Proceedings of the Standing Senate Committee on
Human Rights
Issue 6 - Evidence - April 7, 2014 (evening meeting)
OTTAWA, Monday, April 7, 2014
The Standing Senate Committee on Human Rights met this day at 4:32 p.m. to study the international mechanisms toward improving cooperation in the settlement of cross-border family disputes, including Canada's actions to encourage universal adherence to and compliance with the Hague Abductions Convention, and to strengthen cooperation with non-Hague State Parties with the purpose of upholding children's best interests.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the ninth meeting of the Second Session of the Forty-first Parliament of the Standing Senate Committee on Human Rights. Our committee has been mandated by the Senate to examine issues related to human rights in Canada and abroad. My name is Mobina Jaffer, and I'm the chair of the committee.
It is my pleasure to welcome you here, Justice Chamberland. I'll have the rest of the committee introduce themselves, starting with the deputy chair.
Senator Ataullahjan: I'm Senator Salma Ataullahjan, and I represent Ontario.
Senator Unger: I'm Betty Unger from Edmonton. I represent Alberta.
Senator Eggleton: Art Eggleton, senator from Toronto.
The Chair: Honourable senators, at our meeting in December 2013, the committee agreed to study international mechanisms to resolve cross-border family disputes. The goal of this study is toward improving cooperation in the settlement of cross-border family disputes, including Canada's actions to encourage universal adherence to and compliance with the Hague Abduction Convention, and to strengthen cooperation with non-Hague state parties with the purpose of upholding children's best interests.
The problem of international parental child abduction, while not new, has grown over the past few decades with general increases in international travel, international relationships and the rates of divorce and legal separation. In such cases, a child is removed from his or her home environment, referred to as the habitual residence, transported to another jurisdiction by one parent, and may or may not have any further contact with the parent left behind.
Cases of international parental child abduction can be particularly challenging for those involved. Depending on the circumstances, in each case the abduction can have great social, psychological and even physical consequences for both the child and the left-behind parent.
In addition, the differences in legal systems between states as well as physical distances often involved make locating and returning internationally abducted children a difficult international legal problem.
It is my absolute pleasure today to welcome the Honourable Jacques Chamberland, Member of the International Hague Network of Judges, to help us understand this issue better.
As I told you in private, Justice Chamberland, we are absolutely thrilled that you have taken the time to come and speak to us. We look forward to learning from you today.
[Translation]
Hon. Jacques Chamberland, Member, International Hague Network of Judges, as an individual: I would like to thank you for your kind invitation to appear before you and discuss an issue about which I obviously care a great deal: the 1980 Convention on International Child Abduction and, should you wish, other Hague conventions. I hope that this exchange proves informative. It is both an honour and a privilege to be here, and I was eager to accept your invitation.
Allow me to speak briefly about the convention. You heard testimony about it last week. I shall talk about the international network of justices, to which you referred earlier, and will conclude with a few remarks regarding the Malta Process, which was embarked upon about a decade ago. At that point, it will be my pleasure to respond to your questions.
If you are agreeable, and to make things simpler, I will respond to questions in the language in which they were asked of me.
The Chair: Excellent.
Mr. Chamberland: The convention is the fruit of a Canadian-born initiative. It was a Canadian who put forward the idea of studying the issue of parental child abduction and finding a solution. The solution came in the form of the adoption of the convention on October 25, 1980. Of note is the fact that the Convention on the Protection of the Rights of the Child was adopted in 1989, nine years later, and that Article 11 of this UN convention recognizes the importance of combatting the wrongful removal and retention of children abroad, and to that end, promote, and I quote the convention, "the conclusion of bilateral or multilateral agreements or accession to existing agreements."
There is no doubt in my opinion that the ratifiers of the 1989 convention had the 1980 convention in mind — the importance of which was understood — and that states were urged to adhere to that convention. To date, there are 91 signatory states party to the convention. This is a tremendous success story in the sense that the issues of private international law is actually being addressed by the Hague conference. I think there is a convention dealing with a highly technical issue involving an even greater number of states but, otherwise, the Convention on International Child Abduction is what is currently garnering the most interest.
The main objective of the convention — and it is important to bear this in mind — is to deter parents who would otherwise be tempted to illegally remove children.
In the event that parents are having family problems, problems concerning child custody, the message that must be transmitted is that these issues must be taken up by the courts of the land in the child's usual country of residence.
That raises the question: what tools have been developed to deter parents from unilaterally removing children? A mechanism has been put in place to ensure that the immediate return of the child be ordered. The premise behind the convention is that a child is transferred to a state, that the authorities in that state receive a return application, and that an order for the immediate return of the child is issued.
In other words, the abducting parent's actions, as a rule, will not be met with any consequences. That is the objective. The idea is that parents will understand that there is no use unilaterally removing a child since the child will be returned.
Obviously, the convention is not blind. Implicit in it is the understanding that there may be situations in which the actions taken by the abducting parent were unavoidable. Consequently, the convention sets out six exceptions. I will refrain from delving into the details of the exceptions because I feel that doing so would go beyond the scope of my mandate. Suffice to say that there is one exception invoked most frequently by parents. This exception, described in Article 13, stipulates that the court shall not order the return of the child if in doing so it risks exposing the child to serious physical or psychological harm or, in any way whatsoever, subjects the child to an intolerable situation.
[English]
Let us turn now to the International Hague Network of Judges. The creation of the network was first proposed by a justice of the Court of Appeal of England, Lord Justice Mathew Thorpe, in 1998 at a seminar of judges in Germany. Justice Thorpe felt that the development of such a network would facilitate international level communications and cooperation between judges and would assist in ensuring the effective operation of the 1980 convention. His idea, put on the floor at this seminar, was made a recommendation at the March 2001 special commission on child abduction held in The Hague.
By the way, for those who do not know, all of the conventions of the Hague are reviewed every four, five or six years, depending on the circumstances. They are reviewed in terms of application and interpretation. It's an ongoing exercise; every five years, we go back to The Hague, and we discuss what the problems have been in the last five years and what solutions we can bring to those problems.
The initial cohort of what were then known as "liaison judges" included two judges from Canada. This was in 2001. Those two judges were me, from the province of Quebec, a civil law jurisdiction, and Justice Robyn Diamond from Manitoba, for the rest of Canada, common law jurisdictions. We are sort of a team: One covers the civil law jurisdiction and the other one covers the common law jurisdictions.
At the time, I must say that we were self-designated, but in September 2006, the Canadian Judicial Council formally designated both of us as liaison judges for Canada and established the Special Committee on International Parental Child Abduction. A year later, the committee was renamed the Special Committee on International Child Protection.
The label "liaison judge" was abandoned for that of "network judge" in 2008, and the network became the International Hague Network of Judges. As of today, there are about 80 judges from 54 states, in all continents, that are members of the International Hague Network of Judges.
A network judge — and I'm sure you'll have questions for me — is essentially a point of contact between his or her colleagues at the domestic level and other members of the network at the international level. His or her first main communication function is of a general nature. When I say "general nature," I mean not case specific. In other words, we act as a channel for the exchange of communication, either from the Permanent Bureau to the judiciary in Canada, or from the judiciary in Canada. For instance, if an interesting decision is tabled by a court anywhere in Canada, we will try to make sure that it is known in The Hague. So it works in both directions.
The second main communication function consists of direct judicial communications with regard to specific cases. The objective is to address any lack of information of the judge seized of a return application, either here in Canada or abroad. Again, it works in both directions. The purpose of that is to facilitate the resolution of the practical issues surrounding the return of a child.
Finally, a few words about the Malta Judicial Conference on Cross-Frontier Family Law Issues, known as the Malta Process, of which you heard last week from William Crosbie from Department of Foreign Affairs, Trade and Development. The process is a result of a joint initiative of the Permanent Bureau of the Hague Conference on Private International Law and the Government of Malta.
Having read the transcript of last week's meeting, William Crosbie referred to an effort to strengthen cooperation between Hague states and non-Hague states. He's perfectly right; the idea is to build a dialogue. It's a bridge-building exercise with non-Hague countries. So far, there have been three conferences: 2004, 2006 and 2009. I attended the 2006 and 2009 conferences; I was not there in 2004.
As a result of a Canadian proposal made at the third Malta conference, the participating judges and experts adopted a recommendation concerning the development of a more effective structure for the mediation of cross-border family disputes. At the time I presented the idea, I referred to the establishment of a structured process of mediation. The idea was that it's very difficult to get, for instance, Muslim countries to adhere to the 1980 convention for all sorts of reasons that I don't want to get into.
The idea was to try to get something practical out of our third meeting. If we could only establish a structured process of mediation, we felt that we would then have achieved something. Sometimes it's amazing; parents are separated from their children and they hear nothing about their children for years, not even a photograph or whatever you want. It's small or minute things. So we said that if we had this kind of structured process of mediation, maybe we would be able to mediate the exchange of photographs at least. I'm not talking about returning the child — we were far from that — but at least exchanging photographs.
So the recommendation was accepted at the Council on General Affairs and Policy at the Hague Conference at its March-April 2009 meeting, and a working party was set up in the following weeks. As you know, it's co-chaired by Canada — William Crosbie who was here last week — and Pakistan with Chief Justice Jillani.
It's a huge task. I think they had something like 22 states represented on the working party. It's very difficult. I was a silent participant to the first conference call, and it's something — a conference call with 20 people from 20 states around the world. I don't remember what time of day it was, but for some people, it was very late in the day and for others it was very early in the day. It was well managed at the time by Lillian Thomsen from Foreign Affairs. They're progressing, but we don't yet have the structure in place. We're all hopeful we will get that sooner or later.
Those are my preliminary remarks. I was longer than I thought I would be. That's usual for your guests, I suppose. Please excuse me for the length of it. I'm prepared to answer your questions and exchange with you.
The Chair: Thank you very much for your presentation. From the interest, you can see we could have listened to you for a longer time, too.
Senator Eggleton: Thank you very much, Justice Chamberland, for your presentation, and more particularly for all the good work you've done over so many years in terms of this Hague convention on abductions. That's a remarkable length of service and dealing with it in an international situation, particularly with your latter remarks of now bringing it into the countries that are involved and the Maltese process, which changes the dynamics.
One of the first things you said is that deterrence is the best thing. How do we really educate people about deterrence? I don't know that too many people planning to take a child out of the country will signal it in advance, and may not even know it when they come in contact with somebody who might deliver a message of deterrence. Could you expand on that a little further? Do you think something like passport controls on exits from the country, particularly involving children, need to be considered?
