Maria had to leave, and not only did Maria. Over half the world, year after year, almost 2,000 expat women are accused of kidnapping their own children.
October 14, 2023
Patrícia Álvares for la diaria*
This article is not about the Uruguayan Maria, whose dramatic odyssey touched the Eastern Republic of Uruguay, in 2019, when the national campaign “Maria won’t leave” went viral in the South American country. She was accused of kidnapping her dual citizenship daughter after fleeing Spain to protect both from domestic violence. In over a hundred countries, there are thousands of Marias more—at least 15,000 of them in the past decade, an estimate from official statistics.
Half of them get to extreme situations as the Uruguayan Maria, who was forced to let go of her daughter and return her to the father in Spain, despite evidence of sexual abuse too. Apart from them, countless expat mothers try to avoid such fate only to fall stuck into an international law limbo: they cannot leave, nor can they stay. All of them, anonymous or celebrities inclusive, reflect an overlooked global phenomenon from the 21st century.
They are free women who go wherever they want to, cross borders, fall in love overseas, start multicultural families far from home. It all looks cool until they break up and end up trapped. Throughout this feature, they all are named Maria, foreign mothers behind the 1980 Hague Convention. Its eighth review concluded last October agreeing to pay them some attention by promoting a first forum on domestic violence in June 2024.
Right now, a Brazilian Maria has begun the same odyssey to beg her country’s Justice not to send her children back to their previous “habitual residence”, where the father lives in Uruguay. la diaria has confirmed it with the international organization for women’s rights assisting her at the moment.
During the ten years she lived in Uruguay, as she told Globo’s news agency, she reported her Uruguayan husband, “an important doctor,” eight times for domestic violence. She was even assigned permanent police protection at her front door, according to the Brazilian news agency. Nothing stopped him from threatening to kill them all. For obvious privacy reasons, no names have been disclosed.
Terrified, this Brazilian mother finally fled with the children to her homeland, where at least she has family, support, ties. Not necessarily rights though. She has just found out that what she did has a name, it is called “international child abduction.” Although it is not kidnapping, many countries translate it that way, such as Brazil, or yet criminalize it to arrest parents, like in the United States, Spain, and others in Europe.
The Hague Convention
The 1980 Hague Convention’s chapter 28 defines international child abduction as “the wrongful removal or retention” of children abroad, meaning without the other parent’s consent. All in all, the treaty establishes a bilateral protocol that speeds up procedures between countries among its current 103 signatories when one asks another to locate and relocate a child back to their previous “habitual residence.”
Ruling over half the world today, the protocol was first signed by four Northern nations –Canada, France, Greece and Switzerland–, in 1980, and it still conquers new territories almost 50 years later. Botswana and Cape Verde were the latest ones to join, at the beginning of 2023, as the treaty especially spreads across Africa now.
The Hague Conference on Private International Law, known as HCCH for its bilingual acronym in English and French, is the intergovernmental legislative body responsible for this and other Hague conventions since 1893. Its representative for Latin America and the Caribbean, Ignacio Goicoechea, welcomed la diaria at the regional office in Buenos Aires, Argentina.
HCCH works hand with member states to ensure the treaty’s efficiency, as well as to expand its scope. During the interview, Goicoechea explained that the 1980 Convention is “basically a mechanism to allow the child protection system and the judicial system of the country where this boy [or] girl lived, this family, to be able to care for him or her properly”:
“When a child is abducted, whether due to wrongful removal or retention, the mechanism will try to determine, in a very short time, whether there was an abduction or not, whether one of the exceptions applies or not, and that the child returns safely to the place where he or she lived.”
Reality is not that simple though. In 2019, the entire Uruguay watched Maria’s desperation to keep her daughter and prevent a traumatic return to Spain, to the point of raising a diplomatic conflict between both countries. Based on the Hague Convention, Uruguayan Justice ordered the girl to return to her father’s country, despite that technical reports backed up one of the exceptions provided by the treaty to dismiss a child’s restitution.
