Legal

Rima Hussein and Imane El Hakimi are both senior lecturers at Northumbria University, and domestic violence survivors. Rima is leading a project with the UK Ministry of Justice, support services and survivors, to create vlogs to help women get through the often traumatic court process; Imane is working with her on a related academic paper. We are delighted that they are now part of our Hague Mothers’ project team. Their experience and expertise will be hugely valuable.

We are grateful for their permission to republish this article.

One year on from the Domestic Abuse Act 2021 being enacted, survivors of domestic abuse in England and Wales are still navigating a broken system. Courts are massively under-resourced and face a huge backlog. Survivors often face cancellations, delays and postponements. And the wait for the next court date can be all-consuming.

In court, survivors’ experiences vary hugely, but there are common challenges, from dealing with solicitors and the Children and Family Court Advisory and Support Service to being scrutinised as a parent and not being heard or believed. What’s more, victims are often brought to court by their abusers, as a kind of punishment for leaving them.

We are currently partnering with the UK Ministry of Justice, support services and survivors to create vlogs, based on the following advice that we hope will help people get through this process. They are grounded in both research and our personal experiences of surviving domestic abuse and dealing with legal proceedings.

Prepare yourself

Hearings are hugely taxing. You have to relive traumatic experiences. Prepare yourself for any additional stresses, such as being told that the court didn’t receive your statement. Breathe. There is nothing you can do to change bad organisation but you can control how you react to it.

Make sure you seek advice and support from organisations such as FLOWS, the National Centre for Domestic Violence, CourtNav and support services such as the National Domestic Abuse Helpline, Women’s Aid and Rights of Women.

Each hearing needs recovery time. Give yourself space to process what has happened. Draw up a list of the things you love and keep doing them.

Get support in place

Write a list of the people to whom you can turn for support on hard days. Conversely, put in place boundaries with anyone who continues to enable the perpetrator or has a negative effect on you.

In terms of professional support, Claire Waxman, the Victims’ Commissioner to the London Assembly, highlights the importance and benefit of having a single point of contact throughout your justice journey. Local organisations, such as Lighthouse Victim and Witness Care, can put you in contact with an independent domestic violence advisor, an independent sexual violence advisor or an independent violence advocate.

Gather evidence from professionals

Different departments and sections of social services working in a siloed way – independently and without clear communication between them – has been shown to be one of the barriers to effectively supporting domestic abuse survivors in court. So, gather evidence, in writing, from as many professionals (GPs, teachers, social workers) as possible from the start. Log all incidents of abuse with the police. And keep all documentation and communication organised. You will need this in court.

Try to take on board professionals’ proposals when they are helpful and put your child’s welfare first. Challenge the professionals when they don’t do the same.

Know your rights

Research shows that court culture in England and Wales has been characterised by misogyny and victim-blaming. In Ireland, a 2021 report from the Children Living with Domestic and Sexual Violence group submitted to the Department of Justice warned that the child protection services and family court system could sometimes work in opposite directions, endangering victims by being too pro-contact. Childrens’ voices are often unheard too.

Read the government’s welfare checklist, which is used to make decisions about children, and Practice Direction 12J which mandates what should be happening in court to protect domestic abuse victims. If your solicitor is not supporting you or you are struggling to access representation, consider representing yourself to make sure you are heard.

Ask for special measures

You can ask for safety adjustments such as to arrive through a separate court entrance or to leave first after a hearing. You can also ask the court for permission to have the same support worker you’ve had from the beginning (because continuity is beneficial for both you and your child) and for that support worker to be present with you during proceedings.

The process for requesting these measures will differ from court to court, and implementation is patchy. Further, COVID has led a move to remote hearings. Difficulties relating to poor quality video and audio made it more difficult for some litigants to access justice. There is also more pressure on the system, as the rules have changed throughout the pandemic, causing delays and a lack of clarity. All this adds more stress to litigants who have to face their abusers in proceedings or be cross-examined by them. So it is helpful for you to know what the guidance for remote hearings is too.

Know your experiences are valid

We know from personal experience how difficult speaking about abuse is. In June 2022, one of us (Rima) wrote about how long it took me to find the words and courage to be heard: “I am scared to write but know I speak or am lost in the silent void that I have known for too long”.

The acrimonious and hostile experience of a courtroom can make you feel silenced even in a place meant to bring justice.

Going to court has a huge impact on your health and your family. There are no guarantees of a fair outcome and the whole process is dehumanising. What’s more, the end will be an anticlimax. You have been running on adrenaline throughout a process in which there are no winners. There is no easy way through, but each of us finds our own path, and many survivors harness their anger for change. This, after all, is how our project started.

by Harriet Wistrich, director, Centre for Women’s Justice

We are grateful to Harriet Wistrich of the Centre for Women’s Justice for permission to republish this article. It is clear from the stories shared with us by Hague mothers that the Hague Convention is increasingly used as a (highly effective) weapon of abuse by perpetrators.