Mr. Chamberland: First, thank you for the good words about the work I've done. If you allow me, I will take 10 seconds to share your good words with my colleague, Robyn Diamond from Manitoba. Over the years we've been a great team for Canada. I won't talk about the NHL playoffs, but I guess we would be in the finals for the last few years, and much of it has to do with the work done by my colleague Justice Diamond.
When you get into the field of what is a deterrent and what is not, I suppose it's very difficult. What would have happened had it not been for the convention being in place? I guess there would have been more people wrongfully removing children from their habitual residence, but it's very difficult to verify, as a matter of fact. You're perfectly right. I guess the same thing goes when we're talking about sentencing. There are different philosophies as far as that is concerned. I am told that those people who plan to remove a child ask about it. They won't say it, of course, to their spouse, but they ask friends. Apparently, it is known that the Hague Convention is an obstacle for those who want to remove a child in breach of the custody rights of the other spouse.
It's certainly not perfect, but what else could be done at the time? I don't know. You have to remember that in the late 1970s, the problem was the following: The children were removed, and then there was no way to bring the children back and get the custody hearing held in the state of the habitual residence. The only way was consular services, and from time to time you can solve a case. But the only other way was to ask a friend, an uncle, a brother: "Would you come with me? We will go over there. I know my children are over there, and we will kidnap them again."
That was the answer to the problem at the time. I guess the Canadian representative who put the problem on the table at The Hague said it doesn't make sense; this is chaos, so we have to find something. That's the way the convention was conceived.
When you get to passport controls, I must say I'm not competent to talk about that. I don't know. All I know about passports is that mine comes up for renewal very soon, and I have to take care of that.
Senator Eggleton: Let me ask you about the fact that under the Hague Abductions Convention, judges are supposed to act quickly to return the child to its habitual residence, acting in the best interests of the child. Those phrases come together. But are they necessarily achievable together, the speed of return and protection of the best interests of the child? Some countries, I'm hearing, appear to treat people who are citizens of their country a little bit different than they might treat foreigners. That could be an issue. Of course, we know in the case of the Islamic countries, when you bring sharia law into play here, there is a different attitude about women.
I do note, however, that Morocco signed up to the Hague Convention, which is very interesting. Maybe that's a breakthrough. Maybe there are possibilities of getting some others.
What about those two objectives? Are they becoming more and more difficult to achieve together?
Mr. Chamberland: The convention will be efficient if the applications for return are dealt with expeditiously. Talking about judicial authorities, if we're not successful in dealing with the return applications quickly, expeditiously, I think one will have to question the efficacy of the convention. It's a must. It must be dealt with expeditiously.
As I mentioned in my preliminary remarks, there are six exceptions to the convention. Of course, the parent who took the child away is entitled to raise these exceptions; so is the child, as a matter of fact. He's entitled to raise these exceptions and they have to be looked at carefully. This is where the best interests of the child come into the picture. This is where the delays are incurred, of course, but there are ways to do it expeditiously anyway.
If you look at the numbers and compare certain countries to others, I'll use the example of the U.K. I use this example because it was mentioned by one of the witnesses last week, and I know for a fact that they're very efficient. The delay set in the convention is six weeks. It's a target: six weeks, 40, 50 days. In the U.K., they're just about there.
How do they do it? One of the ways they've been able to do it, so far, is the following: When the facts are contested, there are allegations made, for example, of domestic violence. That's a classic one nowadays. Instead of getting into he says, she says and then deciding, that takes time. You hear witnesses and sometimes they come from the state of the habitual residence, and it's not easy to bring them to the U.K. They say: Okay, let's assume the allegations are correct, are true. What can be done to make sure that the child is returned safely and say the mother, the victim of domestic violence, is returned safely?
Instead of spending time debating or deciding whether the allegations are true, they look at what safeguards could be put in place to make sure that the return does not create any grave risk of harm to the child and to the mother, very often the primary caretaker of the child. This is the way they did it. Will they be able to perform as well in the coming years? I don't know.
In Canada we've been not too bad but not as good in terms of delays as the U.K. because it's not our culture. Our culture is to look more into the facts. Judges have been trained to decide facts. We will try to find out where the truth lies. Maybe one way is to explore the way they do it in the U.K.
Morocco is a very interesting situation because, if I'm not mistaken, it was a member of the Hague Conference at the time the convention was adopted; so there is no need for the other countries to agree to ratification of the convention. They are automatically part of the group.
Senator Andreychuk: I want to echo the words of my colleague for the time that you have taken. You are respected through the system for that dedication, and I appreciate that here today to give us this information.
Just on the quick return, the issue at the start of the Hague Convention was that even in Canada no one knew about the Hague Convention, whether you were a front-line policeman, front-line immigration officer or lawyer. Is it now well known? If your child is taken away from you, you go to the police and say, "My child has been abducted." The next question is, "Who took the child and where did they take them?" If you say, "Well, they have taken them back to Saudi Arabia," most people didn't know what to do. The authorities didn't know what to do. Are we better now?
Mr. Chamberland: My quick answer is to say yes, but I will say this: I don't know about the community at large. Lots of pamphlets are available that were not available back in the early 1980s, that's for sure.
I will share with you my experience as a lawyer, before being a judge, and then as Deputy Minister of Justice for Quebec and now as a judge. I can tell you that my knowledge of the convention was zip when I was a lawyer. I was not working in the field of family law, but it was new; it was not known. When I became Deputy Minister of Justice, I had people in the ministry who were attending the meetings in The Hague, so I got to know about the convention. The central authority is within the Department of Justice in Quebec, so we had someone who would report to me every year and then to the minister.
Since becoming a judge in 1993, my knowledge about the convention has increased. I am sure there are other people who have done so, but I have spoken to family lawyers regularly, as has the civil servant working as central authority for Quebec. She is very proactive, and we read more about it in the papers.
As a society, we know much more now about the child abduction convention than we did in the 1980s. It could be better, that's for sure.
Senator Andreychuk: I'm saying this because this committee has studied international conventions on human rights, and in the early 2000 era, the use of international conventions in Canadian courts was less. I take some pride, as our committee members do, that our study woke up some academics and lawyers to reaching to international law.
If there is work being done on the Hague Convention directly from those responsible in the provinces, if the federal government is identifying this as an issue more and more through passports, et cetera, perhaps there will be a body of knowledge that would be preventative.
Mr. Chamberland: I don't know what the Canadian government could do, but what I know is that until the early 1990s, judges were very shy to look at comparative international law. We would look at our law and decide within the framework of the law. Then came Justice L'Heureux-Dubé in the Baker case, and it opened the eyes of the judiciary on these international instruments, and now they are referred to more in our decisions.
It's a learning process for everyone. What other initiative could be done is out of my sphere of competence.
Senator Andreychuk: There have been a number of decisions, one from Britain, which was rather unusual.
Mr. Chamberland: Which one would that be?
Senator Andreychuk: The case of the judge where the habitual residence was Spain and the case was reheard in England. It may be the territory was Spain; however, her heart was in England and, therefore, allowed custody —
Mr. Chamberland: Is that the decision from Baroness Lady Hale and Justice Wilson? It was joint reasons.
Senator Andreychuk: Yes, it may have been. That worried me. There have been a couple of decisions coming out of the European situation that seemed not to strictly adhere to the Hague Convention. Has that been a conversation in your committees, because these are the countries that are our coalition partners, those who signed on who want to extend it?
We talk about the Muslims and the Malta Process, but progress has been made. I notice when I go to these countries that they are ready for a rebuttal on this issue, whereas I was surprised to see some wavering in Europe.
Mr. Chamberland: There was a case three years ago, Neulinger, from the Grand Chamber of the European Court of Human Rights. That decision created turmoil in our little society.
There is a more recent decision rendered by the same Grand Chamber called X v. Latvia, which brings the focus and application of the convention back to where it should be.
I'm not sure about the U.K. decision, but I think it is Lady Hale and Justice Wilson who wrote that in deciding where the habitual residence of the child was, you have to keep in mind the state of mind of the child. That's probably the only reference that I can see to the heart of someone as opposed to his region.
We're back in line with the last decision of the Grand Chamber, but there was a big turmoil for a few years. It had to do with the extent of the investigation carried out by the judge seized with the return application. Of course, an in-depth examination was suggested, which is contrary to the summary nature of the proceedings under the Hague Convention. For a few years, it was in turmoil, but now it's settled.
Senator Andreychuk: It gives me some confidence.
Do you take into account the international conventions on the child in your work in The Hague? Are they consistent conventions now?
Mr. Chamberland: They've always been consistent.
Senator Andreychuk: In application, do you use the international convention when you're reaching into a country that's part of the Malta Process as opposed to a Hague signing.
Mr. Chamberland: As you know, all countries that are members of the United Nations, except two, are signatories of the 1989 United Nations Convention on the Rights of the Child. Many cases have decided that the 1980 convention is in line with the principles set forth in the 1989 convention.
Senator Unger: Thank you, Justice Chamberland, for your presentation.
A number of witnesses who came before this committee stated that there is a lack of consistency across jurisdictions in the way that the Hague Abductions Convention is interpreted. Has this been your experience? What's being done to improve the consistency? What additional steps could be taken? It seems to spell chaos for those who are involved, probably unwillingly.
Mr. Chamberland: That's a good question in the sense that the problem when you're dealing with an international instrument like the 1980 convention is that there is no international supreme court to say which direction should be followed. You have to work with that. I cannot contest that there is a certain lack of consistency on certain issues. For many years, there was the issue of how to determine the state of habitual residence of a child. There were different kinds of approaches. Today, that's settled, more or less. There will always be exceptions, but it's basically settled.
As I mentioned, a special commission, and I chaired the last one, is convened every four to six years. One of the purposes of these international meetings is to put on the table the inconsistent decisions and to discuss among ourselves the proper way to follow. The commission tries to influence the authorities from the other states. That's one way to try to do the thing.
As well, the Permanent Bureau, with the help of experts who are sometimes judges or central authorities, produces guides to good practice on different topics. There was one on the work of the central authorities, one on mediation and one on protective measures and enforcement. Now, we're working on a difficult one, which was alluded to last week: a guide to good practice on the way to interpret and apply Article 13(b) of the Hague Abductions Convention, which is the grave risk of harm to the child or intolerable situation. There has been quite a lack of consistency on this article, so we hope to be able to come up with a guide. We cannot impose it on anyone. We hope that judges will look at it, or at least will know about it so if they come to a very sensitive issue, they will look at the guide. We will try to propose consistent ways of interpreting and applying Article 13(b).
