The 1980 Hague Convention on the International Child Abduction is today called upon to address the reality of domestic violence and the parents, mainly mothers, who are forced to leave the child’s country of habitual residence without being able to obtain prior permission from the court, let alone the consent of the other parent and their abuser. In the recent judgment in Verhoeven v. France, the European Court of Human Rights addressed such a case and ultimately the question of whether it is compatible with the best interests of the child and the right to private and family life of the parent to be required to return to the country from which he or she left for reasons of domestic violence, in order to have the competent courts there again decide the question of the child’s removal to another country.

In this article I argue that in these cases, where there is no other option but to ‘flee’, the distinction between the trial for the return of the child and the trial as to where the child in question should ultimately live pursuant to his or her best interests is not and cannot in practice be absolute.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction creates, in short, a system between the contracting states for the immediate return of children, who are moved abroad by one parent without the consent of the other, to the country where they previously resided. The Convention calls this movement “abduction”. Indeed, the result that the framers of the Convention had in mind to deal with was that of the parent who, dissatisfied with the outcome of a legal dispute that would deprive him or her, for example, of custody, decides to “abduct” the child and flee with him or her to another country. In this light, the choice of the word “abduction” is interesting; the emotional load of the word conveys the children’s separation from what is familiar and intimate, that makes them feel safe: their school, their friends, their wider social and family environment and, most importantly, the parent or person in general who is also their main carer.

The Hague Convention today is facing another reality, that of gender-based violence. As international mobility increases and it becomes more and more common to create “cross-border” families, there is also an increasing number of cases of parents, especially women, who are in countries other than their country of origin, without a support network or family environment, to which they have moved, i.g. for study or work, and have remained there after meeting their partner, who is usually a citizen of that country.

As the couple’s children grow up, they may become attached to the environment, language and society in general. At the same time, often, these relationships, which may begin as “fireworks” (the phase known in literature as “love-bombing”), pass through the stage of “discard”, and violence also enters the relationship, even in the form of psychological violence and financial abuse. Furthermore, although these women often take care of the child almost exclusively, the shift in the trend of legal systems internationally and especially in the EU towards co-parenting has resulted, in most cases, in the other parent, usually the father, having the right to co-determine the child’s place of residence and therefore a right to custody for the purposes of the Hague 1980 Convention. As a result, any removal of the child to another country by the mother is, pursuant to the Convention, illegal.

Mothers are then, precisely because of their illegal action, often threatened with legal proceedings at the country of previous habitual residence to lose custody of their children. The alternative, to judicially seek relocation out of the country, is for most mothers either an utopia, as it is difficult for a national judge to accept the child to change residence (just as he or she would not accept a change of school, change of house, etc.) or a “luxury”, as initiating such court proceedings in cases of serious domestic violence may be impossible due to lack of resources or even safety.

With the recent as of 28.03.2024 judgment in the case of Verhoeven v. France, the European Court of Human Rights was asked to examine the case of a mother, a French citizen, who refused to return with her child from France, where she stayed after their holiday, to Japan, where they had previously lived, and to determine, in the context of that case, the best interests of the child and its role in a case of international abduction with elements of domestic violence.

After a lengthy judicial process, the French Courts rejected the mother’s claim that returning to Japan would expose the child to serious psychological harm because of the father’s domestic violence against the mother and the child’s young age, given that she is the child’s primary carer. The courts also rejected her relevant argument that the application of Japanese law would lead to a deprivation of her parental rights and a complete severance of her relationship with the child.

The mother then appealed to the European Court of Human Rights, claiming a violation of her right to family life as guaranteed by Article 8 of the ECHR. The Strasbourg Court found that in this case the French Courts had ruled in accordance with the law and that there was no violation of the applicant’s right to family life.

Notwithstanding the above negative judgment, it is worth sticking to the dissenting opinion of the court that “The Hague Convention regulates the question of jurisdiction in cases of child abduction. With regard to domestic violence, it does not provide a sufficient framework to allow the complex issues associated with this phenomenon to be properly addressed. It needs to be revised in order to meet current needs. In the meantime, the Court should further define in its case law the criterion of “effective control” in order to meet the need to ensure adequate protection for direct and indirect victims of domestic violence. While every effort must be made to apply the Convention and the Hague Convention in harmony, the principle of harmonious interpretation has its limits, which derive from the Court’s obligation to fully perform its duty and apply the Convention in a way that makes its guarantees specific and effective.

