The Central Authority is convinced that admitting domestic violence as an exception for not returning a child to his or her previous country violates the 1980 Hague Convention on International Child Abduction. la diaria investigated why.
by Patrícia Álvares, for la diaria – June 29, 2024*
At least 69 judges of all matters in Uruguay have been taught to overrule National Law 19.580 on gender-based violence in international child return proceedings under the 1980 Hague Convention. Apparently unrelated content published by the Ministry of Education and Culture (MEC) and the judiciary led la diaria to request access to information through Law 18.381. Cross-checked responses revealed a problem not exclusively Uruguayan although it has become institutionalised in that South American country.
Training in gender perspectives for Justice operators is one of Uruguay’s biggest challenges in ensuring that they comply with the Convention on the Elimination of All Forms of Discrimination Against Women, known as CEDAW (1979). In the official response to la diaria, the Judicial Studies Center of Uruguay (CEJU, in Spanish) compiled 16 activities on “gender-based violence and discrimination” carried out from 2020 to 2023. Among them, however, were not only instructors who were unaware of CEDAW but also those who run directly counter to it.
The last United Nations CEDAW Committee evaluation of Uruguay, shared by the Judiciary in February, emphasised that “Justice’s incorporation of gender perspective must be accompanied by gender-sensitive training“. The report highlights the problem’s persistence, as it was also present in the previous 2016 review.
According to CEJU, the 69 judges attended five video-conference classes from 31 May to 15 June 2022 – a total of ten hours – led by three male instructors. One of them, the central authority for MEC’s International Legal Cooperation, Daniel Trecca, has officially stated on behalf of Uruguay that its GBV law does not apply to the Hague Convention.
This was indicated in the treaty’s National periodic questionnaire, published in January 2023. Each country’s central authority is in charge of filling it out for the Hague Conference on Private International Law (HCCH). Provided with no explanation, HCCH was informed that the rule adopted in Uruguay after the last review can only apply to restitutions involving non-signatory countries (where cases are not normally registered).
Co-author of Law 19.580, lawyer Diana González was not aware of this rule. “If pertinent”, it would be up to the Supreme Court of Justice (SCJ) “to proceed under Civil Code article 14“, explained González, whose expertise in gender and children has made her Uruguay’s candidate for the CEDAW Committee in 2024. Article 14 enables SCJ to express itself on “doubts and conflicts that may arise in a law’s understanding and application, as well as any gaps it may come across, in order to foster either interpretation or new laws”. No such action regarding this issue has been made public to date.
The total authority
In over half the countries of the world, around 3,000 children who travel to another country each year without permission of both parents, are considered victims of international child abduction by the ‘taking’ parent. The 1980 Hague Convention enables the country of origin to request a child’s prompt return to their ‘habitual residence’. The implementation of this Convention has resulted in an average of six mothers a day being accused of abducting their own children – 94% of whom have custody and take care of the child or children on a daily basis. This means one woman every four hours. All foreigners.
Countries’ focal points of direct communication with each other to process return requests are called the “central authority” under the Hague Convention. Restitutions (returns) are requested when a child is abroad with one parent against the will of the other, who files the case. In Argentina, for example, the central authority operates in the Ministry of Foreign Affairs, while in Brazil it runs within the Ministry of Justice and, in Uruguay, in MEC’s Department of Constitutional and Legal Affairs.
Throughout the National questionnaire, the Uruguayan central authority also reported holding regular seminars about the 1980 and 1996 Hague Conventions for “related authorities” in the country. Furthermore, beyond providing them with guidance, MEC’s director has “free access” to court proceedings, and must be notified so as to “attend hearings whenever there’s one”. Although it is not one of the attributions defined in detail by Article 7 from the 1980 Hague Convention and its 1989 Inter-American counterpart, this power has been granted by Article 10 in Law 18.895 (from 2012), which regulates both treaties in the country.
