves as they encounter the system.

2. The client–lawyer relationship: the research literature

The traditional model of lawyering presumes that the lawyer's expertise places her in a position of authority to be able to advocate zealously for the client as portrayed by Lord Brougham's defence of Queen Caroline:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty … . (Quoted in Freedman 2011, p. 403)

Brougham's advocacy was based on his ideals as an active agent (lawyer) with the client as passive in the relationship. Johnson explains this in terms of dependence and social distance (2016 [1972], p. 41): “Dependence upon the skills of others has the effect of reducing the common area of shared experience and knowledge and increases social distance”. The resulting tension creates uncertainty which is resolved by either the producer or the client. Reversing the lens and viewing it from the client's perspective creates a different picture. For example, sophisticated clients—corporations or wealthy people—can influence the outcomes in their favour as they stand in parity with their lawyers (Nelson 2022; Flood 1991) as well as being repeat players (Galanter 1974). But most individual clients lack such resources and find themselves in a weaker position to lawyers. Rosenthal (1974) tested these paradigms through the medium of personal injury cases. He found that, despite arguments to the contrary, active clients gained better outcomes, such as damages, than passive clients. Blumberg (1967, p. 15) described criminal lawyers as immersed in a “confidence game” persuading clients to accept plea bargains, while other scholars reacted to the starkness of this view suggesting plea bargains led to predictability for clients (Feeley 1979). In divorce Mather (2003, p. 1075) argued that: “A client's vulnerability could lead even the most client-centered divorce lawyer to become more directive and controlling”. Hosticka (1979, p. 607) analysed the language used in negotiations between poverty lawyers and their clients and found that lawyers dominated the conversations through control over topic and timing. Lawyers could routinise cases by controlling clients’ problem definitions. An Australian study of client satisfaction concluded that lawyers and clients used different indicators of satisfaction and that: “Clients complained about the quality of their lawyers’ services in terms of inaccessibility, lack of communication, lack of empathy and understanding, and lack of respect  … ” (quoted in Cunningham 2013, p. 147). Sommerlad and Wall (1999) further noted how lawyers frequently failed to listen carefully and attentively to their clients instead interrupting them, cutting them off, and making them nervous about talking. The prevailing view is doubly focused on lawyers who are considered in a position of power in relation to most types of clients and tend to restrict clients’ engagement (Bogoch & Danet 1984; Simon 1988; McConville & Mirsky 1995; Pepper 1995; Michelson 2006; Kozin 2007; Melville & Laing 2008, 2010), yet others hold that the lawyers’ actions and perspectives are not so clear cut (Sarat & Felstiner 1995). Melville et al. (2014, p. 173) proffer a more subtle view that lawyers may take a client-aligned view to protect their client's interests as opposed to a client-centred view because clients may not know what they want. The client can be conceived of as passive in the relationship with their lawyer. For some clients, however, there is a playing out of Kafka's parable of “Before the Law” (Liska 2012) in how they reflect on their encounters with lawyers. One important point concerning the lawyer–client relationship is the client's ability to pay, which is a crucial issue for the women we studied. Vulnerable clients who are unable to pay are more likely to be dominated by their lawyers (Wexler 1970; Handler 1978; Hosticka 1979; Flemming 1986; Southworth 1995; Hunter et al. 2000).

This lawyer-centric emphasis continues in more focused studies of particular fields of practice. It has been observed that lawyers in family law cover a wide range of legal styles, from some who are actively adversarial (Parker & Evans 2018, p. 264) to those who seek resolution through consensus (Tesler 2004, 2008). Mather et al. (2001), in their research, categorise their family lawyers in five ways: “the old-time practitioner”; the “feminist divorce specialist”; the “low-cost practice for the low-income client type lawyer”; the attorney for “the divorces of the rich”; and the “young associate lawyer”. They depict the feminist divorce specialist as maintaining a primary interest in counselling female clients and understanding her central responsibility, not in terms of obtaining legal outcomes for clients, but rather as assisting them to adjust in the long run to a new social role and a new set of economic challenges. Lawyers who work for women's legal services typically fall into this category. Each is distinct from the other in style, character, values, and status. In developing their typology Mather et al. (2001) avoided the conventional wisdom of an over-arching professionalism inculcating similar values in all lawyers. While there is nuance in relation to lawyering styles, less emphasis was given to the perspectives of clients.

Even though Heinz and Laumann (1982) argued for two hemispheres of lawyers depending on the client, corporate or individual, we have long been aware of different types of lawyers. Carlin (2011) showed how the ethical behaviours of criminal defence lawyers were completely opposed to Smigel's Wall Street lawyers (1964), who commanded the highest respect for their ethics, virtually holding the status of high priests. Nevertheless, Mather et al. (2001, p. 10) instead argued for a professionalism dependent on communities of practice or local legal cultures even though Sarat and Felstiner (1995, pp. 19–21) take a more classical approach to the typical family lawyer–client relationship:

The predominant image of the lawyer–client relationship is one of professional dominance and lay passivity. … The lawyer governs the relationship, defines the terms of the interaction, and is responsible for the service provided. Even when lawyers seek to tell clients’ stories, they routinely silence and subordinate them. … In the standard analysis of the professions, lawyers are presented either as agents moving tactically toward their clients’ clearly expressed goals, as principals paternalistically operating in accordance with their sense of the clients’ best interests, or as opportunists using the client's case to work out their own agenda.

