Summary of Facts

A.S. married H.K., an Indian national who possessed a master’s degree in computer science, in India in 2013. H.K. later joined A.S. in Denmark in 2015 and was granted a residence permit as his accompanying family member. S.K. was born on 11 September 2017 in Denmark (para 2.1.).

While H.K. and her husband were still residing in India, approximately six months into their marriage, she was subjected to violence by him. A.S. continued to subject her to abuse on a daily basis when they were residing in Denmark. Approximately four months into H.K.’s pregnancy with S.K., H.K. was hospitalised after having been assaulted by her husband. She was diagnosed with post-traumatic stress disorder, depression and anxiety (para 2.2.).

After H.K.’s hospitalisation, A.S. was deported from Denmark. As a result, H.K.'s residence permit also lapsed. She continued to reside in Denmark without a residence permit, given that she could not travel back to India because of the alleged risk of violence by her husband. She applied for asylum in Denmark in 2017 (para 2.3.). However, H.K. and S.K.’s applications for asylum were rejected by the Immigration Service in 2018. The Refugee Appeals Board upheld the decision in 2019, finding that it could not accept parts of H.K.’s statements regarding her grounds for asylum as facts, because she had given diverging and incoherent statements regarding several key points, including regarding her spouse’s violent behaviour towards her. In addition, she had provided contradictory statements regarding the alleged threats made by her own family, given that, in her asylum screening interview, she did not mention those alleged threats. The Board also took into consideration the fact that she had chosen to delete her social media account without securing the evidence with regard to the alleged threats made by her spouse. It concluded that H.K. had not proven on a balance of probabilities that she would be at risk of persecution if she were to be returned to India and that, if S.K. were to be in need of protection upon their return, she could seek out such protection from the authorities in India. Furthermore, there was nothing in the present case that indicated that S.K. would lack access to food, health care, education or other necessities upon her return to India; it had not been substantiated that S.K. would not be able to seek protection from her family and/or the authorities, upon her return to India (para 2.4.).

Complaints

H.K. claimed that S.K.’s life would be in imminent danger if she were to be removed to India, in violation of her rights under articles 3 and 22 of the UN Convention on the Rights of the Child (Convention), due to the threats that her husband has made against her and S.K., his abuse during the author’s pregnancy and the lack of practical and legal opportunities for her to sufficiently protect S.K. from her husband (para 3.1.). Furthermore, H.K.’s family would not offer her or S.K. any support; H.K. would not have an internal flight alternative in India, due to the difficulties faced by divorced women living alone there. In addition, H.K. claimed that she would be at risk of being separated from S.K. given that, in case of divorce, her husband might gain custody (para 3.3); and H.K. did not have the opportunity to seek governmental protection in India, because her husband and his family have political connections in India and because of the corruption in the country (para 3.4.).

H.K. also claimed that she was not informed prior to the meeting before the Refugee Appeals Board that her and her daughter’s applications for asylum would be examined jointly. She was, therefore, not prepared for questions regarding her daughter, which she claims could be the reason why her testimony appeared contradictory. She claimed that the Refugee Appeals Board did not individually review her daughter’s application and that her daughter’s independent claims for protection had not been taken into account (para 2.5.).

Denmark submitted that the communication should be found inadmissible as manifestly ill-founded under article 7 (f) of the Optional Protocol on a Communications Procedure (OP3) and that it was without merit on the basis that H.K. (para 4.1.) had not sufficiently established that her daughter would be exposed to a real risk of irreparable harm if she were to be returned to India (para 4.3). Denmark also argued that the applications for asylum of H.K. and her daughter were given thorough consideration by the Refugee Appeals Board and that H.K. had failed to identify any irregularity in the decision-making process or any risk factors that the Board failed to take properly into account (para 4.6.). With regard to H.K.’s submission that, upon her return to India, her daughter would be at risk of being separated from her because her husband could be granted custody, Denmark submitted that the fact that the father might be granted custody does not mean that H.K. had sufficiently established that her daughter would be exposed to a real risk of irreparable harm if she were to be returned to India. It submitted that a country’s custody laws do not in itself constitute an infringement of the Convention in a way that constitutes irreparable harm within the meaning of the Convention (para 4.7). ¹

Procedural Issues

The Committee on the Rights of the Child (Committee) considered that H.K.’s claims had been sufficiently substantiated for the purposes of admissibility. This was on the basis that S.K.’s life would be in imminent danger if she were to be removed to India, due to the death threats that H.K.’s husband had made against her and S.K., his abuse during the H.K.’s pregnancy and the lack of practical and legal opportunities for her to sufficiently protect S.K. from her husband.

In addition, the Committee noted that, although not explicitly invoked by H.K., the claims raised by her in substance also appear to raise issues regarding S.K.’s rights under articles 6 and 37 (a) of the Convention (para 6.4). The Committee thus proceeded to consider the merits of H.K.’s claims, with regard to articles 3, 6, 22 and 37 (a) of the Convention.

