Proceedings of the Standing Senate Committee on
Human Rights
Issue 7 - Evidence - April 28, 2014
OTTAWA, Monday, April 28, 2014
The Standing Senate Committee on Human Rights met this day, at 5 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 Abduction 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 tenth meeting of the Second Session of the Forty-first Parliament of the Standing Senate Committee on Human Rights.
[Translation]
The committee has been mandated by the Senate to conduct reviews of issues related to human rights, both in Canada and abroad.
My name is Mobina Jaffer. I am the chair of this committee and I am honoured to welcome you to this hearing.
[English]
Before I continue, I would like my colleagues to introduce themselves. I'll start with Senator Eggleton.
Senator Eggleton: Art Eggleton. I'm a senator from Toronto.
Senator Hubley: Elizabeth Hubley, senator from Prince Edward Island.
Senator Unger: Betty Unger. I'm from Edmonton, Alberta.
The Chair: Honourable senators, at our meeting on December 2, 2013, the committee agreed to study international mechanisms to resolve cross-border family disputes.
[Translation]
The purpose of this study is to improve 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.
[English]
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 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, and transported to another jurisdiction by one parent and may or may not have any further contact with the parent left behind.
[Translation]
Cases of international parental abductions can be particularly trying for the persons affected. Depending on the cases, abductions can have serious social, psychological and even physical consequences for the child and the parent who is separated from the child. Moreover, the differences in legal systems from one state to another, as well as the geographic distances involved, are often obstacles that make finding and returning the abducted child who has been taken abroad an international and legal problem that is difficult to solve.
[English]
To begin these hearings, I would like to welcome all of you who have come to present. This is a new study for us, and we are anxious to hear from you as to how we can work together to assist and look after the interests of Canadian children.
We have with us today, from the Royal Canadian Mounted Police, Assistant Commissioner Joe Oliver, Technical Operations, and Sergeant Jane Boissonneault, National Centre for Missing Persons and Unidentified Remains.
From the Canada Border Services Agency, we have with us Denis Vinette, Director General, Border Operations.
From Citizenship and Immigration Canada, we have with us Lu Fernandes, Director General, Passport Program Integrity, and Michelle Lattimore, Director, Integrity Operations Division, Passport Program Integrity Branch.
I welcome all of you, and I imagine we will start with you, Commander Oliver.
Joe Oliver, Assistant Commissioner, Technical Operations, Royal Canadian Mounted Police: Madam Chair, honourable senators, thank you for allowing me this opportunity to provide an overview of the work being done by the Royal Canadian Mounted Police with respect to international child abduction.
I am Assistant Commissioner Joe Oliver, and I'm responsible for overseeing the RCMP Technical Operations Directorate, a portfolio that includes the National Centre for Missing Persons and Unidentified Remains. Joining me today is Sergeant Jane Boissonneault, a subject matter expert in missing children cases. Over the next few minutes, I will provide you with an overview of the centre's role in supporting the Canadian law enforcement community in the investigation of international child abductions.
The National Centre for Missing Persons and Unidentified Remains is mandated to provide law enforcement, medical examiners and coroners with specialized services in support of missing person and unidentified remains investigations. In the area of international child abductions, the centre performs a number of important functions, including the coordination of international investigations and the provision of law enforcement training and specialized investigative support, such as age-progressed composites.
[Translation]
International child abduction investigations are complex undertakings requiring timely communication across multiple jurisdictions and time zones.
[English]
Navigating the legal complexities of such investigations requires the engagement of multiple stakeholders and partners. The centre maintains a 24-hour response capability and works closely with law enforcement in Canada, as well as in approximately 190 countries around the world through INTERPOL, with the dual goal of locating and safely returning abducted children to their lawful guardians while holding the abductors accountable in cases warranting criminal charges. Through the INTERPOL notice process, the RCMP can seek international police assistance to locate missing and abducted children, as well as to arrest persons wanted with a view to extradition.
[Translation]
The RCMP also liaises with the federal, provincial and territorial Central Authorities under the Hague Convention on the Civil Aspects of International Parental Child Abduction to return wrongfully removed or retained children to their habitual place of residence.
