Frequently Asked Questions About International Child Abduction
1. What is the Hague Convention on the Civil Aspects of International Child Abduction?
The Convention is an international treaty developed by an international organization called the Hague Conference on Private International Law, which is located in the Netherlands.
The Convention came into force in Canada on December 1, 1983. It was developed in the 1970s at Canada’s suggestion, because of the increasing number of parental abductions occurring at that time. Approximately 90 countries are parties to the Convention.
2. What is the purpose of the Convention?
The Convention has two objectives:
- To ensure that children who are wrongfully removed or retained from their place of habitual residence are returned promptly, and
- To enable contact or access to children across international borders
The Convention does not decide which parent should have guardianship or custody of the child. Instead, it leaves that decision to the country of the child’s habitual residence, if the child is ordered to be returned.
The Convention is based on an assumption that it is harmful to children to be unilaterally taken from their country of habitual residence, and seeks to deter such actions. It also assumes that guardianship and custody decisions are best made in the country of the child’s habitual residence, as this is where most evidence about the child’s life can be found.
3. What is a central authority?
Each country that is a party to the Convention must establish a central authority.
The central authority is the office or person through which each country carries out its duties under the Convention.
In Canada, each province and territory has a central authority that is responsible for managing every Convention case involving that province or territory. In addition, Canada has a federal central authority in Ottawa, but that office does not manage individual Convention cases. Instead, it assists with the locating of children, public education and international communications.
The central authority for B.C. is Penny Lipsack. She is a lawyer with the Ministry of Attorney General in Victoria. You can contact her at: 250 356-8433 or Penelope.Lipsack@gov.bc.ca.
4. What can the B.C. central authority do for me?
The B.C. central authority can do the following:
- Advise whether the country where your child is currently living is a Convention treaty partner with Canada
- Provide an application form for a child’s return or for international access to a child
- Assist in locating a child whose whereabouts is unknown
- Provide information about the law and legal aid system in the other country or in B.C., as applicable
- Assist you in obtaining legal counsel
- Provide information about other resources and courses of action available to you
- Liaise with other agencies, including the police, Crown counsel, Canada Border Services Agency and Passport Canada, and
- Communicate with the central authority in the other country
5. Does the Convention apply to my child and me?
The Convention only applies to children under the age of 16 years, and when both countries involved are parties to the Convention.
To apply for a child’s return, a person must have had and exercised “rights of custody” to the child before the child was removed or retained from their country of habitual residence. (This does not mean that the person must have had a court order for custody or guardianship).
An application for a child’s return is more likely to be successful if the application is made to the court in the other country within one year of the child’s removal or retention, but returns are sometimes ordered after the one-year period has passed.
To apply for access to a child, the applicant may have to show they are entitled to access under the laws of their own country.
Contact the B.C. central authority for more information about these and other requirements.
6. Does the Convention apply in every country?
The Convention does not apply in all countries. Only those countries which are parties to the Convention must comply with the Convention.
The B.C. central authority can tell you which countries are parties to the Convention or you can access the list of countries at: www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/14_fr_hague
7. How does a Convention application for a child’s return proceed?
Most cases proceed as follows:
- A parent seeking the return of a child to B.C. contacts the B.C. central authority.
- The B.C. central authority provides the parent with an application form.
- The parent completes the application form and submits it to the B.C. central authority along with other necessary documents, such as the child’s birth certificate.
- The B.C. central authority forwards the application and documents to the central authority in the country to which the child was taken.
- The B.C. central authority and the foreign central authority work together to try to obtain legal counsel for the parent.
- Legal counsel in the foreign country starts court proceedings in that country and asks the court to order the return of the child to B.C.
- The parent in the foreign country is served with court documents so that they can defend the court proceeding if they wish to.
- The court hears the facts of the case and decides whether the child should be returned to B.C. Usually, the facts are provided by the parents in sworn affidavits and not by oral evidence. This means the B.C. parent will not likely have to travel to the foreign country.
- If the foreign court orders that the child should be returned to B.C., the B.C. central authority may assist with arrangements for the child’s return, as required.
- If the foreign court does not order the child’s return to B.C., the B.C. central authority can provide the B.C. parent with information about appealing the court’s decision.
8. Do I have to hire a lawyer in the other country?
It depends on the other country involved — that is, the country where your child has been taken.
In some countries, a government lawyer or private lawyer will represent you in court at no cost to you.
In other countries, you may have to apply for legal aid and, if you qualify, a lawyer will be provided at no cost to you. Or, a lawyer may be identified who is willing to work for you on a reduced-fee basis or for no fee at all, but you would have to pay for the out-of-pocket case expenses, such as filing fees and service fees.
And, finally, in some countries you must find and pay a lawyer to represent you in court.
In all of the above cases, the central authorities involved will assist you in finding a lawyer to represent you in court in the other country.
9. Do I have to travel to the other country?
In most cases, no. Convention cases are intended to be heard in a quick and efficient manner. This means that oral evidence is seldom required, as the evidence is put before the court in the form of sworn affidavits.
In some rare cases, the court that is deciding the Convention application for return of a child may wish to hear oral evidence from the parties. In such cases, the parent may be able to give evidence by telephone or by videoconference, or may be required to attend court in person.
10. What defences are available to an application for return?
There are a limited number of exceptions — or defences — to the requirement that a court must order a child’s return under the Convention. These include:
- The left-behind parent consented to or acquiesced in the child’s removal or retention
- There is a grave risk that the child’s return will expose them to harm or an intolerable situation
- The child objects to being returned and is of an age and maturity that their views should be taken into account, or
- The left-behind parent waited more than one year to commence a Convention proceeding, during which time the child has settled in the new environment
11. How can child abduction be prevented?
The following steps may assist in preventing child abduction.
- Take threats to leave or abduct a child seriously.
- Contact the B.C. central authority for information and other assistance if you fear your child is at risk of being abducted.
- Keep records or copies of your child’s passport number and travel documents and the passport number and travel documents of the other parent, if possible.
- Maintain recent photos of the child and the other parent, if possible.
- Obtain a non-removal order or protection order, if appropriate.
- Seek supervised access for the other parent or party, if appropriate.
- Contact Passport Canada and place the child’s name and date of birth on the passport alert system. You may be able to obtain information about various passport notations that may be used to restrict a child’s travel outside Canada.
- If the child has or is eligible for dual citizenship, write the local consulate of the other state and provide them with any court order restricting the child’s travel or your written objection to a passport being issued by that state for the child.
- If you are permitting travel by the child from B.C. to another country for a limited period of time (e.g., a vacation), you should provide a written consent that clearly outlines the purposes and duration of the travel. If the other country is a Convention country, provide a statement by both parents that they agree to be bound by the Convention in the event a removal or retention occurs, and that B.C. is the child’s place of habitual residence. Be sure to keep a copy of the written consent for your records.
- Seek a bond or surety to be paid in the event a removal or retention occurs; the money will assist the left-behind parent with legal and travel costs.