The defeat of Amber Heard in the recent libel case brought by her ex-husband Johnny Depp has been described as signalling the end of the #MeToo movement. Certainly, anyone who may have been contemplating speaking out about abuse by a wealthy, powerful or famous man may think twice now if they have observed the terrifying onslaught of misogynistic hatred orchestrated against Heard on social media. Whatever your view on who was most at fault in the relationship, and it seems that even some domestic violence survivors are more critical of Heard than Depp, there is no doubt that she has been subject to the most vicious orgy of women hatred, whilst Depp who sent texts to his friend about “fucking her burnt corpse” remains uncritically adored by his fan base.

Interestingly, Heard did not name Depp in the article she wrote in the Washington Post, but the audacity of speaking publicly about domestic abuse when it was known the saintly Depp was her former partner was apparently the outrage. 

“Depp who sent texts to his friend about ‘fucking her burnt corpse’ remains uncritically adored by his fan base.”

Depp isn’t the first man to use the libel courts as a form of revenge for having been accused of being an abuser. Three years ago Centre for Women’s Justice held a massively oversubscribed public meeting exploring how wealthy men use the law to silence those that they accuse of abuse. We highlighted a number of cases including Stocker v Stocker, Lachaux v Independent Print Ltd, Economou v De Freitas and a case involving an indie musician who was suing a number of women who had shared stories of his abuse with each other. Nicola Stocker had posted a message on Facebook in which she stated her ex-husband had ‘tried to strangle her’ to warn his subsequent partner of his dangerousness. Her ex, Mr Stocker, a wealthy businessman sued her for libel. The case went all the way to the Supreme Court before she ultimately defeated him. But others have been less lucky, Afsana Lachaux, whose ex-husband took custody of their child having opted to use the manifestly discriminatory Sharia court of Dubai [he is a French national] was sued for libel through the newspapers that published her account of domestic abuse. She subsequently faced bankruptcy having been ordered to pay her ex nearly £100,000 legal costs in subsequent family court proceedings. Lachaux was joint winner of the Emma Humphreys Memorial Prize in 2019 and wrote of her experience here.

Women have always been fearful of speaking about male violence and abuse and in the early days of the Women’s Liberation Movement, a common refrain and campaigning theme was ‘breaking the silence’. We know that the majority of victims of male violence do not report, and the reasons are often because they fear being disbelieved or blamed in some way for ‘getting themselves’ raped or beaten or for staying in a violent relationship when they could leave. Indeed it has taken the campaigning of feminists to get the criminal courts to provide guidance on some of the most pervasive myths and stereotypes that exist around rape and sexual violence including where women are blamed for the way they are dressed or how they behaved. 

Whilst feminist advocacy has helped achieved some modifications to criminal justice practice including directions on rape myths and stereotypes, guidance on domestic abuse, sexual violence and other forms of violence against women on the CPS website and in the Judges Bench Book, such guidance has not been extended to courts trying non-criminal cases. Thus in defamation proceedings, the limited protections that exist for women in the criminal courts, go out the window and myths and victim blaming is unchecked. In the family courts, recent case law has highlighted significant inconsistencies in the interpretation and understanding of rape, coercive control and an absence of rules around the admission of previous sexual history. 

And it is not just in the libel courts that men accused of abuse seek to silence their accusers or seek revenge. Family courts have become a tool for some abusers to maintain control of women who have tried to leave the relationship using child contact proceedings to force the woman to fight repeated applications in court often spending any savings they may have had available. Campaigners have highlighted the increased misuse of the concept of ‘parental alienation’ as another strategy by domestic abusers to exact revenge as set out in this Observer special feature

“We also see abusers use the threat of reporting women with unsettled immigration status to the Home Office as a means of controlling their wives or partners or seeking revenge.”

Determined abusers can also be adept at manipulating other statutory systems to control or exact revenge against women who have dared to accuse them or leave them. A few years ago I was contacted by a woman, who I will refer to as Sarah, who was in a relationship with a well-known actor. She had moved in with him with her two older children from a previous marriage. After Sarah became pregnant with their child, he started becoming violent and abusive, so she reported him to the police. He had warned her that if she dared pursue the charges he would make her life a misery. And that is what he set about doing. He made counter allegations against Sarah, and she was arrested. He manipulated third parties to make allegations against her and her older child to the police and social services alleging that harm was being caused to their child. He applied for a non-molestation order against Sarah, alleging she was harassing him. Social services instituted investigations against her. She was a professional working with children, so social services reported the allegations to her employer. It was only when a lie told by the actor unraveled that she was able to stop the escalating campaign of revenge. Sarah could have lost her career and custody of her youngest child. The consequences of years of psychological abuse were none the less devastating.

