#174 The Hague Convention & Domestic Violence: Fleeing to Safety – Returned to Abuse
In this episode of the FiLiA podcast, lawyer and activist Sudha Shetty talks to us about the often desperate consequences of The Hague Convention for mothers and their children who are fleeing domestic violence. Her response to this injustice has been inspirational: the Hague Domestic Violence Project which she founded is a beacon of hope which we hope to build on through our international Hague Mothers’ project.
Listen here (Transcript below):
Transcript:
Ruth: Hello and welcome to the third in our series of Hague Mothers podcasts. I'm Ruth and I have the privilege of coordinating this project for FiLiA. In previous podcasts, we talked about the injustices created by The Hague Convention - for mothers and for their children. The issue of domestic violence has been front and centre.
The Convention was originally targeted at fathers who took the children across international borders. It was intended to ensure the swift and safe return of those children to the primary carer - assumed to be the mother.
So the legislation did not consider why a parent might take their child. The Grave Risk or Intolerable Situation defence focuses only on the child. The risk to the mother is of no interest to the court.
To discuss this issue, and the work that's been done internationally to acknowledge the significance of domestic violence in Hague cases, I'm absolutely delighted to welcome lawyer and activist Sudha Shetty who is working with us on the Hague Mothers’ campaign.
Sudha Shetty: Lovely to be here. Ruth, thank you for inviting me.
Ruth: Sudha is the founder and director of The Hague Domestic Violence Project at UC Berkley. Her research focuses on international child abduction and violence against women. She's been working with judges, lawyers and academics across the States to create judicial handbooks and to provide training, to help protect women and their children from the abusive consequences of The Hague legislation.
Sudha is also a founding member and Chair of Chaya, a grassroots South Asian domestic violence prevention programme in Seattle. And she's the recipient of many, many awards, including the Father Drinan Award for forwarding the ethics of pro bono and public service in law schools.
Thank you so much for being here Sudha, and thank you for being part of the project. So if we could start by finding out how you first became involved in The Hague Convention?
Sudha Shetty: That's very interesting. It's just one woman. We'll call her Jane Doe. I was actually at Seattle University Law School at that time and also the Director for the Access to Justice Institute. And my work was really looking at access for people of colour and immigrants into the courts.
And I was doing a lot of domestic violence work, but my work was only focused on immigrant mothers, looking at deportation proceedings, looking at access to the courts, and working with the police on that.
But then this case came across and it was sent by Professor Jeffrey Edleson from the University of Minnesota. He said there is a mother who needs some help. She came to me, reached out to me to be a child expert on her case, but I think you need to meet her.
And in walks Jane Doe and she sits down and she tells me that there is this case and mentioned a petition that has been filed against her. I looked at it and I said, what are you talking about? I've never heard that before. And I've been doing this work on domestic violence. I pretty much know the ins and outs of domestic violence. So I don't understand this one. And I said, why don't you just tell me the story.
She had gotten married to German citizen, moved to Germany. She was a doctor here in the US, practicing doctor, but because of getting married to this gentleman, she moved to Germany and was not able to work because she did not have work authorization. She was living at home, got pregnant and when she was sitting at the doctor's office for her OBGYN exam, she read a brochure and she saw what was written there about domestic violence and realised that she was actually a victim of domestic violence.
And so she then went to the police station to complain about it. And the police brought her back to him and told him in German ‘watch out, she's going to be running away, take away her passport’. And so then she realised that she was not going to get any help from the police. So she went to the American embassy and the American embassy against all odds, helped her.
They came, picked her up and her kids, she had two kids by then and took her away. And so she came back to the US to her family, and filed for a dissolution, for a divorce. And the divorce case had already started when this Hague petition was filed against her. And I had no clue, I had never heard of it. Did not know what it meant, did not understand it but I did realize that there are now two countries involved in this issue. She told me that the worst part of it is that the hearing is going to be very quick and her kids might have to go back.
