USA Trends and Developments Contributed by: Valentina Shaknes, Krauss Shaknes Tallentire & Messeri LLP
The Second Forum on Domestic Violence and the Hague Convention: One Step Forward, Two Steps Back In June 2024, the Permanent Bureau of the Hague Conference on Private International Law ( Hague Con- ference – Conférence de La Haye , or HCCH) convened the first-ever Forum on Domestic Violence and the Related Operation of Article 13 (1)(b) of the Hague Convention on the Civil Aspects of International Child Abduction (the “1980 Convention”). That gathering, held in Sandton, South Africa, was a historic moment. For the first time, the HCCH brought judges, “Cen - tral Authorities”, advocates, psychologists and, most importantly, survivors of domestic violence into the same room to discuss whether the 1980 Convention was serving the children it was designed to protect. This author covered that Forum in the Child Reloca - tion 2024 Global Practice Guide, noting the cautious optimism it generated: • a recognition of the different forms domestic vio - lence can take; the harm it causes to children; and • a growing judicial willingness, as reflected in the US Supreme Court’s 2022 decision in Golan v Saada , to reduce the reliance on protective meas - ures as a condition of return. The optimism was reinforced by the Secretary Gen - eral Christophe Bernasconi’s closing observation that success under the Convention “is not about the sheer number of returns but really about the correct appli - cation of the Convention”. The First Forum did not resolve the complexities at the intersection of domes - tic violence and the Convention. What it did, however, was acknowledge the problem and open the door to a productive dialogue. That dialogue continued approximately sixteen months later, this time in Fortaleza, Brazil. From 27 to 30 October 2025, the HCCH and the Government of Brazil co-hosted the Second Forum on Domestic Violence and the Operation of Article 13 (1)(b). Nearly 500 participants registered, more than 150 of them in person. The Second Forum should have advanced the work begun in Sandton and moved toward resolving the practicalities of how to best protect victims within the framework of the Convention. Unfortunately, the opposite happened. While the evidence assembled at
Fortaleza was even more detailed and compelling than what had persuaded Sandton’s participants of the need for a serious conversation, the institutional pos - ture with which that evidence was received appeared noticeably narrower than the one Mr Bernasconi had articulated sixteen months earlier. This article examines that reversal. It is offered from the perspective of a practitioner who views the 1980 Convention as essential, but believes that a course correction in the way it is implemented has become necessary. The Convention’s original purpose was to protect children from the harmful effects of interna - tional abductions by promptly returning them to their home country. With 46 years of evidence, we now understand that not every “abduction” is harmful and not every return is protective. A more nuanced imple - mentation of the Convention is needed to accomplish its true goal of protecting children. The data presented in Fortaleza fleshed out the problems identified in Sandton The data and other evidence presented in Fortaleza was clear, specific and detailed, albeit bleak. It filled in the gaps left open in Sandton. Professor Merle Weiner (University of Oregon) pre - sented research, drawing on journalist Olivia Gentile’s analysis of United States cases between July 2022 and June 2024, showing that 77% of return petitions in that period were filed by fathers against mothers, con - sistent with international data compiled separately by Professor Nigel Lowe and Victoria Stephens. Among respondent mothers, 79% alleged domestic violence or child abuse in defending against return; only 17% of those who raised the Article 13 (1)(b) defence at trial succeeded in proving it. Meanwhile, 55% of fathers accused of abuse obtained their children’s return. Of the mothers Professor Weiner’s research team inter - viewed whose children were returned, 59% reported severely adverse custody outcomes, including losing their relationship with their children entirely, whether through inability to safely return themselves, depor - tation, minimal or supervised visitation, or the other parent’s non-compliance with the terms of return. The picture was similar outside the return context. Dr Nishat Hyder-Rahman presented findings from a
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