Parental abduction and the Hague Convention

Resolving an international child abduction is an emotional and challenging situation that requires urgent action and prompt assistance from an experienced family law lawyer. This is where international child abduction lawyers play a crucial role in navigating the legal process across jurisdictions.

In Canada, the most common form of child abduction is by a parent or guardian. International child abduction occurs when a child is unlawfully moved from one jurisdiction to another by a parent or guardian without legal authority or permission of a parent who has full or joint decision-making responsibility.

“Every year, hundreds of Canadian children are wrongfully taken from Canada or held in another country by abducting parents,” states the federal government in its guidebook for left-behind parents.

Although it is an emotionally charged area of law, taking swift action and speaking with a lawyer experienced with Hague matters can inform you of your options. It is crucial that your lawyer is experienced and prepared to drop everything to manage your case with urgency. International family law lawyers in abduction matters are often the most equipped to guide parents through the complexities of cross-border legal systems.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction — more commonly known as the Hague Convention — is a multilateral treaty that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.

If a child is in one of a hundred or so countries that are signatories to the Hague Convention, the left-behind parent may be able to apply to have the child returned. You may make an application to have your child returned to Canada under the Hague Convention if:

• The child is less than 16 years old

• The child habitually resided in Canada before being wrongfully taken to or retained in another country

• The Hague Convention applied between Canada and the country the child was taken to or retained in when abducted, and

• You had and were exercising your decision-making responsibility or parenting time when the child was taken.

It’s important to note that when a parent applies to have their child returned under the Hague Convention, this does not mean authorities in the other country will decide who should have decision-making responsibility and parenting time (also known as access). Instead, a hearing will determine if the child will be returned to the country of habitual residence so that the courts there can make decisions based on the best interests of the child.

Central Authorities

If a parent in Canada claims that their child has been abducted to the United States, they have to file a claim through the Central Authority. That paperwork then gets sent to the jurisdiction where the child is allegedly living, and the Central Authority in that country will start judicial proceedings. The two Central Authorities work together to bring about your child’s return or give you access to your child.

If the parent in the other country does not voluntarily return the child or an agreement cannot be reached, the next step is a court hearing that will decide whether the child should be returned to Canada.

Time is of the essence

Although speed is vital, this can be a lengthy process. For example, a recent Ottawa Citizen article details the story of a Canadian man who said his former partner took their 10-year-old daughter on vacation and did not return her to Canada as planned.

He tells the newspaper that he “immediately got in touch with officials and applied under the Hague Convention, but the legal process has stretched for more than three years even though Paraguay is a signatory country.”

In treaty countries, courts may refuse to order a child’s return if legal proceedings have not been started within a year of the abduction and if the child is settled in their new residence. However, if you quickly commence your application on an urgent basis, any delay in the court system will not be held against you.

Of course, a court may refuse to return a child under the Hague Convention for several reasons, but there are still other legal options you can take. International child abduction lawyers can help you explore these alternatives and take necessary action.

If a child is taken to a country not part of the Hague Convention, things become more complicated, and the outcome can be dire. For example, in the same Ottawa Citizen article, a woman tells the news outlet her two sons were abducted by their father during a 2015 visit to Lebanon, a non-treaty country. She says she has spoken to officials in both Lebanon and Canada and hired five lawyers over the years, but her children remain with the father. In complex cases like these, international family law lawyers in abduction matters are critical in pursuing every possible legal path.

Preventive measures

Typically, these cases happen when a parent has strong ties or connections in another jurisdiction. If you are concerned your former partner may attempt to abduct your child, there are some preventive steps you can take, including:

• Never releasing the child’s passport

• Ask your family lawyer about a non-removal order — a court order that says that one or both parents cannot take a child out of a certain area

• Add the child’s name to the Immigration, Refugees and Citizenship Canada passport lookout system.

If you would like legal advice to protect your rights and help ensure your child’s safe and immediate return, schedule a consultation with one of our experienced child protection lawyers.

Photo Credit: Unslash

Legal counsel vital for families involved in CAS investigations

If a child is removed from their home by a Children’s Aid Society (CAS), parents or guardians should waste no time obtaining legal counsel, says Toronto child protection lawyer Gary Gottlieb.

“The removal of a child from the family home due to allegations of abuse or neglect is a frightening and stressful situation for any family. As a parent, knowing your rights and understanding the actions that you can take if your child has been placed in temporary care can improve the chances of having them returned home,” says Gottlieb, who frequently represents families in child protection matters.

Overview of a CAS investigation

In Ontario, Children’s Aid Societies are responsible for ensuring the protection and safety of children. In 2020-2021, CAS received more than 113,000 calls and referrals reporting children at risk, and of those, approximately 63,000 required investigations.

Gottlieb says that CAS investigations are usually triggered out of a concern for risk of harm from physical, emotional, or sexual abuse; neglect; or exposure to domestic violence.

“In some jurisdictions, such as Toronto, school truancy is also considered a child protection issue,” he adds.

How a CAS investigation works

If a CAS child protection worker determines that a report of concern warrants further investigation, they will often conduct an initial assessment within 24 hours.

When the CAS contacts a parent or guardian requesting an interview, Gottlieb says they should seek legal counsel immediately and ensure a lawyer is present during the meeting with the CAS.

“If you are First Nations, Inuit, or Métis, you may also have a person who represents your band with you,” he says.

During an investigation, a CAS worker will meet with the child, as well as with the parents or guardians and any other family members or caregivers they feel are appropriate, Gottlieb explains.

At this point, the worker may decide that the child does not need protection, so they will close the file.

However, Gottlieb says that if there are concerns, the CAS may start a court case that results in a supervision order, allowing them to come into your home to ensure compliance with conditions ordered by the court.

