Introduction
It is inevitable that social workers and other human service professionals will find themselves working within a legal context. Practice within human services involves working within a domestic and sometimes international legislative framework, and may involve statutory authority to implement certain legislation, or the provision of service to support individuals’ or groups’ access or adherence to a State's legal code. The reflection behind this paper arose from such an example of service delivery in social work – namely, support for families relying on a specific piece of international legislation – the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Convention). However, an argument is presented that, in order to faithfully honour social work's mission to uphold human and, specifically, children's rights practitioners need to view themselves as not only providers of services to individuals and states, but as advocates for the rights and needs of children, informing and challenging legislative systems to ensure these rights are upheld.
This paper takes the form of a reflection triggered by the experiences of working within International Social Service (ISS) Australia's International Parental Child Abduction (IPCA) service. In so doing, the service context of the Convention will be explored, and the IPCA service described and further illustrated by means of a case scenario, followed by reflections on the use of gendered and child rights-based analyses of the scenario, supported by a selection of critical literature.
A call for advocacy within service provision under the Convention will be promoted using an exploration of the Statement of Principles of the International Federation of Social Workers (IFSW). The discussion argues that the Convention, although a blunt instrument in practice, is a useful tool. Its objective is worthwhile one in dealing with the dilemma of international parental child abduction, as experienced by a small proportion of children within the context of family breakdown, providing uniformity and certainty in an otherwise chaotic situation for parents and legal systems. This discussion seeks to contribute to debate regarding the role of social work practice within a legal context, within its mission to uphold the rights of children.
Legislative context
The 1980 Hague Convention on the Civil Aspects of International Child Abduction was developed by The Hague Conference on Private International Law to combat the growing phenomenon of the abduction of children across borders within the context of post-separation disputes between parents. (Hague Convention, 1980, preamble).
The Convention explicitly states its intention to protect children from the harmful effects of child abduction (Hague Convention, 1980, preamble), and seeks to provide a uniform mechanism for the prompt return of children to the country where they are deemed to habitually reside (Hague Convention, 1980, article 1). In most cases, clear instructions exist for the arrangement of the prompt return of a child wrongfully removed or wrongfully retained away from their habitual residence (Hague Convention, 1980, article 12) unless the judicial authority processing the application for the child's return is convinced the return application has been made by someone who was not exercising parental rights at the time of the application, there has been consent or acquiescence in the removal, the child objects to being returned or the child's return would place them in grave danger of severe physical or psychological harm or an “intolerable situation”. (Hague Convention, 1980, article 13).
A child's return can also be opposed if the return is deemed to be in direct opposition to fundamental principles of human rights in the requesting State (Hague Convention, 1980, article 20).
The legislation provides that a “Central Authority” be nominated in each signatory country to administer the Convention (Hague Convention, 1980, article 6), and that Central Authorities in signatory countries work cooperatively to administer the Convention (Hague Convention, 1980, article 7). Importantly, a decision for return under the 1980 Hague Convention does not constitute a decision regarding parenting arrangements (Hague Convention, 1980, article 19). Rather, the legislation's purpose is to facilitate the child's pre-abduction status quo so that parenting arrangements can be made. Moreover, the Convention can only be applied in relation to children aged 16 or below, who are removed from countries which are signatories to the Convention (Hague Convention, 1980, article 4). To date, there are 87 such signatories.
The International Parental Child Abduction (IPCA) Service of International Social Service Australia
International Social Service (ISS) Australia is a national non-government organisation delivering social work programmes and legal services to children and families requiring interventions across national borders. It is part of an international network of agencies spanning over 100 countries, with secretariat functions in Geneva, Switzerland. ISS agencies work collaboratively, with staff liaising with colleagues across the network in order to meet client needs.
Since 2005, ISS Australia has been funded by the Australian Commonwealth Attorney-General's Department to offer services to parents and families affected by IPCA. Since its inception, the IPCA service has worked with parents in all phases of the abduction process, with different services being offered to parents impacted upon by the abduction of their child, or at risk of abducting a child across national borders. Although the IPCA service supports parents whose child abduction matters involve all countries, irrespective of their signatory status to the Convention, for the sake of simplicity, this paper will focus on families whose members are the citizens of signatory countries.
Interventions with parents vary according to where they find themselves along the child abduction continuum, as outlined below. Services are offered parallel to any legal support accessed by a parent.