The Hague contravention
Article 13’s subparagraph ‘b’ provides the possibility to deny restitution if there’s a “grave risk” of an “intolerable situation” upon a minor’s return. It’s the most claimed exception in international abduction prosecutions to avoid children’s repatriations. It’s become a thorn in HCCH’s side to keep the 1980 Hague Convention into force or compelling enough for other countries to sign it.
The treaty’s advocates argue that there’s been an excessive use of the resource provided as an exception. Although ‘13b’ does not safeguard parents facing abduction charges, such plea slows down procedures to send children back as soon as possible, considering the ambitious six-week deadline envisaged by the protocol.
In an attempt to assert compliance with its strict terms, HCCH lobbies countries to legislate a specific domestic law to speed up judicial processes. So far, Uruguay is the only one to have acquiesced and approved a law tailored for international abduction cases in 2012. In Brazil, the National Council of Justice (CNJ, in Portuguese) issued a compulsory resolution aiming at the same in 2022.
Although it’s not as strong as a law, and while its bill lies in the Ministry of Justice’s hands, CNJ’s 449 resolution hastens procedures by reducing the defence’s chances on trial. That especially affects women, who account for three-quarters of international child abductions per year, according to HCCH’s stats.
CNJ’s director of policies to address gender-based violence, Márcio Freitas, considers the problem to be that the 1980 Hague Convention was designed at times when men were the abductors. Interviewed by la diaria, he said its content needs a review to conceive domestic violence as a risk factor for the family. In his opinion, however, the treaty must be complied with in the meantime.
According to HCCH’s fifth and latest report, 75% of 2,180 international child abductions in 2021 were perpetrated by foreign mothers. Most heads to their home country; 94% of them are their children’s primary caregivers and hold their custody. That’s three times more than abductive fathers, who accounted for 23% in the same year.
The amount of Marias remains on the rise even when total cases decrease. The trend has been observed since the first official report in 1999. At the same time, the more mothers are accused of abducting their children, the fewer are the fathers ever since.
“The question is: why would so many mothers ‘kidnap’ their own children, with whom they already live daily as their primary caretakers?” suggests Stella Furquim, co-founder of the Group to Support Brazilian Women Abroad (Gambe), to la diaria.
The hagued Marias
Carolina Gouveia is the real name of one Maria who left Canada with her baby and the father’s consent in 2018. By the time she was acknowledged of the international abduction of her son, the only Canadian tie he had was his birth certificate.
“Chris was four months old when we left,” she tells la diaria from the country to which she went back three years later, in 2021. She went after her son when Brazilian Justice decided that Canada was his “habitual residence” and ordered his return. That was the final sentence even though Chris had no Canadian bonds at all and neither his Lebanese father nor his Brazilian mother had a visa to live there.
In the last two years, Carolina spent no more than five hours – in total – with Chris, always supervised. She didn’t know much about how he was doing either. In February 2023, the British Columbia Court finally decided over Chris’s custody. Just like other Marias accused of international child abduction and forced to return their kids to the so-called “habitual residence”, Carolina lost custody and parental authority rights over her son, which can be read in the decision available online.
That meant she couldn’t decide about her son’s development and life. What the Canadian judge Lindsay Lyster allowed her to do was have half-hour video calls three times a week in the father’s presence – or another supervisor –, always in English unless she paid an interpreter.
“What five-year-old wants to spend half an hour on a video call with an adult? It didn’t take long until he learned how to say ‘I wanna hang up’ and shut the computer down, as it was obvious he was going to do. My son is going to forget about me,” the mother resents.
“At the end of the day, Chris lost his rights to protect his mother tongue, to be with his mother and cared, educated or hugged by the person who was his reference before,” says Furquim, who advises Carolina with Gambe’s work.