So I told her I needed 24 hours to go through this quickly, to figure out what it is. But in the meantime, I told her, you have to tell your lawyer, who's doing your dissolution proceedings, that they must put domestic violence in your dissolution proceedings, because if it is in the brief, then we can use that for this case as well. And that is how it all started. This whole project came about because of Jane Doe.
Ruth: That’s an extraordinary story, but I think it's a frequent one. Often lawyers have never heard of The Hague. And then when they hear it, they say we're appalled at the injustice and then they get involved. So it's really what happened with you. I know in our conversations before, we both see this as a feminist issue, particularly in relation to the inequality women face when they come to court. Do you want to tell us a little bit more about that contextualisation?
Sudha Shetty: As you said before, the convention was created because there were fathers taking their kids across international borders. And I totally believe that we need to have protocols in cases like this, but I also think that the convention did not think of the unintended consequences of this treaty. Essentially now more than 60% of the taking parents are mothers. And the mothers are only fleeing because they want to protect themselves and their children from domestic violence. They realise that the country they're in is not giving them the protection that they need. And they have tried everything and it has not worked.
The only solution they have is to take the children away - and they do know the consequences they're going to face when they take the children and go across international borders. But you know, for these women it's either that, or they will lose their life or they might lose a child. They have no choice and they have no one to turn to. This is the only choice that they have. These women then end up being in a country where they might have no work authorisation, have no resources, do not know how the law works, do not have anybody to help them. In some cases, they may move to family, but in some cases they may not, and then suddenly they have a petition filed against them.
And you have somebody who now is struggling to find a lawyer, doesn't know the law and they find the lawyer who doesn't have a clue. So now they're trying to educate the lawyer, the lawyer is not trying to figure out how do we work on this. They get nothing, no help from anybody whatsoever. They don't have the finances.
So really for women, it's like 10 strikes against them. First, you have a strike for being a woman. Then you will get another strike, for being with a man who's battering you. And then you have 25 more strikes when this [a Hague petition] happens to you. It's a huge disadvantage.
Ruth: It is, isn't it? And I know that you've done a lot of work with immigrant women, where there are even further disadvantages that pertain to them. So do you feel that the whole approach that's being taken to The Hague at the moment actually acknowledges that in the courts?
Sudha Shetty: No, because The Hague’s primary responsibility is to send the children back to their residence, habitual residence that they came from and then custody decisions are to be made in that country. So they do not look at any of those things.
What we are trying to say, or what I'm trying to say is that when court makes a decision to send the kids back, they essentially made a custody decision because when the child goes back, the courts there think, oh, you know, that foreign court has sent the kids back that means the kids are meant to stay here.
And more often than not, the mother also has a kidnapping charge filed against her for taking the child. So most mothers go with the children. So the moment she steps onto the soil of that country, she's taken away for kidnapping charges. She's in jail. He takes the kids to court and says, there's nobody to take care of the kids. So he ends up getting custody of the kids.
Most people don't understand that no matter how educated you are and how much finances you might have at home, but when you take your kids and you go away, you have nothing left, it is pretty much starting from scratch. And so it's a devastating thing for women because all they’re trying to do is protect the children and themselves, that's it, that's all they're asking for. They're not asking for anything more. They’re just saying. I just want to make sure my kids are safe and I am safe.
Ruth: Yes, absolutely. I first heard of you through The Hague Domestic Violence project, which is an extraordinary beacon of good practice in this very damaging area. Would you like to tell us a little bit about how that project came into being, and indeed what you feel achieved?
Sudha Shetty: Well, Jane Doe walked in, I had 24 hours to figure out what this was. I read up everything. And then I realised, oh my God, this is a systems problem. We've got to change this bloody system; we've got to change the treaty.
So I went to my librarian, the law school, and I said, ‘look we’ve got to change this treaty’ and he goes through it and everything. And he says, give me 15 minutes, come back in 15 minutes, I come back in 15 minutes and he says, Have you read this there are 72 countries (at that time, there were 72 countries that had signed up)? Every one of those 72 countries has to agree to what you have to say, and then they have to sign up. You think any of them are going to listen to you? Who do you think you are?
