Mary had to leave, and not only did Mary. Over half the world, year after year, around 2,000 expat women are accused of kidnapping their own children.
Published on October 14, 2023
Patrícia Álvares for la diaria
This article is not about the Uruguayan Mary, whose struggles led to a national campaign “María won’t leave” and touched the Eastern Republic of Uruguay in 2019. 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 Maries more—at least 15,000 of them in the past decade, an estimate from official statistics. Half get to extreme situations as the Uruguayan Mary, forced to let go of her daughter and return her to the father in Spain, despite evidence of sexual abuse too.
Apart from them, other invisible innumerable expat mothers trying to prevent the same destiny fall into an international law limbo: they cannot leave, nor can they stay. All of them, anonymous, named or celebrities inclusive, reflect an overlooked and increasing global phenomenon from the 21st century.
They are free women who go wherever they want to, cross borders, fall in love overseas, start families far from home, break up and end up trapped. Raising kids away and alone, often under coercive control, they are vulnerable foreigners, with only three choices: abduct their kids, abandon their kids or abide and survive somehow.
Throughout this article, they all are Maries or stuck Maries: expat mothers behind the 1980 Hague Convention. Its eighth review meeting last October 2023, has concluded agreeing to pay them some attention with a first forum on domestic violence in June 2024.
Right now, a Brazilian Mary has begun the same nightmare of begging 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 past ten years living in Uruguay, as she told Globo’s news agency, she has officially denounced her Uruguayan husband, “an important doctor,” for domestic violence eight times. She was even assigned permanent police protection at her front door, the Brazilian news agency reported. Nothing would stop her two kids’ father from threatening to kill them. For obvious privacy reasons, no names have been shared.
Terrified, the 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 different from kidnapping, many countries translate it that way, including Brazil, or even criminalize it and arrest parents, such as the United States or 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 its 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 half a century later. The Africans Botswana and Cape Verde were the latest ones to join, at the beginning of 2023, as the treaty spreads now across developing countries in special.
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 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 on hand with member states to ensure the treaty’s efficiency, as well as to expand its influence. 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.”
In reality, it is not so simple though. In 2019, Uruguay followed Mary’s battles for her daughter in a traumatic return to Spain, leading to 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 return order.
The Hague contravention
Article 13’s subparagraph ‘b’ provides the possibility not to repatriate a minor if there’s a “grave risk” of an “intolerable situation” upon return. It’s the most claimed exception in international abduction prosecutions to avoid children’s repatriation. In fact, it’s become a thorn in HCCH’s side to keep the 1980 Hague Convention into force or compelling enough for more countries to sign it.
Advocates of the treaty argue that there’s been an excessive use of the resource provided as an exception. Although ‘13b’ does not safeguard parents judged as abductors, such plea slows down the procedures to send children back as quickly as the ambitious six-week deadline envisaged by the Convention.
In 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 on the Ministry of Justice’s hands, CNJ’s 449 resolution hastens procedures by reducing the defence’s chances on trials. 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 and 94% of them are their children’s primary caregivers. It’s three times more than abductive fathers, who accounted for 23% in the same year.
The amount of Maries 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.
Hagued Maries
Carolina Gouveia is the real name of one Mary who left Canada with her baby and the father’s consent in 2018. By the time she was notified about the international abduction of her son, little Chris’s only tie with the country of origin was the 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 barely been born there and neither his Lebanese father nor his Brazilian mother had a visa to live in Canada.
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 Maries 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 presence of the father – 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 maintain his mother tongue, to be with his mother and cared for, 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 stay there with the child despite the international request for restitution, according to the embassy’s response to Carolina 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 Tunísia Viana is another Mary. She was in a women’s shelter in the United States with her baby daughter, only three months old back then when she obtained judicial permission to travel to Brazil in 2014. Unlike other hagued mothers, she knew about the 1980 Convention. 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 warned about the international child abduction. In the battle to defend herself, Tunísia found out that her now ex-husband had attacked the Brazilian consul, which was not mentioned in the process. As she managed to inform the aggression, her case was unprecedently exempted.
“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 stresses in the interview with la diaria.
The exemption was not a victory for Tunísia though. The US does not reckon it, so she can still face jail if she goes to their territory or any other. “It ruined my professional career. I came back to work only on domestic flights as I cannot leave Brazil,” she states. On the other hand, her story inspired a bill to recognize domestic violence as a grave risk to protect children from repatriation whenever complaints have preceded the escape. The draft has already been approved by the Brazilian Chamber of Deputies and awaits Senators to vote it.
As for Carolina, she “had never heard of such Hague Convention” when she boarded towards Brazil with four-month-old baby Chris. In fact, she had even sought legal advice before doing it. As she still had a Canadian student visa back then, she was allowed access to a public defender, who advised her to file both divorce and custody processes from her home country, where she could count on better support.
