The Hague Convention and the Process for the Return of a Child
What do you do if your partner absconds from the country and takes your child with them; or, alternatively, you return to Canada from international travel with your children and your partner thinks that the children should have remained abroad?
At the 1980 Hague Convention on the Civil Aspects of International Child Abduction this question was tackled on an international level and the result was the Hague Convention which was accepted into law in Canada in 2000 with the International Child Abduction Act.
When one parent wishes for the return of the child, they make an application under Article 16 of the International Child Abduction Act. This action causes the Central Authority of the nation in which the claim is made (Nation A) to notify the central authority of the foreign nation (Nation B). The foreign central authority will then notify the parent who is abroad.
The courts of Nation B must then make a determination as to whether the child is habitually resident in that country and therefore should be allowed to stay, or whether the child is habitually resident in Nation A and should be returned.
Article 13 holds that any child that has lived in a country for a year or more is presumed to be habitually resident in that country, so timing is important.
The Supreme Court of Canada developed a test to determine habitual residency of a child called the hybrid approach in a case called Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (“Balev”). The intent of the hybrid approach is to consider all of the relevant facts wholistically and determine which nation is the focal point of the child’s life (Balev at para 47). Relevant considerations include:
“the duration, regularity, conditions and reasons for the child’s stay in the territory”, and “the child’s nationality”: Balev at para 44.
The parents’ circumstances, including their intentions, may be relevant particularly if the child is young, although parental intention ought not to be over-emphasized: Balev at para 45.
No single factor dominates the analysis; the entirety of the circumstances should be considered. The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas or presumptions”: Balev at para 47.
Once the courts have determined the habitual residency of the child there are only a few set reasons for why the child will not be returned to, or retained in, the nation of habitual residency. These reasons are found in Article 12, 13, and 20 of the Act.
Article 12 states that if it has been less than one year, the Central Authority in Canada may order the child not be returned to their habitually resident nation if it can be proven that they are settled in their new environment.
Article 13 contains two different situations whereby the child may not be required to return to the nation of habitual residency. 13(a) allows the courts discretion of whether to return the child if it can be proven that the party who removed the child from the habitual nation was not exercising custody when they removed the child; or that party had agreed to the move of the child, before or after the move occurred.
Article 13(b) allows the courts discretion in situations where it can be proven that the child is at risk of grave harm in their habitually resident nation. The Supreme Court of Canada in Thompson v Thompson, [1994] 3 SCR quantified that harm as being “one of substantial, and not trivial” harm (pp 597). It must also be proven that the nation of habitual residency is unable to adequately protect the child from that harm (CB v BM, 2021 ABCA 266 at para 55).
The final consideration of the court is found at Article 20 which allows the refusal the return of the child if doing so would run counter to established human rights or fundamental freedoms. This may occur if the nation of habitual residency is experiencing a refugee crisis (A.M.R.I V K.E.R., 2011 ONCA 417) or there is a chance of persecution for the child in their nation of habitual residence.
If the court sees no compelling reason to order the child to stay in a nation they are not habitually resident under Article 12, 13, or 20, the child will be ordered to return to their nation of habitual residency.
All of these steps are taken on an urgent basis and can be resolved in a matter of a few months.