[English]
Moreover, as part of Canada's "Our Missing Children" program, the RCMP collaborates with CBSA, Department of Foreign Affairs, the Department of Justice, Citizenship and Immigration Canada, and Passport Canada to identify, intercept and recover missing and abducted children.
To illustrate the complexity of international child abductions and to highlight the level of international collaboration required in such cases, I would like to profile a 2011 investigation. This case involved a child and her separated parents, all of whom are Canadian citizens, and a stepfather who had been deported to Lebanon from Canada. The child and mother travelled to Lebanon to visit the deported stepfather, and, contrary to a written agreement between the biological parents, the mother failed to return the child to Canada. The left-behind father reported the abduction to the Montreal police, who in turn sought the assistance and expertise of the centre. As the father had a Canadian custody order, the mother was subsequently charged with abduction and became the subject of a Canada-wide warrant. The centre then worked with INTERPOL to issue a Red Notice for the arrest of the mother and a Yellow Notice to locate the abducted child.
Throughout this investigation, the RCMP work closely with Foreign Affairs, the Montreal police, and the RCMP's internationally deployed liaison officers to assist the left-behind father's efforts to be reunited with his child. Of note, Lebanon is not a signatory to the Hague Convention.
The Lebanese court, while initially reluctant to intervene, since none of the parties were citizens, eventually granted the left-behind father sole custody of the child. After being reunited, Passport Canada facilitated the issuance of travel documents which allowed the father and child to return to Canada in July of 2013. The arrest warrant and Red Notice are still in effect for the mother, who remains at large.
As you have heard from some of the witnesses, law enforcement's response to parental child abduction cases has not always been consistent. This can be a particularly difficult and frustrating experience for the left-behind parents or guardians who are concerned with the safety and well-being of an abducted child.
The centre has responded by developing two on-line training courses specifically relating to child abductions. Since their rollout in January 2013, several hundred police officers have completed this training. Three additional on-line courses in the areas of missing children, missing adults and unidentified remains will be available later this year.
Furthermore, in March of 2012, the RCMP piloted an advanced investigators course for missing persons and unidentified remains at the Canadian Police College. This training program, which includes investigative techniques and knowledge of applicable legislation, including reference to the Hague Convention, is being revised with input from experts in the field.
[Translation]
Another important initiative aimed at improving law enforcement's capacity to deal with these cases is the publishing of a compendium of best practices for missing person and unidentified remains occurrences. While not specific to child abductions, the manual, compiled with the assistance of domestic and international experts, contains investigative practices and procedures that have proven effective.
[English]
As noted earlier, the RCMP provides specialized investigative services to Canada's law enforcement community. I'll touch briefly on two of those services.
In an effort to raise awareness and generate tips, the RCMP maintains a searchable national public website containing the profiles of missing children, missing adults and unidentified remains. The canadasmissing.ca website, launched in 2013, currently contains some 867 profiles, including 129 of missing children, of which 24 are believed to be parental abductions.
[Translation]
As you are more than aware, despite the best efforts of parents, NGOs and the police, abducted children are not always promptly recovered. In cases that have remained unsolved for years, the RCMP offers an age-progression composite service.
[English]
Trained forensic artists create up-to-date portraits of children from family photographs, which are then published to generate tips and new investigative leads.
In closing, the RCMP, in close collaboration with policing and governmental organizations, offers a range of investigative services and support in international child abduction cases. As Canada's clearinghouse for information on missing children, we remain committed to locating and safely returning abducted children to the lawful custody of their parents and guardians.
Sergeant Boissonneault and I look forward to answering any questions you might have.
The Chair: Thank you very much.
The next presenter is Mr. Vinette.
[Translation]
Denis Vinette, Director General, Border Operations, Canada Border Services Agency: Good evening, honourable Senators. I am the Director General of Operations at the Canada Border Services Agency (CBSA), and our role is to support our seven regions from coast to coast in all border operations.
I would like to thank the committee for having invited us to contribute to this important discussion.
Madam Chair, every day the CBSA's Border Services Officers process almost 300,000 travellers, and are on the alert for abducted or missing children at Canada's international airports, marine ports and land border crossings.