Findings

The Committee noted that, in the present case, it was unrefuted that H.K. had been subjected to gender-based violence by her husband and also acknowledged Denmark’s assertion that State protection would be available to H.K. and her daughter if they were to be removed to India. However, in the light of the concerns expressed by the Special Rapporteur on Violence Against Women, its causes and consequences, (the Special Rapporteur) about the availability in practice of State protection in India, the Committee found that the State party’s authorities failed to accord sufficient weight and to examine in detail H.K.’s claim that State protection would in practice be unavailable to her and her daughter in India, if they were to be removed there, especially taking into account the H.K.’s claims that she would not be able to seek assistance from her family, because they have disowned her, and that she would not be able to seek governmental protection, due to her husband’s and his family’s political connections.

The Committee thus found that the State party’s authorities, in taking the decision to remove H.K. and her daughter, failed to properly consider those matters and the real and personal risk of a serious violation of S.K.’s rights, such as being a victim of, or witness to, violence, with the trauma associated therewith. The Committee also found that Denmark, failed to adequately take into account the best interests of the child as a primary consideration when assessing H.K’s and her daughter’s asylum requests, so as to protect S.K. against a real risk of irreparable harm in returning her to India, in violation of S.K.’s rights under articles 3, 6, 22 and 37 (a) of the Convention (para 7.2 – 8).

Accordingly, Denmark was obligated to reconsider the decision to deport S.K. and her mother to India, ensuring that the best interests of the child are a primary consideration in its reconsideration, while taking into account the particular circumstances of the case (para 9).

Commentary

The Committee first referred to its General Comment No. 6 (2005) on Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, in which it indicated that States were not to return a child to a country where there were substantial grounds for believing that there was a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 (a) of the Convention, and that such non-refoulement obligations applied irrespective of whether serious violations of those rights guaranteed under the Convention originated from non-State actors or whether such violations were directly intended or were the indirect consequence of action or inaction. The assessment of the risk of such serious violations should be conducted in an age- and gender-sensitive manner.² Such an assessment should be carried out following the principle of precaution and, where there are reasonable doubts about the ability of the receiving State to protect the child from such risks, States parties should refrain from deporting the child. ³ The Committee reiterated that the best interests of the child should be a primary consideration in decisions concerning the deportation of a child and that such decisions should ensure, within a procedure with proper safeguards, that the child concerned will be safe, be provided with proper care and be able to enjoy his or her rights (para 7.3). ⁴

Acting of its own accord under articles 6 and 37(a)

The decision by the Committee to act of its own accord and raise the potential for violations in relation to SK herself under articles 6 and 37 (a) is significant. It has been established for some time that domestic violence comes within the scope of the right to life and the right to freedom from inhuman and degrading treatment for both adult and child victims by a number of other human rights mechanisms; most particularly the European Court of Human Rights despite the lack of its specific focus on children’s rights and the absolute nature of the rights themselves.⁵ Furthermore, the profoundly negative effects for children who have experienced domestic violence either as a direct victim or as a witness has been evidenced in numerous research studies.⁶

The recognition, of this principle by the Committee is therefore a very welcome and positive development and it would seem, long overdue. It is however, of note that the joint dissenting opinion differed substantially on this point.⁷The argument appears to be, that given the seriousness of the rights being invoked there needed to be a strong basis for the Committee to act of its own accord, which they did not consider to be the case here. Furthermore, as articles 6 and 37(a) are centrally relevant to a determination of a real risk of irreparable harm, ‘this should give rise to a cautious approach by the Committee in raising claims under those articles of its own accord…it was not necessary to do so in this case, given that other claims had been found admissible.’ These comments, however, appear to confuse the various merits of a case with the establishment of a key principle. In other words, even if the merits of the argument under article 6 and 37(a) in this particular case were not sufficiently made out, this does not preclude, however, the invoking of these rights in the first instance. The overwhelming evidence of the significant impact of domestic violence upon children is in any event a strong enough basis for the Committee to have invoked these rights in a case in which this impact was clearly relevant. In doing so, the Committee has finally recognised that domestic violence comes within the scope of both articles 6 and 37 (a).