And I realised, oh, yes, that is a problem. Because the majority of the countries do not even have human rights laws, forget addressing violence against women.
So the next step I have to do is look at it for the US so if it is for the US I need to first find out and educate lawyers. I have to educate moms, these mothers have no clue - they know about The Hague but they don't know what they need to prepare in order for that. And then I need to educate judges because the cases just come in front of them and sometimes it's just that one only case that might come in front of them because we don't have a special bench [in the USA].
England has a special Hague bench. Australia does. US doesn't, so it's federal and state courts. It could be any of the courts the case would go - lots of these cases go to small state courts. When The Hague petition is filed and the left-behind parent comes to the US, they have the Office of Child Support who give him a whole stack of information, give him help, give him an assistant, and she has nothing.
And so I thought, okay, I've got to help create something for judges. So immediately I put out a call for students to volunteer. I got 70 volunteers.
Then I decided I've got to have LexisNexis and Westlaw who are beacons that help collect all the cases, all the information. I got them on board, they gave us every help possible. They even created a huge theatre for us, so that everybody would know about the stories of the women; we created a vignette and a play out of it, helped by Westlaw.
And then I started working with different states, getting Supreme Court judges of each state to chair committees and create bench guides for judges.
Then I decided I needed a lawyers’ practitioners’ guide. We would get lawyers calling us and saying, what do we do? How do we do this case? I wanted to make sure that we put all the social science of domestic violence into it because there are certain exceptions [available as defences in Hague cases]. And I wanted to make sure that we used the Grave Risk exception for domestic violence.
And so that's how the project got started. And I then realised that in order for me to really make it known, I needed to have enough information on it. I needed to have research, then people would believe me. Otherwise they would be like, oh yeah, sure. There's one case here, one case there, what do we care? It's not a big deal.
So then I started knocking on the door of the National Institute of Justice and kept talking to every program officer and telling them why it was important. I kept hanging out in Washington DC. I would go there twice a month at least, knock on doors, talk to them. Finally, they agreed and asked us to apply for a grant. We did. We got it.
I got Professor Edleson from University of Minnesota and Professor Taryn Lindhorst from the University of Washington to partner together to do the research. So they started the research, they wrote a book, it got an award. [Battered Women, their Children, and International Law, NUP, 2012]
And then the Violence Against Women Office said, we are going to put money in and create a funding stream for people who want to actually work with the courts. So that's how we got a grant - we actually became part of the funding stream. So we've made some of those changes. The paper that we’re writing, Dr Edleson and I, lays down the whole history.
Ruth: That is an extraordinary story. The idea, at the heart of it, of making sure that Grave Risk exception included domestic violence. How successful do you feel you've been in that key issue?
Sudha Shetty: Most lawyers actually don't know how to put that in. So it was very important to start educating lawyers, because if they know that can be used, they will. Because when you look at the treaty and you look at what it lays out, essentially, it does not say anything about domestic violence, so most lawyers don't even think about that.
And ‘grave risk’ essentially has been thought of like it would be now in Ukraine, bombs are falling and that's a grave risk, you can't send the child back there. But they never thought anything about sending a child back to a home where there was an enormous amount of violence. Children are exposed to it, even if they are not in the room, they can hear it. Children can sense the danger that is coming in when the door opens and he walks in.
So the most important thing is that I needed to educate judges and lawyers. And so I started doing the circuit in the US, training lawyers through the ABA, through all the different institutes that are there. I started to go into the judicial training avenues and started educating judges on this issue and why it’s important. We need to add that.
Working with Jeffrey Edleson has really been wonderful because he brought that piece, the social sciences piece, and I bring the law and the activism. That has really helped us to actually put domestic violence in the forefront to be used as Grave Risk. It's being used, but I still think it needs to be done more often. And I think the more we talk about it and the more we say that it's important and if lawyers start to use it, then judges start to see it. I think it will make an impact.