The story gets worse. Because she lost parental rights over her son, his father was able to take him to Lebanon without her permission seven months later. The Arab country has not signed the Hague Convention and local law allows him to remain there despite any international request for the child’s restitution, according to the embassy’s response to Carolina, which she shared with la diaria.
“I lost my son,” she cries.
Besides the controversial concept of “habitual residence” affecting Carolina’s case and others, domestic violence is commonly belittled by judges in both repatriation and custody processes, like hers in Brazil and later in Canada. Although Chris’s father had pleaded guilty to having assaulted his son’s mother, the Canadian judge found the problem to be the mother. The international abduction was the reason given to withdraw Carolina’s parental authority rights.
Flight attendant Tunisia Viana is another Maria. She was staying in a women’s shelter in the United States with her baby daughter, only three months old when she was granted a judicial permit to travel to Brazil in 2014. Unlike other hagued mothers, she knew about the 1980 treaty. Yet she didn’t go back to the US because she feared for her life and that of her daughter.
A few months later, she was given notice of the international abduction. Amidst the odyssey to defend herself, Tunisia found out that her ex-husband had assaulted the Brazilian consul at the embassy, but such a game-changing detail was never mentioned in the files. Once she pointed it out, her case was closed.
“They waived it because my daughter’s father had attacked an authority, a man, while all other five women who had denounced his violence were worthless,” she stressed in the interview with la diaria.
Not being prosecuted in Brazil was no victory for Tunisia though. The US has not done the same, so she can still face jail if she ever steps into their territory or any other abroad. “That ruined my professional career. I came back to work only on domestic flights as I cannot leave my country,” she states.
On the other hand, her story inspired a bill to reckon domestic violence as a grave risk for children, preventing repatriation if formal complaints have preceded the escape. The draft has already been approved by the Lower House and awaits Senators to pass it.
As for Carolina, she “had never heard of such Hague Convention” when she boarded towards Brazil with four-month-old baby Chris. She says she sought proper assistance before doing so. Back then, she held a Canadian student visa which granted her access to legal aid, only “to be misled”, she recalls, to file both divorce and custody procedures straight from her home country, where she “could count on better support”.
“Many mothers who contact Gambe describe the same advice they heard from lawyers in different countries,” says Furquim. “To a couple of them, I had time to explain what the Hague Convention is before they travelled, although it was hard to convince them to give up the sweet dream of going home with their kids,” she adds.
The majority, however, “have already been caught” when they find Gambe, Furquim observes, just like it happened to Carolina, who insists: “I would have never left had I known it before”. “If not even lawyers know what international child abduction is, how come any layperson shall figure that out?” inquires the support group’s co-founder.
The stuck Marias
United Kingdom, March 16, 2022. She sits down and lights up a cigarette. She only smokes in delicate situations and hides. She is a European Maria who agreed to speak to la diaria as long as her name, residence or nationality were not disclosed. She is scared. Yet she decided to share her story because she has worked with communication and believes it’s harder to tackle a problem that no one knows about.
Her story begins just like any Maria’s standard plot: falling in love with a foreigner or abroad, turning into a modern binational couple, getting pregnant, starting a multicultural family, navigating health and as a foreign mother of dual-citizenship children, all that far from home.
“The reality of globalization, of human mobility, is that women are the ones who usually leave everything behind, their home countries, for a relationship,” told la diaria the Spanish attorney Carolina Marín-Pedreño, who litigates in England. “Once it doesn’t work out, the first thing you want is to go home, where you count on emotional and logistical support, even the language, everything one sacrifices to follow your partner,”.
Marín-Pedreño is the vice president of the International Association of Family Law Jurists and wrote the award-winning book “International Child Abduction and the Legal Process for Restitution” (2016). She considers the 1980 Convention a “fantastic instrument” to protect children, but notes its misuse by fathers:
“It has been weaponised. Unfortunately, I see it in practice. It has become a weapon of control after the breakup, ‘through the Hague Convention, I continue to control the situation, I continue to control our relationship’ by requesting the children’s return.”
