The NY Times article suggests that sometimes this Agreement has a dark side: “in many cases children and custodial mothers are being sent back to a dangerous or abusive father from whom they fled.” Recent data received from countries who are part of this Agreement show that in many cases, the abductors are mothers with primary or joint/shared custody of the child(ren), and a majority of them report to be fleeing from abuse. Therefore, many of these abductions could actually be termed “flights to safety.” In these cases, the “reunification” is actually unifying the children/mothers with their abusers – counteracting the purpose of the Hague Convention in the first place.
In some cases, and where violence can be absolutely proven, some courts do not order a return of the child(ren)/mother back to their home country. However, many courts are reluctant to sort through abuse allegations – preferring to send the parties back to the country they fled from for resolution of the abuse issues.
However, it is important to note that the convention itself sets a high priority on the child’s best interests and does not require return of the child in every case. There are particular factors that are taken into account, such as whether the left-behind parent has custody rights, whether there is a grave psychological or physical risk to the child, or whether the child will be returned to an “intolerable situation.”
“Anti-Abduction” advocates state that child custody is not actually decided in a Hague case – but rather the purpose of the convention is to decide which country will decide an issue – the child’s home country or the country where the child is taken.
What this article suggests is that what is seemingly “abduction” under the Hague Convention is often an attempt at bringing a child to safety – and these situations need to be examined carefully so that the best interests of the child are really being taken into account.