These distinctions are particularly evident among the lawyers who practise under the aegis of the Hague Convention. Their communities overlap and often define themselves in opposition to each other. There is also a particular context to the Hague Convention lawyers in Australia. Most Australian lawyers that work in the Hague jurisdiction, and all that we spoke with in this project, identified as practising in family law. In the Australian context it is necessary to understand that enormous efforts have been made to develop a less-adversarial family law system. The Family Court was established with an in-house counselling service and a therapeutic philosophy (Rhoades 2011). Like similar family law jurisdictions in countries such as the USA (Emery 2011) and the UK (Davis & Bevan 2000; Mosten 2004), mediation and other forms of out-of-court dispute resolution have continued to be encouraged and legislatively entrenched (Batagol 2008). Nevertheless, there is conflict. On the one hand, adversarial is still identified as a problem in family law. A recurring theme in the submissions’ recent Australian Law Reform Commission inquiry into the family law system was that “an adversarial court process is inappropriate for resolving family law disputes” (Australian Law Reform Commission 2019, p. 185). On the other hand, research into family law, adversarialism and mediation shows that lawyers are not as adversarial as often depicted (Hunter 2003), and lawyers have embraced mediation and other forms of non-litigious dispute resolution (Howieson 2011). Further, investigations into how the family law system deals with domestic and family violence is replete with stories from clients of the system explaining that their lawyer told them not to raise the violence and not to criticise or attack the other side for fear of being seen as uncooperative—a mother not willing to share her children with their father (Chisholm 2009; Laing 2017; James & Ross 2016; Francia et al. 2019). Roberts et al. (2015), drawing upon their interviews with 15 Australian women survivors of domestic and family violence experiences of the family lawyers and the family court processes, identified that the women were not listened to, their evidence of violence invalidated, their fears and anxieties for their future minimised and retraumatising. There is potentially a cultural impediment in the community of practice of Australian Hague Convention lawyers, because of the influence of reforms to reduce adversarialism in family law practice to acknowledge and pursue claims of domestic and family violence. Significantly, this potential has been highlighted through research that engaged with the experience of family law clients of lawyers and court.

In the context of the Hague Convention, the primary legal actor are the lawyers employed by the Central Authority. The Central Authority assists the parties, the lawyers, and the courts, generally advancing the Hague Convention's goals (Bruch 1994, p. 37; Estin 2011, p. 719). Under the Convention all signatories must establish a Central Authority. In Australia the Central Authority is located with the Attorney General's department and is staffed by fulltime paid government lawyers. Government lawyers are less easily defined or studied than private family lawyers. They experience different tensions to private lawyers. They have a single client, the government; they also represent the public interest, which may or may not be the same as the government's interest; and yet they are subject to the same codes of ethics as all lawyers. In some fashion they must reconcile these tensions, but reconciliation is not an easy achievement. Josephson and Pearce (1986) argue for a straight ethical approach that might not concord with the department's line. Thus the public interest is given lower ranking suggesting a lawyer could conduct the case on its merits depending on how those are perceived. Yet Hutchinson (2008) proposes a more expansive view of the public interest that extends the private ethical stance of most lawyers. His answer is for government lawyers to be transparent and open and not obfuscate. Wendel (2009, 2017) considers the main role of the government lawyer is to carry out instructions that are lawful, and his/her personal views have no place in the decision making. Dodek (2011) advocates for a higher ethical standard for government lawyers, one that embraces the public interest because government lawyers exercise public power and therefore there should be special codes of conduct dealing with, inter alia, who is the client? Whichever view of professionalism, ethics, or public interest one takes, no easy solution emerges. Certainly, from the perspective of the women we spoke with, the government lawyers within the Australia Central Authority appear to have a clear and fixed vision of their role.

In summary there is an extensive literature that considers the lawyer–client relationship from the lawyers’ perspective. The client, aside from generic features such as being a repeat player, or a corporate entity or a private individual, tends not to be greatly considered. Rarely are the perspectives and experiences of clients prioritised in thinking about lawyers and clients. In studying family law there is a body of research that has identified that women survivors of domestic and family violence have experienced their claims being minimised by their lawyers. Understanding government lawyers reveals some of the limits of the lawyer focus of existing literature. Precisely because there is ambiguity with respect to who a government lawyer's client is, there is a lack of clarity in relation to thinking about the roles and professionalism of government lawyers. The client and her perspective matters for understanding the lawyer–client relationship.

3. Research context and method

Little has been written on the effects on women being “Hagued” who are fleeing domestic violence, especially their journeys through the returned countries’ legal systems and personnel (see an example of a women's story in Lavie (2018, pp. 15–16)). There is a study undertaken by the United States Department of Justice that interviewed 22 “Hagued” women survivors of family and domestic violence, their lawyers, and Central Authority lawyers (Edleson et al. 2010). The report focused on the US implementation of the Hague machinery, rather than on the perspectives and experiences of the women. It did identify that in the US, applications for return orders in the context of domestic and family violence were granted and that the women experienced renewed domestic and family violence when they returned with their child in compliance with the return order (Edleson et al. 2010, p. 181).

The findings in this article come from a study of “Hagued” women who have experienced family and domestic violence. The study involved talking with women and with lawyers involved in the Hague Convention process in Australia.⁵ We have reported on some of the findings, particularly in relation to the women's experience of post-return in Masteron et al. 2022.

The study undertook in-depth semi-structured interviews with ten “Hagued” women survivors and five Hague lawyers. This followed a method used by other researchers working with women survivors of domestic and family violence and their lawyers to be respectful and empowering of the women's voices (Douglas & Stark 2010; Roberts et al. 2015). The study involved two stages. The first was recruiting and speaking with “Hagued” women survivors. The second was speaking with legal professionals involved in the Hague Convention process in Australia. The women survivors for the first stage were recruited through a combination of strategies including contacting lawyers and domestic violence support agencies known to have worked with “Hagued” women, and through a Facebook page “Getting ‘Hagued’” in Australia. There were different countries of origins: four from Australia, four from Europe, and two from the Pacific. Nine of the women returned with their children to the habitual-residence country and only one woman returned her child unaccompanied. Some of the women had fled to Australia, others had fled from Australia.