Yet central authority’s influence on judges precedes Trecca and the legislation itself. In fact, Law 18.895 was born this way, out of a CEJU workshop with HCCH and MEC’s then-officer back in 2005, according to its records. Its development reveals a particular concern expressed among the bill’s proponents, who were coordinated by the former SCJ and Inter-American Court of Human Rights (IACtHR) president, Ricardo Pérez Manrique. They were concerned about “the country’s image and that of its judges” before the international community.
The Hague Inquisition
As official statistics allow us to estimate, around 2,000 mothers fall victim to the Hague Convention annually. In the last decade, there have been at least 15,000, including Uruguayan Maria. They represent 75% of international child abductions worldwide, a percentage which has been rising since the first report in 1999. It is even worse in Uruguay, where, almost every year, the Hague Convention affects only women.
Maria’s emblematic case has inspired the drafting of Article 44 in the GBV Law 19.580, approved in late 2017. Its co-author together with González, lawyer Alicia Deus told la diaria so. Article 44 adds a paragraph to Law 18.895’s art. 15 specifying that domestic violence against mothers is a grave risk to children.
The aftermath was impressive. By cross-referencing annual reports before and after the amendment against each respective judgment available on the national jurisprudence open database, la diaria discovered that restitutions were reduced by half in the sum of cases reported between 2018 and 2020.
Judges started acknowledging the intolerable situation that domestic violence means for children exposed to it. And so went they on to apply the grave risk exception enshrined in the Hague Convention to deny restitutions when such was the case, “which must be avoided so children can thrive in an environment free of violence, respecting their fundamental rights,” according to Gloria Seguessa Mora, an interim minister, in a verdict by the Family Appeals Court (TAF, in Spanish).
In 2019, however, there was a shift. An objection to Law 19.580, initially rejected by TAF ministers, started gaining traction among them. As of 2021, all three reported cases returned children to their previous country of residence. In 2022, the only dismissal was based on the claim’s admission, since the mother counted on a permit to live in Uruguay with her daughter.
When asked by la diaria, TAF minister Eduardo Cavalli saw no problem in “changing one’s mind as a natural phenomenon of evolving law”: “Fortunately, if you realise there is a better point of view than what you had before, you face a dilemma. I can either stick to the same stubborn path or change it because someone convinced me there is a better way to apply the law. I obviously choose the latter.”
Cavalli was persuaded by the same reasoning on which MEC’s central authority relied when informing HCCH and judges that the 19.580 law does not apply to the Hague Convention. Initially, Law 19.580 was pleaded by restitution litigants when they appealed to TAF after losing primary instances due to the new law, but to no avail. A cross-check of Judiciary open data carried out by la diaria reveals that this changed approach among judges begins to emerge when the amount of annual restitutions starts to drop.
“More than an interpretation of the law, what is being suggested is a law’s de-application, which judges cannot do if the norm is clear,” asserted González.
In Colombia and Mexico, judges in the highest court understand that violence against mothers is also grave for children an understanding which has guided their Hague Convention judgments from 2023 onwards. Similarly, Australia has recognised domestic violence as a risk factor within families and legislated to protect children from arbitrary repatriation through a decree in 2022.
In Uruguay, however, it was not enough to legislate it; MEC’s Central Authority has overruled existing gender-based protections for “related authorities”.
The Central Authority replies
Why doesn’t Uruguayan law on gender-based violence apply to the Hague Convention?, la diaria asked Trecca, magistrates, academics, lawyers and experts. Over the telephone, the Central Authority refused to comment. It took a petition under the law on access to public information to require the Ministry of Education and Culture to provide the juridical explanation behind the statement made to HCCH on behalf of Uruguay.
MEC replied that if domestic violence is accepted as an exception for not returning a child to his or her previous country, this is in breach of the Hague Convention. “It is clear, therefore, that Article 15’s new wording expands the list of exceptions to returning minors to their State of habitual residence, since Uruguayan judges would be obliged to admit grave risk to the mother as well in cases where she is the abductor and gender-based violence has been in place against her from the left-behind parent –regardless of whether children have also suffered it or not” declared the Ministry in response to la diaria.