As regards the present case, I cannot agree that the national courts did in fact take into account all the factors which might fall within the scope of the exceptions provided for in the Hague Convention, not only as regards the allegations of domestic violence but also as regards the possible separation of the child from the parent who had primary care of the child, and that the reasoning of the national courts leads to the conclusion that they carried out an effective examination, as required by Article 8 of the Convention. If, on the contrary, the Hague Convention offered an equal choice between the two solutions, namely the return of the child to his father or the acceptance of his removal to her mother’s side, would the best interests of the child, as enshrined in Article 8 of the Convention, really weigh in favour of return?”

Going one step further in the above reasoning, we may ask ourselves: if the legal framework offers an equal choice between the two solutions, the child remaining close to his/her father or accepting removal on his/her mother’s side, how is the child’s best interests affected differently when such removal is ordered ex ante (in the context of a relocation application) and when it is confirmed ex post (in the context of a return trial following unlawful removal or retention of the child), so as to justify treating the two cases so differently?

In the light of this judgment, this article briefly attempts to address two issues:

1. How a parent can actually seek judicially to leave the country (according to the relevant case law of the Greek courts).
2. How should the Hague Convention ultimately be applied when a parent is requested to return a child to a country from which he or she ultimately had no choice but to leave?
3. How can I leave the country with my child?

According to Article 1519 par. 2 of the Greek Civil Code, a change of the child’s place of residence that substantially affects the right of contact of the parent with whom the child does not reside, requires the prior written agreement of the parents or a prior court decision issued at the request of one of the parents.

It follows from this provision that a parent who wishes to make a significant move with a child, both nationally and internationally, must not act unilaterally but must proactively apply to the competent authorities, even if he/she exercises the sole custody of the child.

Under the previous Article 139 of Law 4714/2020, which reformulated Article 1519A.C., a “final court decision” was required for a change of the child’s place of residence. Already by Law 4800/2021 the term “final” has been deleted. It is therefore accepted that a temporary measures decision is sufficient for the removal, while it is questioned whether a temporary order, which is not equivalent to a court decision, is sufficient.

In order to grant or deny a relocation request, the court takes into account in particular the following criteria:

– The real, substantial and rational reasons for which the mother seeks to move (professional reasons – imperative and unavoidable need to earn a living),

– the characteristics of the new socio-economic and family environment (regarding security, suitability and stability in terms of people, relationships and places) to which the mother wants to move, compared with the current situation,

– (c) the mother’s realistic planning for the relocation,

– the minor’s age, maturity, perception, ease of learning and adaptability to the new circumstances,

– the prospects for the minor’s education and subsequent socio-economic advancement in this new environment,

– the minor’s freely expressed will, which is found to be free and uninfluenced by the influences and submissions of third parties,

– the strong and stable emotional bond that has developed between the minor and the mother and the fact that the mother is capable of providing for the upbringing, health, supervision and education of the minor and is already providing a peaceful family environment, responsibly fulfilling her parental role,

– the way in which the mother proposes to adjust the conditions of communication between the father and the child, so that the latter does not have to change his life habits, does not have to make financial sacrifices disproportionate to his income and is not deprived of communication with his child, thus enabling him to be directly aware of his physical and mental development and to monitor his progress and development.

However, although the case law provides a fairly detailed map for lawyers, judges and parents on how to consider a relocation request, it seems to ignore the factor of domestic violence, from which the mother may need to leave. Without having to resort to examples of extreme physical violence and life danger, we cannot help but wonder what happens in the case where, for example, the financial abuse and coercive control is such that the mother cannot implement a realistic relocation plan. Can the best interests of the child in such cases be considered ‘technically’ in the light of the other parameters (school, social environment, etc.) and ignore whether the child’s primary carer actually able to endure and cope with his or her upbringing under these conditions?

2. How should the 1980 Hague Convention ultimately be applied when a parent is asked to return a child to a country from which he or she had no choice but to leave?

As already stated, in principle, moving the child to another country without the above conditions being met (agreement of the other parent or a court decision to that effect) amounts to an abuse of parental responsibility, which may even lead to its removal under Article 1532 CC, while at the same time it grants the parent left behind the right to request the return of the child to the country where he or she previously lived in accordance with the 1980 Hague Convention.

