Good intentions going wrong

This is what they mean by unintended consequences. The Hague Convention on the Civil Aspects of International Child Abduction was drawn up in 1980 to protect the interests of abducted children by forcing their return to their country of origin.

That sounds good on paper and we are all sympathetic when we hear heartbreaking stories about a parent who has kidnapped a child and fled. The convention orders their return. However, it has also had the disturbing side-effect of re-victimising women who have fled domestic violence.

A case covered this week by RNZ seems to be typical. A New Zealand woman whom RNZ calls Jane, as her real name is suppressed, was subjected to psychological and physical abuse by her violent partner in Australia. After her partner was arrested and charged for assault, she finally managed to get away. Unable to access a home or shelter in Australia, she returned to New Zealand. But as she brought her son with her, she was in breach of the convention and has since been ordered back to Australia. Jane’s lawyer has dealt with five such cases in the past year.

In part, the story is about the poor treatment New Zealanders get in Australia. Jane was denied both benefit support and legal aid, which made returning home with her son her last option. Ironically, when her Australian partner challenged a New Zealand Family Court decision in our High Court, and won, he had access to New Zealand legal aid.

In another case, a woman who is 33 weeks pregnant has been ordered back to Australia with her daughter after losing a Family Court case. She too had fled a violent former partner in Australia. The woman’s father said the unborn baby’s health has been suffering due to her stress.

This is clearly unfair and surely contradicts the Hague Convention’s worthy aim of safeguarding the interests of children. It also reeks of the callous human rights abuses we have seen elsewhere in Australia. A US academic has argued that while the convention could not be changed, our courts could rethink their interpretation of the law. In the Jane case, the Family Court declined the deportation of the child because his welfare would be at risk. But the High Court overturned that.

It has been reported that New Zealand law does not recognise domestic violence when Hague Convention cases are considered. The convention itself was drawn up before the impact of domestic violence was widely understood. In doing what we might think is the right thing, to reunite children with parents, the convention has compounded stressful, difficult and violent situations. It is not even as simple as saying it seems to value the child over the mother, as that overlooks the damage done to children who witness domestic violence.

‘‘We need to know that the systems we design to ensure the well-being of children are focused on their best interests,’’ Washington State Supreme Court Judge Barbara Madsen wrote in 2012. ‘‘The Hague Convention has this goal at heart, but in the actual application of the treaty, the safety of children and of battered women may be compromised.’’

The solution seems clear. Parliament needs to find a way to protect battered women from the perverse side-effects of a convention that was only ever intended to do good.

In doing what we might think is the right thing, which is to reunite children with parents, the convention has compounded stressful, difficult and violent situations.