Our officers are the first point of contact for individuals seeking entry into the country, and as such, are uniquely placed to help in the identification and recovery of missing children who have been transported across international borders.
[English]
In regard to the "Our Missing Children" program, the CBSA has been a partner organization in the program since its inception in 1986. The agency works alongside the RCMP, the Department of Foreign Affairs, Trade and Development Canada, the Department of Justice Canada, and Citizenship and Immigration Canada's Passport Program to protect vulnerable children who are encountered crossing the Canadian border. Since the start of the program, over 1,750 missing or abducted children have been recovered at ports of entry and reunited with their legal guardians.
With CBSA staff engaged at headquarters, in the regions and abroad, as well as involvement from our border operations centre and our warrant response centre, the agency is part of a vast network to exchange information and intelligence to aid in the investigation and recovery of missing children. The agency has played a key role in this network, providing assistance to partners by issuing lookouts once documented by local law enforcement and the RCMP's National Missing Children Services, by intercepting and recovering individuals at ports of entry, by facilitating reunifications, by assisting in active investigations, and by sharing information and intelligence that it gathers.
Additionally, the Border Operations Centre is a first point of contact for the after-hours operations of the "Our Missing Children" program and provides 24/7 support to law enforcement agencies, both domestic and foreign, requesting assistance in their investigations relating to missing and abducted children and suspected offenders.
[Translation]
The CBSA is also involved in the National Child Exploitation Coordination Centre, or NCECC, which falls under the RCMP in Ottawa.
As the committee is aware, the NCECC is a part of the Canadian Police Centre for Missing and Exploited Children and acts as a national coordination centre dedicated to protecting children from Internet-based sexual exploitation, whether it originates in Canada or abroad.
Since 2006, the CBSA has had an employee working at the NCECC, whose role is to: provide expertise in the collection of information and intelligence concerning travelling child sex offenders; participate in investigations and projects relating to suspected transnational child sex offenders and Canadians travelling to and from foreign countries to sexually abuse children; work with INTERPOL on foreign registered child sex offenders who may seek entry into Canada; and establish networks of internal and external contacts, to identify criminal trends and conduct intelligence analysis.
[English]
The CBSA's NCECC resource provides actionable intelligence back to the agency on persons, conveyance and/or goods travelling across the border, which could lead to the rescue of children from harmful environments, the arrests of persons seeking to harm them, and/or the seizure of Criminal Code prohibited materials. The CBSA has provided assistance with 18 missing children recoveries for this past year alone in our airports and at land borders across Canada and has made over 133 seizures of child pornography.
On the front line, Border Services officers are on full-time alert for children who need protection and are therefore very attentive to children entering Canada. In addition to abductions of children by a legal guardian or a stranger, our officers are also on the lookout for runaways or children that may be the victims of human trafficking or human smuggling. If an officer suspects for any reason that he or she may be presented with a missing child situation, the individual seeking entry into the country will be automatically referred to secondary examination for more in-depth questioning.
Officers have at their disposal a wide array of resources, including training in questioning techniques for both adults and children, access to police, immigration and missing children databases, and numerous partnerships with child protection and law enforcement on both sides of the border.
In conclusion, the CBSA is a proud partner in an immense network of law enforcement agencies from all jurisdictions, in Canada and abroad, government departments and community organizations working together to locate and protect children who may be victimized or at risk and locating the offenders to bring them to justice.
I would be happy to answer any questions the committee may have.
The Chair: Thank you very much.
We will now go on to Mr. Fernandes.
Lu Fernandes, Director General, Passport Program Integrity, Citizenship and Immigration Canada: Thank you very much, Madam Chair and honourable committee members, for the invitation to appear before you. We're pleased to contribute to this important study on international mechanisms to improve cooperation in the settlement of cross-border family disputes and address international child abduction.
My name is Lu Fernandes and I am Director General of the Passport Program Integrity Branch at Citizenship and Immigration Canada. I am accompanied today by Michelle Lattimore, Director of the Integrity Operations Division of the Passport Program Integrity Branch.
[Translation]
By way of background, I should note that effective July 2, 2013, the Department of Citizenship and Immigration Canada assumed overall accountability for the Passport Program. This includes issuing, refusing to issue, revoking, withholding, recovering, and providing instructions on the use of Canadian passports.