There are two issues around qualitative research that we address here. Ann Oakley (1981) argued that feminist interviewing is different to that of the traditional expectations of objective-seeking masculine social sciences in that it is not a one-way conveyance of information but one which is two-way with the women interviewees asking questions as much as the interviewer. This was the case in our research with vulnerable women who were only too aware of their contingent and oppressive situations (Westmarland 2001). The second issue has to do with the number of interviewees. Qualitative researchers have never solved this and the most frequent answer given is “it depends”. The National Centre for Research Methods paper, “How many qualitative interviews is enough?” (Baker & Edwards 2012) states that the number could be anywhere between one and 50. The consensus from the researchers surveyed was that low numbers can be satisfactory.” If the participants hold highly specific characteristics to the study as opposed to those who hold more sparse characteristics then fewer are required in the sample to generate sufficient information power (see Keating & Fleming 2009). Our sample held highly specific characteristics enabling us to gain sufficient information power from a small sample. Our framework is not to claim that the experiences of the women we spoke with are universal. Such claims would run counter to our foundational feminist orientation. Rather there is value and significance that these women experienced the lawyers and legal profession at this particular place and time.

Details about the women survivor participants are listed in Table 1.

Table 1. Women survivor participants.

Alias and approximate age at the time of interview:	Children and their approximate ages at the time of interview:
WS1—early 40s	One child aged 9
WS2—late 30s	One child aged 3
WS3—early 30s	One child aged 2
WS4—late 40s	Two children aged 18 and 17
WS5—early 30s	Two children aged 9 and 11
WS6—early 30s	One child aged 7
WS7—50	One child aged 8
WS8—early 30s	Once child aged 9
WS9—early 30s	One child aged 6
WS10—mid 40s	Two children aged 5 and 6

For the second stage, lawyers who do Hague matters in Australia can be identified in Family Court Hague decisions that are publicly available via the Family Court website (Federal Circuit and Family Court of Australia 2022).⁶ Lawyer participants were recruited through direct contact and through reaching out to legal aid offices. Two were barristers, two solicitors and one was a paralegal working in the Australian Central Authority. The Central Authority is mandated by the Hague Convention as the organ of the signatory states responsible for the Hague process. The Central Authorities process all return applications. Details about the lawyer participants are given in Table 2.

Table 2. Hague lawyer participants.

Alias	Profession, gender and approximate age:	Type of practice:
HL1	Paralegal (non-lawyer) Female—mid 40s	Legal assistant working for the Central Authority
HL2	Solicitor Female—late 40s	Women's only community legal centre
HL3	Barrister Male—mid 50s	Private Bar Family Law
HL4	Barrister Female—late 30s	Private Bar Family Law
HL5	Solicitor Female—early 40s	Private practice Family Law

The initial and follow-up interviews were undertaken between 2018 and 2020. Some were conducted in-person and others, especially in 2020 during COVID public health restrictions, were done via video conferencing technology. All the women we spoke with had been through the Hague process. A semi-structured interview process was used to help frame the responses yet still always provide space for the women's own experience and voice to be recorded. The interviews were recorded and transcribed by the first named author. The transcripts were then analysed using an iterative coding approach to identify theme, commonalities, and differences. A very significant commonality articulated by the women was that the Hague Convention process was experienced as a continuation of the domestic and family violence inflicted by the perpetrator and the complicity of the lawyers and legal institutions in facilitating that violence.

Douglas (2021, p. 166) has identified that the legal system can be used by perpetrators of domestic and family violence as a form of coercive control. Legal systems abuse occurs when women are forced to engage in unnecessary or unwarranted court proceedings. In this context survivors experience the legal process as a form of secondary violence through exposure to scrutiny and judgment by legal actors, including judges and lawyers and the incurring of debts (Ptacek 1999; Laing 2017). The women survivors we spoke with felt that the Hague Convention placed women in an unwinnable situation, because the legal actors, whose job it is to administer the Convention, created oppressive inequities for mothers protecting their children. For example, labelling the women as abductors of children, or treating them as wrongdoers, leads to hostile treatment from Hague legal professionals including border officials, police, lawyers, and judges, and the further re-victimisation and entrapment of women.

The article looks at the legal players involved in the Hague process—Central Authority lawyers, the courts, Legal Aid agencies, community legal organisations, and private lawyers—through the lens of the women survivors’ experiences. They describe how the perpetrator used the Hague Convention as a weapon to further manipulate and control them. The women passionately believed the Central Authority's lawyers ought to have recognised their motives for removing their children. The legal systems abuse rendered the women helpless in protecting themselves and their children. Indeed, the legal process itself led to even more anxiety, depression, and fear among for the women. The primary entity for the women that manifested this was the Central Authority. Indeed, by taking children across borders the women are then unavoidably brought into contact with the bureaucratic Central Authority.

4. Legal roles in the Hague process from the client's perspective

4.i. The central authority

Under the Convention all signatories must establish a Central Authority (CA), which may be placed under the jurisdiction of foreign affairs departments; however, the Australian CA is within the Attorney General's Department with regional offices.⁷ While staffed by government lawyers, the Australian CA does brief barristers in private practice for court hearings.

In Australia, the government authorities who administer and enforce the Hague Convention are required to act objectively. They are in the position of a model litigant.⁸ In Walpole & Secretary, Department of Communities and Justice, the court stated:⁹

We have been troubled by what occurred in this case and it is timely to mention the importance of adherence to Model Litigant guidelines. The NSW Guidelines, which apply to the Central Authority, requires more than merely acting honestly and in accordance with the law and court rules. Essentially, the guidelines require that the Central Authority acts with complete propriety and in accordance with the highest professional standards. Relevantly, this includes not requiring the other party to prove a matter which the state or an agency knows to be true.

Thus, the policy ought to apply generally to the Attorney General's office, but the women survivors thought CA lawyers were not always acting impartially. For example, WS10 felt that when enforcing the Convention, the CA lawyers were explicitly biased against her. She said: “They gave [my ex] advice [about what to put into his affidavits]”. WS7 perceived bias when the CA lawyers she encountered acted uncaringly over her and her child's safety:

It seems that the federal government authorities who tracked me down, served me, built their case and then “prosecuted” me are not legally required to have any regard for the future safety or protection of the children involved, or their abused mothers. And from my experience they don't seem to have any problem whatsoever prosecuting mothers and returning their young children, even by force if necessary. I would even say that they actually enjoyed their work. … [They were] so cold, and they showed zero compassion for me or my son.

