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What happened? | What was the decision? |
Learning from other institutions | Significance
Isatou Jallow was living in her native Gambia when she met A.P., a Bulgarian national, who was doing business in the Gambia. She was illiterate and could only speak her native language and basic English. She became pregnant, she and A.P. got married, and eventually she and her daughter moved to Bulgaria to live with him. A.P. became violent, attempted to force her to take part in pornographic films, subjected her to psychological, economic and sexual violence. He constantly told her that her stay in Bulgaria depended on him and threatened that, if she resisted, he could have her imprisoned, confined to a mental institution or deported to the Gambia, without her daughter. He also made harsh comments about her physical appearance, black skin and illiteracy. He also sexually abused his daughter, and displayed pornographic pictures and films in her presence.
A.P. reported Isatou Jallow to the Child Protection Department and requested that the authorities explain to Isatou Jallow that her child, then aged one year and one month, should be given ordinary food, not just breast-fed. When social workers attended the apartment, they saw the pornographic photographs and learned about the domestic and sexual violence. They advised Isatou Jallow to leave and take her daughter with her, but gave no guidance on where to go or what to do. The investigation into A.P.’s behaviour stopped as prosecutors said that the evidence showed that no offence had been committed – the pornographic material were A.P.’s private collection, depicting consenting adults. Isatou Jallow was not interviewed by prosecutors, the evidence was given by social services and the police. Isatou Jallow left the marital home several times to seek shelter, and the police were called several times, but despite the risks that she and her daughter were experiencing, the only action the police took was to give A.P. verbal warnings. Isatou Jallow sought a divorce as soon as she received her residence permit, but A.P. wished to retain custody of their child. A.P. then filed an application for a protection order, alleging that she had assaulted him, threatened him with a knife, and threatened to kill his mother and their daughter. The court granted this protection order, requiring that the child be relocated to live with A.P. The police informed Isatou Jallow of this order, but did not provide her with a translation. For several months, Isatou Jallow tried to challenge this order, particularly, to secure contact with her daughter – for several months, the child protection authorities took no action and did not inform Isatou Jallow about the well-being of her child. Legal proceedings continued, but no substantive hearing with legal representation, translation and social workers to ensure the child’s best interests was heard for some eight months. Eventually Isatou Jallow agreed to a divorce, as the only way of maintaining custody of her daughter, despite very unfavourable conditions being imposed.
Isatou Jallow complained that the Bulgarian authorities failed to protect her and her daughter from gender-based violence, specifically, psychological and physical violence – the authorities focused only her husband’s possession of pornographic pictures.
Isatou Jallow also complained that the law on protection orders is gender neutral, whereas most acts of domestic violence are perpetrated against women by men. Victims of gender-based violence are not entitled to free medical care or forensic medical certificates to support an application for a protection order. Bulgarian law on domestic violence does not recognise many forms of violence against women, and it is extremely stigmatising for women to seek protection from the state, especially when effective protection is often not provided. In the present case, Isatou Jallow said that the authorities did not consider “extreme vulnerability and the real risk of losing her connection with her daughter” and had failed to protect her and her daughter, even when the authorities were warned that A.P. was likely to sexually abuse his daughter. Isatou Jallow told the CEDAW Committee: “During the period that [she and her daughter] were separated, she sought help from many authorities, but received the stereotypical answer that the father enjoyed equal rights as a parent. Moreover, the judge never considered the allegations of violence submitted by the author, even after receiving written evidence of the husband’s criminal record.”
What was the decision?
The CEDAW Committee found that in contrast to the husband’s application for a domestic violence order, it took several months for Isatou Jallow’s application to be heard. The CEDAW Committee found that it was a breach of Article 2 of the Convention for the law to grant an emergency order without hearing both parties, when no appeal is possible. Furthermore, the authorities failed to take into account her vulnerable position, as “an illiterate migrant woman with a small daughter without command of Bulgarian or relatives in the State party.” The CEDAW Committee also said that the emergency protection order that separated Isatou Jallow from her daughter was issued without due consideration of earlier incidents of domestic violence and her claim that she and her daughter needed protection from A.P.
The CEDAW Committee recognised that “the author and her daughter have suffered serious moral and pecuniary damage and prejudice. The author had to continue a relationship with a violent husband since she was in a vulnerable position and did not receive adequate protection. For a considerable period, the author and her daughter were forcibly separated, […] and she had to accept disadvantageous terms for a divorce by mutual consent in order to obtain custody of her daughter.” (paragraph 8.7).
The CEDAW Committee ordered compensation to be paid, and recommended that the Bulgarian authorities ensure:
a) access to translation for migrant women who are subjected to domestic violence,
b) that in proceedings about custody and visitation rights of children, incidents of violence are taken into account and the rights and safety of the victim or children are not jeopardised;
c) to ensure training for judges on the CEDAW Convention, including multiple forms of discrimination.
Learning from other institutions
The wording about the balancing of human rights to be taken into account in child custody and visitation rights appears to be drawn from the newly adopted Istanbul Convention, Article 31.
Migrant women suffer significant disadvantage when they are subjected to violence by a man who is a national of the country she has moved to – and often face hurdles caused by racism in their experience of seeking assistance. In this case the CEDAW Committee has made it clear that migrant status is a significant factor which needs to be taken into account when assessing intersecting forms of disadvantage.
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