Cross Border Parental Child Abduction

A judge may refuse to order a return of the child if the court finds that:

the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

Hague Convention, Article 13

Canadian law supports child participation in all cross-border child abduction matters and, in particular, in Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction (HC).

The HC:

  • Only applies to Contracting States (signatory states)
  • Only applies to children under the age of 16 (HC Article 4)
  • Does not apply to interprovincial/territorial child abduction
  • Requires each state to establish a Central Authority to promote cooperation among states (HC Articles 6 and 7)

The HC aims to secure the prompt return of children wrongfully removed or retained to the place of their habitual residence (HC Article 1). The removal or retention of a child is considered wrongful where:

  • It is in breach of rights of custody under the law of the place in which the child was habitually resident immediately before the removal or retention (HC Article 3(a)), and
  • At the time of removal or retention those rights were actually exercised (HC Article 3(b))

The merits of custody or access should be decided by the child’s state of habitual residence, except in extraordinary circumstances. Therefore the judicial and administrative authorities of the place to which the child has been removed or retained, shall not decide the merits of rights of custody until it has been determined that the child is not being returned under the Convention (HC Article 16).

Judges in Canada cannot deal with the merits of custody or access until the HC return application is denied or a reasonable time has lapsed (a year or more) after notice of wrongful removal/retention without a return application being filed. Only rights of custody (as defined in the HC), not rights of access, can support a return order (although Contracting States and Central Authorities must cooperate to promote access rights). A custody order is not required.

Chasing orders (custody orders made after a child has been removed or retained) do not create rights of custody or make retentions/removals wrongful. Such orders may complicate obtaining the child’s return from a foreign state. (See for example Thomson v. Thomson, [1994] 3 S.C.R. 551.

Timing is important. Mandatory return of the child is required, (subject to the exceptions below) (HC Article 12):

  • If less than one year has passed from wrongful removal or retention to the date of the commencement of the proceedings
  • If proceedings are commenced a year or more from wrongful removal or retention, unless it is demonstrated that the child is now settled in his or her new environment.

There are several exceptions to mandatory return (see full list here) including:

  • Grave risk that the child’s return would expose her or him to physical or psychological harm or otherwise place the child in an intolerable situation (HC Article 13(b))
  • The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views (HC Article 13)
  • Not exercising rights of custody (HC Article 13(a))
  • Consent or acquiescence (HC Article 13(a))
  • The return would not be permitted by the fundamental principles of the Requested State (state to which the child has been removed or is being retained) relating to the protection of human rights and fundamental freedoms (a provision that is seldom applied). (HC Article 20)

Judges must deal with return applications expeditiously; parties can request reasons for delay from the judge if the decision is not reached within six weeks of the commencement of the proceedings. (HC Article 11).

The child’s broader Convention on the Rights of the Child (CRC) participation rights inform a child’s objection under HC Article 13 and include both the right to be heard and to be taken seriously. These participation rights are important for both:

  • The ultimate decision – whether the child should be returned, and
  • In addition to whether the child objects to being returned, decisions on the issues that must be decided in reaching the ultimate decision which affects the child such as:
    • Where the child habitually resided before the removal or retention
    • Whether the child is, after a year, settled in the child’s new environment
    • Whether there has been consent or acquiescence
    • Whether there is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation

Canadian law supports critical aspects of a child’s participation in HC Article 13 including:

