Brussels II Regulation Article 11 (4) is inherently flawed and ineffective and should be removed for the protection of children and domestic violence victims.
For those of you uninitiated it is an international article of law designed to protect children when they are returned to their country of origin when there is clear and convincing evidence of a grave risk of harm.
Practical guide here
Thing is, the very nature of the people involved in this type of case means it is prone to catastrophic, dangerous and potentially life threatening failure. A catalyst to injustice.
In our global community it is increasingly common for people from 2 different countries to have children together. When domestic violence is an issue, isolated in a foreign country, the ‘victim’ parent often flees to their own country with the children to the protection of their family.
The perpetrator of the violence can use an obscure and complex law to reclaim their child victims called the Hague Convention on Child Abduction. They essentially accuse the parent victim of abducting their own children.
Article 13b of Hague Convention says if there is clear and convincing evidence of a grave risk of harm if the children are sent back the court can refuse to send them. Makes sense so far doesn’t it. Child protected, parent protected, job done.
However, and this is where the entire structure of this law fails, BIIR Article 11(4) says a court CANNOT refuse to send the children back IF there are adequate measures of protection put in place. These measures are often in the form of undertakings. The parties agree to the court that they will or will not do something, such as not go within 100m of the victim and not to try and prosecute for the alleged abduction and things of that nature.
So, here he have a situation where the court is telling a known criminal, a domestic violence perpetrator, to promise the court something. In the same vain as opening a jail door and telling a prisoner to promise not to walk out. Put in this light it is blindingly obvious where and how Article 11.4 fails but the judges and law makers don’t see it (yet).
For Example (taken from a real life case) If the perpetrator promises not to go within 100m of the victim, of course they will in order to intimidate the victim and get a sense of power by saying a big ‘F.You’ to the court. If they promise not to prosecute for the alleged abduction of course they will. They will tell the court in their own country that the victim has been sent back because they ‘abducted’ the children. They will tell the court that Article 13b was dismissed and conceal any evidence or mention of BIIR Article 11.4 allowing them to break any other undertakings that may have been put in place to protect their victims. And the whole thing falls apart, child victims reclaimed, parent victim punished, criminal rewarded, justice fails.
Unless the law makers use their brain, common sense and case history beyond that of the original hearing, domestic violence perpetrators will continue to use the Hague Convention to reclaim their victims.
It is in the child’s best interest to remove Brussels II Regulation Article 11.4.
If there is a risk of harm if they are sent back simply do not send them back.
I rest my case