USA Trends and Developments Contributed by: Valentina Shaknes, Krauss Shaknes Tallentire & Messeri LLP
mating principle of the Forum’s project: that success under the Convention “is not about the sheer number of returns but really about the correct application of the Convention”. That formulation did not prejudge outcomes. It made the analysis, rather than the dis - position, the measure. It was the sentence that most obviously kept the door open – a door through which the empirical evidence, the reform proposals and the definitional questions raised at Fortaleza were meant to walk. Yet, in his opening at the Second Forum, the same Secretary General took a noticeably narrower stance. Responding to what he described as a recent line of argument suggesting the Convention should distin - guish between “harmful abductions” and “protec - tive abductions”, Mr Bernasconi said: “I respectfully disagree with this distinction. Let us be clear: when custody rights are violated, the removal or retention is wrongful. An abduction inflicts harm. Domestic violence inflicts harm. Both are wrong. Both cause trauma”. The Convention, he emphasised, “does not begin with labelling some abductions as ”protective” – it begins with the rule that abductions are wrongful, followed by the question of whether an exception to the principle of a return applies”. The two statements of the Secretary General are not immediately or obviously compatible. If it is the correct application rather than the number of returns that is the true measure of the Convention’s success, then the language used to describe the removals that trig - ger it is not incidental to the analysis. It is an essential part of what makes the analysis correct or incorrect. A category that treats fleeing domestic violence as identical, at the threshold, to retaliatory removal is not a neutral doctrinal starting point; it is a choice that shapes how correct application is defined and by whom. Labels, in other words, matter, and terminol - ogy is not the opposite of substance. It is one of the tools through which substance is either honoured or eroded. This point has been developed recently in scholarly terms as well. Jeffrey Edleson and Emma Katz, in a forthcoming article in the Journal of Gender-Based Violence, argue that Article 13 (1)(b)’s explicit refer - ences to “exposure” to grave psychological harm and
to “intolerable situations” on their face already provide the textual foundation for denying return in cases of documented coercive control. All that is needed is to give these terms their due. The institutional defensiveness is particularly striking considering that it stands apart even from the position now advanced by the Convention’s own rapporteur. In a February 2024 interview published in the Uru - guayan newspaper La Diaria, Elisa Pérez-Vera, author of the 1981 Explanatory Report whose interpretation of the exceptions has for decades guided the Con - vention’s application, acknowledged that “gender- based violence was not taken into account… we had not become aware that it was a phenomenon” when the Convention was drafted. Pérez-Vera went further, offering a contemporary reinterpretation: “I believe that, almost 50 years later, we need to reinterpret the letter of the Convention in light of the new social realities in which it has to be applied”, and insisting that “from the point of view of interpreting Article 13, domestic violence and gender-based violence should be a factor to be taken into consideration both by the judges in the requested state, who have to decide whether or not to return the child, and by the judge who naturally, according to the Convention, would have to decide on the custody relationship”. Mr Bernasconi’s own post-Forum footnote, appended to the published text of his opening address after “val - uable discussions during the Forum”, acknowledged that some removals “may indeed be prompted by a genuine and instinctive – often motherly – desire to protect the child”, while maintaining that “the Conven - tion does not distinguish between types or motives of abduction”. That the footnote was added at all sug - gests the Forum moved something. That it maintained the definitional rule intact suggests how much of the Sandton framing – and how much of the interpretive space Pérez-Vera herself is now inviting – is yet to be recovered. Where this leaves the Convention None of this is intended as criticism of the Hague Con - vention itself, much less as an argument for weaken - ing it. The 1980 Convention remains an essential and effective tool for protecting children from the harmful effects of international abduction, and its goals are as
158 C HILD RELOC AT I ON 20 26
CHAMBERS.COM
Powered by FlippingBook