Alert: Challenges and International Mechanisms to Address Cross-Border Child Abduction
In light of the on-going challenges faced by parents in having their children returned to Canada and enforcing access rights, on 2 December 2013, the Standing Senate Committee on Human Rights agreed to study the issue of international child abductions, and the role of the Hague Abduction Convention and other international mechanisms in resolving these disputes.
Accordingly, the Senate passed the following order of reference on 27 February 2014:
That the Standing Senate Committee on Human Rights be authorized to study international mechanisms toward improving cooperation in the settlement of cross-border family disputes, including Canada´s actions to encourage universal adherence to and compliance with the Hague Abductions Convention, and to strengthen cooperation with non-Hague State Parties with the purpose of upholding children´s best interests.
The Committee held seven meetings on this topic in the spring and fall of 2014. It heard from a variety of stakeholders who spoke about the many dimensions of this complex problem.
The report begins in Chapter 2 by exploring the Hague Abduction Convention, including its key provisions and their interpretation and application by the courts in different jurisdictions. Efforts to increase the number of states parties, in which Canada takes an active role, are also outlined in this chapter.
Chapter 3 discusses other international instruments that address the issue of international child abduction. In particular, the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children may benefit the parents of children that have been abducted, though Canada has not yet ratified this convention. This Chapter also discusses relevant provisions of the United Nations Convention on the Rights of the Child, and notes the importance of ensuring that the best interests of the child – a core principle of the this convention –remain at the centre of any decision-making in international abduction cases.
Chapter 4 looks at the Malta Process and bilateral agreements with countries that have not ratified the Hague Abduction Convention. As discussed in this chapter, most countries with legal systems based in or influenced by Islamic law (Sharia) have not ratified the Hague Abduction Convention. The Malta Process has been developed to promote dialogue with these countries. Witnesses were cautiously optimistic about the benefits of the Malta Process, though it was acknowledged that it will take time to come to mutual understanding on these complex issues, and the impacts of such dialogue may be seen only in the longer term. A working group on mediation was established as part of the Malta Process and is continuing its work in examining the potential of mediation to address international family disputes involving states that have not ratified the Hague Abduction Convention.
Chapter 5 outlines the available data and what it reveals about the issue of international child abduction. The Committee heard that several sources provide partial statistical information, but none reveal precise and up-to-date figures on the number of children abducted by a parent across international borders, either from Canada or more generally. The Committee also heard that detailed and comprehensive analysis surrounding the circumstances of international child abductions is not currently available. Given these limitations, it is difficult to gain a thorough quantitative or qualitative understanding of the problem within Canada or internationally.
The various efforts of the federal government to address the issue of international child abduction are outlined in Chapter 6. These include consular services, with a new Vulnerable Children’s Consular Unit recently created, as well as border and passport controls and education and training on the topic for parents and other stakeholders. There are a number of limits on what the government can do to assist parents however, particularly since there are no exit controls in Canada, making it difficult to monitor and prevent children from leaving the country.
Next, Chapter 7 explores what parents can do if they fear their child has been or will be abducted and taken out of the country. This section outlines the various steps a parent can take before and after an abduction occurs, such as putting a child’s name on a lookout list with Passport Canada, and provides flow charts outlining the various steps that can be taken by a parent in this situation.
Finally, in Chapter 8, the report makes several recommendations that this Committee hopes will help to deter parents from abducting their children across international borders, and facilitate the return of a child to the state of habitual residence, as well as access rights. These involve increasing awareness of the Hague Abduction Convention, ratifying the Hague Child Protection Convention, improving statistical collection and analysis, continued involvement in the Malta Process including increased parliamentary involvement, improving coordination of assistance to parents by the multiple actors involved and improving border and passport controls.
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