You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence
Published Web Locationhttps://doi.org/10.5070/L328155744
This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return.
While the Hague Convention permits the trial judge to refuse to return a child when the taking parent is a domestic violence victim,and while more people than ever before recognize the appropriateness of nonreturn in this context, the law limits the nonreturn option. In fact, many judges complain that the law is too confining; they lament having to return the child but feel as though the law gives them no choice. Legislators have refused to make the judges’ job any easier. While judges now have helpful authority in some appellatedecisions and the Hague Conference on Private International Law’s new Guide to Good Practice on Article 13(b), these sources are uneven and still insufficient. In light of this reality, this Article aims to provide trial judges, as well as their law clerks, the tools and encouragement to promote justice and safety in these cases, evenwhen the legal doctrine may be problematic.
Alleviating judicial discomfort is not my sole purpose, however. Judge Alex Kozinski once wrote, “A troubled [judicial] conscience is certainly not pleasant, but the real-life, brutal consequences of an unjust judicial decision are suffered by others.” My chief objective is to change outcomes for domestic violence victims and their children who might otherwise lose.