The minister is also responsible for providing guidance to missions issuing passports abroad and supervising all matters relating to Canadian travel documents.
On that date, the delivery of the domestic services under the Passport Program came under the responsibility of the Minister of Employment and Social Development Canada, while the Department of Foreign Affairs, Trade and Development continues to provide passport services to Canadians abroad.
This move to CIC places the passport issuance at the endpoint in the continuum of services provided by a department that facilitates access to those who wish to visit, study, work, immigrate and ultimately become Canadian citizens. It also places the domestic delivery of those services in the hands of the government's service delivery arm, Service Canada.
[English]
I'd now like to spend a few minutes to speak about the Passport Program's role in helping to prevent international child abduction. I'll begin with the process itself, which is slightly different for children than for adults and which, for some parents concerned about the possibility of abduction, can be a source of misunderstanding.
Under the terms of the Canadian Passport Order, a child is anyone under the age of 16. This means that for passport purposes, anyone 16 years of age or older can apply for a passport without the consent or involvement of a parent. Prior to that age, however, the eligibility of a child to receive a passport may only be considered when a parent or legal guardian applies on the child's behalf by submitting a signed application form and all necessary documentation.
In determining eligibility, then, we look at two additional things: first, who may apply on behalf of a child; and, second, who must consent to or acknowledge the application.
[Translation]
On the subject of who may apply, there are in general two different situations. In cases where parents or legal guardians are married, in a common law relationship, or share joint custody following divorce or separation, either parent may act as the applicant. If custody is granted to only one parent or legal guardian, only that parent has the authority to apply for a passport on behalf of the child.
As to who must consent to or acknowledge the application — from our perspective, regardless of the custody situation, it is always preferable that both parents participate in obtaining passport services for their child by signing the application form. In exceptional cases, we can determine the required level of participation of a non-custodial parent after an examination of custody documents.
[English]
In all of these cases, one of the most important things to understand is that the passport entitlement process is very much applicant reliant. Parents must indicate to us on the child application form their relationship to the other parent and must disclose the existence of any separation agreements, court orders or legal proceedings pertaining to the custody or mobility of or access to the child.
To mitigate the risk of parents fraudulently submitting application forms and concealing custody documentation, the Passport Program uses an internal flagging tool known as the System Lookout, or SL, to alert us when further examination is required during the processing of a new application. For a parent who is concerned that another parent may apply for a passport on behalf of their child without their knowledge or consent, they can have the child's name added to the SL to ensure that a thorough review of any passport application will take place.
If it has been determined that the parent or legal guardian who submitted the application was entitled to do so and has met all of the necessary requirements, a passport may be issued in the name of the child, even if the child is on the SL. In these cases, a notification letter is sent to the parent who requested the addition.
The presence of a child's name on the SL will not prevent a child from travelling if a Canadian passport has already been issued in his or her name, nor will it cancel a Canadian passport that has already been issued, though the previously submitted application will be reviewed for any indication of fraud. Hence, in cases where a Canadian passport has already been issued, it is strongly recommended that a parent who is concerned about abduction turn to the courts to have a custody agreement issued or modified to restrict mobility, specify the use of the passport, and to ask that any previously issued passport be held by the Passport Program or a third party, such as a lawyer.
Indeed, in cases where the program is aware that a court order exists specifying that a previously issued passport be returned to the Passport Program or to the court, the file can be assessed to determine whether the non-returned passport can be identified as stolen and law enforcement and border control partners, such as CBSA or INTERPOL, can be notified. If identified as stolen at international border control points, documents will be seized and travel stopped.
It is important to note that there are circumstances beyond the control of the Passport Program in attempts to prevent international child abduction. Under the terms of the Western Hemisphere Travel Initiative, children under the age of 16 are only required to present a copy of a birth or citizenship certificate at the Canada-U.S. land border. A passport is not necessarily required. Second, even though a passport may be flagged as stolen or cancelled, it is up to foreign border control personnel to check the status of the book upon entry to that country.
