When escape from violence is treated as abduction by the Hague Convention, this legal tool designed to protect children can turn into a system that endangers the very people it is designed to protect.
Barbora Janauerova
Many mothers who have experienced domestic violence in one country and left with their child to seek protection often try to defend themselves in court under Article 13(1)(b) of the Hague Convention. This article allows a court, in exceptional cases, to refuse to order the child’s return if there is a “grave risk” that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
In practice, however, courts accept this exception only rarely – as shown both by Czech data, which BIRN obtained exclusively from the Office for International Legal Protection of Children, and by international statistics collected from available studies.
Between 2022 and 2024, Czech courts heard 52 Hague Convention cases and refused the child’s return in just six of them – and only once on the basis of Article 13, the “grave risk” exception.
The Office for International Legal Protection of Children (UMPOD), which handles the Hague agenda in the Czech Republic and usually represents the child in court, considers it appropriate that exceptions under Article 13 remain rare. According to UMPOD representatives, the main aim of the Hague Convention is to give legal certainty and the swift return of the child to a familiar environment. On the question of domestic violence, they say they would always support the victim – if she could prove the abuse.
Representatives of NGOs and lawyers BIRN spoke to describe Czech courts as extremely cautious in these cases – they often place more weight on the formal aspects of the proceedings than on the safety of the child and the parent who is caring for them.
Marketa Chudackova, a Czech lawyer, argues that the problem is not limited to the impact on mothers themselves. “The real issue is what children are forced to live through afterwards. By refusing to examine domestic abuse and the personalities of the parents in Hague proceedings, courts fail in their duty to act in the child’s best interests. The child disappears from the process. Courts do not ask what life will look like for the child after a formalistic decision, especially when the parent who has been the primary caregiver cannot realistically live and work in the country of habitual residence,” she tells BIRN.
A similar picture to the Czech Republic emerges from global statistics. “The law in almost any state tends to put parental rights above the rights of the child,” Czech MP Barbora Urbanova, who has long worked on domestic violence, tells BIRN. “The right of a parent to their child is prioritised over the right of the child to grow up in safety.”
Merle Weiner of the University of Oregon points to a gap between what mothers say in court and what courts actually recognise. “In one recent analysis, 79 per cent of the mothers who fled reported experiencing domestic violence or violence against their children, but Article 13(1)(b) was accepted by the court in only a fraction of these cases – roughly 17 per cent,” she says.
“Of course, there may be false or unfounded allegations in some cases. But academic studies say that demonstrably false reports are a small proportion – typically in single digits,” she adds.
In reality, most cases run up against another problem – not that mothers are lying, but that violence is extremely difficult to prove. In many cases, it takes the form of psychological, controlling or economic abuse that leaves no visible traces. Many women never report the violence at all, and the court then has no police report or decision it could recognise as evidence.
“Courts often expect an evidentiary standard close to criminal proceedings – as if there should be photographs, recordings or witnesses. But in Hague proceedings, which are supposed to be concluded within a few weeks, there is simply no time for that,” Weiner explains.
Time pressure and a high evidentiary bar also shaped the case of a woman called Maria*. She describes long-term control and humiliation with several incidents of physical and sexual violence, including rape, but her lawyers chose not to rely on Article 13, as they considered proving violence in a Hague case to be ineffective and focused only on proving habitual residence. Regardless, they did not succeed in court.
Proving violence retrospectively in court is very difficult. “Courts often look for one big, provable failure – a bruise, a witness, a recording. But domestic violence is a pattern. If you set the evidentiary bar too high and focus only on individual incidents, you lose sight of the reality of the relationship,” says Weiner.
Many women do not report domestic violence at the time it is happening – estimates suggest that only about one in five serious situations reach the police, even though surveys show that up to 30 per cent of women in the Czech Republic have experienced domestic violence. This matches data from the World Health Organization, which shows that 25-30 per cent of women worldwide experience physical or sexual violence from a partner. The reasons not to report such violence are similar across countries: fear of the partner, fear of retaliation, shame, economic dependence and a lack of trust that the system will help.
When the Hague Convention was adopted in 1980, it was signed by 23 states, mainly in Western Europe and North America. Today, it is applied by more than a hundred countries, including states with very different legal systems – from Canada to Ukraine. Since the 1990s, many courts, especially in Europe, have interpreted the notion of “grave risk” very restrictively – only as an immediate, concrete and easily demonstrable danger. Psychological violence, manipulation or the long-term humiliation of the mother in front of the child remain outside the legal frame. And in some cases, courts even order the return of children to countries torn by war, such as Ukraine.
Even when a court accepts the Article 13 exception, in the EU a domestic court can overturn the original conclusion (under Brussels II ter). Courts often opt for return with “protective measures” that the parent remaining in the original country must comply with (a restraining order, separate housing for the mother, police supervision, mandatory therapy for the abusive parent, etc.). In practice, however, the enforceability of these measures is uncertain.
“It is an illusion of safety,” says Weiner. “Judges have no way of predicting whether those measures will actually be enforced – whether the police will intervene if the partner violates the order, or what forms of control and intimidation he may continue to use that are not explicitly prohibited on paper.”
This creates a paradoxical closure of the system: exceptions are rare, and even when they are granted, European rules and faith in protective measures often lead to the same outcome – the mother and child returning to the very environment that they fled.