WS7 felt further victimised when her ex-partner bragged to her about how supportive the CA was to him:

He said that the law was one hundred percent on his side, as his solicitor “really liked” him. He was acting really cocky and he said the [CA solicitor] was really supportive, and constantly had him in her office for lunch meetings and she called and texted him several times a day to “check” on him. And he also bragged that it didn't cost him a cent.

According to WS7 the CA lawyers made her feel “like a criminal, like a kidnapper”. The CA lawyer who was seeking the return of WS7's child appeared to have a personal animosity against her: “The solicitor took the case very personally and did everything in her power to destroy me”. She disclosed that she felt bullied by all the lawyers involved in her matter to return her child—so much so that she gave up fighting the return application, thereby forgoing the opportunity to demand a trial which would have provided a forum for her to explain her reasons for fleeing. She said:

The CA also employed one of the best family law barristers in Brisbane, who was preparing to tear me apart on the stand, until the pressure from my own lawyers built up and I broke down and I agreed to return my son. The [Central Authority] barrister had the nerve to try to shake hands with my sister afterwards, like this whole traumatic experience we’d been through was no big deal to him.

WS7's experience of Australian CA lawyers was similar to WS6's dealings with CA lawyers in the UK after her Hague service. WS6 recalled:

My ex's lawyer in England was horrible. Wouldn't listen to a word I said. Yelled at me all the time. … Constantly made me cry and then she would laugh at me for crying. Just treated me like an absolute criminal. Told me I was working in England and I said, “I am not working”. She said “Yes you are. You are working”. It was a woman … from the agency over there. … Yeah just really aggressive. Just really horrible.

These interviews disclose the strong feelings of the women about systems abuse from the CA which added to their trauma. They perceived CA lawyers as anything but dispassionate professionals, rather as overzealous advocates. Legal professionals who work with the CA were also interviewed and they gave different opinions on the impact of the Convention.

HL1, a female paralegal working at the Central Authority in Australia, said there were positive aspects to the Hague process. For example, “it provides legal protection for the left-behind parent and the courts afford these matters priority in the litigation system (compared to a general parenting matter under the Family Law Act 1975—in Australia)”. She highly rated the “expertise of judicial officers that manage these matters and provide expertise and expedience”. HL1 added, “Judges who manage Hague matters … have built up knowledge and expertise in these matters over time”. But for the negative aspects of the Hague process, she stated that the legal expenses associated with litigating such matters in domestic and foreign courts “were onerous” and parents would often end up being self-funded or “trying to obtain elusive pro bono legal representation”. HL1 further said that the Australian legal system was limited in dealing with abduction cases as there was no alternative in international parental child abduction. HL1 in her interview presented a complex assessment of the administration of the Hague Convention in Australia. She kept balancing formalist-positivistic advantages against informal-therapeutic disadvantages. We have extracted and summarised these in Table 3. For CA lawyers the appeal to formalism and positivism was strong as it emphasised the logics and rules of the Convention and law in general whereas the informal-therapeutic spoke to lawyering for the social good with an appeal to justice, which CA lawyers found hard to grasp. Because the Hague Convention is in essence a procedural law, to return a child to their country of origin, it has the potential to create abuse owing to its internal structure, which means lawyers are necessarily limited in how they can counteract its ill effects.

Table 3. HL1’s pros and cons of Hague Convention lawyering.

Formalist-positivistic advantages	Informal-therapeutic disadvantages
It provides legal protection for the “left behind parent”.	The associated legal expenses associated with litigating such matters in foreign courts.
The courts afford Hague matters priority in the litigation system (compared with a general parenting matter under the Family Law Act 1975—in Australia).	The emotional distress to families.
The expertise of judicial officers that manage Hague matters provides expertise and expedience (this is certainly the case in Queensland where there are only several judges who manage Hague matters, and have therefore built up knowledge and expertise in these matters over time).	Generally speaking, there is no public funding (read: Legal Aid) for “abducting parents” in defending these types of applications—so they end up being self-funded or trying to obtain a pro bono legal representative.
It provides a forum by which the child's views and wishes can be considered (where appropriate).	The risks associated with the abducting parent returning to the “removing country”—that is, the threat of being charged with abduction related offences (the Australian authorities have no control over how foreign authorities elect to respond in this regard).
It provides an opportunity to avoid a litigation process wherever possible (court process v mediation—a negotiated outcome v trial).	The abducting parent returning to a country where they have no form of support or assistance—for example, accommodation, accessing legal advice/support, where domestic and family violence issues, and so on exist.
There is an International Hague Network Judges group where judges across different countries can liaise with each other as needed.	Possible immigration/visa issues for the returning parent that need to be resolved.
Most countries that are signatories to the Hague Convention have a level of sophistication in their legal systems which facilitate the proper intent and application of the Hague Convention.	Where a parent elects not to return with the child to the removing country—the obvious distress this creates for the family.

HL5, a former CA solicitor who moved into private practice, said when working for the CA she had little sympathy for women who had fled with their children. She admitted, however, that she had over time been institutionalised by the CA (cf. Goffman 1961; Schliehe 2016):

I guess I think of myself as a traditionalist in terms of the Hague Convention. My first interface with it was when I was working for the … Central Authority administering the Hague Convention … and I do believe that it's there for a purpose, and I do believe that we have to be fairly strict with its implementation, or else we send a message to parents that we’re an okay place to abduct children to because you’ll get away with it, and I don't think that's a good outcome for children, to be ultimately separated from another parent.

However, when HL5 switched to private practice and represented women who fled their homes owing to domestic abuse, she found her attitude had shifted and began to feel empathy for women survivors:

I’ve returned to private practice for many years now and I do see that one of the flaws in the system is … well you don't get that close inquiry into some of those other issues like domestic violence.