Social workers discuss the impact of international abduction on children and parents and describe the purpose and operation of the Convention when they are approached by parents who either fear the abduction of their child, or indicate that they are considering abduction. If a parent is fearful that their child is likely to be abducted by the other parent, prevention strategies are discussed. If a parent is thinking of abducting their child, they are invited to explore their motivations for doing so. If a history of violence is disclosed, social workers work with the parents (usually mothers) to access resources for their safety and support within Australia in order that the abduction of a child can be avoided. Parents are offered information and referral to a range of community, dispute resolution or legal services to enhance their safety or to assist in making arrangements for their children if the parents are separated.
Parents who contact ISS Australia after their child has been abducted are usually seeking support to manage the complex legal and emotional impacts of this event. Where ISS Australia is contacted by the Australian parent of an abducted child whose whereabouts are known, they are offered information about the workings of the Convention and referred to ISS Australia's legal service to make an application for the child's return, if they have not already done so. As well as crisis counselling and emotional support, parents are offered the opportunity to engage in contact with their child and/or the other parent through informal mediation via the cooperation and assistance of ISS colleagues in the relevant country. Any welfare concerns the parent may have about their child in the care of the other parent can also be investigated. If a parent is ordered to return a child abducted to Australia, ISS Australia social workers can assist the parent to plan the return process, including sourcing options for accommodation and financial support. Again, overseas network colleagues are invaluable, with their knowledge of appropriate referrals to accommodation and other material aid and domestic violence support services as required by the returning parent.
The post-return period can be difficult for both children and parents, and the IPCA service seeks to assist parents to plan for the child's return and its impact upon them and the child, and to assist with the hand-over and integration of the child back into their pre-abduction routine. In all areas of service delivery, social workers collaborate with parents and focus on the holistic needs of the child and family.
The interventions described above provide a response to an individual's/family's immediate needs within a traditional family case-work practice framework. The next part of this paper will argue that the provision of social work services within the context of The Hague legislation is incomplete without a commitment to the equally important interventions of advocacy and activism, especially in relation to the rights and needs of children. Discussion will centre on aspects of service delivery under the Convention, beginning with a case example below which illustrates the need for advocacy.
Case study
Consider the following scenario. Gina and Frank lived together in a signatory country to the Convention, but their relationship was short-lived, with Gina reporting significant physical violence and alcohol misuse perpetrated by Frank. In 2004, a few months prior to their daughter, Louise's birth, Gina separated from Frank and returned to Australia. In 2005, when Louise was aged about six months, Frank contacted Gina in Australia and asked her to return to his country of residence, explaining that he needed someone to take care of his home while he served a prison sentence. Gina agreed to return with Louise, believing that she and Frank would reconcile after his release from prison. The parents unsuccessfully attempted to reconcile in early 2007 but in mid-2007, Gina returned to Australia with Louise, complaining of Frank's unaltered violent behaviour and alcohol misuse. Later that year Frank successfully applied under the 1980 Hague Convention for Louise's return to his country. Gina appealed the order made in his favour, citing fears for her safety and that of Louise due to Frank's violence. Legal processes associated with this appeal continued until early 2009, when a final Court order was made ordering Louise's return. Gina was a permanent resident in Frank's country when she resided with him but did not apply for citizenship. By the time of her return order, her permanent residency had lapsed, thus barring her from accessing any financial or social benefits on her return to that country.
Despite these difficulties, through Gina's resourcefulness, and with the assistance of ISS, she managed to return with Louise to Frank's country in compliance with The Hague return order made. Family law proceedings took place, awarding custody of Louise to Gina, allowing her relocation with Louise back to Australia and ordering Frank to pay child support for Louise's maintenance there.
This case example can be viewed through a number of lenses, each leading to a different social work intervention. During her contact with ISS Australia, Gina received useful assistance from a worker guided by crisis intervention (O'Hagan, Reference O'Hagan, Hanvey and Philpot1994) and task-centred approaches (Doel, Reference Doel, Hanvey and Philpot1994). Pending the appeal Gina was offered crisis counselling and emotional support to assist her to understand the Hague return order and its implications. In the initial stages, this involved assessing her risk of suicide and assisting and supporting her to plan and contract for her safety during periods of acute distress and fear. Gina was supported through counselling to validate and normalise her distress regarding her return order, and to view it as an unwanted but necessary requirement to abide by the law. Gina and a worker then began collaborative problem-solving to assist Gina to devise the practical resources needed to comply with the court order. They explored possible sources of support from friends she had made while living with Frank. The requirements for obtaining a visa to Frank's country were researched and Gina received assistance in liaising with the relevant Consulate. A referral to the ISS unit of the country to which Gina was to return was made by ISS Australia, with a request that sources of accommodation and financial support be investigated. Overall, a satisfactory outcome was achieved for Gina in compliance with the Convention. However, further reflection reveals that an even better outcome may have been possible for Louise and Gina, and other children and parents in their situation, if an additional framework – that of advocacy – had been employed, on the basis of an analysis of gender, human rights and, most importantly, the rights and needs of children (Witkin, Reference Witkin1998). Examples of the possible forms such advocacy might take are discussed later in this article.
