Both Canada and the USA adhere to the treaty called the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (referred to commonly as the “Hague Convention”). CKR Law LLP handles legal cases of a child or children alleged to have been abducted by - most usually - a parent, and taken to another jurisdiction. That jurisdiction may or may not be a member of The Hague Convention, which will determine which course of action is required to secure the return of the child.
When a country joins The Hague Convention, each member country (or “party”) must designate a domestic Central Authority which is the governmental point of contact for parents, other Foreign Central Authorities, and foreign governments that may intervene in an abduction allegation. Once an application is filed requesting the return of the child to their habitual country of residence, The Hague Convention requires a judicial or administrative authority to determine the place of habitual residence of the child(ren). As referenced below, the Convention only applies where it is in force between two countries. The Hague Convention then provides a mechanism, with exceptions, that assists lawyers and courts in securing the prompt return of the children to their habitual residence.
Many member countries produce an Annual Report, tracking the most recent numbers of abductions and returns of children, and reporting on which countries best respect the workings of The Hague Convention. The U.S. Department of State just released its Annual Report, called Annual Report on International Child Abduction, which covers the trends for the year 2017. The U.S. Congress was briefed on the happenings of The Hague in the USA using that report, including the following key facts:
* In 2018, the Convention was in force between the United States and 77 countries;
* In 2017, 215 abducted or wrongfully retained children were returned to U.S.A.;
* 160 of these children were returned from Convention countries;
* 55 of the children were returned from countries with ‘no protocols’ in place as defined by the Convention;
The Department of State also worked on 197 abduction cases where the cases were resolved, for a myriad of reasons, without the child in question being returned to the U.S.A.
It should be noted that parents may seek criminal charges against the abducting parent, in addition to family law remedies, as there is a crime which exists in the United States under the International parental Kidnapping Crime Act. However, criminal charges against the ‘taking’ parent may actually have adverse effects and hinder the successful return of the child, depending on the circumstances. For example, if criminal charges are laid against the foreign national ‘taking’ parent in the U.S., soft preliminary approaches such as mediation and a request for a volunteer return are unlikely to be successful, as the ‘taking’ parent is de-incentivized from physically returning to the U.S. with the child.
The following 12 countries were identified by the U.S. Department of State in 2018 as demonstrating “a pattern of non-compliance” with the principles of the Hague Convention. It should be noted that not all countries are signatories (have ratified) the treaty, and some may have only recently ratified it domestically, contributing to their non-compliance:
5) Dominican Republic
12) United Arab Emirates
If and when a child is, regretfully, taken to one of the above countries, it is all the more critical to seek timely legal advice from an advocate with experience in Hague Convention matters. This is, more than often, not the same type of lawyer as a family lawyer who handles domestic disputes of divorce and custody. Once foreign countries are involved, a simple family law dispute can quickly escalate into an international matter of huge importance, and new limitation periods and legal interpretations of law will apply. Véronique Malka, Chair of the Canadian Law Group, has intervened in a number of child abduction cases facilitating the safe return of abducted children in countries around the globe. For more information, please contact: firstname.lastname@example.org or sign up for our Newsletters at www.canadianlawgroup.com.