This article draws on the writer’s papers titled “International Child Abduction: How the Hague Convention On The Civil Aspects on International Child Abduction Operates in Canada” and “Case Comment on the SCC Ruling under the Hague Convention”. Contact the writer for more information on these papers.
Relationships between individuals from different countries are much more common in our world today. If the relationship breaks down and there are children involved, we can have an issue spanning countries! What happens if one parent takes the child to another country without the other parent’s consent? This is international child abduction.
In a recent news article, Global Affairs Canada said it is “currently managing more than 250 cases related to international child abductions.” From January to May of 2019, Global Affairs opened 34 new child abduction cases. In 2018, it opened 64 new cases.
To help combat international child abduction, Canada signed the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) on October 25, 1980. Canada ratified the Hague Convention on December 1, 1983. Each province and territory brought the Hague Convention into force in its jurisdiction between 1983 and 1988. This means the Hague Convention has the force of law in all of Canada.
What is the Hague Convention?
The Hague Convention is a multilateral agreement between countries. As of July 19, 2019, 101 countries are contracting parties to the Hague Convention.
The main objectives of the Hague Convention are set out in Article 1:
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
The Hague Convention does not deal with the merits of a custody decision. Instead, it respects the custody decision of a jurisdiction in which the child resided prior to their removal (called the “habitual residence”). The underlying premise of the Hague Convention is that the courts of the child’s habitual residence are properly equipped to make the appropriate decisions about the child’s welfare.
How does the Hague Convention work?
Each contracting state must appoint a Central Authority. This Central Authority is required to:
- receive applications for the return of children or for access to children;
- attempt to secure the voluntary return of the child;
- provide general information about the child and the contracting state’s laws;
- initiate the necessary proceedings for the return of the child;
- help secure legal assistance for the parties;
- make the necessary administrative arrangements to secure the safe return of the child.
In Canada, the federal government and each province and territory have a Central Authority (usually the justice department of government). In Alberta, there are two Central Authorities: one in Edmonton and one in Calgary.
An application made under the Hague Convention is a summary application, not a full trial. The parties present their evidence in a written affidavit. The Hague Convention contains its own rules that courts and parties must follow.
As of July 19, 2019, 101 countries are contracting parties to the Hague Convention.The Hague Convention sets out a mandatory return policy. If a child has been abducted and a parent starts proceedings under the Hague Convention within one year from the date of abduction, the court must order that the child be returned to their habitual residence. If a year or more has passed, the court must still order that the child be returned unless there is evidence the child is now settled in their new environment.
However, the court does not have to order that the child be returned if the person opposing the return shows that:
- the person who had care of the child was not exercising their custody rights at the time when the child was removed or consented to the child being removed or subsequently acquiesced in the removal or retention (see Article 13(a)). An example of consent is a father making it clear to the mother, when they separate, that he has no objection to the mother returning to her home country with the couple’s child; or
- there is grave risk that the child’s return would expose the child to physical or psychological harm or would otherwise place the child in an intolerable situation (see Article 13(b)). For example, if there was evidence that a parent was sexually abusing a child, the court would not order that the child be returned to that parent; or
- the child objects to being returned. If the child has, in the court’s opinion, attained an age and degree of maturity, then the court can refuse to order the child be returned (see Article 13); or
- returning the child would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms (see Article 20). For example, prior to the abolition of apartheid in South Africa, our courts would refuse to return a child removed to Alberta back to South Africa.
Article 11 of the Hague Convention reads that a court should make a decision within 6 weeks from the date proceedings were started. In 2015, applications were resolved on average in 129 days in Canada (about 12 weeks over the target). The global average is 164 days.
The Hague Convention does not deal with the merits of a custody decision.By way of example, I was involved in a high-conflict abduction from Hawaii by the mother of the couple’s daughter. The mother and child had been living in Fiji (non-Hague Convention signatory at the time of the application). Through a tip, the father – who was still in Hawaii – learned that the mother was coming with the child to Calgary for a family wedding. The Alberta court gave an emergency order enabling the police to intercept the mother when she arrived at the Calgary airport, and the child was placed into the Central Authority’s protective custody pending the Hague Convention hearing. The result: the father was successful in having the child ordered returned to Hawaii. The mother chose to accompany the child back to Hawaii. Due to the high risk to re-abduct, a retired police officer accompanied the mother to Hawaii.
In short, the Hague Convention is intended to be a mechanism for the expeditious enforcement of custody rights. It is not intended to be a forum to determine custody of the child.
Problems with Lack of Uniformity
Problems have arisen with the lack of uniformity in the interpretation and application of the Hague Convention as each country has its own laws and viewpoints on how to interpret it. Contracting states can overcome this with greater cooperation in exchanging “good practices” at international conferences and through the resources of the Hague Convention itself.
One such problem is how contracting states determine a child’s habitual residence. The Hague Convention depends on the court determining where a child’s habitual residence is. Courts around the world have taken different approaches in making a determination. In 2018, the Supreme Court of Canada clarified its position in Office of the Children’s Lawyer v Balev.
Contracting states generally use one of three approaches:
- Parental intention: The court presumes the parents’ last shared intent regarding their child’s habitual residence to be controlling. A parent can rebut this presumption if the child has acclimatized to their new surroundings.
- Child-centred: The court looks exclusively at the child’s objective circumstances and past experiences. The parents’ intent is not relevant.
- Hybrid: The court looks into the child’s circumstances and the shared intention of the parents. A child’s habitual residence can change while they are staying with one parent under the time-limited consent of the other parent.
The Supreme Court of Canada adopted the hybrid approach. The European Union, the United Kingdom, Australia, New Zealand and some states in the United States also use this approach. As a practitioner in this area, the hybrid approach will take some getting used to. The shared parental intent model, for the most part, was relatively decisive in reaching a decision. Of course, how the Court’s decision plays out in the future will be a matter of interpretation as future Hague Convention cases come before Canada’s courts.
The Hague Convention sets out a mandatory return policy.In some of my own cases, I have also experienced problems with courts in the jurisdiction of the abductor being biased or sympathetic to the abducting parent who is a national of that country. The exceptions to the mandatory return policy are subject to the interpretation and possible bias of the particular judge hearing the case.
The court has the difficult challenge of balancing the need to protect children from being unlawfully abducted against the need to protect a child from a grave risk of harm should the court entertain a return application where that defence has been raised. At the same time, courts must be careful not to undermine the spirit and philosophy of the Hague Convention where a mandatory return is warranted. Despite the difficulties and challenges in interpreting and enforcing a treaty that applies to diverse societies and cultures of the international community, the Hague Convention is still an effective tool in combatting international child abduction.
The Hague Convention was an unprecedented effort by the international community to prevent thousands of children each year from being uprooted from their homes and hidden away from one of their parents. Despite the Hague Convention, international abductions continue to occur. Effectively combatting international child abductions requires more countries to become contracting parties to the Hague Convention.