Gendered perspectives and article 13B
In the earlier explanation of the provisions of the 1980 Hague Convention, reference was made to article 13B, which provides an exception to the requirement to return children to their country of habitual residence where it can be determined that such return would result in a grave risk that a child would be exposed to physical or psychological harm. Despite the omission of any specific reference to the gender of parents or children in the Convention and the consequent assumption that it is gender neutral in its application (Freeman, Reference Freeman2002; Tuohey, Reference Tuohey2012), feminist critics have argued that it is useful to apply a gendered analysis when considering the circumstances of abduction. Hudson, Ayensu, Oadley, & Patocchi, (Reference Hudson, Ayensu, Oadley, Patocchi, Hanvey and Philpot1994) among others, describe feminist approaches as being a central element of social work practice that allow for the analysis of the impacts and outcomes of policy decisions, legal systems, and ideologies on different classes of women and men.
In their critiques of its implementation Kaye (Reference Kaye1999) and Shetty and Edleson (Reference Shetty and Edleson2005) argue that the impacts of the Convention differ according to the gender of the parent, but that this factor is rarely recognised in Hague Convention determinations. These authors highlight the etiology of child abduction as a means by which mothers can remove themselves and their children from the experience or impact of a partner's physical and/or psychological violence (Kaye, Reference Kaye1999; Shetty and Edleson, Reference Shetty and Edleson2005). This lack of acknowledgement of the impact of violence on women and children is compounded by judicial attitudes and decision-making which may emphasise strict conformity with the prompt return principles, amid concerns that reliance on article 13B would weaken the overall effectiveness of the Convention in discouraging the abduction of children across national borders (Kaye, Reference Kaye1999; Vesneski, Lindhorst, & Edleson, Reference Vesneski, Lindhorst and Edleson2011), and a desire to “paper over” a country's inability to protect returning women and children from violence. Tuohey (Reference Tuohey2012) reports findings in her research of the censuring by Courts of mothers who abduct their children to escape from family violence.
More positively, Nicholes (Reference Nicholes2009) reminds us that judicial discretion is always a relevant factor in considering the Convention's interpretation and she describes a recent international abduction case involving a mother whose evidence, demonstrating the inadequacy of police and child welfare services to protect her children and herself from domestic violence if she was ordered to return her children to the country of their habitual residence, was considered relevant. If we re-examine the earlier case study in this article, the analyses of Kaye (Reference Kaye1999) and Shetty and Edleson (Reference Shetty and Edleson2005) of decision-making under the Convention would suggest that in a case such as that of Gina, her fears regarding the impact of Frank's violence during their relationship and her fear of the continuation of this abuse on her return might receive inadequate consideration when placed alongside a judiciary's desire to uphold the concept of “comity” or mutual uniformity in Hague determinations and an anti-abduction stance. The gendered analyses of the Convention conducted by Kaye (Reference Kaye1999) and Shetty and Edleson (Reference Shetty and Edleson2005) offer recommendations for further research with a view to change in the way domestic violence is addressed in 1980 Hague Convention decisions. They also reflect the argument presented in this paper that such activities are necessary in order to avoid gender discrimination in the implementation of the Convention.
The 1980 Hague Convention and the rights of children
As the Convention specifically deals with safeguarding children from the harm of abduction, it might be expected to be closely aligned with the goals of other children's rights instruments, most notably the United Nations Convention on the Rights of the Child (UNCRC, 1989).
Preceding the UNCRC by nine years, the 1980 Hague Convention contains clear parallels with some articles of the UNCRC (Freeman, Reference Freeman2002). According to the Hague Conference on Private International Law's (undated) outline of the 1980 Hague Convention, the following articles of the UNCRC are upheld and supported by the 1980 Hague Convention:
Article 35: Concerning the prohibition on abduction, sale of or trafficking in children
Article 9.3: Concerning a child's right to maintain contact with both parents after family separation
Article 11: Concerning States’ Parties obligation to combat transfer or sale of children across national borders
Article 10.2: Concerning a child's right to maintain contact with both parents in the event of a parent's residence abroad
Article 8 1: Concerning a child's right to the maintenance and protection of identity (UNCRC, 1989).