It's a very good question because it's the nature of the beast. It's an international instrument with no international supreme court.
Senator Unger: As I listen, it seems so scattered. There's a phrase that is used often: It's like herding cats. There's no way to compel people to consider or make a specific plan or outline that must be followed. As you said, there's no supreme court.
Mr. Chamberland: You cannot tell the Supreme Court of the United States what to do. You cannot tell the Supreme Court of Canada what to do. You can only try to influence; and we're not faring too badly. It's just on Article 13(b), which has proven to be difficult, and for good reason as it's a difficult issue. When you raise questions of domestic violence, separating siblings, and such things, there are no easy answers. No matter how smart you are, there are no easy answers. You're really at the heart of the best interests of the child.
We've had two meetings so far, and we're progressing. The third meeting will be next fall. That's the way it's done.
What else could be done? There are international seminars where we try to promote one way of interpreting the convention, but there are different cultures everywhere, even in the Hague countries. I'm not talking about Islamic countries because they are not parties to the convention. Even in the Western world, if I may say, there are different views and cultures. You have to be diplomatic. You can't say: We are right; you're wrong; you can't do that. You have to try to convince people how to do things.
Senator Ataullahjan: I would like to echo the sentiments of Senator Eggleton regarding your work. Thank you for your presentation and your time.
The bells are ringing, so I'll ask a small question, and I'd like you to answer as a lawyer. What limitations does Canada face when dealing with these cases?
Mr. Chamberland: What do you mean by "limitations"?
Senator Ataullahjan: I mean the difficulties. So many countries have signed on. What can we do to make sure they are compliant? We heard from witnesses last week who said there's no monitoring of how various countries are doing.
Mr. Chamberland: No, there is no international monitoring. There is one by the Department of State of the United States. It's one look; it's the U.S. look at compliance, but there is no international body to look at compliance.
But what else could be done? We attend the conferences. We attend the special commissions. We come up with our ways of doing things. We think we're pretty good at doing things, but we also listen to what other people have to say. I suppose that each delegation comes to The Hague with the same approach. They think they're doing some things very well and others not as good, so they listen to what other people are doing; they come back home and try to influence their own authorities to adapt their way of doing things.
It's a slow process. We don't have to look at it just from my perspective. I'll be there for a certain number of years. After that, someone else will replace me and then another one. It's over time that we have to look at the way these things evolve, and we have to be patient.
The Chair: In the few minutes left, if I may ask you a question about Article 13 and the interests of the child, it will be very interesting to see how you define it because of cultural practices. I am sure it has been a huge challenge as to what is harm to a child.
Mr. Chamberland: I suppose we all have our views on what is the best interests of the child, but the criteria has been known for many years, not only in the international community but at our domestic level. I'm sure there is not a single province or territory in Canada that doesn't refer to the best interests of the child, and then I suppose it's very much on a case-by-case basis. There is no other way.
It's easier to make suggestions as far as the process is concerned. This is how we do things. But when you get to the crux of the matter, the best interests of the child in this set of circumstances, you just can't impose one view. You try to do the best.
The Chair: Justice Chamberland, I know all my colleagues would love to have a second round and ask you more questions. I think you've raised more questions for us. I think the study will be interesting.
I want to sincerely thank you for giving us so much time today. We look forward to working with you in the future.
Mr. Chamberland: I suppose you have the final word, but I will be very rude to you, if I may; I'll just repeat that it was an honour and privilege to be here and I appreciated every moment of it.
The Chair: Thank you very much.
(The committee suspended.)
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(The committee resumed.)
The Chair: I would like to welcome the second panel on this very important issue of the Hague Convention, where a child can be unilaterally taken by one parent. We're happy to welcome Pina Arcamone, Director General of the Missing Children's Network, joining us by video conference; Mr. Stephen Watkins, Executive Director and founding member of iCHAPEAU Association; Lianna McDonald, Executive Director of the Canadian Centre for Child Protection, joining us by video conference, and Christy Dzikowicz, Director of Missing Children Services, also joining us by video conference.
We are looking forward to your remarks. This is a study that we've undertaken for the first time in the Parliament of Canada. We are hoping to learn from you what the challenges are on this issue and how we can move this issue so it is in the best interests of our children. We'll start with Mr. Watkins.
Stephen Watkins, Executive Director and Founding Member, iCHAPEAU Association: Thank you, madam chair and honourable members of the committee, for including the iCHAPEAU Association, our newly formed association, in this study and for accepting our testimony on behalf of the parents who are directly affected.
I believe it is very important that the honourable members of the committee hear from persons who this study directly affects, and I would hope that you would also allow other affected Canadian parents to share their views in your study going forward. We have much information to convey, and we hope to have an opportunity to express all our ideas.
I am the executive director and one of the founding members of the Canadian parents association called the iCHAPEAU Association. I am not only one of the founding members but also a parent of two young Canadian boys, of whom I was granted sole custody and care by the Ontario courts. They were illegally internationally abducted from Canada by their non-custodial mother into the United States and then to Germany, with the assistance of a Canadian family member. My sons were missing and purposely kept in hiding for two-and-a-half years before they were finally located in the country of Poland. They were denied return back to their habitual country of Canada by the Polish justice system under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction.
Let me start with these two interesting Canadian child abduction facts that we have highlighted through the iCHAPEAU Association based on 2009 figures. For every 100 children that have been abducted, 83 are abducted by a parent or family member. Parental child abductions are not gender specific, and it's a proven form of child abuse. Did you know that the Canadian government does not track other nation's non-compliances when following international treaties and in agreements signed with Canada in these international child abduction cases? Other nations, such as the United States and the United Kingdom, are tracking their non-compliances yearly and reporting nations who are non-compliant in returning abducted children back to their country.
Parents are now working together to propose new ideas due to the many frustrations of our current systems and procedures here in Canada, but also with foreign nations who already have a track record of non-compliances following these international treaties and conventions in addition to nations who have not ratified the Hague Convention on the Civil Aspects of International Child Abduction.
Canadian left-behind parents of these international abductions are working together through our organization called the iCHAPEAU Association. iCHAPEAU stands for International Child Harbouring and Abduction Prevention Enforcement Act Under Law, the name of proposed new Canadian legislation we would like to adopt and propose here in Canada to help stop parental child abductions and to help return our children back home.
The iCHAPEAU Association was launched on November 20, 2012, in front of the Newmarket courthouse, as this was the date recognized worldwide by the United Nations as Universal Children's Day, and also the day that the Canadian assembly adopted the Declaration on the Rights of the Child in 1959 and the Convention on the Rights of the Child in 1989. This was also the exact date that the Ontario Court of Justice was to sentence my ex-father-in-law for his role in the abduction of my two sons, where he and my ex-wife were found guilty on August 23, 2012, of section 282(1) of the Criminal Code of Canada.
I cannot express the amount of frustration that we've had to endure, at every level, before, during and after. My two young sons were internationally abducted, which still continues today. They remain in a foreign country as hostages and wards of the state of Poland. The Polish judicial system has limited the parental rights of the abducting mother and has assigned a court guardian for my sons in their own country.
Prior to my sons being internationally abducted, I had contacted Child Find Ontario. They were assisting me with information to ensure my children's safety while in my custody but with access visitation to the non-custodial mother. Child Find Ontario, which is now operated by the Canadian Centre for Child Protection, provided me valuable information, which I executed with the assistance of my family lawyer, but there was nothing to prevent my children from being abducted. At the time, and still today, due to no exit strategy controls, there are no effective preventive measures by the Canadian courts to ensure that Canadian children are not abducted abroad.
When parents contact the iCHAPEAU Association, we do always suggest that they register with a recognized Canadian NGO, such as MissingKids, through the Canadian Centre for Child Protection, the Missing Children Society of Canada, Enfant-Retour in Quebec, Child Find Saskatchewan and Child Find Alberta.
In my case, my sons Alexander and Christopher Watkins were in my full care since December 2007 due to child protection concerns raised by teachers at their Toronto school and ordered by the Ontario courts and the Catholic Children's Aid Society into my care. At the time, my oldest son was diagnosed with high-functioning autistic spectrum disorder through the family service that was helping me during the apprehension by order of the Ontario courts. My sons' Canadian passports were ordered by the courts to be handed over repeatedly, by multiple court dates, including a contempt motion filed by the Catholic Children's Aid Society, with the non-custodial mother refusing to comply. Attempts were also made to have my sons' passports cancelled directly with Passport Canada, but it was unsuccessful even though there was a change in guardianship and I was granted custody by the Ontario courts.
After one year, the Ontario courts granted me full custody of my sons in January 2009, with liberal access to their mother. Six weeks after the Ontario court's ruling, my sons were internationally abducted from Canada into the United States and Germany in Europe on March 8, during a court-ordered weekend access. A cancelled Canadian passport was used by the non-custodial mother, and two passports for my sons which she refused to turn over to the Ontario courts that had ordered their return on multiple court dates.
The Ontario courts failed to enforce their own orders and did not take any action, even though the issue of international child abduction was very likely, which was brought up by my legal counsel to the Ontario court judge in the custody trial in December 2008. The abducting mother's driver's licence and Canadian passport had also been confirmed cancelled by the Ontario government and confirmed by the ombudsman of Passport Canada 42 days prior to the abduction of my sons due to the provincial enforcement measures from non-payment of child support. U.S. Homeland Security confirmed with Canadian authorities that all three flew from Rochester to Frankfurt, Germany, using three Canadian passports.
I had filed a Hague Convention Application with the Ontario Central Authority within 10 days of my sons being abducted for their return, including a Polish residential address of where to locate my sons in Warsaw, Poland. The Polish courts also made an order for the police to locate my sons within their country. My sons, Alexander and Christopher Watkins, were kept in hiding for one and a half years by the abducting mother before a Polish school took my ex-wife to court due to child protection concerns. It was without the knowledge of the Canadian authorities and me.
In this case, the same Polish courts that had previously made an order for the police to locate my sons delayed in contacting me and the Canadian authorities for 11 months. It took almost two and a half years to know the whereabouts of my sons. Canada had also issued a worldwide Interpol Red Notice for my ex-wife, but the Polish justice system refused to acknowledge it.
I believe that in the explanatory report by E. Perez-Vera of the Hague Conference on Private International Law, it was noted that the Hague Convention on the Civil Aspects of International Child Abduction was never intended to deal with situations where an abducting parent purposely hid children to gain an advantage of the convention. If this were the case, then every case would result in a non-return order.