The reliance on external evidence

The reliance by the Committee of its own concluding observations and the report of the UN Special Rapporteur on violence against women, its cause and consequences (the Special Rapporteur) in relation to India to demonstrate the lack of credibility of the claims made by the State party in the case is also of interest. Specifically, the claim made by Denmark that H.K. would have access to State protection in India, should it be needed, through crisis centres for victims of domestic violence. Here, the Committee recalled however, that, ‘in its concluding observations on the combined third and fourth periodic reports of India, it expressed deep concern about the pervasive discrimination against girls and women in India and the persistent patriarchal attitudes and deep-rooted stereotypes and practices that perpetuated discrimination against girls.⁸In the same document, it reiterated its concern regarding reports of widespread violence, abuse, including sexual abuse, and neglect of children in India.⁹ The Committee also noted that the Special Rapporteur ‘expressed concerns about the lack of implementation of the Protection of Women from Domestic Violence Act and about the deeply entrenched patriarchal attitudes of police officers, prosecutors, judicial officers and other relevant civil servants, with regard to the handling of gender-based violence cases, contributing to victims not reporting, withdrawing complaints and not testifying.¹⁰

In doing so, the Committee underlines the important distinction between the mere existence of legislation and policies towards eradicating domestic violence and the effective implementation of them. It thus sent a clear signal to the State party that where there is considerable evidence of a lack of implementation of such legislation and policies, that this should be taken into account by State authorities when making decisions to deport victims of domestic violence. As a result, the Committee found that the State party’s authorities failed to accord sufficient weight and to examine in detail H.K.’s claim that State protection would in practice be unavailable to her and her daughter in India, if they were to be removed there, especially taking into account H.K.’s claims that she would not be able to seek assistance from her family, because they had disowned her, and that she would not be able to seek governmental protection, due to her husband’s and his family’s political connections.

The impact of domestic violence on child custody decisions

Finally, the decision is noteworthy for what it does not address. Denmark raised an important point in its defence, that the mere existence of a country’s custody laws do not in itself constitute an infringement of the Convention in a way that constitutes irreparable harm within the meaning of the Convention.¹¹ On the face of it that is the correct view to be taken, unfortunately, the reality is that significant concerns are increasingly being raised on how family law systems respond to allegations of domestic violence within custody and access proceedings. Given the prevalence of domestic abuse in relationships,¹² and that separation from a perpetrator can be the most dangerous period for the victim,¹³a focus of increasing concern has been the dangers posed by post-separation contact to both adult and child victims (either as direct victims or as witnesses and including sexual abuse). In particular, the phenomena of domestic abuse perpetrators using family law proceedings as a tool to continue the abuse and coercion has been demonstrated by a substantial body of research.¹⁴ This not only facilitates the secondary traumatisation of victims of abuse but also implicates state institutions in its perpetuation, most particularly when access to children is mandated and custody of children is awarded to perpetrators, despite evidence of a history of domestic and/or sexual abuse. The Special Rapporteur, along with the other members of the Platform of Independent Expert Mechanisms on the Elimination of Discrimination and Violence against Women, has voiced concern about the pattern of ignoring intimate partner violence against women in determining child custody cases across jurisdictions as has GREVIO (the monitoring body for the Istanbul Convention) in a number of its country monitoring reports.¹⁵ Moreover, in her recent report ¹⁶ on this topic, the Special Rapporteur notes that in the context of domestic violence, there is a duty to listen and respond to children’s accounts of violence, with a view to validating those experiences, ensuring that decisions are better informed and that the child’s safety and welfare are promoted ¹⁷ However, research demonstrates that children’s views are selectively integrated, depending on whether they accord with the prevailing trend towards “pro-contact” for both parents. ¹⁸ In addition, as the Special Rapporteur notes, in her report, there is also a tendency to dismiss the history of domestic violence and abuse in custody cases extends to cases where mothers and/or children themselves have brought forward credible allegations of physical or sexual abuse. ¹⁹

Despite this mounting evidence the Committee appears to have chosen to skirt around this issue by referring to the issue of general discrimination and gender stereotyping within India and did not specifically address the question of how a potential custody application process could constitute an infringement of the Convention within the specific context of domestic violence. This may have been due to a lack of specific evidence and data on this issue within India itself, however, there is more than enough research evidence and several interventions from both international and regional mechanisms to have at least considered that this would have been a valid concern for H.K. In failing to acknowledge a clear area of significant relevance for children’s rights in this way, the decision represents a missed opportunity in this regard.

Conclusion

As the dissenting opinion sets out, this may be considered by some to not have been the strongest case, on the merits, for the Committee to unilaterally invoke articles 6 and 37(a). However, in doing so the Committee has finally accepted that cases involving domestic violence come within the scope of the two articles and brought itself in line with most human rights mechanisms. However, the Committee unfortunately failed to take the opportunity to acknowledge the increasing relevance of domestic abuse in family law proceedings and the profoundly negative effect that experiencing domestic violence can have on children. Moreover, there was no acknowledgement of a now substantial body of research that family law proceedings are often used a tool to further perpetuate coercive control and domestic abuse by perpetrators and that where it occurs, the failure to address intimate partner violence and violence against children in custody rights and visitation decisions is a form of violence against women and their children and a violation of the human rights to life and security that could amount to torture. It also violates the legal standard, best interests of the child. ²⁰