Child Abduction and the Hague Convention
Child abduction is a very complicated issue as it often involves issues of jurisdiction, or which court has the authority to enforce a particular custody and access order.
We have created an entire website dedicated to information on child abduction laws and The Hague Convention. If you are searching for more detailed information on parental child abduction than what is presented below, please visit our Child Abduction section on our website.
Firstly, if a child is abducted locally the custodial parent should contact the local law enforcement. A parent should always keep the order, the separation agreement, or any written document which confirms the custody and access arrangement easily accessible. A child can be abducted locally; however, there are also cases of international abduction where the child is taken to another country. International child abduction is a much more complicated issue.
If the child is abducted locally, the matter may be resolved through the civil courts. The particular court which will decide the issue will be determined by a lawyer using their legal skills and knowledge to determine where the child is habitually resident. In Ontario, Manitoba, New Brunswick, Prince Edward Island, and the Yukon there has been an attempt to define “habitual residence”. Under s.22 (2) of the Children’s Law Reform Act (CLRA), a statute which applies in Ontario, habitual residence of a child is defined as follows:
S. 22(2) HABITUAL RESIDENCE — A child is habitually resident in the place where he or she resided,
- with both parents;
- where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiesce of the other or under a court order; or
- with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred.
The court where the child is deemed to be habitually resident has the capacity to protect the child, making decisions regarding the child’s wellbeing. Criminal charges may also be laid in cases of local abduction. Criminal charges may be useful as at times they may result in a timely apprehension of the child because a warrant may be issued.
The governing statute relating to international child abduction is the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) which has been incorporated in the Ontario courts into the CLRA. This statute deals with the wrongful removal of a child from one jurisdiction to another country. However, in order for this statute to apply to the country to which the child was taken, that country must be a signatory of the Hague Convention. Simply put, this means that the country must have signed the Hague Convention, and by signing and ratifying same, they have agreed to abide by statute. The statute has been signed by most of Europe, Canada and the United States.
The Hague Convention determines which court has jurisdiction to determine custody of the child by determining the court of the country where the child is habitually resident. In order for the statute to apply, the child must be under the age of 16. One aspect of this statute is that it gives authority to have the abducting parent extradited back to Canada. However, one reason why international abduction cases are so complex is that there is no definition in the Hague Convention of “habitual residence”, therefore, the practice is to use a broad approach, looking at the facts of each case on a case by case basis in order to come up with an equitable and fair decision.