In my submission, I believe that the Polish justice system not only did not properly follow the Hague Convention on the Civil Aspects of International Child Abduction, as my case was treated as a custody dispute in their nation, but also the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, as they failed to communicate in a timely manner. The Polish court's failings were also confirmed to me as I had invited the recognized national missing children's organization, ITAKA, to witness the Hague Convention appeal. It was the first time ever in witnessing a Hague court in their country. The Polish government's misunderstanding of the Hague Convention's purpose to return children to their habitual country can also be confirmed by the statements made by the Prime Minister of Poland here in Canada on national news when asked by reporters about my sons' case. He answered, "This domestic issue . . . a conflict between parents . . ." as part of his answer.
The Polish courts based their decision — the non-return order due to allegations of abuse by the abducting mother — on no supporting evidence but at the same time also limited the parental rights of the abduction mother due to child protection concerns. Furthermore, the Polish justice system introduced an internal law in their country preventing any custody or Hague Convention case to be heard by the higher courts. I believe this is in contravention of the 1969 United Nations Vienna Convention on the Law of Treaties, also called the VCLT, Article 27, where it states:
Internal law and observance of treaties — A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.
Due to the fact that the Polish courts failed to acknowledge the human rights of my children, and especially my oldest son who was already diagnosed with a specific condition, they violated my sons' human rights through the United Nations Convention on the Rights of the Child and the United Nations Declaration on the Rights of the Child. My sons are still being held as wards of the Polish state. No one from the Canadian government has put any pressure on the country of Poland to return them to their habitual country of Canada, even though the Canadian criminal courts investigated and have ruled that there was no domestic abuse and found that both the abducting mother and her father were guilty of crimes under the Criminal Code of Canada.
The Prime Minister of Canada —
The Chair: Mr. Watkins, I'm very sorry to stop you, but members here have lots of questions of you and we have two other panellists. May I ask you to wrap up, please?
Mr. Watkins: I know the Prime Minister of Canada was also asked the same question covered in national news reports prior to the Canadian criminal courts, where he stated that the "Canadian government had given consular assistance . . . and giving assistance to ultimately enforce Canadian court orders in this case. The matter is before the courts." Not one of the Canadian court orders has been provided to enforce the final ruling. While the Canadian criminal courts found a verdict of guilty, no one from the Canadian government has stepped up to protect the human rights of my sons.
The Chair: Thank you.
Mr. Watkins: I hope we will have a chance to come another time and present more information. I do apologize that it went a little longer.
The Chair: You have the document. If you file it, we assure you we will read it. It's not that we want to cut you off. We did get what you're saying very clearly. We will certainly read what you have in front of you. You have my word that I will read it. It's just that we want to find out more, and colleagues here will have questions of you. Thank you.
May we now go to the next panellist, Pina Arcamone, Director General of the Missing Children's Network.
Pina Arcamone, Director General, The Missing Children's Network: Good evening. I'd like to thank the committee for allowing me to present today. It's really my honour, as the Director General of The Missing Children's Network, to speak on the issue of cross-border family disputes before this Senate committee.
Founded in 1985, the Missing Children's Network provides front-line services to families who are living every parent's worst nightmare. When a child goes missing, our organization provides support, guidance and refers services to these families during and following recovery. We liaise with law enforcement partners, the missing children's program, child welfare agencies, the legal community and other appropriate agencies across Canada, North America, as well as Europe. We assist with reunification. We offer peer support and advocate for the family and the missing child.
The best interests of the children have been at the heart of our mission and are the focus of our interventions. Every year, in Quebec alone, law enforcement will register on average about 100 cases involving children abducted by a family member. Taken from family, home and friends, these children are suddenly uprooted and thrust into a life of uncertainty and isolation. This instantaneous loss of community can lead to lasting depression, the loss of a sense, of security or stability, of compromised ability to trust oneself or others, and fear of abandonment.
The impact on the abducted child is also traumatic as he grapples with a host of feelings: above all, a sense of deep betrayal and loss of trust. Nor are these the only people harmed by family abductions: brothers, sisters, grandparents, other extended family members, as well as friends and classmates, are all greatly impacted.
Although the majority of abducted children are not taken by a stranger but by a parent or family member, the issue of family abduction still remains laden with misconception in today's society. These cases, like Mr. Watkins said, are often seen as just divorce or custody matters, something private that the public and law enforcement should not concern themselves with.
The sad truth is that family abduction can be as physically dangerous and even deadly for child victims as with any other form of child abduction. Most often, however, the worst damage cannot even be seen by the naked eye. It occurs deep within the child, leaving traces that may last a lifetime.
[Translation]
The issues addressed by the Missing Children's Network are quite varied and, oftentimes, complex. It is difficult to give an exhaustive account of the types of issues in question, however, most would fit into one, or cut across several, of the following categories of study:
1. International parental abduction resulting in criminal charges where a parent illegally takes their child abroad without the permission of the other parent and with the intention of not coming back.
2. Retention resulting in a criminal charge whereby a parent departs Canada with a child for a pre-determined period of time, often on vacation or to visit family, with the permission, and often a letter of authorization, from the other parent when, in point of fact, at the time of departure, the parent had no intention of returning to Canada.
3. Retention with no criminal charge whereby a parent leaves Canada with a child for a pre-determined period of time, usually on vacation or to visit family, with the permission of the other parent, when it has not been proven at the time of departure that the parent intended to prevent the return of the child. It is considered that the parent's intention is to keep the child in another country without the agreement of the other parent, within the jurisdiction of the other country, and that, consequently, no crime has been committed on Canadian soil.
4. A return application under the Hague Convention. Where there is interprovincial abduction and a parent leaves the child's usual province of residence without the permission of the other parent or the court; this type of abduction may warrant criminal charges under sections 282 and 283. However, it is the habitual practice of the police to refer the searching parent to the civil proceedings route. The parent is thus obligated to have their custody order recognized by the other province, and in cases where the other parent travels from province to province, the process may have to be repeated several times.
5. Abductions in Quebec, even in the same province or the same city: a parent may hide a child so as to prevent the other parent from having any contact. In such cases, the searching parent may request police assistance. Oftentimes, in the absence of any sign of immediate danger to the child, the police will, again, refer the parent to civil proceedings.
With your permission, I would also like to read aloud some statistics that the Missing Children's Network has compiled since its inception in 1985 right through August 30, 2012. In total, we have handled 341 cases of parental abduction, directly submitted to the Missing Children's Network, involving a total of 478 children. Of these 341 abductions, 142 were committed by mothers and 199 by fathers.
As regards the sex of the children, the proportion of girls and boys is very similar. Moreover, there is no significant correlation between the gender of the abducting parent and that of the abducted child.
The highest at-risk age group is one- to five-year olds, an age at which children have trouble understanding the situation or expressing their opposition to being relocated. Thereafter, this number drops as children get older, through adolescence where cases are somewhat less frequent. In the case of children aged 14 and above, 69 per cent of abductees are girls and, 72 per cent of the time, they are abducted by their fathers. Early adolescence is an age where children start acquiring their own set of values, and some fathers want to ensure that their daughters adopt values that, in their opinion, are better represented in their country of origin than in Quebec or Canadian society.
What follows is a list of suggestions to better manage the problem of child abduction in Canada. We recommend enhanced and ongoing training of police officers, Crown prosecutors, judges and lawyers, even though much progress has been made since the coming into force of sections 282 and 283 of the Criminal Code. That said, parents are still told on a regular basis at their local police stations that child abductions are a "civil matter." This is particularly true of the following situations: interprovincial parental abduction, international retention, and especially in cases of non-compliance with access rights provincially, interprovincially and internationally.
These situations do not always warrant the laying of criminal charges; however it would be helpful if further information were sought in order to determine the appropriateness of making a case and submitting it to a prosecutor, rather than de facto considering the matter to be civil in nature. In many cases, searching parents have trouble locating a lawyer with experience in cases of international parental abduction and custody, which delays important steps in the process of recovering the child. Judges who hand down decisions regarding custody rights and the likelihood of parental abduction to a country that is not a signatory to the Hague Convention often lack sufficient information regarding genuine risks, and the methods available to circumvent a prohibition of travel outside the country.
Judges must first be made aware that there are no customs or immigration formalities upon exiting Canada and also that, in a number of non-signatory countries, a parent can obtain a foreign passport for a child without advising the other parent and leave the county without impediment regardless of a prohibition. It may be a useful prevention tool, in cases where assurance is given that the consulate of the foreign country will not issue new travel documents, to have parents hand over Canadian passports and other citizenship documents to lawyers during a custody battle.
Another possible solution would be to make financial assistance more accessible. That would include legal fees and the cost of air transportation for parents who are victims. Legal and transportation expenses are often an insurmountable obstacle for searching parents. I am not necessarily talking about free flights and pro bono legal representation, rather a compassionate approach by sympathetic airlines, and reduced legal fees, which could play a decisive role in determining whether the outcomes of certain cases are positive.
Any other mechanisms, whether in the form of compensation or tax rebates, that may help to lighten the burden carried by parents, would be very helpful. It is worth noting that in many cases, we have had to assist families by referring them to food banks and second hand clothing stores since, after recovering their children, they are inundated by debt, have lost their jobs and, sometimes, even the roof over their heads.
This type of hardship makes the already difficult task of taking care of the recovered abducted child even harder.
[English]
The Chair: Ms. Arcamone, the members on the Human Rights Committee have a lot of questions of you. May I please ask you to now wrap up.
Ms. Arcamone: In conclusion, we need to put a lot of emphasis on prevention — I believe that is a priority if we want to keep our children safe — awareness campaigns for parents who don't even suspect their child may be the victim of a parental abduction, and probably better supervision of our exits when parents leave the country. We can supervise the exits to prevent children from being at risk of a parental abduction before they actually leave the country.
The Chair: Thank you very much for your presentation.
We will go on to the Canadian Centre for Child Protection and I understand Ms. McDonald will start.
Lianna McDonald, Executive Director, Canadian Centre for Child Protection: I thank you for the opportunity to provide a presentation today to help inform the committee's important work. The Canadian Centre for Child Protection is a registered charity whose mission is to increase the personal safety of children and to reduce the number of missing and exploited children. I'm joined by my colleague Christy Dzikowicz, Director, Missing Children Services.
In my testimony I will touch briefly on the impacts of parental child abduction and then identify some of the key recommendations for your consideration. We hope to provide insight into our agency's experience in working with families of missing children for the past 29 years.
The work of our agency involves supporting families whose children are missing and to liaise with police agencies and other stakeholders to safely locate and return these children to their legal guardians. Our team of trained case workers offers free services available 24 hours a day, seven days a week.