If we further examine the 1980 Hague Convention from the perspective of child rights as found in the UNCRC 1989, two specific limitations become apparent. Firstly, Freeman (Reference Freeman2002) and Wiener (Reference Wiener2000) argue that many determinations under the Hague Convention are made at first instance by single judges, particularly in decisions relating to children's post-return welfare or the merits of objections to return as allowed by article 13B. According to Wiener (Reference Wiener2000), judges frequently interpret this article narrowly placing, for example, a very high threshold on the maturity level of a child before their objections to return are heard or discounting this provision altogether, fearing that the child's objections will be tainted by the influence of the abducting parent, or that by listening to the child, the integrity of the Convention's purpose to return abducted children is eroded. As these authors point out, the 1980 Hague Convention, being an instrument designed to meet the needs and best interest of abducted children as a whole, can sometimes fail to provide for the needs of individual children without a wider interpretation and use of the exceptions found in article 13B (Freeman, Reference Freeman2002).
The second problem relates to the Convention's limited jurisdiction in areas apart from that of the return of children. We saw earlier, in the case of Louise, that she and her mother were ordered to return to her country of habitual residence, despite the minimal availability of resources for her physical and emotional well-being and safety, except those which Gina could source herself. This situation is not unusual in Hague return determinations, when the only provision able to be made to secure any welfare arrangements for children and the returning parent is in the form of voluntary undertakings, agreed to by the applying parent and frequently not legally enforceable (Kaye, Reference Kaye1999; Reddaway & Keating, Reference Reddaway and Keating1997; Strom, Reference Strom2002). These authors present a critique of the lack of provision for the necessities for the care of a child within the 1980 Hague process and, as such, can be seen as requiring advocacy alongside children and their parents by social workers delivering service within this legislative context. However, another strong argument towards advocacy-based interventions in this context exists within UNCRC itself. In article 3.1 of this Convention, signatory States agree that their public and private social welfare institutions, courts, legislative bodies or other administrative authorities will make the best interests of the child their primary consideration (UNCRC, 1989). The term “best interests” is familiar in family law usage but can be open to interpretation and cultural relativism (Alston & Gilmour-Walsh, Reference Alston and Gilmour-Walsh1996). Yet it can be argued that UNCRC contains clear guidance regarding the essential requirements for the well-being of all children which can be defined as their best interests:
Provisions for survival and development (article 6.2)
Protection from all forms of abuse (article 19.1)
Access to health care and medical treatment (article 24.1)
Access to an appropriate standard of living to ensure physical, social, mental, spiritual and moral development (article 27.1)
Provision of state assistance to ensure support with material needs, physical care and nutrition. (Article 27.3)
Returning to Louise, a child's rights analysis of her situation suggests minimal protection under the 1980 Hague Convention for her safety and well-being after a return. Freeman (Reference Freeman2002) and Wiener (Reference Wiener2000) caution against relying on undertakings given by parents to ensure provision for the physical needs of a child ordered to return under the Convention, given their frequent unenforceability and reliance on cooperation between conflicting parents. It is clear therefore that systemic advocacy for the safety and well-being of children caught up in Hague proceedings through representations to bodies with influence in policy-making and review of the Convention is required.
Social work codes of ethics
So far, this article has focused on the limitations of the 1980 Hague Convention, and has explored a case study illustrating the need to consider the use of an advocacy approach to fully meet the needs of children and families. Such interventions are open to professionals of any discipline, collaborating with parents in this specific field. However, particular obligations are required of social workers pursuant to the various codes of ethics of national professional associations and accrediting bodies and the International Federation of Social Workers (IFSW). The quantity of social work literature promoting macro-practice is vast, with various theories promoting critical reflection on socio-economic, political and cultural conditions, and an equally wide array of interventions are available to practitioners aiming for political and social action, legislative reform, advocacy and community development (Abramovitz, Reference Abramovitz1998). Cemlyn and Briskman (Reference Cemlyn and Briskman2003) specifically address advocacy for children's rights from the perspective of their work with children seeking asylum in Australia and the United Kingdom. They warn against the common tendency of some social workers and managers to view human rights obligations as principles in organisational mission statements, with little application to day-to-day practice. The promotion of children's rights, they argue, is a political practice, challenging policies which undermine or ignore the rights and capacities of children (Cemlyn & Briskman, Reference Cemlyn and Briskman2003). They further caution against delivering services which seek to “manage” social problems, or secure uncritical compliance to the rulings of the judiciary or state (Cemlyn & Briskman, Reference Cemlyn and Briskman2003). These authors locate their stance within the respective codes of ethics of their national social work associations: those of Australia and Britain. National social work codes of ethics being too numerous to explore individually, there nevertheless exists broad acceptance of the IFSW (2004) Code of Ethics by the social work profession. Its provisions regarding human rights frameworks and advocacy will now be examined.
