Jagriti Jaswal- Published October 17, 2023
“ The Great Escape… or Not”
Being a practicing attorney in Canada, I was recently assigned a matter that dealt with the issue of Family Law Jurisdiction. I got an opportunity to explore the procedures with both countries, a signatory (the United States of America) and a non-signatory (India) to The Hague Convention. Very soon during my research, I learned approximately 50 percent of nations of the world are not signatories to the Hague Convention. I also learned that courts in B.C. may be less likely to grant orders in favour of parents visiting with their children to countries which are not signatories to The Hague Convention.
PROTECTING CHILDREN IN INTERNATIONAL FAMILY LAW CASES INTRODUCTION
The Hague Convention on the Civil Aspects of International Child Abduction, often referred to as the “Hague Convention” is an international treaty that aims to protect children from the harmful effects of international parental child abduction. This convention provides a legal framework for the prompt return of children who have been wrongfully removed or retained across international borders. In this blog post, we will delve into the key aspects of the Hague Convention and its significance in international family law cases and further evaluate the scenario when a country is not a signatory to The Hague Convention what legal void is created for one of the parents hailing from such nation/country.
- The Purpose and Scope of the Hague Convention: The Hague Convention was established in 1980 and has been ratified by over 100 countries worldwide. Its primary objective is to secure the prompt return of children to their habitual residence, ensuring that their best interests are protected and that they maintain regular contact with both parents. The Convention applies to cases of child abduction or wrongful retention between member countries. It applies to all children under 16 who are brought to a country that is signatory to the convention without (or against) one parent’s consent.
- Central Authorities and Their Role: Each member country designates a Central Authority responsible for facilitating the implementation of the Hague Convention within its jurisdiction. These Central Authorities act as a point of contact for parents seeking assistance in locating and returning their abducted children. They play a crucial role in coordinating communication and cooperation between countries involved in a Hague Convention case.
- Conditions for the Return of a Child: The Hague Convention sets out specific conditions that must be met for a child to be returned to their habitual residence. These conditions include establishing that the child was wrongfully removed or retained, that the removal or retention breached the rights of custody, and that the child’s return is not contrary to their well-being. However, there are exceptions and defences available in certain circumstances, such as cases involving grave risks to the child’s safety or situations where the child has settled into the new environment.
- The Role of the Courts: When a child abduction case arises under the Hague Convention, the courts of the country where the child is located play a crucial role in determining the child’s return. These courts are responsible for assessing the evidence, considering the child’s best interests, and applying the provisions of the Convention. The court’s decisions can be subject to appeal and review, ensuring a fair and thorough examination of the case.
- Challenges and Limitations: While the Hague Convention provides an essential framework for resolving international child abduction cases, it has challenges and limitations. Differences in legal systems, language barriers, and cultural differences can complicate the process. Additionally, enforcement of court orders and the return of children may face obstacles in some cases, requiring ongoing international cooperation and diplomatic efforts.
- Nations/Country Not Signatory to Hague Convention: The dilemma arises when one of the parents belongs to a nation that is a signatory of The Hague Convention and the other parent belongs to a country which is not a signatory to The Hague Convention and there is no system of reciprocation for court orders passed in the Nation signatory to The Hague Convention so as to secure enforceability in the Courts who are yet to become signatory to The Hague Convention. In such a situation it becomes a deterrent for the Courts in nations who are signatories to The Hague Convention because the Judges may apprehend the situation that in the near future if the conditional orders passed in favour of one parent allowing the child to go with this parent to travel in other Nation/country breaches the condition while being in the country/nation not being signatory to The Hague Convention, then rescue of such child shall be a difficult task, moreover on the ground of mere apprehension the Courts may decline a favourable order that may be secured by parents moving to a nation/country signatory to The Hague Convention. Such distinction has to be overcome by International treaties which establish a legal framework and promote international cooperation. Every once in a while, the Venn Diagram of Treaties overlaps a bit. In my line of work, it’s usually the interplay of various Hague Conventions– noting that, there is no such thing as “The” Hague Convention, which pertains mostly to private international law. Lots of civil stuff in play with these, the most frequently used examples:
- Hague Service Convention, 1965
- Hague Evidence Convention, 1970
- Hague Child Abduction Convention, 1980
- Hague Adoption Convention, 1993
- Hague Child Support Convention, 2007
In Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (CanLII),  1 SCR 398 A mother living in Germany returned to Canada to get her children a Canadian education. The father consented to their departure for a period of 16 months, but later revoked his consent fearing that the mother did not intend to return the children to Germany. She, in fact, did not return.
In this case, it was unclear whether the children’s habitual country of residence should be considered Canada or Germany. The courts weighed the children’s links to both countries and the circumstances of their move.
Interestingly, after the Canadian Supreme Court ruled that Germany was the children’s habitual country of residence and ordered their return, the mother launched a challenge in a German court. The following year, that court ruled to grant the mother sole custody and allowed her to return with them to Canada.
Jeyathas v. Pratheepan, 2015 CarswellOnt 12109 (Ont. C.J.): This case is really about whether a mother should be entitled to take her 15-month-old son to her family’s home in Colombo, Sri Lanka, to attend her brother’s wedding.
The honourable court allowed the mother to travel to Sri Lanka with the child and placed a condition that the mother shall provide security for cost in the event of her not returning from Sri Lanka with the child.
Conclusion: The Hague Convention serves as a vital tool in protecting children from the harmful effects of international parental child abduction. By establishing a legal framework and promoting international cooperation, it aims to ensure the prompt return of children to their habitual residence and maintain their best interests. However, it is crucial for parents and legal professionals to understand the intricacies of the Convention and work together to navigate the complexities of international family law cases.
If you find yourself in the unfortunate situation where your child has been removed from their country of habitual residence, please contact our lawyers at Portside Law Corporation and we would be happy to assist returning your child back home and into your care.
Disclaimer – By contacting Portside Law Corporation through email, phone or direct message does not establish an attorney-client relationship. An attorney-client relationship is formed once both parties agree in writing to such a relationship. The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.