“This may include physician monitoring for mental health issues, clean drug and alcohol screens, compliance with therapy or twelve-step programs, or other court-ordered supports,” he says, adding that if the CAS worker thinks that there is a serious or immediate risk of harm to a child, they may take them from the home.

If children are taken into care

When a child is taken into temporary care, Gottlieb says the case must go before the courts within five days.

“If your child is removed from the home, it’s important to seek the counsel of a lawyer who has worked on child protection cases. They will be able to provide guidance and help you navigate the CAS process. Even if the CAS has only removed your child to a relative or friend's home, getting legal advice is an important first step in ensuring a successful outcome for the family,” he says.

Showing respect for the CAS worker, and being responsive to their instructions and recommendations will help to improve the chances of your child being returned home, Gottlieb says.

“At the same time, it is important to remember that the CAS worker is not your friend. Regardless of how warm and helpful they are, a child protection worker’s priority is to ensure the safety of your children.”

Orders for programming

Following an assessment, Gottlieb says the CAS will often make recommendations for services and programming for family members, such as counselling, 12-step meetings, anger management classes and the like.

“Most of the time, the CAS makes reasonable recommendations, however, mistakes can be made and the plans they put in place aren’t always realistic,” he says. “I have seen cases where people have been directed to participate in an impossible number of programs that they could not sustain.

“A child protection lawyer can review recommendations to ensure they are realistic and negotiate the terms on your behalf.”

Gottlieb says that while the CAS’s recommendations are important, at the end of the day, it is just one litigant in the case, and “what the court says matters most.”

Quality versus quantity of resources

Demonstrating stability and the desire to improve your family situation is the most effective way to boost your chances of a favourable successful outcome in a child protection case, Gottlieb says.

“Parents or guardians whose child is taken into care should do everything they can to get their resources in order. Speak to your child’s school and get them on board. Talk to your family doctor. Allow your lawyer to act as a quarterback to help you manage resources and ensure the conditions are fulfilled,” he says.

At the end of the day, Gottlieb says what’s most important is that the court sees the family as being proactive and taking steps to address the issues that brought it to the attention of the CAS.

“It is not the quantity of resources that matters so much as the quality of supports you have in place.”

Photo Credit: Getty Images

When children need a legal advocate

Throughout the pandemic, Ontario family law courts have been inundated with cases of separated and divorced parents clashing over what’s best for their children. Judges have heard hundreds of cases with parents at odds over where their children should live and whether they should attend school in person or do online learning.

Most cases the courts heard over the past year involved disputes over parenting, reports The Lawyer’s Daily.

“Approximately 70 per cent of the 506 cases involved only a parenting dispute, and an additional five per cent involved both a parenting dispute and an economic dispute” over property, child support or spousal support, the online legal news outlet reports.

Often in high-conflict cases, it can be difficult for the court to determine what a child wants or needs. Mom says one thing; Dad claims the opposite. In these cases, one or both parents can ask the court to appoint a lawyer who will represent the child and determine their views and preferences. Every year in Ontario, the Office of the Children’s Lawyer (OCL) assists children in more than 10,000 cases by appointing a lawyer whose job is to act as counsel to a child.

This post will give readers insights into how the process works and why it’s an effective method for assessing a child’s viewpoint.

How the OCL works

The OCL typically gets involved in cases where a child is experiencing significant difficulties as a result of conflict within their family.

I’m a panel lawyer for the OCL and frequently represent children in cases where their parents are in conflict as well as in child protection cases involving the Children’s Aid Society. As counsel for the child, my role is to formulate a position as to their views and preferences on the issue in question, which will ultimately be articulated to the parties and the court.

A common scenario where a children’s lawyer can be helpful occurs when each parent claims the child has told them they want to live with them full time. It’s not unusual in divorce for kids to tell parents what they think they want to hear, but that’s often entirely different from what the child believes.

As their legal representative, my job is to get to the heart of the child’s views and preferences, which can be challenging because, in many cases, there has been a great deal of influence on their thinking by one or both parents. The process can take months or longer and involves multiple interviews with the child. It takes time to establish a safe space where they can express their truth. And they must voice consistent views over an extended period.

In child protection cases involving the Children’s Aid Society (CAS), the children’s lawyer acts solely for the child, not their parents or guardians or CAS. As in other matters, our job is to consider the child’s views and preferences, within the context of other relevant factors, and present that to the court.

Fact-finding mission

The questions I pose and how I ask them will look quite different for a six-year-old versus a teenager. Younger children tend to speak openly once they get comfortable, but it usually takes more time to build rapport with older kids.

In cases involving a dispute over where the child will live, it might seem like a good starting point to ask the child directly, “Who would you rather live with: Mom or Dad?” but that’s not effective. Instead, I’ll ask questions that help me better understand their comfort level in certain situations: “What do you enjoy doing most with Mom?” or “How many sleeps in a row are you comfy with at Dad’s place?”

I also review the child’s report cards and assess any special needs they may have. To make informed recommendations about a child’s future, it’s important to gather information from as many relevant sources as possible: the parents or caregivers, educators, doctors, mental health professionals and others. The information gleaned during these discussions helps in two ways: It informs the conversations I have with the child and it puts their views and preferences in context.

Understanding the child’s preferences

I’m currently representing a 14-year-old boy who’s experiencing such a high degree of pandemic-related anxiety that he doesn’t want to attend school in person. One parent supports his choice; the other is opposed.

My goal, in this case, is to clearly understand the boy’s views and preferences to see how we could craft a plan that keeps his anxiety at bay while making sure he’s getting a quality education and maintaining a social life.

These cases are tough but very rewarding. Any time you can encourage a frightened and anxious child to speak their truth, it’s time well spent.

Photo Credit: Freepik