For González, MEC “ignores that whenever there is violence against someone who cares for another, the person in care suffers too.” Uruguayan jurisprudence from when the amendment was respected is quite illustrative. In one example, the mother’s defence shows how “the psychological analysis clearly establishes the risk configuration for the daughter,” not only for having to endure the violence suffered by her mother but also for “how going back to live in a country where they count on no support exposes the girl to a risk and places her in an intolerable situation.”
The Central Authority’s response utilises the argument that was first rejected by TAF’s judges and later adopted by them: due to Article 27 of the 1969 Vienna Convention on internal law and observance of treaties, “a State party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
However, “It’s not about failing to perform the treaty, it rather helps to comply with it by defining a diffuse concept such as the grave risk. That’s what the gender-based violence law does and it cannot be disapplied under the excuse of consulting a norm’s spirit,” argues the GBV law’s co-author, evoking Civil Code’s articles 16 and 17.
Further, the Ministry relies on Article 1 of Uruguayan Law 19.920 (from 2020) on private international law to reiterate how the GBV amendment can be only applied to countries with which Uruguay has no agreement on child abductions in force. Not a single word on the same law’s Art. 5 however, the Article that makes “inapplicable the precepts of foreign law when they contradict” or are incompatible “with fundamental rights safeguarded by the Republic’s Constitution and international conventions to which the Republic is bound to”.
Similarly, Article 31 of the Vienna Convention on how to interpret international treaties is set aside: “A treaty shall be interpreted in good faith” according to the context and purpose, besides “any relevant rules of international law applicable”. This clarification had been made concerning the Hague Convention in 2022, when the UN Committee on the Rights of the Child drew attention to States’ obligation to protect human rights in matters of international child abduction and restitutions.
Neither do the 17 pages of the Central Authority’s response mention CEDAW or the Hague Convention’s own Article 20, nor any other international human rights instrument inherent in the gender-based violence amendment. That was a specific inquiry to the Ministry of Education and Culture in la diaria ‘s petition for access to public information.
Express returns
“In 2020, it took us 55 days on average to conclude judicial proceedings. Last year, only 41,” said liaison judge Bendahan, one of Law 18.895’s three co-authors, during the first Latin American liaison judges meeting last May in Rio de Janeiro. These magistrates are the Hague Convention’s referees in their home country’s Judiciary, similar to central authorities. They are in charge of direct communication with their peers in signatory countries, consulting each other, particularly regarding what protective measures might be available in order to send children back to intolerable situations.
Uruguayan law on international restitution (18.895) does make achievable the strict six-week deadline to resolve cases established by the Convention. In practice, meeting this short timescale seems a bizarre ambition – particularly for those defending the ‘taking’ parent. As expert in International Relations Florencia López explains in an interview with la diaria:
“From the very first start, everything works against you, time is too short, you are in shock, you have to find a lawyer, it cannot be just anyone, it’s an overly specific issue, too complex, very few handle it, until you find one, if they are available, if you can pay, if they treat you nice, tell them everything, relive everything once more, twice, many times, all still mothering and having to do it all well, in shock”, details López, who coordinates the International Network of Uruguayan Women Victims of Violence Abroad (Rimuvve, in Spanish). The initiative has been supporting mothers accused of international child abduction after fleeing abuse since 2022.
On the other hand, numbers shared by Bendahan in Brazil do not precisely match, as la diaria fact-checked them. According to the 2020 annual report, out of the six cases Uruguay counted back then, one was dismissed by the claimant himself. That didn’t prevent its short life of 25 days from being calculated to enhance the law’s results. The same in 2023, when only two cases were reported, and one was voluntarily solved. Its briefing of 14 days was also added to the maths, reducing the average length.
Considering judicial processes duly impacted by Uruguayan law, it took 61 days to conclude the five cases completed in 2020, while the single full one reported last year lasted 69. One week more, one week less, just as fast. Yet both periods were after judges shifted their positions on gender-based violence. Reports which revealed this have also shown that abiding by the amendment slowed procedures down. Hence speed effectively goes hand in hand with restitutions. The quicker it is, the less in-depth consideration, more automated, more room for error, more mothers and children torn apart.
