This month's blog explores some of the issues regarding moving a child or children between international borders. As this can be a very broad topic, our blog will be limited to a discussion of cases where both countries are signatories to what is often referred to as the Hague Convention.

What is the Hague Convention?

The Hague Convention sets out an approach that signatory countries must take to determine whether a child is wrongfully removed or retained in another member state, and dictates how they should remedy the situation, if so. The approaches of non-signatory countries may differ greatly, and are beyond the scope of this blog.

Procedure

Part of the Hague Convention deals with procedural matters, which is a more technical subject that we'll comment on only briefly. Generally speaking, member countries are required to help facilitate the expeditious return of wrongfully retained children in a number of ways: seeking a voluntary return, assisting a parent with filing a notice under the Hague Convention, ensuring that court proceedings are conducted on a priority basis without undue delay, and assisting with locating a child or children for the purposes of their return where necessary.

An overarching theme is expediency. Parents typically seek the assistance of a lawyer to help them through much of this procedure, and it is a good idea to obtain legal advice and guidance without delay if you believe another parent has taken your child to, or kept your child in, another country without authority to do so.

Removal or Retention

It is not only taking a child across a border without authority which can be a problem. A parent may have had authority for travel across a border–—for example, for a vacation or other temporary trip—but not had authority to keep a child abroad for longer than a specified or unspecified period.

Even if the initial travel was with your permission, this does not mean that you have no recourse if the child did not return as expected. Having set clear boundaries on the terms and duration of a trip can be helpful if you later have to prove that a parent overstayed the allowed time with the child abroad.

Making your objection to an extended stay explicitly known, and promptly, is also helpful. This is partly because a relevant consideration for the court is where a child was habitually resident at the time of an alleged wrongful retention; if there is no clear evidence as to when that boundary was, and/or there a long period of delay, the child could be found to be resident in the new country and this would prevent a return home. It could also prevent a return if the court is convinced that the non-travelling parent agreed to an extension/move, which can occur where there is no clear objection.

Authority

Authority often, but not necessarily, will mean the consent of the other parent. However, if under the laws of the home country the non-travelling parent does not have decision-making rights regarding where a child will live, their permission may not be relevant. Those laws can be the default, or can be expressed via an existing court order. Often, the laws of the home country need to be demonstrated to the Canadian courts, and people should be prepared to obtain the opinion of a legal expert on the home country's custody laws for use in Hague proceedings in Canada.

Other Issues and Exceptions

Sometimes, even if a child is found to be wrongfully removed to a new country or wrongfully retained there, they will not necessarily sent back. This can be the case where a Hague claim was not filed within one year, where a child is past a certain age, and/or where there is demonstrated to be a significant risk to the child if they are sent back.

An important note regarding Hague proceedings is that they are not the same as proceedings respecting parenting arrangements (often referred to as custody arrangements). The court hearing a Hague claim does not decide what parenting arrangements are best for the child—for example, who a child should live with or spend time with, where they should go to school, etc. Rather, the court hearing a Hague proceeding decides what country the child was rightfully living in prior to their removal or retention, and in addition to returning them there if appropriate, the court's role is to ensure that that country is the one where parenting arrangements will subsequently be determined.

Navigating a child’s wrongful removal or retention can be challenging. The lawyers at Westside Family Law are pleased to assist in this area with their expertise.