Resolving an international child abduction is an emotional and challenging situation that requires urgent action and prompt assistance from an experienced family law lawyer.
In Canada, the most common form of child abduction is by a parent or guardian. International child abduction occurs when a child is unlawfully moved from one jurisdiction to another by a parent or guardian without legal authority or permission of a parent who has full or joint decision-making responsibility.
“Every year, hundreds of Canadian children are wrongfully taken from Canada or held in another country by abducting parents,” states the federal government in its guidebook for left-behind parents.
Although it is an emotionally charged area of law, taking swift action and speaking with a lawyer experienced with Hague matters can inform you of your options. It is crucial that your lawyer is experienced and prepared to drop everything to manage your case with urgency.
The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction — more commonly known as the Hague Convention — is a multilateral treaty that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
If a child is in one of a hundred or so countries that are signatories to the Hague Convention, the left-behind parent may be able to apply to have the child returned. You may make an application to have your child returned to Canada under the Hague Convention if:
The child is less than 16 years old
The child habitually resided in Canada before being wrongfully taken to or retained in another country
The Hague Convention applied between Canada and the country the child was taken to or retained in when abducted, and
You had and were exercising your decision-making responsibility or parenting time when the child was taken.
It’s important to note that when a parent applies to have their child returned under the Hague Convention, this does not mean authorities in the other country will decide who should have decision-making responsibility and parenting time (also known as access). Instead, a hearing will determine if the child will be returned to the country of habitual residence so that the courts there can make decisions based on the best interests of the child.
Central Authorities
If a parent in Canada claims that their child has been abducted to the United States, they have to file a claim through the Central Authority. That paperwork then gets sent to the jurisdiction where the child is allegedly living, and the Central Authority in that country will start judicial proceedings. The two Central Authorities work together to bring about your child’s return or give you access to your child.
If the parent in the other country does not voluntarily return the child or an agreement cannot be reached, the next step is a court hearing that will decide whether the child should be returned to Canada.
Time is of the essence
Although speed is vital, this can be a lengthy process. For example, a recent Ottawa Citizen article details the story of a Canadian man who said his former partner took their 10-year-old daughter on vacation and did not return her to Canada as planned.
He tells the newspaper that he “immediately got in touch with officials and applied under the Hague Convention, but the legal process has stretched for more than three years even though Paraguay is a signatory country.”
In treaty countries, courts may refuse to order a child’s return if legal proceedings have not been started within a year of the abduction and if the child is settled in their new residence. However, if you quickly commence your application on an urgent basis, any delay in the court system will not be held against you.
Of course, a court may refuse to return a child under the Hague Convention for several reasons, but there are still other legal options you can take.
If a child is taken to a country not part of the Hague Convention, things become more complicated, and the outcome can be dire. For example, in the same Ottawa Citizen article, a woman tells the news outlet her two sons were abducted by their father during a 2015 visit to Lebanon, a non-treaty country. She says she has spoken to officials in both Lebanon and Canada and hired five lawyers over the years, but her children remain with the father.
Preventive measures
Typically, these cases happen when a parent has strong ties or connections in another jurisdiction. If you are concerned your former partner may attempt to abduct your child, there are some preventive steps you can take, including:
Never releasing the child’s passport
Ask your family lawyer about a non-removal order — a court order that says that one or both parents cannot take a child out of a certain area
Add the child’s name to the Immigration, Refugees and Citizenship Canada passport lookout system.
If you would like legal advice to protect your rights and help ensure your child’s safe and immediate return, schedule a consultation with one of our experienced child protection lawyers.
Photo Credit: Deposit Photos
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