5 Dec 2018

Hague Convention to protect children, no law change at this stage - Minister

12:48 pm on 5 December 2018

Over the past two weeks several cases have emerged of New Zealand women fleeing domestic violence being forced back to Australia because of a convention signed in 1980 which forces "abducted" children to return to their country of origin.

No caption

Photo: Supplied

Sarah was forced back to Australia last year after fleeing the country with her children due to escalating mental and psychological abuse from her partner.

Susan fled Australia at the advice of her doctor, told it was the only way she could escape her husband's wrath. It took two years and more than $300,000 in legal fees for her to win the right to keep her kids in New Zealand.

Amy fled last year with her one-year-old daughter after seeking a violence order following beatings from her former partner. The heavily-pregnant woman has been ordered back to Australia.

Jane was psychologically and physically abused over a number of years, before eventually finding the courage to leave. Now Jane and her son have been ordered back to Australia, put on a collision course with the man who has abused her for years.

All these women have been subjected to the Hague Convention which was created in 1980 to force the return of a child when one parent takes them from their country of residence.

Nearly 40 years on, lawyers have said the convention is outdated, and being used to revictimise women who have fled abusive relationships.

Justice Minister Andrew Little said he wasn't looking to make any law changes in New Zealand at this stage.

However, it was not acceptable for any woman to feel as if they're being "forced back" into situations of violence that they're trying to flee from, he told Morning Report.

He said the Hague Convention has been around for a while and was there to protect children.

In cases where a child's physical or psychological health would be put at risk, there were provisions in place.

"In terms of does there have to be an order every time there is an application to return a child to the country of origin, no there doesn't, there are exceptions.

"One of those exceptions is that the judge is persuaded that the child could be returned to a situation that would put their physical or psychological health at risk - or in the words of the Hague Convention, 'or otherwise intolerable'. So there is that provision if a woman is faced with that situation to say 'if we go back, this is the situation my child will be faced with'."

He said the Hague Convention in New Zealand had been implemented through the Care of Children Act and "it pretty much repeats the words in the Hague Convention".

No caption

Photo: RNZ

Gina Masterton of Griffith University in Queensland is working towards a PHD, with her focus on the Hague Convention.

She said women are fleeing Australia in domestic violence situations because of a lack of support from the government.

"If you come here as a New Zealander for example, and you're not an Australian citizen, you get no access to Centrelink, no access to legal aid, no access to refuge because they use your Centrelink money to stay there," Ms Masterton said.

"So you're really at a disadvantage. You can work, if you can find a job, but you don't get any of the support from our government if you're not a citizen."

She said her research shows there are no other options for women in those situations.

"What I've found is that these women have already been through the system, they've already played by the rules, they've already got domestic violence orders and protection orders and court orders.

"This is a last resort for them, the leaving and putting the distance between themselves and the abuser."

Ms Masterton said about 70 percent of Hague Convention cases involved domestic violence.

While the Hague Convention might be set in stone, experts say there are loopholes in New Zealand legislation that could be exploited to make sure the family court takes into account the risk that domestic violence puts a child into an intolerable situation.

Get the RNZ app

for ad-free news and current affairs