The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic discusses Abducted Children and The Hugue Convention.
The Hague Convention’s objectives are:
- To secure the prompt return of children wrongfully removed to or retained in a designated State to the place of their habitual residence without trying to solve the issue of custody rights.
- To ensure that rights of access under the law of one Contracting State are respected or organized in another Contracting State.
Conditions for Hague Application
- The child concerned must be under the age of sixteen years
- The place of the child’s habitual residence immediately before his or her removal or retention is a state signatory to the Convention.
- The removal or the retention of the child must be wrongful. Only the parent who has lawful custody of the child by a court decision, by an agreement approved by the court or by the application of the laws of his or her habitual residence may lodge an application under the Convention for the return of the child.
- The wrongful removal or retention occurs after the date of entry into force of the Convention with the other State.
Where a year has not passed from the removal or retention, the State to which the children have been taken is prohibited from determining custody and mandated to return the child, subject to limited defenses under Article 13.
If a year has passed since the removal of the child, there is more leeway to 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 are intended to and should move quickly. 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. 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 all of the facts, the removal or retention is wrongful, in almost all circumstances the Courts in Alberta will order that children be returned to the other State.
Defenses raised under Article 13 are often not successful.
Article 13(b) Grave risk of harm to a child is restrictively interpreted. A child may be returned to an allegedly abusive parent in the other country unless there is very strong evidence of “grave risk”. Technically, children can even be returned to the State they are habitually resident in, and not to the parent in that State, until there is a custody hearing there.
Children’s views: Article 13 does permit the court to take the child’s view into account if appropriate given their age and maturity. But 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.
There is also a defense of “acquiescence”, i.e. that the parent in the other jurisdiction consented to the child being removed to Alberta by the other parent. This must generally be established in writing and attempts to prove this by conduct are strictly interpreted.
The bottom line is that no matter how strong a parent’s case for custody might be on a best interests test, the intent of the legislation is to send the children back to their home jurisdiction and rely upon the Courts there to determine the merits of custody as between the parties.
Access: The Convention does not protect rights of access in the same way as it protects rights of custody. 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 your client only has access rights, he or she needs to make an access application in the jurisdiction to which the children have been removed.
Criminal Charges: Whether or not and when to lay criminal charges in the event a child is abducted is case specific. There can be both 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 return of the children, for example if the parent returns to Canada without the children. Overall they do not, without more, necessarily lead to the return of a child in international cases.Hague Convention applications are complicated and sometimes the law is counter-intuitive to what a parent expects. Legal advice is recommended.