We also see abusers use the threat of reporting women with unsettled immigration status to the Home Office as a means of controlling their wives or partners or seeking revenge. Equally, women who may be serving community sentences for crimes often committed in the context of being victims of domestic abuse can be further controlled by abusive partners who may seek to undermine their compliance with supervision requirements.

The tactics used by Depp in his claim against Amber Heard, have been described as a classic example of DARVO, “deny, attack, and reverse victim and offender”, a manipulation strategy where the abuser denies the abuse ever took place, attacks the victim for attempting to hold the abuser accountable, and claims that they, the abuser, are actually the victim in the situation, thus reversing the reality of the victim and offender. Like the term ‘gaslighting’ which has become more widely understood in recent years, identifying what is going on and naming the problem is the first step to resistance and fightback. It is critical that the courts and statutory agencies become wise to being unwittingly used by abusers to extend their manipulation of victims.

Original article: https://www.centreforwomensjustice.org.uk/new-blog-1/2022/6/13/cwj-manifesto-10-how-perpetrators-use-the-legal-systems-to-control-women

This paper looks at the experiences of women who have been ‘Hagued’: forced, through a court-facilitated process enabled by the Hague Abduction Convention, to return children taken unlawfully across international borders. It particularly considers how the Convention, which lacks specific mechanisms to account for family and domestic violence, is weaponised against women fleeing such violence. The authors also suggest improvements that could be made to the Hague: we will be following up these ideas through the Hague Mothers’ project.

One of the authors, Gina Masterton (QUT Centre for Justice) is working with us on the Hague Mother’s project. We are grateful for her permission to republish a version of this paper, co-authored with Zoe Rathus (Griffith University Law School), John Flood (Griffith University School of Humanities, Languages and Social Science) and Kieran Tranter (QUT School of Law).

Background

The Hague Convention on the Civil Aspects of International Child Abduction provides legal machinery to require the rapid return of children who are wrongfully taken from their country of habitual residence. Its original drafters intended it to address the situation where a non-custodial father took their child across international borders without permission from the child’s mother. However, it did not consider the circumstance where a custodial mother must cross international borders with her child to flee family and domestic violence, or that under the Convention she would be termed an abductor. Because the Hague Convention is a jurisdictional law—not a child custody or child welfare law—the return of a child to their habitual residence is primarily ordered so that the courts in that jurisdiction can settle the custody dispute. However, family and domestic violence perpetrators have weaponised the Convention against women trying to escape.

What is known

There has been woefully little research into the experiences of women survivors of family and domestic violence who have been Hagued. One notable exception was a 2010 study commissioned by the United States Department of Justice¹ which interviewed twenty-two such women, their lawyers and central authority lawyers. It found that United States courts usually granted Hague applications, ordering children’s return with minimal regard to evidence of family and domestic violence. It also found that in most cases, women and children faced great hardships upon their return, including new abuse by ex-partners. Being Hagued invariably puts the mother back in the father’s country—frequently without familial, social, financial or legal support—providing a perfect context for continued violence.

Today, there is still very little information about survivors’ experiences. In 2021 Merle Weiner commented:

There is no comprehensive data detailing the outcomes in cases involving domestic violence after children are returned. Nor do judges who return children despite a history of domestic violence receive feedback about what actually happens after the children depart. The lack of feedback perpetuates the myth for those adjudicating Hague Convention cases that return will not cause anyone harm. The reality, however, is that things frequently end poorly for the domestic violence survivor and the child after the child is returned. Media outlets, including the internet, produce a sample of anecdotal (and admittedly unconfirmed) hardship stories. Sometimes the mother and/or child are killed. ²

This paper seeks to at least partially address the gap in Australian research by focusing on ten women whose children were returned to Australia and other countries. Six of the women had their children returned to Australia, one had her child returned to New Zealand, one to the USA, one to South America, and one to the U.K. A total of 13 children were returned by Hague courts. Nine mothers chose to return with their children upon receiving the Hague order. One mother was forced to remain behind because she was terrified her ex-partner would try to kill her if she returned to New Zealand with her child. All of those who returned eventually secured access to their children, either by court order or informal agreement, and six of the mothers did so in their chosen country of residence. Despite the enormous challenges they faced, none of the women returned to their abusive ex-partners.

The authors are deeply grateful to the women who participated in the study for sharing and discussing their private and personal experiences of post-Hague abuse. Their stories reveal the true impact of being Hagued for mothers and their children in circumstances where the Convention is used by abusive fathers to perpetuate abuse.