The prevention and treatment of cases of international child abduction is neither simple nor easy. Parental child abductions affect not only the nuclear family but have serious financial and social costs to Canadian society at large. When a child is wrongfully taken, they are not just removed from their parent but they are displaced from their home, friends and established community. When a child is taken, the left-behind parent is faced with the daunting task of navigating the complex, overlapping and often confusing systems put in place to recover their child.
The first contact that is often made is to police, only to quickly learn that they are only one simple part of the equation. There are a myriad of other processes that need to be engaged and most will not fully appreciate these complexities. In most cases, consultation with the central authority and a lawyer will need to be retained within all countries that are involved.
The parent who is experiencing a significant amount of stress will be the person who has the most to lose yet is often the least informed. Most will never have experienced something like this and are often ill-equipped to recognize when tactical errors are being made.
In addition to the impacts on the parent and child, there are issues that need to be addressed. Under the abductions convention, time is of the essence for the left-behind parent. The parent needs to expeditiously have police engaged, obtain court orders that are necessary and work with the central authority to complete the necessary paperwork to commence Hague proceedings.
Time is a major factor. If the application is not filled within a year, the courts can refuse the return based on the ground that the child is settled in a new environment.
Unfortunately, we know there are many reasons why a swift recovery of the child is difficult. There is difficulty in determining the location of the child, changes with the police agency and challenges in terms of that first contact, and they may initially resist involvement with the absence of a court order on the issue of custody.
Families who require legal aid or legal support are sometimes faced with extensive wait times. There is confusion surrounding roles and responsibilities among the various players, and language barriers that can cause communication obstacles. Other issues are a lack of uniformity among Hague signatories in interpreting and applying the Article 13 exceptions to return. Even within a signatory country, what is held to be a grave risk of harm in one scenario will not be seen as such in another. Further, while it is important to consider a child's view, there are a number of factors, including the influence of the parent with whom the child resides, and that should be considered.
Another problem is re-litigating custody. While the stated purpose of the Hague Abductions Convention is to have the child returned to the country best suited to deal with custody and access issues, in many cases we are seeing other countries base their decisions more appropriate to custody.
In concluding, our agency would like to table three recommendations for your consideration. The first is to prioritize the education of trained professionals who have a direct role in the issue — central authorities, police, family law lawyers, judges, Canadian Border Services — on the scope of the problem, good practices, challenges and options. We need to educate concerned parents who fear their children will be abducted. They need to understand their rights, preventive steps to take, what to look for and what actual services are available to them.
Second, we need to acknowledge and remedy the challenges and hardships faced by left-behind parents. For example, we need to provide accessible and understandable step-by-step guides on actions to be taken or considered, including the rights of left-behind parents and resources available. We should look at implementing financial and other resources to support parents in the search and reunification process.
Finally, we need to strengthen international cooperation and interpretation of the Hague Convention between signatory states to coordinate effective communication networks, establish systems to resolve disputes and mediate nationalistic agendas, establish international reporting systems to create accountability, establish consistency and interpretation within guidelines and, finally, create networks to bridge communication between non-signatory and signatory states.
I will turn to Ms. Dzikowicz to give one case in point to underscore our agency's position.
Christy Dzikowicz, Director, Missing Children Services, Canadian Centre for Child Protection: I would like to touch on the devastating and lifelong impacts of parental abduction on children and families. In one example, our agency worked closely with a father who was searching for his daughter for 18 years. During that time he would travel to follow up on leads himself; he hired lawyers and private investigators and he missed work. He would argue that the incredible financial losses were only the beginning.
Describing the reality in his own words, he said:
You want to die, but you continue living through unimaginable suffering. Waiting one more day is too long to wait when your daughter is missing. Being told by agencies or police, "I'll look into that next week," always seems like an unreasonable wait.
We must all remember that living in constant crisis is the reality for most of our searching parents. This is how they're feeling when we're asking them to navigate the complex processes required in an attempt to recover their loved ones. In this example the daughter has finally been found but the damage is almost unexplainable. In his words:
The damage from this crime is permanent. The childhood memories that should have been never will be. The bond between girl and her brother, a daughter and a father, can't be reconnected and sent back in time. There is no such thing as restitution in our case. We can't import memories of family rituals, long talks, holidays and firsts of all kinds.
Ultimately the taking of a child from their home and community in this manner may cause a disruption in their childhood that can impact their lives for many years after reunification. This is just one example, but it reflects what we too often see with the families we support.
Thank you for the opportunity.
The Chair: Thank you very much for your three presentations and we will now go to questions.
Senator Eggleton: Let me start with Ms. Arcamone. You gave some statistics and I wasn't sure of the context. I heard the figure 478 and you then broke it down between mothers and fathers. What does that figure represent?
Ms. Arcamone: Those are statistics that we have compiled for the last 27 years at The Missing Children's Network. In all, we have intervened in 341 cases of missing children. These are family abducted cases, but they actually involve 478 children because in many cases the abduction involves two, three and sometimes four children. Those are statistics that we compiled in our organization to better understand the phenomenon of parental abduction and look into possible measures to prevent these situations from occurring in the first place.
Senator Eggleton: You said 142 were relevant to mothers and 199 to fathers. What about the remainder? Are there other people involved in these abductions?
Ms. Arcamone: We have had a couple of cases where the grandparents abducted the children. It's always a family member.
Senator Eggleton: In terms of returning these children to their habitual home, what is the success rate of that? Either they were returned voluntarily or by a judge's order. I'm trying to get some indication of the success rate of return and also how long, on average, it takes to get the return. One case we just heard a moment ago was 18 years. That, I'm sure, isn't the average. I hope not.
Ms. Arcamone: We've had longer cases than that.
Senator Eggleton: Really.
Ms. Arcamone: Over 90 per cent of these cases have been solved. In the remaining perhaps 10 per cent, we probably have a good idea as to where the children are, and most of these children that have still not been reunited are in non-Hague countries. We have located the children. As of today, we have one missing case where we have actually no idea where the father and the son are. I have a very exhaustive report that we did compile that I would be willing to share with the Senate committee.
Senator Eggleton: I'd love to have it; I'd like to see it.
Ms. Arcamone: Again, these are all in-house statistics. I just want to remind you that they are inside statistics from our province.
Senator Eggleton: From Quebec.
Ms. Arcamone: Our organization, yes.
Senator Eggleton: I still haven't seen statistical information about Canada. We had Mr. Ernie Allen, from the international organization, last week. He gave some statistics, but I still don't see a lot of statistics. To get an idea of the magnitude of this problem in the whole country, how many or how many a year are abducted? How many abductions come the other way? I would wonder about that, too, and what are the clearance or success rates in uniting these children with their parent in the habitual home. Does anybody have that kind of Canada-wide information?
Ms. McDonald: I would just like to point out, senator, that this is a very relevant and important question. For years, the RCMP collected statistics that looked at Canadian Police Information Centre reports, and they did break down by category the number of cases of missing children that were broken. For a number of years, they were keeping track of cases that would be reported. Again, these are just police reports of parental abductions, so we may be able to gather that information or make that request and submit that.
Senator Eggleton: Let me ask you about prevention, because that has been raised a fair bit tonight.
Senator Andreychuk: Senator, could I ask a supplementary on the facts?
Senator Eggleton: Sure.
Senator Andreychuk: Child abduction could be from province to province, city to city or country to country, so when you say that CPIC has it, what do they have? Do they have the people who have reported a child missing because I know you do some excellent work on just missing children, not abductions. I'm trying to get child abduction, as a category, away from missing children, and, then, is there any collection province-within-province because we also know the CPIC problem across Canada. They only recently started sharing criminal investigation information. We know we don't have any exit controls, so we don't know how many children actually leave the country. Presumably, when children are coming into the country, we don't know if they are legally with the parent or have been abducted, so it's a very difficult area. What were you saying you think you can provide?
Ms. McDonald: Our missing children program, for a number of years, published reports that, I assume, would be reports through CPIC. Whether or not they would be actual criminal charges or how the police are recording that, I cannot say for sure, but they have historically been the national body that has made some effort to try to collect reports and numbers.
You're exactly right regarding the difference between an abduction and a missing child report. In the categorization system they used, they would break up the whole spectrum of missing children and look at voluntary or runaway cases. They would look at non-family or stranger abduction, and then they would look at parental abduction numbers in those statistics.
Senator Andreychuk: We could send a letter to the RCMP — to their headquarters — to determine what they collect and what they could provide for us.
The Chair: We do have them coming, so we will ask for that.
Senator Andreychuk: Can we alert them, first, as to what we are looking for?
The Chair: Absolutely.
Senator Eggleton: Thank you, Senator Andreychuk, for asking that in a supplementary question.
The Chair: Senator Unger has a supplementary question.
Senator Eggleton: Oh, all right. We have something going here.
Senator Unger: My question goes back to Ms. Arcamone's testimony. You said that 90 per cent of these cases have been solved. I'm wondering what that means. Is the child, in some cases, or the adult, in others, reunited with their family? Can you tell me what that means?
Ms. Arcamone: Most of these cases are successfully solved within the first few days or weeks of disappearance. These children have been reunited with their searching parents, but there are still a number of children for whom we have no idea where they are and parents who are facing a multitude of challenges in trying to locate their children and appearing before courts in different countries. Although these children have been reunited with their parent, for the left-behind parent, when they are reunited with their children, the fear of their child being abducted again is a real, live fear and anxiety for those parents. That's where we feel that the prevention needs to come into effect to try to prevent a second or third abduction by some of these parents.
Senator Eggleton: We had the supplementary questions, which I appreciate. I think they're right on.
My second question deals with prevention. That has been mentioned a lot tonight. One of you talked about two categories of prevention — awareness and supervision of exits, supervision of exits meaning passport control and that kind of thing. I don't know if you have any more thoughts on how that might work. We had Foreign Affairs here at the last meeting, and I didn't sense that they thought much could be done. Maybe I missed it.
The other is awareness. I wonder how that could be done in a practical way. When there is a separation or a divorce agreement between parents and a decision is made over custody by way of an agreement or, as in Mr. Watkins' case, it has to be enforced by a court, is any information given at that point in time saying, "We want you to bear in mind that you can't take the child out of the country in accordance with the provisions of the Hague Convention"? That could be part of the process of education. Any expansion on prevention, by any of you, would be helpful.
Ms. Dzikowicz: We believe that education of a variety of professionals could be very helpful in prevention, educating family lawyers who are dealing with custody disputes so that they are educating their clients on the possibility.