Also, despite the complexity of Hague cases she believed insufficient judicial time was spent on cases with domestic abuse allegations. She added:

For me it's a real struggle because I completely understand why courts can't give these matters five or ten days to explore those issues, and also, we’ve got the other parent usually in some other jurisdiction, sometimes with language difficulties, so how do we afford everyone procedural fairness in that scenario? … The bar is so high! (HL5)

HL5 accepted that the bar had been set high because of comity and unjustified assumptions made by courts that the authorities in other jurisdictions would be able to protect abused women and children upon their return. She said:

It's about courts respecting that other jurisdictions will have powers in play—for example, police, domestic violence orders, family law courts, domestic violence courts, that sort of thing—to protect people who are exposed to, or might suffer, or might be harmed by their ex-spouse. So, for example, for a parent to come out to Australia and say, for example, “I can't return to New Zealand because of extreme domestic violence”  … well their police system is similar to ours, their court system is similar to ours, so why can't they get the protection there that they say they need here?

The women survivors found no succour under the Hague Convention either in terms of treatment by CA lawyers or the lack of financial support to defend their positions, whereas the perpetrators who filed applications for the return of their children were given ample free legal support and representation from experienced Hague lawyers. The women survivors also felt the CA and courts worked too closely with each other and therefore the judges were seen to be inclined to rule in favour of CA lawyers. Research on prosecutors and judges has shown their close working relationships appear to deny the axiom that familiarity breeds contempt and that close relationships do form; it is not unnatural to suspect similar alliances might form in Australia (Flowers 2000, p. 292; cf. Ravid 2014, pp. 185–210). Next, we explore the role of the courts and judges that hear and administer the Hague legal process.

4.ii. Courts and judges

Burns (2016, p. 319) has suggested that the idea that judges will use their common sense, their understanding, their contemporary knowledge of society, and the expectations of the community as part of their decision making is well recognised and “centuries old”. However, in Hague Convention matters Australian judges take a formalistic approach to the law. Australian judges, even when dealing with evidence of domestic abuse and family violence, often strictly apply the Hague Convention in a way that takes precedence over the context for the removal and the opinions of the child (Fernando 2022, p. 747). There has emerged in Australia a strong sense that the Hague Convention as an international agreement addressing the problems of child abductions should facilitate the return of children (Kirby 2010). Emphasis should be given to respecting the reciprocity of global arrangements, rather than the intricacies of the immediate matter (Kirby 2010, p. 112).

This was experienced by the women we spoke with. WS2, who fled with her child, was served in Australia and on attending her initial hearing felt the judges appeared eager to discount or dismiss her accounts of domestic and family violence. She said, “They didn't listen. They said it wasn't about me, it was about my daughter”. It can be contested that domestic and family violence is disparaged or dismissed because it is not well understood by those administering the Hague legal process. Francia et al. (2019, p. 22) found that:

Strikingly consistent across cases, separated parents’ experiences with professionals such as child protection, family report writers, judges, police, and independent children's lawyers were disappointing, concerning, and predominantly focused on a lack of knowledge around family violence … the parents did not feel their voices were heard within the Australian family law system.

By way of illustration, WS6 said she felt the court dealing with her matter wanted to reject her evidence of domestic and family violence. She said:

I don't think the male magistrates at the time understood the cycle of violence. I found that the only time I felt my situation was taken seriously by the court was when it was a female magistrate. When it was a male magistrate, I thought, “I’m screwed”.

This was not an uncommon perception.

WS10 felt the same way, saying, “It's just like in an abusive relationship, you’re silenced”. She “felt like nobody listened to her and they all believed him and I’m like ‘How can you believe him, when I’ve gone through hell with this guy?’”. WS10 expressed devastation by the court's attitude. She said:

It's just so cruel because so many times I think “Why did I speak? Why did we speak out? Why do we stand up for all this and try and make a better life?” Because life is so shit when you speak out and the courts just don't support you.

Following her return to the UK with her child after the Hague hearing, WS9 said the English family court judge who presided over her domestic child custody case did not take her allegations of child abuse seriously:

[The child] was made a ward of court and … she was almost taken off me and put into care … because they said the abuse didn't happen and that it was me being emotionally manipulative. … I have recordings of her saying these things … but the judge said it was emotional abuse and that I was coaching her to say things.

WS9 further specified:

the courts say that mothers make kids make this stuff up. Kids don't make this shit up. A kid will tell you it is allowed sweeties at eight pm. It won't tell you that it has been fucking raped … they don't have the capacity for that.

The women experienced a judicial prejudice, observed by commentators of the Australian Hague judiciary, of a reluctance to believe and take on face value the feelings and opinions of children (Fernando 2022).

Indeed, most of the women believed that although they had provided solid evidence of violence and abuse, the courts were keen to use their discretion to order the return of their children to a potentially dangerous situation and put their safety in jeopardy. WS5, another women survivor, felt the courts did not believe the personal safety of mothers like her was threatened:

The first time [I was] in court the judge said to my face that I didn't have a chance and I’d be sent back. They knew about the domestic violence, but [the lawyers] said basically nothing will win a Hague [case] unless there's grave risk of harm to the child. They didn't care about what had happened to me. Just grave risk to the child.

Sometimes, when the woman's safety is not considered an issue, even the child's safety may be dismissed by the judges. WS7 said the judge who presided over her matter disregarded her child's safety:

He wasn't concerned about my child's safety. He said that he wasn't being returned to the Middle East, but back to a Global North nation which had a civilised legal system. He didn't want to spend the time on having a trial for me.

A crucial issue for the “Hagued” women was their inability to obtain free expert legal representation. Their perpetrators, however, were fully supported by CA lawyers. WS1 was angry that her ex-partner received fully funded legal assistance from the UK CA, saying that “he got British legal aid, and I didn't. … He has not paid a cent”.

