If a year has not passed since the removal or retention, the State to which the children have been taken is mandated to return the child, subject to limited defenses under Article 13.
If a year has passed since the removal of the child, the abducting parent can argue against return. After a year, Article 12 applies, and if one can establish the child is “settled in its new environment” the court may refuse to return the child.
These applications should move quickly. For example, if you are a parent whose child has been removed to Alberta, you will want to file your action immediately and have it set for a hearing within weeks/months. Time is of the essence.
Hearings can be based on the Affidavit evidence or with the parties and witnesses giving evidence under oath at the hearing. Providing oral evidence is rare, as Hague hearings are to be held expeditiously (quickly). It is possible to arrange video conferencing in the courtroom so that a party or witness can give evidence from another country.
If upon a Court reviewing the facts, the removal or retention is wrongful, the Courts in Alberta will usually order that the children be returned to the requesting State.
Defenses raised under Article 13 are often not successful. These defenses include consent, acquiescence, objection to return by a child (that is of an age and degree of maturity), the left-behind parent was not exercising custody rights, and grave risk of harm. There is also a defense under Article 20, which is rarely applied, where the requested State can refuse to return a child to a country that does not permit human rights and fundamental freedoms.
Article 13(b) defense of Grave risk of harm to a child is restrictively interpreted. It is the defense that is most often argued. A child may be returned to an allegedly abusive parent in the other country unless there is very strong evidence of “grave risk”. For example, sexual abuse of a child. The Court where the child was taken to can use undertakings to order that a child is returned to the State they were habitually resident in, but not to a parent, if there are concerns about the safety of the child. Rather, the child could be placed with the authorities pending a custody hearing.
Article 13 permits the court to take the child’s view into account if appropriate, given their age and maturity. If in a group of children, some are not considered mature enough, the whole sibling group may be returned even if the elder ones strongly object. Views of the children can be presented via children’s counsel, but the court’s preference is through a psychologist, social worker, or similar professional. However, the Supreme Court of Canada has recently held that the use of an expert is not to delay the proceedings, and children can give their evidence as other witnesses would before the court.
There is also a defense of “acquiescence”, i.e. that the parent in the other jurisdiction allowed the abducting parent to keep the child in the new location, after the wrongful removal or retention. Consent is allowing the child to go to the new location before the wrongful removal or retention. This must generally be established in writing and attempts to prove this by conduct are strictly interpreted.
The defense of failing to exercise rights of custody is rarely applied. This would entail a parent virtually abandoning a child. The courts have held even minimal contact with the child will be sufficient.
The bottom line is that no matter how strong a parent’s case for custody might be on a best interests test, the legislation intends to send the children back to their home jurisdiction and rely upon the Courts there to determine the custody as between the parties. The Hague Convention does not consider the best interests test. That is left for the court to determine custody in the habitual residence of the child.
The Convention does not protect rights of access in the same way it protects rights of custody. The right to order automatic return of the child only applies to rights of custody, not access. The role of the Central Authority as it relates to access rights is to provide assistance, remove any barriers, and, through intermediaries organize, secure or protect access rights. If you only have access rights, you need to make an access application in the jurisdiction to which the children have been removed.
Whether and when to lay criminal charges in the event a child is abducted is case-specific. There can be benefits and disadvantages, especially when trying to negotiate a return with the other party. Some signatories take a dim view of using criminal changes and will take them into account when considering whether there can be a return. They can be useful to locate a child through Interpol. They can be very useful as leverage for the return of the children, for example, if the parent returns to Canada without the children. Overall, they do not necessarily lead to the return of a child in international cases.