The weaponisation of the Hague Convention: key findings

• Intimidation and controlling behavior

In complying with Hague orders to return to their ex-partners’ countries, the women became extremely vulnerable and exposed. Their accounts demonstrate two forms of ‘paper abuse’, that is, abuse through legal means such as vexatious lawsuits and court orders. First, the ex-partner would use the Hague processes and other legal levers to force the child, and therefore the woman, to return to his territory. Then, emboldened by his Hague Convention ‘win’, he would exploit family law orders and child support systems to further intimidate, harass and isolate the woman. In Australia, shared parenting orders requires parents to ‘consult’ with one another about major decisions and make a ‘genuine effort’ to reach a ‘joint’ agreement (Family Law Act, 1975). This rule forces family and domestic violence survivors to interact with abusive ex-partners. The abuse suffered would often be exacerbated by local authorities not taking action against the abuser.

• Adverse custody arrangements

The interviewees also experienced traumatic separations from their children post-Hague. They perceived court-imposed reductions to their parenting rights and contact times as punishments for fleeing with their children. Some of them commented that they felt family courts prioritised abusive parents’ contact rights over the children’s safety. The label ‘abductor’ used in the Convention itself exacerbated this situation.

• Homelessness

Returning to the country they had fled from put these women in a vulnerable accommodation situation. This might be expected for women who cannot access social services because they lack citizenship or residency rights. However, homelessness occurred even for women possessing these rights. This was due to lack of income, and often an inability to work due to caring responsibilities, made worse by bureaucratic processes and wait times encountered when trying to get help with accommodation.

Ending the injustices: our recommendations

There is no doubt that the current Hague Convention and its implementation can be hostile to women, family and domestic violence survivors. However, there are ways in which the international machinery for addressing child abduction could be made less indifferent to family and domestic violence and less susceptible to paper abuse.

Three reform options are clearly available. The first is modifying the Convention. The second is changing the domestic laws that facilitate the Convention in its contracting states. The third is facilitating more nuanced, sensitive judicial interpretations of the Convention.

• Amend the convention

An appropriate reform would be to amend the Convention document to better protect abused women and their children. This would include inserting stronger defences against return where there is a context of family and domestic violence, and incorporating an understanding that a child’s return order may compel an abuse survivor to return to violence and harm. However, amending an international convention is a time consuming and difficult task.

• Amend the domestic Hague regulations

For women Hagued in Australia, a simpler, more achievable reform would be to amend Regulation 16(1)(b) of the Family Law (Child Abduction Conventions) 1986 which states that a return order does not have to be made if to do so would cause the child to suffer from grave psychological or physical harm, or would place them in an intolerable situation. We recommend that the connection between ‘grave risk of harm’ and family and domestic violence is made explicit, and that such violence is deemed an ‘intolerable situation’. This proposal is not new. It was first suggested in 1994 (Australian Law Reform Commission, 1994, Recommendation 9.5). However, it has not been enacted.

• Alter central authorities’ and courts’ approaches

An alternative reform approach would involve requiring Hague judges to consider more thoroughly what post-Hague life will be like for women, by investigating the context from which a woman fled and the circumstances she is likely to face on return. They would need to address their often unfounded assumption that jurisdictions to which children are returned adequately protect against domestic violence. The data shows this to be untrue. One woman is killed every nine days in Australia by domestic homicide alone. The World Health Organization has declared that ‘violence against women—particularly intimate partner violence and sexual violence—is a major public health problem and a violation of women’s human rights’ (World Health Organization, 2021). Given the apparent inability of relevant authorities, social services and courts to prevent or address such crimes, the attendant risks to the mother need to be considered when granting Hague return orders for their children.

A related change would be to require courts with Hague jurisdiction to consider family and domestic violence when interpreting and applying the Convention. A recent New Zealand Court of Appeal decision represented a significant breakthrough in this area. In ‘the case of Jane’, the New Zealand court held that both the mother’s history as a family and domestic violence survivor and her potential post-Hague future were pertinent to interpreting the grave risk exception. It subsequently declined to order the child’s return (RR v COL, 2020). Significantly, the judges asked wide-ranging questions about the mother’s access to support if she returned to Australia and how that would affect her child. They also probed the central authority about the ex-partner’s criminal history, outstanding charges and previous family court orders.

It is long past time for the Hague Convention and its implementation to be reconsidered and revised.

This injustice cannot be allowed to stand.

References

1. Edleson, J.L., Lindhorst, T., Mehrotra, G., Vesneski, W., Lopez, L. & Shetty, S. (2010). Multiple perspectives on battered mothers and their children fleeing to the United States for safety: A study of Hague Convention cases (NCJ No. 232624). US Department of Justice, Office of Justice Programs. https://www.ojp.gov/ncjrs/virtual-library/abstracts/multiple-perspectives-battered-mothers-and-their-children-fleeing Family Law Act 1975 (Cth),

2. Weiner, M. H. (2021). You can and you should: How judges can apply the Hague Abduction Convention to protect victims of domestic violence. UCLA Journal of Gender and Law, 28(1), 223–332. https://doi.org/10.5070/L328155744