A recurring theme was the grievous disappointment the women survivors suffered when they failed to qualify for legal aid assistance. Once they were rejected by legal aid, they were compelled to borrow from families or, worse, represent themselves. Some even begged community legal organisations for legal assistance, usually without success. The women survivors’ involvement with seeking legal aid funding is discussed next.

4.iii. Legal aid funding

The Hague Convention mandates that governments are responsible for providing or facilitating “the provision of legal aid and advice, including the participation of legal counsel and advisers” when a parent files a return application.¹⁰ Parents making return applications are not required to bear any personal legal costs, all such costs are borne by the CA.¹¹ In comparison, respondent mothers have four ways of obtaining legal representation:

1. applying for legal aid funding;¹²

2. attempting to obtain free legal representation;

3. borrowing money from family and/or friends to fund a private lawyer; or

4. representing themselves.

Australia's legal aid eligibility testing, analysed by Rix (2007, p. 3), is a difficult process to journey through:, “While some legal aid services are provided free of charge, legal representation is subject to means and merits testing, and not all applicants will be eligible for legal aid”. In Australia, legal aid is the agency which has the primary capacity to fund defences in Hague matters, but it has strict guidelines applying to all applicants, which disadvantage many Hague respondents because of the obstacles in the way of passing legal aid's complex funding tests. An applicant must first pass a “means” (income and assets) test. Respondents who rely on full Australian social security payments for their income are deemed eligible under the income test. All other applicants must provide their gross weekly income and the number of dependents relying on their income for consideration in the income test. Respondents must then pass an almost insurmountable “merits” test to be eligible for funding for legal representation. To satisfy the merits test, respondents must pass three sub-tests:

1. reasonable prospects of success test;

2. prudent self-funding litigant test; and appropriateness of spending limited public legal grants of legal assistance funds test.¹³

The “reasonable prospects of success test” is met if it appears to legal aid that the action is more likely than not to succeed. The “prudent self-funding litigant test” is met only if legal aid considers that a prudent self-funding litigant would risk their own financial resources in funding the proposed action (Rix 2007, p. 7). Rix further states that:

The Government's rationale for using this test is … one of the strategies’ employed by the Government to minimise the cost of providing legal assistance to eligible clients thus lessening the inequity between those who are eligible and those who are “marginally excluded”. (2007, p. 7)

The “appropriateness of spending limited public legal grants of legal assistance funds test” is met if legal aid considers the costs involved in providing the assistance are warranted by the likely benefit to the applicant or to the community.¹⁴ The decision to fund a defence for a Hague Convention women survivor is based on the amount of evidence she can produce to support her defences. Hague respondents fail this stage as they tend to flee without collecting sufficient evidence of domestic and family violence, and the short timeframe allowed for processing legal aid applications prevents them from obtaining such evidence from the other jurisdiction (Edleson et al. 2010).

Legal aid is aware of the poor prospects of mounting a successful “grave risk” defence under the Hague Convention. This diminishes the likelihood of legal aid funding and reduces the opportunities for developing more nuanced jurisprudence by having respondents’ cases funded and then argued by experienced lawyers, such as the stable of Hague practitioners used by the Central Authority (Genn 2010).

These ambiguous and subjective tests are so burdensome that none of women survivors that we spoke with received legal aid funding for their Hague defence in Australia. WS7 was frustrated at the discriminatory effects of the Hague Convention:

From talking with other “Hagued” women … mothers are rarely given legal aid funding from the government for our legal defence, and getting free legal help elsewhere is virtually impossible. Yet our abusers have the full force of the Australian government behind them for free. Well, my ex had investigators, process servers, solicitors, barristers, and judges who order that our children be sent back to their abusive fathers, and it costs the abusive father nothing. It would take a pretty sick mind to make all this up, and yet it's the reality of several mothers every week in Australia.

WS9 and WS3 applied for legal aid but were rejected. WS8 too was confused when she was unsuccessful in obtaining legal aid assistance:

I was trying to get legal aid to help me. I was trying to get … help with the domestic violence and all that stuff, and this is what really pisses me off … legal aid said … I’d definitely get help with this, but then when I spoke with legal aid, they told me that “you don't have merit in the case”  … and I’m like, “But hang on a minute if there's so much violence that we’re not safe … to return, why would you do this?”.

Unfortunately, these women's experiences of challenging return applications are usually bound to fail. It is also challenging for them to obtain assistance through community legal centres.

4.iv. Community legal centres and lawyers

According to the National Association of Community Legal Centres (2012, p. 6) “Community legal centres are independent, non-profit, non-government organisations”, which focus on providing legal advice, solving problems, and “working with other agencies to address connected legal, financial, social and health problems”.

Because Hague cases are complex and necessarily involve litigation (Lowe et al. 2013), many community legal centres are ill-equipped in finances and do not have the available expertise to represent respondent mothers. In our research only one Australian community legal centre took on the defence of a return application. WS7 managed to gain access to a well-established centre with the capacity to fund the defence of a Hague return application. This centre also retained a family law barrister for advice and representation at her trial. However, WS7 said this community legal centre had handled no Hague matters before taking on her case. She described her experience:

I went … to see a family lawyer. … He said he didn't know a lot about Hague cases, but he told me straight out that I had no chance of winning because the courts were very strict about enforcing the law because they wanted other countries to return abducted children to Australia. … Then I had to go to a final hearing … so the solicitor found a barrister to represent me for free. We had a phone conference with him, and he also said straight out that I’d lose and have to send my son back. … I was confused and devastated. Nothing was going my way. Nobody seemed to be on my side. … I was represented by a family law solicitor who had no Hague experience, and my family law barrister, who wasn't very experienced, and he seemed to be scared of the judge. Both of them told me straight out that I was going to lose my son. I knew then that they weren't even going to try to fight for me.

Some women try to access free legal help after they have returned with their children, but that can also prove to be extremely difficult. WS7 further described her situation after returning to her ex-partner's jurisdiction with her child:

I desperately applied to the few community legal services that are there … for free legal representation. All my applications were rejected by [them] on the basis that they were under-funded, and my case was not considered the worst type of case.