I think Stephen's case is rare in one way and not in others. It was rare in the sense that he was very well in tune with the risks that were going on, but unfortunately we still weren't able to prevent that from happening. In most of the cases with families we deal with, they're hijacked by what has happened. They never expected that something like this could happen. They may be going through a divorce and have consented to a vacation, with never a thought that the child would not be returned. So I think we need a lot of education through a variety of stakeholders. We have systems that deal with domestic violence where we could be informing clients through that process that there is increased risk or likelihood with that high-risk population.
We could be educating Canada Border Services in an effort to prevent and keep their eye on risks or concerning behaviours and we could be educating law enforcement to a large degree, both on the prevention side. We have parents who make threats that if a parent doesn't comply, they will take a child. We need to ensure those types of threats are taken seriously and that they are aware of the risks presented there as well.
Mr. Watkins: This is something we focus on as parents dealing with this. These are the calls we field. People call iCHAPEAU to ask, "How do I stop my child from being abducted?"
I agree that there has to be education here in Canada at every level because it's all chain-linked.
If the police are not brought up to speed on dealing with international abductions or abduction, they don't believe it and don't investigate, and then nothing happens. But then they take direction from the Crown. So if the Crown doesn't say "make an order," the police won't do their job. More often than not, parents will say that their child has been abducted. They go to the police and they are ignored. There are lots of cases like this, so there has to be education at every level.
One of the things we would like to propose is an actual American law. I hope you would have a chance to read my whole submission because —
The Chair: Members, we do have Mr. Watkins' submission, but we only have it in English and that's why we have not circulated it. We will do the appropriate thing with it and then circulate it.
Mr. Watkins: One thing we would like to submit is a law of the United States called FL-341(B), and it's a judge's checklist. It sounds bizarre, but it's making the judge, as they're reviewing a case file, do a checklist of high risks. Now the Canadian centre publishes a list of high-risk factors, but we're not utilizing that in our system. So if you had a judge's checklist and, for instance, there is a threat of abduction, that is a check mark. There are 17 points. Once we've got 16 check marks, it's high risk. Once it's high risk, what do we do?
This particular law out of the United States tells the judge they need to do the following steps. If the judge is doing this and we're educating the judge, then the Crowns are educated. And once the Crowns are educated, it flows back to the police.
It's a funny way of looking at it, but many parents are saying the police didn't take action because the Crown said, "Don't bother." So we have to educate up and down at the same time, but to do that we have to introduce legislation. I propose that the Canadian centre has a list of risks. Let's utilize that. Get it off the paper and apply it to legislation that works.
Another component is that I would present another program out of the United States called the Prevent Departure Program. There were very few shared databases between Canada and the United States. The NCIC database is one of them.
How do we get a child's name onto that police database, which is shared between two nations? The United States has the Prevent Departure Program and once there is a high risk from that judge's checklist, a child's name can be placed on a no-fly database. This database is shared amongst airlines and puts the child's name on border crossings. If a parent abducts and goes to another state, they can't fly out.
Suppose we have the Prevent Departure Program here in Canada. My sons were abducted into the United States and flew out. If we had the program here, and we meld the two together — it's not sensitive information, just a list of the names of the children by court order — then children entering the United States can't fly out, and American kids coming into Canada can't fly out.
What we're proposing through iCHAPEAU Association are ideas that will work, ideas that are implemented, and some of these ideas are implemented due to other left-behind parents.
Senator Andreychuk: It sounds as if all three groups are saying that we need more information and prevention is the key, but the Hague Convention is based on knowing that there is a convention. It really is a curative rather than a preventive. Preventative is a very difficult situation. It would seem to me if we were going to take prevention on in a great way, the information should be about if you marry someone from another country. Basically that is what we're talking about. If you're going to have a relationship with someone from another country, you have the added risk that this may happen. Now most people at that time do not want to hear about negatives in their relationship. They're all wonderfully in love and want to get married, and they don't think about it.
It seems to me it's either educating all the professionals who have to deal with people in breakup situations, and that's already a little past the point. I would be interested starting with the two groups on our videos and then coming back to Mr. Watkins. Where do you start prevention?
Ms. McDonald: The senator's point is very accurate. From our agency's standpoint what we start to do, through our missingkids.ca website, is provide a whole wealth of information on risk factors, things for people to look for in terms of concerns.
But to your point, I think the real problem is that in many instances people don't want to go down the path of thinking that down the road the person they're with and have a child with is going to take the child. There are a number of challenges in terms of looking at that very early on in terms of prevention and starting to get people to consider or think about that.
In terms of the information we provide, we raise different types of questions for people to consider who are starting to have disrupted families or challenges within their family network. One of those things that we would talk about is when a parent has come from another country, left a whole network of other family members, and may be feeling disenfranchised with the Canadian dream or the relationship is not going so well. We attempt to ask some of those questions and provide meaningful information about where to go. But again, if we're honest, these are inherent challenges in looking at how we might stop this from occurring at the very earliest stages.
Ms. Arcamone: Our organization created some brochures. We have them in English and French, and they're entitled When the Abductor is the Parent. We try to raise awareness with different community groups. We are often invited to speak with women's shelters and other child welfare agencies, so we try to do prevention at that level, working with groups that may be more at risk to talk about the phenomenon, what can be done. If they do have any parents at risk, we can take the time to sit with them because every case, being very complex, is walking the parent through what their rights are in Canada and what their rights would be in a foreign country.
Mr. Watkins: I would like to submit another legislation idea out of Florida called HB 1012. I know that Ontario, when parents start the divorce procedure file, you are required to take a course, and there are so many hours. This legislation basically recommends that 15 minutes during that course be spent talking about why you don't abduct your children and what the effects are on your children.
Right from the outset, if our courts are mandating people to take a course, why not make a 15-minute component of that dealing with child abduction and the effects of child abduction? That's exactly what Florida has done with one of their successful programs, and that's something we would recommend we bring here as well.
Senator Hubley: I think each one of you has indicated that better training and awareness is important from the front-line workers. You did mention the Crown attorneys, the judges, lawyers, Canada Border Services Agency and the police. First, who do you feel is responsible for delivering such a program?
Second, has your organization been involved in any sort of an educational program for any of those groups I've mentioned?
Mr. Watkins: We're newly formed. The way we look at things is, how do we do that? We're not the lawyers; we're not the government. We look for successful ideas around the world, legislation that works and is implemented. Again, believe it or not, some of these pieces of legislation were created by other left-behind parents. As I mentioned before, we're educating a judge and a judge's checklist. Hopefully that goes down to the police.
We find ideas, and if not, we come up with ideas that are not Band-Aid approaches.
Ms. Arcamone: In Quebec, every year the partners of the missing children's program get together and look at the bigger issue of parental child abductions. One of the things we do throughout the year is the parents will meet with the different municipal forces in Quebec. We will provide training regarding parental child abduction. We talk about what the children may go through, and we bring other partners to the table, the various child welfare agencies that may receive parents when they're about to be reunited with their children, as well as social workers, et cetera. We feel it effective, but the training needs to be done and needs to be ongoing. Unfortunately, resources are limited.
Ms. McDonald: If we were to be honest, we would say we're not even close to reaching the mark we should be at. There's a great opportunity as a result of this committee and its work to really provide leadership in looking at all of the stakeholders who have a vested interest — and not only that, but who have a different degree of expertise in their related spaces to be able to talk about some of the challenges and problems and look from a multidisciplinary standpoint: How can we work more concisely together to educate people at different points in the equation?
All of us deal with the public or with concerned parents in different stages. I would say that there's far more to be done. We need to have more leadership on this, and we need to be better coordinated in our efforts.
The Chair: I want to thank you, Mr. Watkins, Ms. Arcamone, Ms. McDonald and Ms. Dzikowicz, for your presentations. As you can see, we've just started this process, and you have put a human face to what we have heard earlier. We look forward to working with you in the future. Thank you very much.
I would now like to welcome, as individuals, Max Blitt, Fellow at the International Academy of Matrimonial Lawyers; and Carol Bruch, Distinguished Professor Emerita and Research Professor of Law, the University of California.
May I please ask that you try to stay within 10 or 12 minutes for your remarks, as we have a lot of questions of you?
Max Blitt, Fellow, International Academy of Matrimonial Lawyers, as an individual: Thank you, and good evening, Madam Chair and honourable members of the committee. My name is Max Blitt. I am a lawyer in private practice with the law firm of Spier Harben in Calgary, Alberta.
I have been handling child abduction cases since the late 1970s, prior to the implementation of the Hague Convention on international child abduction. When I first started practising in this area and when the Hague Convention was implemented in Canada and each of the provinces, in the beginning we would maybe have one or two cases per year. That has now increased as of late to almost a dozen cases per year. I would attribute that to a number of factors. One would be globalization, where we have individuals and families that move throughout the world for employment opportunities. Calgary, in particular, with the oil and gas industry, attracts a lot of international workers. Add to that that we have multinational, inter-cultural, inter-religious marriages, and a divorce rate that is at least 40 per cent, and you have a recipe for an abduction when the marriage breaks apart.
How can we respond effectively to the growing number of child abduction cases? When I talk about child abduction cases, I'm referring to parental abductions specifically.
Where I have become more and more involved is in the education and the prevention, because it's fine to have the Hague Convention, but that is a bit like trying to contain the cows after they have left the corral. It's a bit late. We do have a treaty that will help us recover children but, where possible, we should be focusing on prevention of child abduction. We can do that by educating individuals — when I talk about individuals, I mean members of the public — and there are excellent tools available through the website of the Government of Canada Department of Foreign Affairs, Trade and Development that have those resources.
We also have to educate those in the legal system. There are not as many cases of child abductions in the courts as the other types of family law, so it's not as readily apparent to lawyers what type of cases might lend themselves to the use of the Hague Convention. So we have to educate lawyers; we have to educate judges; we have to educate other members of the system, which would include police, as to what is important in terms of avoiding an abduction in the first place, and certainly what to do after there has been an abduction.
Another area that I believe we need to focus on is legislation. The United States has a uniform statute dealing with the prevention of child abduction. Canada is much more of a patchwork of legislation, although Manitoba has the child custody enforcement legislation, which I have attempted to push for reform in my province, Alberta. But, as you can appreciate, legislation doesn't move as quickly as we would like.
That's an area that I believe we need to focus on. Give the judges the tools to actually deal with either prevention of abduction or how to recover children after an abduction.
I believe it's also important work for not-for-profit organizations. I believe you have heard from the Missing Children Society of Canada. I work quite closely with them. They assist us in recovering abducted children. I've been working with them since the early 1980s.