  • Capacity - Courts have been more likely to conclude that a child over 10 years has the necessary capacity under Article 13 of the HC (see RM v. JS, where the child was 10; Garcia Perez v. Polet where the child was 8) but there are cases where children as young as 7 and 8 have been found to be sufficiently mature to have their views taken into account (C(MLL) c. R(JLR), Droit de la famille – 2875, [1997] AQ No 3935, [1997] JC no 3935 (QCA), at paras. 69-70; Re B (Abduction: views of the child), [1983] 3 FCR 260 (Fam Div); and Borisovs v. Kubiles, [2013] OJ No 863, at para. 50.
  • Nature of Participation - In all cases consider both independent legal representation for the child, and whether the child should be added as a party as the issues involved are particularly complex and if a child is not provided with notice, nor added as a party or does not otherwise participate the child may be denied procedural fairness under s. 7 of the Charter (A.M.R.I, v. K.E.R., at para. 120). Appointing counsel for a child not only gives the child a voice but also ensures a proper evidentiary foundation is provided, tests the evidence provided by others, and assists the judge in determining the legal principles that apply, and more generally, the way in which the child’s voice is considered: RM v. JS, 2013 ABCA 441 (note: the court in RM v. JS concluded it was not appropriate for counsel for the child to give evidence by conveying the child’s view through submissions. The Court held that extrinsic expert evidence was necessary).
  • Procedure and Timely Decisions - Decisions need to be made as soon as is reasonably possible and the child’s views considered effectively in the process. The CRC speaks about the best interests of the child encompassing substantive, interpretative and procedural rights and among the latter are timely decisions. Canada’s Network of Judges, called ‘Contact’ judges, with representatives from Superior and Provincial Courts, facilitate the timely resolution of child abduction cases, and have Protocols for the timely and effective handling of HC cases, which by their terms, can be adapted to cases within Canada. The Network has also developed Judicial Communication Guidelines, which allow Canadian judges to communicate with judges in other countries or in other parts of Canada, to facilitate the timely and effective resolution of child abduction cases.

For child abduction cases within Canada, the provinces and territories generally have legislation to enforce extra-provincial custody and access orders with objectives such as:

  • Recognizing it is best for children to avoid the concurrent exercise of jurisdiction by court in more than one province or territory
  • Discouraging child abduction by ensuring that custody is determined in the place to which the child has the closest attachment
  • Providing for the recognition and enforcement of custody and access orders made outside the jurisdiction

Generally, the legislation describes when the court in the place to which a child has been taken/kept, can make a custody order notwithstanding the order in the place from which the child was taken and includes:

  • The child, at the time of the application, does not have a real and substantial connection with the jurisdiction that made the original order and has that connection with the provincial/territory hearing the case
  • All of the people are habitually resident in the province or territory
  • The child would suffer serious harm if returned to the custodial person name in the order.

The same kinds of issues in cross-border matters, although perhaps framed differently, apply to parental child abductions within Canada.

International Law

 Interpretive Sources

Case Law

Re D (A Child) (Abduction: Rights of Custody), [2006] UKHL 51 – consistent with CRC Article 12 there is a presumption that the child will be heard in every HC case unless it is inappropriate and there are three ways to do this: from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face to face interview with the judge.

Re M. English House of Lords, [2008] 1 All ER 1157 - HC Article 13 objection case that says courts in light of CRC Article 12 increasingly consider it appropriate to consider the child’s views but this does not mean the views are always determinative, or presumptively so ([2008] A All ER 1157 at para. 46). Canadian appellate courts have cited this - See Beatty v. Schatz, 2009 BCCA 310, RM v. JS, 2013 ABCA 441, and Garcia Perez v. Polet, 2014 MBCA 82.).

In the Matter of L.C., 2014 UKSC 1 - the UK Supreme Court (formerly known as the House of Lords) concluded there is a presumption that a child will be heard during a HC proceeding unless this appears inappropriate. The Court joined a child as a party and heard from the child on the issue of habitual residence and the child’s state of mind. Earlier, that Court considered participation relevant to whether a child is settled in his or her new environment (In re M, [2007] UKHL 55).

A.M.R.I, v. K.E.R., 2011 ONCA 417 - at para. 82 says that the values reflected in international human rights law, and specifically those in the CRC, may help inform the contextual approach to statutory interpretation. An “order of return under the Hague Convention has a profound and often searing impact on the affected child”, and where the child has been found to be a Convention refugee, there is presumptively a risk of persecution upon return to the country of habitual residence. Therefore, if the child is not provided with notice, is not added as a party, or does not otherwise participate, the child is denied procedural fairness under s. 7 of the Charter. Although proceedings under the HC must be heard expeditiously, where there are serious issues of credibility, fundamental justice requires that those issues be determined on the basis of an oral hearing; expediency never trumps fundamental human rights.

Beatty v. Schatz, 2009 BCCA 310- the mother, Ms. Schatz, applied for the return of an 11 year old boy to Ireland. The Court agreed that the boy’s views should be taken into account but ultimately concluded he should be returned to Ireland. The hearing judge applied the test found in Re M. including consideration of the boy’s views as one factor but concluded those views had been influenced by his Father and the Court of Appeal confirmed the decision to return the child, notwithstanding the child’s wishes.