Our European Maria knew the Hague Convention when she asked to divorce her abusive husband, who wouldn’t allow her to leave. Her lawyers discouraged her from pursuing a judicial permit to move out of the country with her children. “An international relocation process with kids is long, expensive and very unlikely for an expat single mom to win,” she explains.
“The entire system, in any country, is biased. A foreign woman who makes decisions, such as divorcing a national citizen, who does not want to live in his country and still dares to want to leave with the children, who are also nationals? It’s a capital sin,” Furquim endorses.
Although Europe is small so distances to family and friends could be easier to handle than overseas, everyday life without them feels the same as if there were an ocean in between. “And nobody understands it, nobody believes me,” remarks the European Maria. “Why don’t you leave?” she is often asked. “How to explain that I’m stuck here because of such a Hague Convention, which does not allow me to leave with my children?” When she tries, “no one understands it, no one believes me,” she repeats, tired.
Lawyers approached by la diaria in several countries agree on the complexity of the only legal route to prevent abductions when there’s no common ground between transnational parents. In Spain, an estimate of only 2% of formal requests are approved by judges. For Marín-Pedreño, enabling an international protocol for relocation in family disputes would be a solution.
Whatsapp, September 2, 2023. “I have the children, we have just come back to the UK. This is so hard. After six weeks [of summer holidays] in my country, and now here again lonely. So sad I get…”, expressed the stuck Maria in her latest contact.
Maria has no life. Not a life of her own.
Maria’s nemesis
Despite domestic violence, despite holding custody rights and despite being their children’s primary caregivers, hagued Marias may not only lose their children on harsh trials, but the way it’s carried out adds insult to injury. Police can intervene and even pull kids out of their mother’s arms if she resists handling them upon a restitution order.
Something like that happened to the Uruguayan Maria. Once they arrived in Spain, she took a last-minute refuge inside her country’s consulate in Barcelona, where judges had ordered mother and daughter to split. The consulate sheltered Maria and the seven-year-old girl then, which led to a diplomatic conflict between Uruguay and Spain. It lasted a few days until Maria had no option but to give in. Mother and daughter were crying out while set apart.
Other Marias and children have gone through the same trauma across the world. Different countries, different Police, with or without Interpol, same thing. Heartbreaking testimonials amount on the internet. Last June, another Brazilian Maria woke up to knocks on her door at six o’clock in the morning on a random day in Rio de Janeiro.
Federal agents armed with rifles were there to pick up her two daughters, she describes in detail during a four-hour interview on a news stream channel shortly after the shock.
“Armed with rifles as if I were some narco,” she recalls and continues: “They told me to wake my girls up and get them ready otherwise they would have to do so.”
Raquel Cantarelli had lived about four peaceful years with her daughters in Brazil since she first won the abduction process to remain there with them. Until now, months later, she has no access to her daughters taken to Ireland, she confirmed to la diaria. The only thing she knows is that the girls are with a father who sexually abused them in a country where they do not speak the language, with no contact with their mother at all, she said.
The (un)holy guidelines
All Marias who were interviewed by la diaria for this article have clashed with being constantly harassed by their exes with similar quotes, even though they did not know each other, even though they were from different countries and spoke different languages: “You are useless”, “you do nothing right”, “you are crazy”, “it is all in your head”, “you are insufferable”. They have also reported that none of their children’s fathers agreed to break up.
According to the UN, “emotional abuse includes undermining a person’s sense of self-worth through constant criticism; belittling one’s abilities; name-calling or other verbal abuse; damaging a partner’s relationship with the children; or not letting a partner see friends and family.”
On the other hand, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, known as the Belém do Pará Convention (1994), defines violence against women “as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere.”