Ruth: It's a powerful combination - as you say, the law and the social sciences with the evidence base. Wonderful. So has this work had an impact beyond the States?
Sudha Shetty: Yes. I used to get calls all the time. Australia has called us a couple of times, some of the folks there, because of the work; New Zealand has called us. In Singapore, the Justice of the Supreme Court took our bench guides to create one for the Singapore court so that the judges would have that information.
We also worked with Japan. Japan was getting pressure from the US to sign the treaty because there were all these left-behind parents, fathers who organised and were putting pressure on the American embassy in Japan to make sure that Japan signs the treaty.
So for a whole year before they signed the treaty, Japan sent groups of lawyers to meet with us, to talk about it. And Japan never had family law before. So now they had to rethink and create a family law system if they sign this treaty. And we talked to them about some of the problems. Every country when they signed on, they have to then create implementing legislation in their country - how the cases will be heard in court.
And so we told Japan that one of the issues that the US had is that we did not put more protections for women; that there was no language for domestic violence; and that there was no financial support for the mother at all. And these were three critical things that were needed in the implementing legislation. So they have actually done really well. Their’s is one of the best legislations.
Now I'm helping India. It's now with the Punjab High Court. India has a group of incredible mothers who fled back with their children because of domestic violence. They are very organised and they put pressure to the ministry to say to the Women and Children's Ministry not to sign the treaty. So it is now with the Punjab high court. And I told them that Japan uses the best language, that they should just use the language that Japan has.
And so my hope is that the new treaty that gets signed will create implementing legislation that will match Japan's and that will give some teeth for domestic violence to be entered into the courts.
Ruth: Fantastic. So good to know that there are signs for optimism in this arena. Given all you've achieved, and all you’re still doing, we were thrilled when you said you would be part of this project. Can you tell us why you said yes, and what you hope this project will achieve, that you couldn't achieve in your own right?
Sudha Shetty: I think we need to be more organised in each country because I'm only looking at cases that came into the US, while you are in England, in Wales, and you'll only look at cases that come into your country.
So you generally do not follow the cases that go out of your country. You follow the cases that come in your country. And so you're trying to create resources within your country to for mothers that come in there. I think that if we were all organized, we could all make sure that the resources that we put into place are very similar everywhere, so that if a woman from England is coming to the US, she knows that it will be similar and that advocates there can work with her.
The other thing that we had great difficulty with, these mothers flee like that [clicks fingers]. They've been planning in their mind, planning in their mind, then when the moment comes, they're out. They can't take anything because it raises suspicions. So they flee with nothing.
So often we don't have enough material about the domestic violence. All we have is her anecdotal stories. And so if she has gone to a doctor because she received wounds, or to the police, we don't have any of those reports, and she dare not get them because she'd be afraid that it might trigger back to him. So she doesn't get them.
So one is to make sure that these women who are thinking of leaving, that they bring the information with them, or that the advocate in that country is already known so that they can then provide the information quickly, because the case works so fast we don't have time for that.
We also found that every case, if they had an expert testimony of the children who witness violence, somebody who comes in and talks about it and the impact and the psychological damage that it does to kids, actually would help in her favour.
We have to make sure that consistently in these cases that they do have such an expert, and that this expert understands to tie domestic violence and the psychological abuse and the impact together. Most of the time, they don't tie that in. So, I think by us working in different countries together and understanding all of these things, we can then assist the lawyers in each of our countries in how to prepare for these cases.
I'm hoping that we can then actually be able to […] we cannot guarantee anything, but at least we can tell the mother - we’re here to support you and we will do everything we can to help you. And you're not alone. And that I think is the biggest message that we need to give - that we are all coordinated and we're all there to support her because she's often alone.
Ruth: That is a powerful way of ending. She's not alone. Thank you so much Sudha. Thank you for being part of this project, and for the podcast. And we'll be hearing lots more from Sudha in the future.
Sudha Shetty: Thank you so much.