G.A.G.R. v T.D.W., 2013 BCSC 586 – the Court discussed the importance of Article 12 of the CRC to Article 13 Hague proceedings and noted at para 48: “ that Convention [CRC] has not been implemented by statute in Canada but it has been ratified and the provincial and federal governments presume that domestic family law respect the rights and values set out in the Convention: B.J.G. v. D.L.G. 2010 YKSC 44 at para. 5” and outlined an approach for the exercise of discretion under Article 13 of the HC in relation to the child’s views:

  • While courts are increasingly encouraged to take account of the views of children, that does not mean that their views are determinative or even presumptively so
  • Whether the child has reached an age and degree of maturity where it is appropriate to take their views into account must be determined based on all of the evidence. The relevant evidence will include the nature, strength and reasons for the child’s objection
  • A child’s views should only be regarded if they are authentically their own. If the views have been influenced by someone else, or are based solely on a desire to stay with the abducting parent, then they should be given little weight
  • The exercise of discretion may take into account the child’s welfare
  • The policy considerations underlying the HC are an important factor in the exercise of discretion
  • The older the child, the more weight their objections are likely to carry, however, there is no minimum age at which the objections can be taken into account
  • A child’s views can prevail even when the circumstances are not exceptional

RM v. JS, 2013 ABCA 441 – considered whether a child of 10 years was of sufficient age and maturity in the context of an objection to return. The Court referred to a number of earmarks of maturity found in a decision of the Ontario Court of Justice. The Court found the issues complex and wanted expert evidence about the child’s views rather than the long standing practice of counsel presenting the views of the child and the child’s position through submissions, concluding that counsel cannot in effect give evidence without forsaking his or her position as counsel because of the inability of the other side to cross-examine.

Comment: The statement about expert evidence should, arguably, not be taken as a general requirement. Many children will not have access to expert evidence, and requiring them to present it as a pre-requisite to participation could, in effect, deny children, and especially vulnerable children, the right to participate. Such an approach would not be consistent with the expansive approach to participatory rights found in the CRC, or support the right of all children under 16 years to use Article 13 of the HC.

Garcia Perez v Polet, 2014 MBCA 82 – the Court upheld the order of the return application hearing judge that the eight year old child be returned to her habitual residence. The hearing judge considered Article 12 of the CRC and the Court of Appeal referred to the Alberta decision in RM v. JS in determining that the hearing judge was not required to canvass the views of an eight year old as there was insufficient evidence of the child’s maturity.

Special Considerations

  • Judicial Protocols – most provinces and territories have adopted Protocols outlining the procedures to be followed when a HC application is received by the courts, with Quebec and Nova Scotia adopting practices rather than protocols to ensure applications are heard quickly
  • Direct Judicial Communication – can be available internationally or nationally where there are concurrent proceedings in different jurisdictions with the same parties but communication does not relate to the merits of the case or interfere with judicial independence of any court and is done with the knowledge of the parties. These can be used to resolve all matters in a just, timely and cost effective way.
  • Role of Central Authorities – in Canada there is a federal Central Authority, as well as a Central Authority in every province and territory to discharge the duties which are imposed by the HC. All Central Authorities will cooperate to secure the prompt return of children, receive and forward requests for return, provide information about the Hague Abduction Convention, provincial/territorial family justice services and means of obtaining counsel, as well as liaising with other jurisdictions. A Central Authority may also seek to intervene in a proceeding.

Practice Essentials

  • Consider at the start of a child abduction case the issue of the child’s right to participate in all aspects of the decision-making process in Hague cases, including, but not limited to, the Article 13 right to object: this includes the right of the child to be informed generally about those rights, and how the child could participate at all stages of the proceedings, including settlement discussions, in a child friendly way.
  • Consider how the child will participate, including whether the child should have a lawyer, and/or be added as a party: if there is no counsel for the child appointment, consider facilitating that appointment. If you are the child’s lawyer, consider the specific nature of your role in the case.
  • If there are proceedings in your jurisdiction and another jurisdiction consider asking the Court to communicate with the Court in the other jurisdiction.
  • Consider direction from the CRC General Comments including No. 12 – child participation – and No. 14 – best interests of the child.

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