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979), in turn, establishes in its Article 5 that “States Parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”
Even so, the HCCH Guide to Good Practices on Art. 13b, published in 2020, states in paragraph 58 that, in case there is evidence of domestic violence, judges must evaluate how “grave” it is for the minor to the point of not returning him or her:
“The specific focus of the grave risk analysis in these instances is the effect of domestic violence on the child upon his or her return to the State of habitual residence of the child, and whether such effect meets the high threshold of the grave risk exception, in light of such considerations as the nature, frequency and intensity of the violence, as well as the circumstances in which it is likely to be exhibited. 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.”
Judges are given these guidelines to learn how to comply with the 1980 Hague Convention within their jurisdictions. “Any judge who is not familiar with human rights might read this and conclude that domestic violence is fine if it’s only against the mother. This book tolerates abuse and infringes on States’ obligations towards the victims,” Furquim expunges.
Several alerts have been raised against HCCH guidelines, including a joint letter signed by three special rapporteurs from the UN Office of the High Commissioner for Human Rights. Last September, Reem Alsalem, Alice Jill Edwards and Mama Fatima Singhateh, who speak for gender-based violence, torture and sexual abuse against girls, respectively, addressed HCCH’s secretary general, Christophe Bernasconi, to urge for changes.
The rapporteurs consider “inadmissible” the current situation for migrant women and children, and recommend, for instance, to carry out litigations in the mother’s country in cases of domestic violence, among a list of other priorities. Likewise, the letter reinforces States’ obligations to prevent, acknowledge and eradicate violence against women.
The holy grails
Central authorities from over 100 signatory countries, as well as experts and organizations, got together last October, in the Dutch city of The Hague, for the eighth meeting review of the 1980 Convention. Its last review, in 2017, resulted in the controversial bench guide.
“There’s a lot of pressure for domestic abuse to be considered within Article 13b as sufficient for non-return,” says Marín-Pedreño, who has attended the meeting. According to the attorney, HCCH is interested in the international relocation issue and invited her to take part as an observer. She presented a comparative study among almost ten countries to show “the need to come up with a model process, a standard protocol to simplify cross-border changes of residence”.
In addition to the UN joint letter, the bill queueing in Brazil’s Parliament, the discussion on international relocation and civil society campaigns, other initiatives are on the rise. In December 2022, an Australian decree determined that domestic violence must be taken into account in cases of international child abduction.
On April 2023, a decision by the Mexican Supreme Court of Justice recognised all forms of domestic violence as a grave risk for children, which should be understood by courts as an exception for Hague cases. Moreover, an agreement signed by South American Mercosur shall automatically enforce protective measures across the entire bloc for women victims of violence. State parties have yet to ratify it, and Argentina has taken the lead towards it.
In turn, the Inter-American Court of Human Rights (IACHR) delivered its first ruling on international child abduction in 2023. An Argentinian father sued Paraguay for failing to repatriate his son in a timely manner under the Hague Convention. His lawyer, Patricio Poplavsky, spoke to la diaria shortly after the public hearing, confident of victory, which indeed came true later. Since no attention was paid to the mother’s human rights at stake, its verdict has raised concerns over its impact on all Marias throughout the continent, perhaps the world.
And while HCCH works to strengthen the treaty’s compliance, nobody knows what happens to children afterwards. There’s no follow-up or data available to back up that the restitutions are in the best interest of the child. Goicoechea explains that “non-return decisions are a bad option because it risks preventing contact between the child and one of the parents for a long time”.
“However, this problem may be justified when the exception of grave risk is provided”, concluded the HCCH’s head for Latin America and the Caribbean.
What about little Chris? What happened to the two sisters sent to Ireland with no contact with their mother ever since? What happens to the Brazilian Maria who fled Uruguay if judges decide, based on official guidelines, that proving domestic violence is not “sufficient” to keep her children from going back? Why has the Inter-American Court expressed nothing regarding the Paraguayan mother’s human rights claims? To be continued.
This feature is part of an independent investigative series and did not count on any financial support, although it began after being selected for a writing residency at the FaberLlull Institute in the Catalan city of Olot in 2022.