What about the Hague Convention? First, I should be very clear that it is not about the best interests of children. It is presumed that if children are returned to their habitual residence, that is the appropriate jurisdiction to determine custody and the best interests of the children. So the Hague Convention is really about where jurisdiction to determine custody will be made.
I would say that, as more Hague cases have come into Alberta — and I know that Ontario and British Columbia also have a large number of Hague cases — the more familiar the judiciary has become. I believe you've already heard from Justice Chamberland of the Quebec Court of Appeal, who is one of our international liaison judges. I have worked with him in the past.
I would say that the convention works very well between Canada and the United States, England, Australia, countries that seem to have the resources and the judicial training to really put the Hague Convention into operation. It does not work as well with countries like Mexico, Turkey, and some of the other European countries. The reason it does not is some of those other countries do not have the resources to really put the machinery into operation to utilize the Hague Convention. Also, the attitude of some countries is such that a returning national who has abducted his or her children usually has some bias built in their favour by some of those countries; and, of course, a poor understanding of the Hague Convention and how it should operate.
How can we improve the operation of the Hague Convention? One of the ways is to have lawyers, judiciary, go to these other countries that have recently acceded to the convention and provide training and assistance, and to enable those countries to put the operation of the Hague Convention into proper focus as their cases come into their courts.
I was fortunate to work with the Department of Foreign Affairs and International Trade as part of a study group that went to Japan in 2009 and 2010, along with working with the United States, England and some other jurisdictions. I'm happy to say that Japan has formally approved the Hague Convention as of April 1 of this year. Of course, it remains to be seen how they will apply the Hague Convention.
Certainly, we can provide training to lawyers and members of the judiciary at the very early stages of the implementation of the Hague Convention in those countries.
I also have had an opportunity of recovering children from non-Hague convention countries, such as China, Bangladesh, Lebanon and Egypt. It is possible to recover children from those jurisdictions, but it does involve the assistance of judges in our jurisdiction, consular affairs individuals in the country children have been abducted to that are not Hague signatories.
I have some suggestions for future reform. One of those would be the implementation of the United Nations Convention on the Rights of the Child. I believe, based on recent cases I've been involved in that have gone to the Alberta Court of Appeal, and a recent case out of the United Kingdom Supreme Court, former House of Lords, those jurisdictions are saying that there is a place for children who have reached an age and degree of maturity that we need to look at their objections.
That requires resources such as social workers and psychologists to provide the voice of the child because of the requirements that the courts have laid down to get that evidence. I have seen first-hand where our courts have said that has to be done, in a recent case involving a child I was representing, who was an Arab Muslim child from East Jerusalem.
The English case that I mentioned involved going to the U.K. Supreme Court and involved a case out of Spain and England.
I would also recommend the implementation of the 1996 Hague Convention, which would further assist the courts with tools to take emergency steps when children have been abducted to a Hague Convention country.
Lastly, we know about the Malta Process and mediation. I have suggested, in I can't remember how many cases that have come into my office, mediation. There has to be more stress placed on mediation because these abduction cases inevitably lead to a relocation case. The abducting parent goes to, say, England, they're ordered back to Canada, and then they apply for relocation back to England.
We have a case of the children being ping-ponged across the Atlantic. If we can mediate before any of that happens, we've reduced the psychological effect and harm on the children.
I wanted my submissions to be brief and allow for questions, so I would end my presentation with that comment and open it up to any questions.
The Chair: Thank you very much.
May we please hear now from Ms. Bruch.
Carol Bruch, Distinguished Professor Emerita and Research Professor of Law, School of Law, University of California, Davis, as an individual: It's an honour to be able to address you today. Thank you for the invitation.
My goal today is to tell you the truth as I see it and make good use of your time. Unfortunately, I've not been able to listen to any of the other speakers before me, but I dare say that much of what I say will be new.
For 30 years, this convention has been a major topic of my research and publications. I attended every special commission to discuss the convention, first on behalf of the International Society of Family Law and then for the International Law Association.
Only observers from authorized international NGOs are permitted in the room. Until very recently, they have been welcome to take full part in the members' discussions, although, of course, they could not vote. If we have time, I would like someone to ask me about the current situation. Efforts are being made to exclude them entirely.
Today I must use my limited time to highlight, unfortunately, what has gone seriously wrong in the name of the child abduction convention. Fortunately, your focus is on the welfare of children, and I think you will appreciate my candour.
The most important thing I have to say is that the convention's drafters created a brilliant scheme, one that later research has shown to be exactly what children need to protect them when one parent removes them to another country from their habitual residence. What has gone wrong is that scheme has been distorted in ways that make the convention an engine of harm to too many children. This means that universal adherence to and compliance with the convention, as it is currently being interpreted by the Hague Conference's Secretariat, the Permanent Bureau, and by the International Association of Judges that it has fostered, could have a devastating effect on children. It would be a blunderbuss when a scalpel is needed.
The children of domestic violence victims are the canary in the coal mine. By telling you about them, I hope to make my concerns concrete.
As you will know, the convention returns wrongfully taken or retained children to their habitual residence where a custody trial can take place if the parties seek a new custody order. The problem the drafters faced was fathers who removed the children from their caregiving mothers, but — and this is the important point that has been forgotten or ignored — no such return is authorized if the person seeking it has only access, visitation rights, not custody. In that case, the convention provides assistance to the non-custodial parent in securing visitation in the child's new location. If that parent wants to seek custody, they must go to the courts of the child's new home, not seek it in return proceedings, not secure the return of the children to the former residence.
In sum, the drafters ensured that children would remain with the parent who had been providing their day-to-day care unless a change of custody was ordered by a court hearing the case on the merits of custody. No further disruption of the child's residence would take place by a return order. Instead, the child and the abducting custodial parent were to remain where they were during any inter-parental litigation, minimizing the number of disruptions to the household.
That point did not garner much attention at the time because in 1980 it was primarily non-custodial fathers who abducted their children. That's the group the drafters had in mind. Returns were to take place quickly to return the children to their mothers, the persons who provided most of their care.
But the world has changed. We know that, on average, fathers are more involved with caring for their children today than they were in 1980, and we know that sometimes they, not mothers, are the children's primary caregivers.
Popular psychology, however, is wrong when it claims a child's welfare demands significant time and continuing contact with both parents. Unfortunately, this assertion, which stemmed from fathers' rights advocates without foundation in science, is now enshrined in the UN Convention on the Rights of the Child.
Many excellent researchers explain instead the various ways in which children can either benefit or be harmed by continuing contact with non-custodial parents, parents who range from the excellent to ones who should not even have indirect contact with the children. But extra time does not produce better bonds and, as one researcher put it, "The only childhood stress greater than having two married parents who fight all the time is having two divorced parents who fight all the time."
I will make available to the committee a brief, published expert opinion that was prepared at the request of the English Court of Appeal by two mental health professionals, Sturge and Glaser, and later approved by the vast majority of professionals whose views were sought by a committee in the Lord High Chancellor's office.
Both in 1980 and now, most mothers provide the majority of children's daily care. To save time, I will therefore refer to abductors as mothers and visiting parents as fathers.
Let me begin with the good news: The convention is doing a good job at discouraging abductions by non-custodial fathers to convention countries. They remain, however, the most likely to abduct to non-convention countries, where they often have custody rights by virtue of their gender. This, of course, should raise a red flag to your committee, as it considers what relationships to enter, either under the convention or outside it.
The less favourable news is that now at least 70 per cent of return petitions are brought by fathers who seek the return of their children from their mothers. What has happened? I am sorry to report that it is not primarily because these men are primary caregivers and these mothers are visiting parents.
In the early years, women who returned to their families and countries of origin when their relationships failed or when they sought refuge from family violence never became embroiled in return proceedings. Whether or not the children's taking was legally authorized, it was absolutely clear that the children would not be returned under the convention. Only a custody case on the merits at their new location that transferred custody to the father could remove the children from their mother's care.
Now, fathers in many cases like these bring return petitions. They say they have custody rights and therefore are entitled to the children's return, but what are the legal rights upon which they rely? Often they hold joint custody orders that do not give them either equal or primary care of their children. Instead, these orders' time allocations look much like 1980 visitation orders — at best, generous visitation orders. Even worse, fathers with even minimal contact with their children may be granted their return simply because the law of the family —
The Chair: Ms. Bruch, can I ask you to wrap up, because we have lots of questions to ask of you.
Ms. Bruch: This will be very difficult for me. I'm sorry.
The Chair: We do have your written presentation and members will get your written presentation.
Ms. Bruch: That is fine. I was trying to shorten it.
There is plenty of research now that shows the devastating effects on young children. Most children in these custody cases and in custody cases in general are under the age of six. We're talking about young children and about the fact that there are devastating consequences for them if they are removed from their primary caregivers. It's being shown in increasing amounts of brain research that part of this stems from the time sequence of the developing brain. It's extremely important to retain the custodial household — certainly while we're doing this sort of temporary event — unless there are reasons to remove the children. If you go back to the original convention as drafted, custody proceedings will take place at their new location.
The Chair: Thank you very much.
Senator Eggleton: I am interested, professor, in the comments you made about how things have changed since the convention was first drafted. Maybe also Mr. Blitt can help respond to this in a Canadian context. Is it not more common nowadays to have joint custody? If joint custody is the case, then who is considered the custodial parent?
Ms. Bruch: At the time the convention was written, joint custody was brand new. At that point, it meant "equal time shares." The convention has a provision that says each of the joint custodial parents has the right to seek the return. What's changed is that we now have joint legal custody. We call everything joint custody no matter what the time share, and that has been a problem when courts, instead of looking at the intent of the convention, take even some with minimal time with a joint legal custody order and order the children taken out of the custodial parent's household and returned to that person.
I did not get to the serious problems when this occurs in cases of abuse, but, unfortunately, it occurs relatively often. Is it the same in Canada?
Senator Eggleton: I'm asking Mr. Blitt how that works in the Canadian context.
Mr. Blitt: I see the point that Professor Bruch is raising where it is usually the mom who is the primary caregiver. The United States Supreme Court recently said that even if the left-behind parent, usually the father, has a prohibition on the child leaving the jurisdiction, this is custody rights. It appears to me what is being attempted here, at least in Canada, is to try to keep the parents — at least when we have a joint custodial arrangement — in a similar geographical area.
Our judges are not so keen to uproot children from the primary or custodial parent, usually the mom, and send the child back. The court imposes undertakings to try to retain the status quo of where the children were at the abduction and then, if the mom is ordered back to the other country, have the children still remain in her custodial care when she's ordered back. That's the way our judges try to minimize the impact on taking a child away from the primary or custodial parent.