Following her experience with community law centres, WS4 also agreed they were poorly resourced to fight Hague cases:

There should be some kind of training for community lawyers for generally people in my situation who have no money … community law centres need training around Hague issues, ’cos that's where people like me end up going. … I went to a community legal centre when I first came back … and the lawyer I saw didn't know anything and gave me the completely wrong advice.

Lawyer HL2, who identified as a feminist and worked for a community legal centre, was very much opposed to the strict enforcement of the Hague Convention against women survivors who flee domestic violence with their children. She represented one “Hagued” woman and contested the return application all the way to the High Court of Australia (the final court of appeal). Unfortunately, the child was still returned. She felt strongly that the current situation needed to change urgently, saying the Hague Convention legal process was “terrible” and she “wasn't a big fan of the system”. The woman she represented, she said, “would’ve been unrepresented” if not for her free legal presentation. She said, “There's no access to justice” for “Hagued” women in Australia. She argued the case “was a big waste of time in the end”:

We took it all the way to the High Court and got nowhere, but it was an interesting exercise in seeing how rotten the system is all the way through. … It's not accessible to the ordinary person … it's so onerous … in terms of the appeal process and how you’re going up the levels … it is just a big problem with access to justice and the most vulnerable in our community. (HL2)

HL2 depicted the judges as not without some compassion when dealing with domestic and family violence-related cases:

I think if we’d have had the right judge … it would have been more open to them to have made the right decision … but our judges aren't wired the right way. … I thought we did really well that we managed to get the evidence of domestic violence and his history … and I thought that would sling it, but it didn't. I don't think they care basically.

HL2 also touched on how vulnerable the Hague Convention is to systems abuse and how women's own vulnerability harms them when they avoid confrontation:

People who aren't litigious are actually the people who are the most vulnerable. I mean [the father] commenced the proceedings, so you know, aggressive men who are happy to use the legal system as yet another way of abusing women. It's a system that favours their interests, rather than women who shy away from confrontation, or are not well equipped for it.

The women were thus left feeling powerless in these situations, a feeling exacerbated by the struggle to find funds for private legal representation.

4.v. Private legal representation

Seuffert (1996) studied the effectiveness of lawyers assisting women seeking legal protection. Her research found that:

The women report that along with police, judges and society generally, their lawyers hold attitudes which tend to minimise and trivialise domestic violence and to blame victims for the violence. The women also report that many of their lawyers did not understand the dynamics of domestic violence and often neither believe their stories nor provided them with adequate advocacy. Based on the experiences of the women interviewed, these attitudes affect lawyer–client interactions and legal representation in ways that are detrimental to the women. (1996, p. 3)

Douglas’ similar study which included over 60 women, who had suffered domestic and family violence as well as being caught up in the tangle of the legal system, noted (2021, p. 150):

While women in the study who had access to lawyers had reasonably positive experiences with them, many raised significant issues about lawyers and legal representation. Many of the issues they raised about legal representation compounded their experience of intimate partner violence. The lack of access to state-funded legal aid was one concern. A second concern was the very high cost and ensuing debt associated with retaining a private lawyer. Often proceedings were initiated and prolonged by the abuser as an aspect of coercive control, and the heightened legal costs associated with this behaviour were experienced as a form of secondary abuse, limiting the financial security and options for women and their children after separation. Pressure to settle cases unfairly or unsafely was a common theme that women connected to legal representation; this came as a consequence of both a lack of and the cost of legal representation.

The experiences of women who have suffered domestic violence tend to correspond with the literature on lawyers’ taking more client-aligned approaches rather than client-centred as mentioned by Melville et al. (2014).

Some of the women survivors we spoke with were able to borrow money from family and friends to pay for private lawyers to defend return applications, yet most were still ordered to return their children. Those who retained private lawyers found them expensive, pessimistic, unsupportive, and indifferent. For example, WS1 used a private lawyer paying a considerable amount of money, but her children were nevertheless returned. She said, “I think it was $70,000 … all went to my Hague matter”. Like the other women survivors, WS2 was denied legal aid and paid for private lawyers herself: “I was not eligible for legal aid, so I had to pay for a private lawyer, and I expensed everything. … Between the lawyer overseas and in Australia, because I was having a lawyer everywhere, it probably [cost] 35,000 euros”. WS4 too had negative experiences with retaining private lawyers:

In hindsight … you know every lawyer said “Yes, we can try to help you, but no guarantee of course”. There was one female lawyer who just said to me, “I think you have to go back”, but of course I didn't want to hear that, so I spent … well my mother spent $35,000 on another lawyer.

Despite spending that money, her children were still returned by the court. WS10 too borrowed large sums of money from family and friends for her legal representation in Brisbane. She reflected:

I owe people. I have these beautiful friends … who gave me $50,000 … and my Mum went bankrupt, so she has gone home to sell her house in New Zealand. I’m paying [a barrister] $100,000. … My solicitor has just ditched me because she wants $2,000 in her bank account to tidy up the last little bits and she refuses to stand up for my kids … and she's got nearly $400,000 of my Mum's money … and wanted another $2,000 [more] in her account.

Similarly, WS9 who failed to qualify for legal aid, disclosed:

I crowdfunded some money … but basically a lot of my friends in Australia gave me loads of money. … I’d been trying to get advice from lawyers in [in Australia], where I’m from, and they were all like, “This is too complicated, just go home”.

She returned to Europe with her child after receiving no legal representation.

Once returned to the country from which she had escaped, WS7 met a lawyer who, she hoped, would represent her pro bono. Her encounter with him was unsuccessful as he showed tendencies to side with the men:

[The lawyer] was really nice to [my ex] during one meeting we had and not very nice to me, even in front of him … he was very sympathetic towards him and … even made the comment later to me that “he didn't seem like such a bad guy”.