The most common defence of the “abducting” parent in proceedings for the return of the child under the Convention is the invocation of Article 13b, according to which “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that  there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

This objection is raised in particular in cases of domestic violence, while it is also being argued that for a child to see his or her primary carer, the mother, physically and psychologically broken in an environment of domestic violence must also fall under the notion of psychological harm that can place the child in an intolerable situation.

Further, the above criteria, which have been analyzed for the relocation claim, must be considered in the reverse perspective and in relation to the 13b defence, regarding the intolerable situation that a child may be placed in the event of his or her return to the country of previous habitual residence. That is to say, in the case where the court is satisfied that the child is adapted to the social environment of the new state, speaks the language and, in general, a realistic relocation plan has been implemented, which in other circumstances could have also led to the obtaining of judicial permission to relocate, it is unreasonable for the Hague Convention to act “punitively”. Indeed, despite its technical nature, the best interests of the child remain its core and it can only be applied in accordance with the social reality it is called upon to address. Can we expect a child to remain in a country where his or her primary caregiver is being mentally broken down and socially disappearing? If not, why can we force the child to return to that country without that parent?

The next legal question that arises is whether the strictly technical interpretation of the 1980 Hague Convention on the prompt return of the child is compatible with the International Convention on the Rights of the Child. As the dissenting judge of the ECtHR points out in the as per above judgment, at the time the Hague 1980 Convention was adopted, the child was an object of care and not subject to rights, such as the right under Article 9 of the CRS not to be separated from his or her parents against their will. In a case of domestic violence, how does the return of the child to the country to which the parent and primary carer cannot return, even for subjective-psychological reasons, ensure that the relationship with the child is maintained, when the parent is certain to be victimised again if he or she returns to that country?

Finally, why should the fate of a child be decided twice in fact, once by the court ruling the child’s return to the place of previous habitual residence and once by the court, which is called upon to decide where the child will live after his or her eventual return to that country? Are we as a judicial system not fooling ourselves by the assumption that a parent who has been forced to “escape” with the child from one country can then judicially seek to relocate from that country and the courts of that country will find the relocation in question to be in the best interests of the child?

As stressed in the opinion incorporated in the judgment “in a situation of domestic violence, for all the reasons mentioned above, it would be counterproductive to return the child in order to decide on the decision on the question of his or her “removal“: this question should be decided during the procedure concerning the return to the country to which the child has been removed. Assuming that the mother, as the parent who has primary responsibility for the child – either alone or jointly with the other parent – should accompany the child to the country where the child has his or her habitual residence and remain there during the proceedings before the courts of that country, would amount to a complete violation of the mother’s right to private life and personal autonomy, guaranteed by Article 8 of the Convention, as well as her right to freedom of movement, as guaranteed by article 2 of the Convention’s n. 4 protocol. In cases of domestic violence, there is also a serious risk that the mother will be exposed to repeated victimisation.”

In lieu of an epilogue:

Cases of international child abduction are another painful reminder that domestic violence between partners does not only affect the direct victim of violence but the child too. As necessary as it is to respect the mechanism for the immediate return of children established by the 1980 Hague Convention, it is equally necessary to strike a balance with the obligation to respect the right to family and private life of the family members involved in the whole process, and the need for the “conflict” that victims face in their private lives to be resolved quickly and effectively by our family law, rather than being litigated over and over again, re-enacting the trauma.

In this context, the legal distinction between the relocation proceeding regarding the child’s best interests and the choice of residence and the Hague proceeding for the return of the child may be useful, but it cannot be absolute, since as a judicial system we are called upon to resolve the family’s conflict as a whole, with the aim of enabling its members, and in particular the children involved, to return to normality as soon as possible.

If you are legally “stuck” in a foreign country with your child, you can also contact GlobalARRK. GlobalARRK is a UK based charity working internationally to support families who are unable to return to their home country with their children after a relationship breakdown abroad. They offer a range of support services to families in need including a helpline, legal information, signposting, befriending, peer support and domestic abuse recovery courses. They also conduct research and work internationally to develop policy to better protect international victims of domestic violence. For further information go to their website www.globalarrk.org or email info@globalarrk.org