Act of Fraudulent Commission of Reality
By Mauricio Ejchel, family lawyer in Brazil
Legimating the abduction
A recurring pattern has been identified in numerous international child abduction cases, where the taking parent adopts systematic practices aimed at legitimating the abduction’s legality. These strategically planned actions are designed not only to lay the groundwork for robust defenses for the act of international abduction but also to establish a series of maneuvers that precede and accompany the abduction. The purpose of these practices is to cloak the abduction in an appearance of legitimacy, transforming it from a mere transgression and escape into a meticulously organized action to gain legal and social acceptance.
This habitual practice identified in cases of international child abduction has been named ACFR – Act of Fraudulent Commission of Reality. The ACFR – Act of Fraudulent Commission of Reality outlines an intentional strategy of reality distortion and fabrication, employing event and evidence manipulation by the taking parent to shape public authorities’ perceptions and decisions, which becomes critically important during the legal dispute that follows the abduction.
Article 13 (1)(b) exception
This approach not only creates significant obstacles to initiatives aimed at combating and resolving these ilegalitiy but also seeks to legitimize the child’s stay under new pretexts, thus complicating the legal and judicial processes intended to restore order by framing the act of abduction within the exception provided in Article 13(1)(b) of the 1980 Hague Convention.
Serious risk of exposure to physical or psychological harm
In other words, the central goal of the ACFR is to redirect attention away from the inherent illegality of international abduction by establishing arguments that justify the refusal to repatriate the abducted child by demonstrating the existence of a serious risk of exposure to physical or psychological harm or otherwise placing the child in an intolerable situation.
ACFR strategies frequently employed in cases of international child abduction use to involve lodging allegations of domestic and family violence against the taking parent, both before and following the abduction. This concept encompasses fictitious complaints of physical, emotional, psychological, sexual, and financial abuse, directed not only at children, characterized as “child abuse”, but also at partners, sometimes referred to as “conjugal abuse” or “intimate partner violence”, as well as other family members.
Additionally, taking parents often file for sole custody and protective orders in the destination country, establishing a new legal basis that reinforces the narrative that the child’s return would pose a danger, given the supposed threat offered by the other parent.
The strategy also includes additional accusations, such as allegations of alcoholism, psychological abuse, and financial control, aimed at discrediting the non-abducting parent. These accusations are often accompanied by the manipulation of conflictual situations and the mobilization of non-governmental organizations, NGO´s, and protection entities, especially those aimed at immigrants or minority groups.
The significance of the Article 13 (1)(b) defence
Understanding the significance of the exception under Article 13(1)(b) is crucial, as evidenced by the specific findings in the Global Report – Statistical Study of Applications Made in 2021 under the 1980 Child Abduction Convention, prepared by the Hague Conference on Private International Law (HCCH) itself. See:
Comparing these findings with previous studies reveals a significant uptick in the invocation of Article 13(1)(b), whether on its own or in conjunction with other reasons. There was a notable increase of 46% in the proportion of cases citing this article in 2021, compared to 25% in 2015, 34% in 2008, and 26% in both 2003 and 1999.
Also, the Article 13(1)(b) exception was more likely to be relied upon if the taking person was the mother of the child (49%, compared with 38% where the taking person was the father):
Given the critical importance of addressing domestic violence and society’s need for protection, it is evident that the frequent association of such claims with abduction cases should not be automatically accepted as fact. Considering the concerns raised, each case must be meticulously analyzed to ensure that instances of alleged domestic violence are not, in fact, manifestations of ACFR.
Guide to Good Practice
Identifying and confronting these practices is critical to ensuring the accurate implementation of exceptions and full adherence to the Hague Convention, safeguarding the child’s best interests. Legal professionals and authorities dealing with international abduction cases must be equipped to recognize and thoroughly examine these deceptive tactics, establishing explicit criteria for evaluating claims under Article 13(1)(b). This approach should align with the recommendations outlined in the Guide to Good Practice, fostering a consistent and effective response to such challenges.
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