Mães de Haia: uma análise da subtração internacional de crianças em casos de violência doméstica à luz da Convenção de Haia

Abstract

This study investigates the application of Article 13(1)(b) of the 1980 Hague Convention in cases of international child abduction motivated by domestic violence, with a focus on the protection of immigrant mothers. The general objective is to analyze how the restrictive interpretation of this provision compromises the safety of the women and children involved, considering the presumption of immediate return to the country of habitual residence. The specific objectives include examining the legal foundations of the Hague Convention, assessing the intersection between domestic violence and international child abduction through the lens of Intersectionality Theory, and analyzing concrete cases recorded in the International Child Abduction Database (INCADAT), identifying decision-making patterns in international courts. The research adopts a qualitative approach and employs the deductive method, based on bibliographic and documentary research of legislation, legal doctrines, academic articles, and international case law. The study concludes that the absence of specific guidelines on domestic violence in the Convention, combined with the excessive reliance of courts on formal protective measures (undertakings), results in the revictimization of immigrant women and the exposure of children to psychological and physical risks. Therefore, this work proposes a critical reflection on the need for a more flexible interpretation of Article 13(1)(b), ensuring that the principle of the best interests of the child is not subordinated to the rule of immediate return but is analyzed comprehensively and individually in each case