USA Trends and Developments Contributed by: Valentina Shaknes, Krauss Shaknes Tallentire & Messeri LLP
GlobalARRK survey of 165 respondents on the lived experience of relocation proceedings: of those who answered the survey’s question on domestic violence, 93.2% reported having experienced it. Yet, those who disclosed the abuse in their proceedings mostly reported that it was given limited weight, or ignored outright, by the court. Some had been advised by their own lawyers not to disclose the abuse at all, for fear of appearing uncooperative with contact arrangements. Dr Braden Clark cited a 2020 inquiry by the govern - ment of New South Wales, Australia, finding that coer - cive control was present in 99% of intimate partner homicides in that jurisdiction, with no physical vio - lence previously reported in approximately 25% of those cases. As is now well-understood, separation is statistically the most dangerous moment for a vic - tim: 77% of Australian women killed by their partners had separated or were in the process of separating. And on the issue of protective measures, the data, assembled at scale, was consistent across jurisdic - tions. Ruth Dineen and Roz Osborne, presenting joint research from FiLiA Hague Mothers and GlobalARRK, reported that 71.4% of mothers who returned under protective measures faced further abuse despite these measures, a figure consistent with a 2003 Reu - nite International study finding two thirds of undertak - ings in the United Kingdom cases were never imple - mented, and that even mirror orders were honoured in only one out of five cases. The protective measures problem – revisited A full session during the Second Forum was devot - ed entirely to protective measures. Speaker after speaker – Ms Osborne, Ms Dineen, Judge Myriam de Hemptinne and Justice Steven Arnold Majiedt – walked through the same conclusion from different jurisdictions: undertakings are rarely enforced, mirror orders are rarely honoured, and the practical safety net that return orders assume is often not there in any meaningful sense. Dr Adrienne Barnett (Brunel University of London), presenting on behalf of Hague Mothers, situated the protective measures problem within a broader institutional pattern, observing that the assumption that protective measures can mitigate risk “is underpinned by [a] physical incident model of domestic violence” and “fails to acknowledge high
level of recidivism and breaches, and broader risk and harm”. She pointed to the recent English deci - sion in J . v . K . [2025] EWHC 2125 (Fam), which had quoted with approval Cobb J.’s direct formulation in Re T ( Abduction : Protective Measures : Agreement to Return ) [2023] EWCA Civ 1415 that “Protective Meas - ures need to be what they say they are – protective. To be protective, they need to be effective”. Ms Dineen summed up the implication for cross-border cases: “if protective orders fail domestically, they cannot be expected to work across borders”. The institutional response, articulated by Christian Höhn on behalf of Germany’s Central Authority, was to double down. Return is the rule, non-return is the exception, and protective measures are the tool ensuring “safe” returns despite the risk of grave harm. That this remains the mainstream approach across the majority of the contracting states in the face of the mountain of evidence that shows protective measures do not work is truly baffling. Even more concerning, it is also the approach the HCCH continues to endorse Similarly, a full session was dedicated to reviewing the HCCH’s Guide to Good Practice on Article 13 (1) (b). Such a review was timely, if not overdue, given the five years that have passed since its publication. Boni de Moraes Soares, an attorney at Brazil’s Attorney General’s Office, presenting on behalf of Brazil, ques - tioned whether three of the Guide’s central features reflect either the current understanding of domes - tic violence or the text of the Convention itself. The Guide’s own language is instructive. It provides that “harm to a parent, whether physical or psychological, could, in some exceptional circumstances , create a grave risk” to the child (emphasis added). It directs that the grave risk analysis turn on “such considera - tions as the nature, frequency and intensity of the violence”, and states that “evidence of the existence of a situation of domestic violence, in and of itself, is therefore not sufficient to establish the existence of a grave risk to the child”. Mr Soares questioned why sexual abuse, for instance, should require any assess - ment of frequency or intensity to qualify as grave risk, an obviously fair question, given that the Guide itself elsewhere states there is no separate, lower test for in its Guide to Good Practice. The reform that is not coming
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