I agree with you. I have seen the brain research. It can be devastating to young children.
Senator Eggleton: Thank you.
Senator Andreychuk: It seems to me that we have these problems, whether we cross borders or not, that in a disruptive breakup between a husband and wife, the children are often used as the element of continuing the arguments or the differences. I have been a judge in a family court for many years, and it is destructive to children when parents continue to fight, and they fight "in the best interests of the children."
Is there anything in the Hague Convention that needs to be changed to readdress what "best interests of the children" is? For example, the parent comes in on one side saying what is in the best interests of the child and then the other parent rebuts it. Usually, it's about evidence about each other rather than evidence focused on the child, the child's needs, and this brain difficulty that you're talking about. That was always my greatest difficulty: not only did they come in alone, but they usually came in with their respective family members. I would cringe when I would have to have someone else come on the stand, defending their daughter or son, because it didn't seem to be very helpful for the child, who should be the subject matter.
Do you think these committees we hear about will start to address the interests of the child in this new modern definition of children being transported from one jurisdiction to another, let alone from one parent to the other, with less and less likelihood of the other parent seeing the child?
Ms. Bruch: One of my concerns, which was hinted at in the prior questioning and with Mr. Blitt's remarks, is the efforts that judges make now to send children back even though, as I have explained, that was never contemplated. They try to make it safe by imposing undertakings, although studies show that mostly the undertakings are breached; so that doesn't work. They try to do all kinds of things that they think will make this child safe when being sent back into danger.
For myself, I think that a great deal is now possible that never was. Life became new when we had fax machines so that little children could do drawings and fax them off to someone in Australia even though it was in the middle of the night there. We have now wonderful facilities — this is a formal facility, but everything, through Skype and other things — that can keep children involved. There was a book — I hope it is still around — that had 106 ways to parent a child long-distance; everything from reading them bed time stories to watching a ball game together or a movie and then talking about it afterward. Lots of ways are now available for people to parent, even though they might not be in the same room together very often.
Mr. Blitt: I wanted to follow up on your concern, senator, on best interests. What we're seeing more often these days are concerns about domestic violence and the serious risk of harm to children, psychological and otherwise. There have been decisions by our judges that say if there is serious risk of domestic violence to the mother, because the mother is usually the one removing the children, that could be presumed to be a serious risk to the child, they may choose not to order the child back as one of the defences under the Hague.
I really believe that the Hague Convention — and I agree with Carol — 30 years of operation is an amazing international instrument. I don't know that we have to tinker with it so much as we have to really take a look at the provisions that are in it right now and address the concerns that people are bringing forward now. There have been cases in Canada where domestic violence has not led to a return, so that is available to our judges.
Ms. Bruch: That's great. Probably the one thing that's missing, but it can be read in, is that for some reason domestic violence was really absent from literature, from discussion in this context at the time. So there is nothing that directly protects the custodial parent from danger, but that can be taken care of under existing language because it says the child should not be returned into an intolerable situation. I think returning the child into foster care or into a battered women's shelter is a return to an intolerable situation. From what I am hearing about Canadian cases, it sounds as though your judges are taking appropriate action in light of those provisions in article 13(b).
Mr. Blitt: I can give you an example. I handled a case in which, unfortunately, I could not assist our client. She thought she had the permission of her husband to return to Scotland with four children. I watched the proceedings in Scotland under the Hague Convention, and I don't believe they really looked at the grave risk of harm the way they should have. She was ordered back in the middle of winter with inadequate clothing and with four children to a shelter, which was a horrible decision. We were able to get one of our judges on a quick hearing on relocation to send them back five months later, but they were totally disrupted by that.
Senator Andreychuk: We do not have any exit records. You leave Canada on a passport, but Canadians don't have any documentation of who leaves the country. There are some very valid reasons for keeping it that way, but would it help if we had some exit provisions?
Mr. Blitt: I believe that is an excellent point. I know from being over in Japan, they do have exit controls; they know when you come into the country and when you leave.
In terms of the cost of maintaining that type of program, I can only imagine what that might be, but it would make a huge difference. As well as our Canada Border Services officers and Homeland Security officers are trained, people will still slip through the cracks. They don't have to go through Canada immigration when they leave Canada to go to the United States; they have to go through U.S. immigration. I know that there is more and more cooperation, and it probably has to be seamless so that the information can be exchanged and they know if somebody should not be travelling with children.
Ms. Bruch: The topic of whether there should be rules or forms to grant permission for children to leave the country was on the agenda at the last special commission meeting. It was roundly defeated because many countries have no exit controls and didn't want to have them, so of course, what you do within Canada is your own choice. As to changing the convention, I think that doesn't look very likely.
I will tell you somewhat humorously that a co-clerk of mine from years ago at the U.S. Supreme Court ran into trouble driving into Canada with friends for a camping trip. Mom wasn't along and he didn't have documentation, so immediately he was stopped at the border. Phone calls were made and all turned out to be well.
I think attention is paid at the U.S.-Canada border, unless you're going in through the lakes somehow.
The Chair: Mr. Blitt, you have been practising law in Canada for a very long time, and I'm sure you've seen, more than when you first started practising, more cases that the Hague Convention probably applies to. What do you think should be in place in law schools and for the continued training of lawyers and judges so they are aware of the challenges under the Hague Convention?
Mr. Blitt: Well, having a course in law school would be an excellent idea. I know that my office has been involved in a lot of training through the Canadian Bar Association and, in fact, next week we are doing a webinar on the Hague Convention for the association. I'll be presenting with Professor Nicholas Bala, and it's our hope that we can reach as many lawyers as possible.
I've also lectured to the National Judicial Institute, and that also helps, in my opinion. It's a matter of getting the information out to those in the legal profession and the judiciary.
Ms. Bruch: One of the things I had at the end of my comments was that I think it would be very useful under domestic Canadian law to put flesh on the bones of Article 20. Article 20 says that a judge need not return a child when to do so would violate the child's human rights under the law of the place at which the return petition is being heard. So we're not talking about international law; we're talking about domestic Canadian human rights law. This could be an incredibly important protection for the kinds of cases that trouble me, particularly with new member states or non-member arrangements.
What should a Canadian judge do when a return is sought for a young girl to a community in which honour crimes are dealt with by death and she's going automatically into her father's care because of her age? What should be done with a girl who has not yet suffered genital mutilation but is being sent back to a country where that might occur? What should happen if a child is being sent back to a country where her mother or she is not allowed to leave the country without the father's or husband's consent?
There are ways that you can help protect these parties, and I think that would be very useful.
Senator Eggleton: Let me pick up on that, because I understand your point, professor. I suppose it also works the other way. While we've talked about those countries that are part of the Hague Convention, there are a lot of countries that are not, and some of them operate under Islamic law — for example, Sharia — and are part of a process called the Maltese Process. Canada has been engaged in that, and I think there is an effort to try to get many of the Hague principles adopted in processes in those countries as well.
Mr. Blitt, do you have many cases of abduction that involve children being taken to some of these non-Hague countries, where, in fact, the laws can be applied differently?
Mr. Blitt: Yes. We had recently, last year, one that involved Lebanon. The father imposed travel bans both on his infant daughter and his wife, and that's the risky part. But he came back to Canada. So we were able to, with the threat of contempt and incarceration, convince him. The mother got out. She convinced a Sharia judge to let her out, but the child was forced to remain, and eventually he lifted the travel ban. It took about seven or eight months, and we had to work with counsel in Lebanon who was familiar with Sharia law to get that child out, but it's very difficult.
Canada has a bilateral treaty with Egypt. It doesn't work particularly well, but I think the more we have bilateral relations with those countries — because of their Islamic legal restrictions, they probably won't sign the Hague — we might be able to do so with a bilateral treaty and more of a Malta-type understanding.
Senator Eggleton: That's a good suggestion.
Ms. Bruch: When I did research in Jordan and Israel some years ago, that material was published. I can make citations available.
One of the points that was very interesting was that in Israel they placed return petitions in the civil courts, not in the religious courts. I learned that both Jewish and Islamic religious judges are schooled exclusively in their religion and don't have a secular education.
They're certainly not trained in the law that we're used to, so it was felt to be a protection to have civil judges handle these cases with the thought that they were much like venue or jurisdictional issues they could deal with. I unfortunately was I not able to get to Egypt. It was to have been the third of my stops. Illness brought me home instead.
There is the additional difficulty. I was pleased when I spent a little bit of time yesterday running through the accessions that Canada has accepted. I saw that Canada is not automatically accepting accessions, nor is the United States anymore, since I spoke about and wrote about some of this. It's just really difficult. I truly appreciate the difficulties you face.
I know there are ways that European countries have arranged to provide visitation opportunities for the parents who live in Europe by travelling to North Africa in some places. I think it's important to mention that the countries in the Islamic crescent do vary considerably in their laws. The question, then, is whether the judges can free themselves of those influences even when they're in a civil case.
It's a difficult problem, and I admire Canada for its leadership in attempting to work through these situations and make things better for the children.
Senator Eggleton: You mentioned the accessions, and there are some 18 of them that Canada hasn't agreed to. Looking at some of the countries, I can understand that.
There was also the 1996 convention — it has a long title but you probably know what I am talking about — on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children.
Ms. Bruch: I may have thoughts on it.
Senator Eggleton: I want to point out here that this 1996 convention, which Canada agreed to be part of 18 years ago, hasn't been ratified yet in this country. Do you think that particular instrument could be of help here, if either of you know about it?
Mr. Blitt: I took another look at it. It has been a while since I've studied it in detail. I have been at one of the Department of Justice presentations. I think there are some useful articles in that convention because it empowers judges, when a child has been abducted, to take emergency measures to protect the child in the country the child has been abducted to. It's going to be an exceptional situation, especially if the child is with the mom and the mom is primary caregiver, but there still could be some risks.
I've seen cases where it would be nice if the courts could do something to protect that child in the situation where they've been abducted to a signatory country. I see the benefit.
Ms. Bruch: My memory is very vague because I only went through it briefly and it has been some years. There may have been some continuing jurisdiction in the former habitual residence that persists for perhaps a year after the abduction. I find that pernicious. In light of what I have already said about the original structure of the child abduction convention which, if it is a primary caregiver — and sometimes moms are abusers, so I'm only speaking in generalities here — that you ought to deal with it where the child now lives. These are hard issues.
The Chair: Thank you very much to both of you for your presentations and for answering our questions. You certainly have helped us understand this issue better.
(The committee adjourned.)