“Many mothers who come to me have heard the same advice from their 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 children,” she adds.
The majority, however, “have already been caught” when they find Gambe, Furquim observes, just like it happened to Carolina, who insists: “I wouldn’t have left had I known it before”. “When not even lawyers know what international child abduction is, how come any person who seeks professionals precisely for not having studied law will figure that out?” inquires the support group’s co-founder.
Stuck Maries
United Kingdom, March 16, 2022. She sits down and lights up a cigarette. She only smokes in delicate situations and hidden. She is a European Mary who agreed to speak to la diaria as long as her name, residence or nationality wouldn’t be 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 the standard Mary’s script: falling in love with a foreigner or abroad, turning into a transnational couple, starting then a multicultural family with dual citizenship children, settling down far from home.
“The reality of globalization, of mobility, is that it is women who normally leave their countries of origin for a relationship, and, when this relationship does not work, the normal thing is to want to return to your home country, where you have your emotional, logistical support, sometimes the language, because one abandons everything to follow one’s partner,” told la diaria the Spanish lawyer Carolina Marín Pedreño, who litigates in England.
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 of the Minor’ (2016). She considers the 1980 Convention a “fantastic instrument” to protect children, but notes its misuse by fathers:
“It has become a weapon. Unfortunately, in practice I see it. It is a weapon of control after the breakup, ‘through the Hague, I continue to control the situation, I continue to control our relationship’ by requesting the children’s return.”
Our European Mary 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 by stereotypes. 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 national? 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 Mary. “Why don’t you leave?” she is often asked. “How to explain that there is a Hague Convention that does not allow me to go with my children, that I’m stuck here?” When she tries, “no one understands it, no one believes,” 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 Mary in her latest contact.
Mary has no life. Not a life of her own.
Mary’s nemesis
Despite domestic violence, and despite being their children’s primary caregivers, hagued Maries may not only lose their children facing harsh trials, but the way it’s carried out also 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 to go back to the same father from whom she tried to escape and protect the family.
Something like that happened to the Uruguayan Mary. 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 Mary and the seven-year-old girl then, which led to a diplomatic conflict between Uruguay and Spain. It lasted a few days until Mary had no option but to give in. Mother and daughter were crying out while set apart.
Other Maries and children have gone through the same trauma in other places. Different countries, different Police, with or without Interpol, same scene, stories, scars. Heartbreaking testimonials amount on internet. Last June, another Brazilian Mary woke up to knocks on her door at six 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 daughters up and get them ready otherwise they would have to.”
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, without any contact with their mother, she said.
(Un)holy guidelines
All Maries 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 Practice on Art. 13b, published in 2020, states on page 38 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.”
With this guide, judges are trained on how to apply the 1980 Hague Convention in the signatory countries. “A judge who is not familiar with human rights treaties might read that and conclude that domestic violence is fine if it’s only against the mother. This document tolerates abuse and violates 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 changes.
The rapporteurs consider the current situation “inadmissible” for migrant women and children, asking for litigations to be carried out in the mother’s country of residence in cases of domestic violence, among a list of priorities. Likewise, the letter reinforces States’ obligations to identify and eradicate violence against women.
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 benchguide.
“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 starting to pop up. 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 recognized all forms of domestic violence as a grave risk for children, which should be understood as an exception for Hague processes in the country. On the other hand, an agreement signed by Mercosur countries aims to be at the forefront of endorsing protective measures for women within its entire members’ territories. Mercosur State Parties still need to ratify the text though, and Argentina wanted to take the lead on the matter.
In turn, the Inter-American Court of Human Rights (IACHR) judged its first case on international child abduction in 2023. An Argentine father sued Paraguay for not having returned his son in a timely manner under the Hague Convention. His lawyer, Patricio Poplavsky, had spoken to la diaria and was confident about the victory, which came true. There’s a concern on how the unprecedented sentence could affect all Maries across the continent, perhaps the world.
Meanwhile, HCCH works to ensure that the 1980 Convention is complied with. What happens after the return of a child is unknown. “The decision not to return is a bad option since there is a risk that this will prevent contact between the child and one of its parents for a long time. However, this problem may be justified when the exception of grave risk is provided”, declared Goicoechea.
What happens then to the Brazilian Mary who fled Uruguay? What about little Chris? Why hasn’t the Inter-American Court said anything about the Paraguayan mother’s claims? What results shall be expected from the first domestic violence forum that HCCH is organising for June 2024?
This feature is part of an independent investigative project 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.
Originally published in Spanish by the Uruguayan newspaper la diaria, the text was translated and adapted into English, as well as updated, by its author, Patrícia Álvares.