Bound by Borders: How International Law Fails South African Women and Children

Key Takeaways

• The Hague Convention on the Civil Aspects of International Child Abduction is being used by abusive partners to prevent women and children from escaping violence.
• The treaty was drafted in 1980 to prevent children from being unlawfully removed across borders, but critics say it is now being weaponized against women who are trying to flee abusive relationships.
• Many countries, including South Africa, are signatories to the treaty, which can make it difficult for women to leave with their children without the consent of the other parent.
• Pressure is mounting for reform, with some countries passing laws to protect abuse victims and others choosing not to sign the treaty.
• The treaty’s provisions can be used to force women and children to return to a country where they may face violence or abuse.

Introduction to the Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction is a well-meaning international treaty that has developed unintended but chilling connotations. Among certain circles of foreign women trying to leave abusive relationships with their children, the treaty has become a fearful term. To be "Hagued" is to be caught by the treaty, which can prevent women and children from escaping violence. The treaty was adopted in 1980 to prevent children from being unlawfully removed across borders, but critics say it is now being used by abusive partners to prevent women and children from fleeing abuse.

The Problem with the Treaty
The treaty considers a child to be abducted if they are taken across international borders by one parent without the other parent’s consent. The motive for taking the child is not relevant, which means that women who are trying to flee abusive relationships may be considered to have abducted their children if they leave without the consent of their partner. This can lead to a situation where a woman is forced to ask her abusive partner for permission to escape, which can be a dangerous and impossible situation. The treaty was drafted at a time when there was a consensus that fathers who had lost custody of their children were kidnapping them and hiding them abroad, but the reality is now very different. The vast majority of people seeking to take a child across borders without the consent of one parent are women trying to flee situations of abuse and domestic violence.

A South African Family’s Struggle
Katherine, a South African woman, is struggling to help her daughter and granddaughter who are trapped in South Korea. Her daughter, Sarah, is trying to escape an abusive relationship, but the Hague Convention is being used to prevent her from leaving with her child. Katherine’s granddaughter was taken by her father, and Sarah has been permitted to see her only twice a month for two nights, with two weekly phone calls. The situation is complex, and Katherine is trying to navigate the legal system to help her daughter and granddaughter. The South African government has told Katherine that even if Sarah is granted full custody of her child, it is unclear whether she would have the right to take her child back to South Africa.

Pressure for Reform
Pressure is mounting for reform of the Hague Convention. Many countries, including Switzerland, Japan, and Australia, have passed laws that offer some degree of protection to abuse victims fighting Hague petitions. Brazil may follow, and India chose not to sign the treaty at all. A coalition of domestic violence victims and their allies delivered more than 37,000 signatures criticizing the Convention to the Hague Conference on Private International Law. The investigation by The 19th found that 77% of cases filed in US courts under the Hague Convention between 2022 and 2024 were filed by men attempting to prevent women and children from leaving, or to secure their return. Responding, mothers commonly said in court papers that their exes had raped, strangled, or threatened to kill them abroad, often in front of the children.

The Way Forward
The Department of Social Development in South Africa has invited the public to provide submissions on amendments to the Children’s Act, which is the law under which the Hague Convention provisions fall in South Africa. Katherine has joined the Hague Mothers group and hopes to build up a local lobby to create momentum for South African reform. The situation is complex, and it falls between the ambit of three different departments: the Department of Justice, the Department of Social Development, and the Department of International Relations and Cooperation. However, there is hope for change, and Katherine is determined to do everything she can to help her daughter and granddaughter. As she says, "She says, ‘When I have to tell my child my story, I have to be able to say to her I did absolutely everything I could to get her back’."