“We call them express restitutions,” social worker Andrea Tuana tells la diaria. She is head of the organisation El Paso, which assists women victims of violence and which also partners with Rimuvve to help vulnerable mothers in migration contexts. Speed over context may well foster human rights violations in Hague Convention cases. The UN Committee on the Rights of the Child has warned of this possibility in Chile’s historic conviction for ordering the return of an autistic boy to Spain regardless of the best interests of the child as a whole in 2022.
Moreover, such efficiency in returning children is not matched by effective procedures for accessing them once they are returned. Months, even years of abandonment, and invisible torn-apart lives left behind. Same convention, same regulation, but clearly not the same priority. In this sense, the best interests of the child end up reflecting rather the right of the left-behind parent claiming breach of custody –75% of them fathers, of whom only 6% were their children’s primary caretakers. To make it worse, no one knows what happens after children are sent back – a majority to their fathers, not the judges, the press, nor even mothers sometimes.
“There is no best interest of the child, only of the father”, added Tuana, who was also unaware of the judicial understanding against gender-based violence in Hague proceedings. “They created a perverse and perfect system, there’s no way out”. She concluded that Law 18.895 “must be changed.”
Expressive reforms
María’s torment of undergoing a Justice system in which everything “works against you” led her lawyer, Virginia Salvo, to draft a bill to reform Law 18.895. “This law aims to secure restitutions, but it lacks the guarantee to a fair process,” a basic principle in Law, she outlined in dialogue with la diaria. Holding a master’s degree in procedural law and specialising in family law, Salvo proposes to correct the flaws of 18.895 without missing the ambitious treaty deadline or fundamental rights.
The procedural lawyer was aware of judges rejecting the GBV amendment based on the Vienna Convention since she reviewed jurisprudence to draft the bill. Therefore, her project already refutes such allegations and restores Law 19.580’s contribution. She agrees that if MEC’s logic made sense it would partially disable the international restitution law itself. Article 22, for instance, fails to perform the Hague Convention grave risk exception once it forbids judges to deny restitutions, despite the evidence, whenever “adequate protective measures” are available for a child’s return to his or her previous country of residence.
Article 22 was copied to the letter from the European regulation called Brussels II. Many Uruguayan children with dual citizenship have been sent back to intolerable situations abroad backed by this provision, according to jurisprudence. María’s daughter, for example, was ordered to live with her father in Spain despite all evidence of sexual abuse she had suffered at his hands. Bearing that in mind, Salvo’s bill adds to Article 22 a paragraph reminding judges that the existence of protective measures do not equate to effective access to them or to real safety for either children or their mothers.
Another crucial point in the lawyer’s draft is the best interests of the child, which she amends in line with the UN Child Committee‘s observations, stressing that exceptions foreseen by the treaty must be analysed “all along the process” within each specific case and not “in a generic way”. Finally, Salvo addresses one of the Hague Convention’s major concerns. At the end of Law 18.895, she proposes a new article to “track children’s returns”. Especially when exceptions have been claimed, it emphasises the need “to check how the child has been doing” to shed light into the aftermath of Hague judgements.
Liaison judges who met in Brazil have also urged a follow-up of restitutions, together with other recommendations published in the Rio de Janeiro Charter. When it comes to human rights, nevertheless, the document is limited to promoting the immediate return as the best interest of the child. It quotes the Inter-American Court while silencing the United Nations Committee for the world’s most ratified Convention ever, the one on the Rights of the Child.
As for changes in Uruguayan law on international restitutions, TAF’s minister Cavalli finds it plausible. As one of its co-authors together with Bendahan and Pérez Manrique, he reckons there might be “aspects to improve because this law, like any other, is a human product and as such can always get better.”
This feature is part of an investigative project and did not receive any financial support, although it began after being selected for a writing residency at FaberLlull Institute in the Catalan city of Olot in 2022.
*Originally published in Spanish by the Uruguayan newspaper la diaria, this piece has been written, updated, translated, and adapted into English by journalist Patrícia Álvares.