When we think of the term ‘child abduction’, we often think about children being kidnapped by strangers. However, in many cases, children are taken abroad or kept in another country by one parent (called the “abducting parent”) without the permission of their other parent (the “left-behind parent”).  

In 1983, Canada became the second country to join The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). Disputes between parents under the Hague Convention often involve highly contentious court hearings. However, our lawyers at Kitsilano Family Law Group have successfully mediated resolution for a number of these situations, including in a recent precedent-setting case.

When can a child be returned under the Hague Convention?

Countries involved in the Hague Convention

The Hague Convention applies only between the countries that are signatories to it. This means that both the country that the child was abducted from and the country that the child was abducted to need to have signed the treaty. Some of these countries include the USA, Australia, Brazil, France, Germany, Japan, and Mexico. A full list of the signatories can be found at this link:

https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/fr_hague

Wrongful retention or removal (Article 3)

In order for the Hague Convention to apply, the child’s habitual residence needs to be in the country where the left-behind parent is seeking to have the child returned. The landmark Supreme Court of Canada case of Office of the Children's Lawyer v. Balev ruled that a hybrid approach should be used to determine the habitual residence of the child. The hybrid approach considers both the intentions of the parents and the circumstances of the child.

Exceptions to return orders (Article 13)

The Hague Convention sets out three limited circumstances where a mandatory return order will not be issued:

1. When the left-behind parent consented to or acquitted in the removal or retention;
2. Where there is a grave risk of harm to the child or the child would be placed in an intolerable situation if returned; or
3. Where the child objects and is of a sufficient age and maturity that their views are taken into account.

How can these issues be mediated?

Given the gravity of harm caused to the child and the left behind parent following a child abduction, the process can be high-conflict and emotional for the families that are affected. Often, parents find themselves with polar opposite positions: the abducting parent wishing to remain with the child in the new country, and the left-behind parent desperate to have the child returned to their habitual residence. As a result, mediating cases under the Hague Convention can be incredibly challenging due to the difficulty in finding a middle ground when parents could literally be thousands of kilometers apart.

Celia Taylor, a lawyer at Kitsilano Family Law, has had significant recent experience and success with supporting families to navigate these issues through mediation: between February and May, she helped four Hague Convention cases reach amicable resolutions without proceeding to court. Reaching a compromise between such diametrically opposed positions is daunting—but not impossible. Sometimes, an abducting parent ultimately agrees to return to the place of habitual residence with the children. Sometimes, a left-behind parent is willing to consider relocating to the new jurisdiction. And sometimes, the parties are able to agree to a cross-border parenting plan.

Lawyers will sometimes tell you that a successful mediation leaves both parties a little bit unhappy. No settlement is perfect. But once you’re in court on a Hague case, there’s no room for compromise. A judge will either order the return of the child, or not. Sometimes it’s better to try and reach a middle ground—if there is a middle ground to reach—than run the risk of proceeding to a hearing, especially since Hague cases can be expensive, stressful, and legally complex.

How have the courts reacted to the voluntary returns of children?

In a recent precedent-setting case, Cléa P. Amundsen from Kitsilano Family Law was counsel for the respondent (abducting parent) who had agreed to voluntarily return the child to their habitual residence in the US. Ms. Amundsen sought to have the petition dismissed because her client had agreed to return the child. The left behind parent objected, arguing that he would be back at square one if there is another wrongful removal or retention. He sought a declaration that there was a wrongful retention in Canada. Ms. Amundsen argued successfully that the voluntary return of the child satisfies the objectives of the Hague Convention and continuing with the petition “would have a chilling effect on parents deciding to voluntarily return children”. The judge accepted Ms. Amundsen’s client’s position and dismissed the case.

Despite this success, this decision supports the benefits of mediating and/or resolving cases under the Hague Convention out of court. In contrast to the uncertainty that comes with court, coming to agreements allows the parties to have greater control over the arrangements for the care of their children. With experienced and knowledgeable lawyers, it is possible to find a middle ground even in circumstances like these that, on their face, seem very black and white.

How can we help?

Our lawyers at Kitsilano Family Law are the leading experts in this area and have the experience and compassion to support you in navigating child abduction issues. On top of being one of the leading experts in this field, Clea Amundsen is one of the few mediators who is certified in conducting Cross-Boarder Mediations.

If you are experiencing a situation that you think may fall under the Hague Convention, or you fear that your spouse may abduct your child, or are looking to mediate under the Hague Convention, contact us at contact@kitsfamilylaw.com or (604) -731-5676 to book a consultation with one of our legal professionals.