The Legal Paradox Faced by Migrant Mothers Under the Hague Convention

I became a mother at the age of 15, in 2005. Motherhood came to me at a time when I was still learning about life itself. Years later, in 2017, I decided to move to the United Kingdom in search of better opportunities for both my daughter and me. It was not an easy decision, and it required us to live apart for more than two years while I regularized my immigration status and established the stability necessary to welcome her.

I was only able to bring my daughter to the United Kingdom because her father consented to the relocation. As we both shared parental responsibility, his authorization was legally required. Without it, I would have needed to apply to the court for an order dispensing with his consent. It was through this experience that I first came to understand, in a very practical way, how international law governs the mobility of parents and children—and how profoundly these legal rules can shape, and at times restrict, the lives of transnational families.

In time, I rebuilt my life. In a more stable chapter, I met my current partner, with whom I have built a new family. Together, we planned the birth of our second daughter. It was an entirely different experience: intentional, secure, and grounded in emotional and financial stability. Yet even in this new reality, I encountered the same legal limitation. Should I decide to return to Brazil with my younger daughter, I would once again need either her father's consent or a court order.

It is precisely at this point that personal experience and legal knowledge converge. The limitation is not unique to my own story—it is embedded in the legal framework governing these situations. The principal legal instrument is the 1980 Hague Convention on the Civil Aspects of International Child Abduction, ratified by Brazil through Decree No. 3,413/2000 and in force in the United Kingdom since 1986. The Convention seeks to protect children who have been wrongfully removed or retained by one parent by ensuring that custody disputes are determined by the courts of the child's habitual residence.

Under Article 3 of the Convention, a child's relocation to another country is considered wrongful when it breaches the parental rights exercised by the other parent or legal guardian. This means that, even as my child's primary caregiver, I could not unilaterally decide to move abroad with her—even where that decision is motivated by legitimate considerations such as improved living conditions, the availability of family support, or personal safety.

Although the Convention serves an important purpose, its practical application may at times produce restrictive outcomes. British case law—including In re A [2013] UKSC 60 and Re C [2018] UKSC 8—has interpreted the concept of habitual residence by considering factors such as the child's degree of social integration and the parents' shared intentions. While these are relevant considerations, they are not always sufficient to capture the complexity of the family circumstances in which such decisions arise.

Beyond my own experience, I also witness the realities faced by many other women. As an international family lawyer, I work daily with migrant mothers—most of them Brazilian—who encounter similar challenges. In many of these cases, there is a history of domestic abuse, and the issues extend far beyond legal doctrine. They concern personal safety, protection, and human dignity.

It is not uncommon for women experiencing domestic abuse to be forced to negotiate their ability to leave a country with their children. Frequently, a father's consent is made conditional upon the mother relinquishing economic rights, such as her entitlement to a share of matrimonial property. These women find themselves forced to choose between maintaining their relationship with their children and securing their own financial stability. Although this practice often remains invisible, it constitutes a form of economic abuse that further exacerbates their vulnerability.

The problem becomes even more pronounced when examining how the Convention's exceptions are interpreted. Article 13(b) provides that a child's return may be refused where there is a grave risk that the child would be exposed to physical or psychological harm. Nevertheless, many judicial decisions continue to require evidence of a direct and immediate risk to the child, while failing to recognise the profound impact of growing up in an environment where violence against the mother is routinely witnessed.

In recent years, Brazil has adopted a more protective legal approach. With the enactment of Law No. 14,713/2023, the Brazilian Civil Code now provides for sole custody to be awarded to the non-abusive parent in cases involving domestic violence and, where appropriate, permits the abusive parent's parental authority to be terminated. The reform reflects an important legal recognition that violence against the mother also directly affects the child.

The Domestic Abuse Act 2021 has similarly marked an important development in the United Kingdom. It expressly recognises that children who witness domestic abuse are themselves victims. Recent decisions, including Re C (A Child) (No Contact) [2024] EWFC 366, demonstrate that British courts are increasingly willing to restrict—or even remove—an abusive parent's parental responsibility where necessary to protect the child's welfare.

These developments, both in Brazil and in the United Kingdom, reflect an important shift in legal thinking. Children cannot be viewed in isolation from their family environment. Exposure to domestic violence—even where it is not directed at the child personally—constitutes a violation of the child's rights.

The 1980 Hague Convention should evolve alongside this understanding. A more flexible interpretation of its provisions, particularly regarding the application of its exceptions, would not weaken the Convention. On the contrary, it would strengthen its legitimacy by making it more responsive to the lived realities of the families it was designed to protect.

Ultimately, it is from this perspective—both personal and professional—that I advocate for an approach to International Family Law that fully acknowledges the complexities of migration, motherhood, and human relationships. Legislation remains indispensable, but it fulfils its purpose only when applied with careful listening, sound judgment, and a genuine commitment to social justice.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. If you require guidance regarding your specific circumstances, please consult a qualified legal professional.

References

Brazil. Decree No. 3,413 of 14 April 2000. Promulgating the Convention on the Civil Aspects of International Child Abduction. Official Gazette of the Union, Brasília, 17 April 2000.

Brazil. Law No. 14,713 of 30 October 2023. Amending the Civil Code and Law No. 13,105/2015 (Code of Civil Procedure) concerning child custody in cases involving domestic and family violence. Official Gazette of the Union, Brasília, 31 October 2023.

HCCH – Hague Conference on Private International Law. Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. https://www.hcch.net/en/instruments/conventions/full-text/?cid=24

United Kingdom. Domestic Abuse Act 2021. https://www.legislation.gov.uk/ukpga/2021/17/enacted

UK Supreme Court. In re A (Jurisdiction: Return of Child) [2013] UKSC 60. https://www.supremecourt.uk/cases/docs/uksc-2012-0222-judgment.pdf

UK Supreme Court. Re C (Children) [2018] UKSC 8. https://www.supremecourt.uk/cases/docs/uksc-2017-0184-judgment.pdf

Family Court (England and Wales). Re C (A Child) (No Contact) [2024] EWFC 366. https://osborneslaw.com/case-studies/domestic-violence-parental-responsability

United Nations. Convention on the Rights of the Child (1989). https://www.unicef.org/brazil/convencao-sobre-os-direitos-da-crianca

United Nations Committee on the Rights of the Child. General Comment No. 14 (2013): The Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration.

CEDAW Committee. General Recommendation No. 35 (2017): Gender-Based Violence against Women.

Image Credits

Photo by Nicolas Postiglioni

---

Vanessa Moura

Vanessa Moura is an international lawyer practising in International Family Law, Immigration Law, and Corporate Law across Brazil, Portugal, and England. She provides comprehensive legal support to families and entrepreneurs in cross-border matters, including marital planning, visa applications, nationality, marriage registration, child custody, division of assets, wills, and succession planning. With a strong focus on gender-sensitive advocacy, she assists immigrant women facing complex legal challenges, offering specialised legal support in international contexts. She is the founder of the Advocacia Sem Fronteiras (Law Without Borders) Community, where she mentors and teaches lawyers seeking to expand their practices internationally. She also serves as a Director of the Brazilian Lawyers Association in England, fostering connections between Brazilian legal professionals and the British legal community.

Instagram | LinkedIn | Mail | Site | Dribbble