Held in Sandton in June 2024, the HCCH (Hague Conference on Private International Law) Forum on Domestic Violence and the Operation of Article 13(1)(b) of the 1980 Child Abduction Convention (Forum) in South Africa was the first of its kind. The timing of this prestigious event was highly momentous with a new government having just been appointed in South Africa. Thus, the conference marked a time of change and a consideration of critical issues in the protection of children’s rights.

‘The Hague Convention is the Convention on the Civil Aspects of International Child Abduction, signed at the Hague on 25 October 1980’ (Lakshay Soni ‘The National Conference on Nri Marriages Law Family Essay’ (www.essaycompany.com, accessed 28-9-2024)). It has been ratified by 103 countries. South Africa acceded to this Convention on 8 July 1997. It entered into force for South Africa on 1 October 1997. ‘Each signatory country agrees in respect of a child abduction to its country that it will not enter into a full investigation of custody, contact or other parenting arrangements etcetera in respect of the child, which instead will be left to the court in the country where the child was last habitually resident, and instead merely secure the child’s early and safe return’ (Soni (op cit)).

‘In order to pursue an application, the left behind parent must show:

• That there has been a wrongful removal or retention. A removal is at the date of departure and a retention follows a lawful removal eg, a retention after an agreed period of holiday.
• They have rights of custody and have been exercising those at the time of the removal or retention.
• The child must have been habitually resident in the country it left with the abducting parent.

The process is summary in nature and there are limited defences which the abducting parent can rely upon namely:

• The left behind parent consented or subsequently acquiesced to the removal of the child.
• The left behind parent did not have rights of custody at the time of removal.
• Article 13(b) there is a grave risk of harm that the child’s return would cause both physical or psychological harm, or otherwise place him/her in an intolerable situation.
• The child objects and is of an age and maturity of which is appropriate to take account of the child’s views.
• Settlement – the child has been living in the new country for 12 months or longer.

A return order is for the child to be returned and not the parent. However, if the parent agrees to return, the court will prefer the parent to return the child and special measures can be put in place to secure a safe return’ (Kim Lehal ‘International Child Abduction and The Hague Convention’ (www.rwkgoodman.com, accessed 28-9-2024)).

The aim of the conference was to facilitate a purposeful dialogue between representatives from all around the world offering all relevant perspectives on the defence of article 13(b) that a return of a child to his or her home country would place them in an ‘intolerable situation’ or at ‘grave risk’ of harm. The forum was intended to be an evaluation of the status of the operation of the 1980 Hague Convention, consideration of its evolution across the world and whether it continues to be fit for purpose.

The conference was made up of 11 sessions led by experts and active participants from a vast array of disciplines from offering differing perspectives on –

• key actors in the operation of article 13(1)(b) and domestic violence cases;
• lived experiences of abduction cases involving domestic violence;
• approaches to hearing the child in return proceedings where domestic violence is raised;
• mediation and alternative dispute resolution;
• return and non-return decisions in abduction cases involving domestic violence (including risk assessments);
• risk assessments and protective measures;
• post decision – preserving the best interests of the child (supporting children and their families);
• assessment of possible relocation and situations involving domestic violence; and
• identifying the need for further research and collection of data on abduction cases involving domestic violence.

The conference was a great success and marked the beginning of a much-needed deeper review of article 13(b) of the 1980 Hague Convention. The consensus from the forum was that further discussion, collaboration and research is needed on what is now a highly topical and important international issue concerning the protection of children across borders.

Kim Lehal is Partner and Head of International Children at RWK Goodman.