The IFSW is an international organisation whose membership comprises the national associations of social work in over 90 countries. In 2004 the IFSW collaborated with the International Association of Schools of Social Work to develop an overarching ethical code. This document is characterised by a strong commitment to social work's ethical duty to advance causes of human rights, social justice and political action within national and international contexts (IFSW, 2004). In the following consideration of the IFSW Statement of Principles, relevant principles will be indicated, followed by a brief analysis of their relationship to the case study used above.
Definition
“The social work profession promotes social change, problem solving in human relationships and the empowerment and liberation of people to enhance well-being. Utilizing theories of human behaviour and social systems, social work intervenes at the points where people interact with their environments. Principles of human rights and social justice are fundamental to social work” (IFSW, 2004). Therefore, in working with the family in the above case study, this definition requires that human rights and justice principles are kept in focus and integrated within social work interventions.
Adherence to international conventions
Section 3 of the Statement of Principles lists the Declarations and Conventions to which IFSW members are subject. The UNCRC is listed, along with several other Conventions and Declarations (IFSW, 2004). These Conventions remind practitioners that individuals and communities possess inherent rights to such essentials as safety, survival and freedom from gender-based discrimination, to name a few with particular relevance to the case study.
-
• Human Rights and Human Dignity (IFSW, 2004, Principle 4.1)
-
• As well as respecting, promoting and upholding the rights of individuals, social workers are charged with particular responsibility to promote the participation of individuals and communities in all decisions affecting their lives (4.1.2), treating each person as a whole (4.1.3) and identifying and developing strengths (4.1.4).
-
• Social Justice (IFSW, 2004, Principle 4.2)
Social workers have a responsibility to challenge all forms of discrimination (4.2.1). In reference to our case study, this means finding ways to challenge legislative contexts which subordinate the needs of women and children and/or privilege male violence or control.
Further support for this stance can be found in principle 4.2.4, relating to a worker's duty to challenge unjust policies to raise the awareness of policy-makers and governments to injustices.
It is from these principles then, that the reflection on the above case study came about, and from which certain injustices towards children have been highlighted and analysed.
Applications of the advocacy approach
Since intervening in the case of Louise described above, ISS Australia has found several opportunities to implement the advocacy approach promoted in this article. ISS Australia has made representations in writing to the Hague Conference on Private International Law, advocating that children's best interests for safety predominate in the Implementation Guidelines of the Convention. The ISS network as a whole collaborated to develop and present a submission regarding such topics as family violence and mediation in 1980 Hague cases to a Special Commission Meeting of the Hague Conference on Private International Law. ISS Australia entered a submission to a Senate Enquiry into International Parental Child Abduction in 2011, highlighting experiences of parents dealing with the Convention, and strongly promoting measures for the prevention of IPCA. Parents receiving services from the ISS Australia IPCA Service have the opportunity to participate in mediation in order that they might have as much ownership as possible regarding return or contact arrangements for their children. In 2012, ISS Australia commissioned research regarding the existence of evidence linking IPCA and family violence, with a view to developing practices and partnerships to more effectively meet the specific needs of mothers for support, prevention strategies and advocacy. It is hoped this article can also form part of ISS Australia's goals of raising awareness regarding the specific needs of parents involved in IPCA and family violence, and collaborating with family violence support services to build wrap-around services to protect the safety of children and their mothers.
Conclusion
In this review of the 1980 Hague Convention, we have seen that the provision of specific social work services to affected children and families is a viable and worthwhile endeavour. However, in exploring a case study, it is clear that work in solidarity with these children and families cannot be fully accomplished through short-term welfare provision, as valuable as such services are. Mindful of social work literature and the IFSW Statement of Principles, an analysis of certain situations befalling children within the context of the 1980 Hague Convention has been offered using gendered and child rights frameworks. A strong argument has been made for the extension of social work interventions to include an advocacy response, both within the context of specific cases and through longer-term contributions to policy, debate and research within this very specific field of practice.
Legislation:
Hague Convention on the Civil aspects of International Child Abduction 1980.
United Nations Convention on the Rights of the Child, 1989.