WS3 recounted a similar experience, “I think that the lawyer didn't want to fight for me. She said, ‘Oh no there's not enough danger’, and I thought there was enough danger”. WS1 further reinforced this perception, “[The lawyers] … side with the man basically”.

The women survivor's opinions of legal representation detailed the imbalance in the system with free representation for the perpetrators-fathers but none for the mother-survivors. A respondent woman survivor without sufficient finances to pay for legal representation is at a distinct disadvantage. Even if she can afford to retain private lawyers, her chances of defeating a return application are still very low due to strict interpretation by courts of the Hague Convention (Fernando 2022).

For the lawyers we spoke with adherence to strict formality when working with the Hague Convention was regarded as a positive. HL4 stated it was important to honour the Hague Convention as process orientated:

Well, certainly I think it's important to have a system whereby there's recognition of orders between countries because I think part of the challenge otherwise is that people can just remove children from jurisdictions … and I think that there are important reasons as to why the stability of children is important and why we should have a system in place where there's recognition.

HL3 also supported the strict enforcement of the Hague Convention. He believed that women survivors experience family and domestic violence should initially contact the authorities where they are living for help. He was dismissive of the claims and actions of women survivors:

My answer to your question is engage in the country you went to. … You met this bloke, you married the bloke, you had a kid with the bloke, you had a tiff with the bloke, you lived in a country. Sorry, you just can't say “I’m going to take my bat and ball and go home the moment things get tough”. You use the courts and processes of the country you voluntarily chose to live in, where you voluntarily chose to have a baby with the bloke. … I believe in the Convention, because otherwise you’re going to have a situation where we’re back to a situation basically where the winner is the one who's best at abducting.

HL3 held strong views on women alleging domestic and family violence as the reason for fleeing with their children to Australia. He described such situations as a “ruse” and that the “genuine cases get the sceptical look [from lawyers and judges] because so many other women make the same claim”. He further asserted, “I’ve been in [Hague Convention] cases where basically [abuse] has been fabricated … not huge numbers, but there have certainly been cases”.

HL3's statements reinforce what the women survivors felt and spoke about. By making what they believed was a safe choice to move with their child across a national border to escape domestic and family violence—to come home with their children—they then exposed themselves to the machinations of the Hague Convention. In doing so they experienced and interacted with lawyers and legal institutions in various capacities; the government CA lawyers, the courts, legal aid funding structures, community legal centres, and lawyers in private practice. They found that generally these lawyers and institutions were hostile, prosecutorial, dismissive, or deaf to their experience of violence and had been co-opted into facilitating systems abuse. The women felt that they were treated as wrong doers and that the system and its lawyers were there to look after the “victim” of the women survivor's fleeing with their children, their perpetrator. In this context the Hague Convention and the lawyers that formally (in both senses of the word) administer it, were revealed less as a profession in the traditional sense and more minions in service to a controlling and toxic masculinity.

Therefore, understanding lawyering from the client's perspective matters. The internal legal point of view—formed through legal education and institutionalisation in legal work environments—is enclosed and often self-serving. Discourse around communities of practice inherently involves boundaries and exclusion, of demarking the inside of the practice community through what is excluded. Yet lawyering depends on, and is defined, by clients. Communities of practice are usually identified in relation to the types of clients. The perspective and experiences of clients presents a radical challenge to understanding the legal profession. It will be interesting to see if lawyers’ attitudes alter with the December 2021 changes in the Australian law allowing consideration of domestic violence (Gray & Kaye 2023, p. 21). The Hague women survivors were not served, except in the process sense of service of originating proceedings in a court exercising Hague jurisdiction. Rather from their perspective they were processed by technocrats of legal machinery that were either indifferent to the gendered and nuanced context of power and violence that the women were in, or keen to perpetuate patriarchy through hurting and making unsafe one woman at a time.

5. Conclusion

The Australian Lawyers Alliance state (Kerr 2018, p. 1):

When the Hague Convention was ratified, it was no doubt envisaged that it would assist in protecting children from harm. However, in practice it is often having the effect of preventing women and children from escaping violent fathers. Like many protective measures introduced by the legal system, these provisions are now being used as a weapon against women and are infringing their human rights.

In listening to the “Hague” women survivors of domestic and family violence, they tell of a legal system and its officials who continue the violence. This tells a twofold story. The first concerns the obvious need for the Hague Convention, or at least its administration in Australia (which was the experience of most of the women that we spoke with), to better deal with women, violence, context, and not facilitating legal systems abuse. Other signatories to the Hague Convention, Japan for example, have placed within their domestic Hague laws greater scope for return applications to be rejected based on the best interest of the child and awareness of returning a child to a context where there is domestic and family violence cannot be in their best interest (Freeman & Taylor 2020, pp. 155–156). In late December 2022 Australia enacted changes to its domestic Hague laws clarifying that courts can consider domestic and family violence when assessing if there would be a grave risk to the child if returned.¹⁵ It is too early to determine whether this change will make a material difference to women survivors of family and domestic violence who are “Hagued” in Australia (Gray & Kaye 2023, p. 21) or whether it would have resulted in a successful defence of the return orders that were made against the women we spoke with.

The second is on the significance and importance of the voices and experience of those who are “before the law” rather than of the law. The women we spoke with experienced the Hague Convention and the lawyers and legal institutions that they interacted as a continuation of the domestic and family violence that they tried to remove themselves and their child(ren) from. The women encountered a system working for their perpetrator that was actively working against their security and safety. The combination of government lawyers (CA), formalistic private lawyers, and barely resourced community centre lawyers conspired to create a situation in which it was impossible to remedy violent situations. The women detailed many moments of failed lawyering where they have not been believed or that the logic of the law is paramount and necessitates strict legal interpretation. We see many of the techniques used by divorce, criminal, and poverty lawyers to deflect the clients’ interests away from the directions the lawyers wish to take. The women's agency has effectively been crushed by legal professionalism which at times appears to veer away from dispassionate impartiality or even commitment to their cases, to an explicit support for patriarchy and rendering women and children unsafe.

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).