[Translation]
It is in response, then, to some of the more challenging situations that we launched, in 2010, the Passport Program's fist task force on children's issues (CTF). Through the CTF, which started as an internal initiative but is reaching out now to include partners in government and law enforcement, we have put ourselves in a position to prioritize action on issues that are specific to children.
On the child abduction front, this has meant increased participation in external initiatives like Our Missing Children and AMBER Alert, and internally, we recently finalized a publication for our officers to use when speaking with concerned parents about the SL.
We also adopted a standardized form to enable fast and simple additions to the SL.
[English]
For us, it comes down to being able to do the best we can do with the information we have available to us, and it is the information that is key. Parents must do their part by providing us with all relevant information concerning their children and notifying us if there are concerns that issuing a passport may result in the child's wrongful removal from Canada. We understand that children are among our most vulnerable clients and, like you, we are dedicated to ensuring their well-being and safety.
I hope these remarks have given you some insight into the Passport Program's role in preventing child abduction. Thank you.
The Chair: Thank you for all your presentations. I will now go to questions from the senators.
Senator Eggleton: I'll start with the RCMP. I will reference a 1998 House of Commons Subcommittee on Human Rights and International Development published report on international child abductions. They said at the time that most police forces did not have comprehensive operational policies on missing children. Entry of a parental abduction case in the Canadian Police Information Centre, CPIC, and reporting to the missing children's registry by police were voluntary, this committee found. In addition, witnesses before the committee said that it could take weeks before police acted, if they acted at all. Has the concern of the house committee in 1998 changed and how has it changed?
Mr. Oliver: I certainly think there have been improvements in how police respond. Part of the challenge in the past was awareness of the authority of police to intervene in what were perceived to be civil cases. Since then, as I mentioned, there have been a number of training initiatives under way to educate the law enforcement community on roles and responsibilities. In addition, there has been a significant amount of collaboration between the central authorities, NGOs and the law enforcement community.
From an RCMP perspective, I can advise the committee that the RCMP's operational policy requires that missing children cases be treated promptly and investigated thoroughly. That is the standard by which we've set operational policy and guidance for the RCMP.
Senator Eggleton: So is the entry of the information into the Canadian Police Information Centre or missing children's registry now compulsory? It was voluntary as reported at the time.
Mr. Oliver: Each law enforcement agency is responsible themselves for making the entries into CPIC. There may be instances where an abduction is reported and that may not take place because the recovery happens before there is time to enter it into CPIC. In other instances, it may be entered by one police agency and ultimately removed, transferred and entered by another agency that is seen to have proper jurisdiction.
Is it mandatory? No. CPIC is the responsibility for each law enforcement agency that contributes to it and they have the responsibility of maintaining the records.
Senator Eggleton: Is it mandatory for the RCMP?
Mr. Oliver: Perhaps I can turn to Sergeant Boissonneault. I don't think it's mandatory, but it is certainly a best practice. In all of our operational guidance, including our best practice manual, CPIC performs a central and critical role when it comes to those cases.
Sergeant Jane Boissonneault, National Centre for Missing Persons and Unidentified Remains, Royal Canadian Mounted Police: It's not mandatory, but with every report we get, we strongly advise the originating agency to place the child in CPIC. Without CPIC, we can't do border alerts with CBSA or get Yellow Notices through INTERPOL, so we strongly urge them to do it. It's not a requirement. It is up to the investigating agency.
Senator Eggleton: When you say "investigating agency," are you saying within the RCMP or other local police forces?
Ms. Boissonneault: When I say "investigating agency," I mean all police agencies. For the RCMP, no, it's not mandatory. It is strongly advised, but not mandatory.
Senator Eggleton: I see.
The answer you've given me would suggest that things have improved since this 1998 report in some respects. Would that also apply to local police? Unfortunately we don't have anyone here representing local police forces. There was supposed to have been someone from the Canadian Police Association, but they're not here. Do you think that pretty much applies to them as well? Have they made sizable changes in their approach to this issue?
Ms. Boissonneault: I'm afraid I can't answer for the other police agencies.
Senator Eggleton: You can't. Okay.
Let me ask a question of the Canada Border Services Agency representative. You said in your presentation that your people are on the alert for abducted or missing children at Canada's international airports, marine ports and land border crossings. Is that strictly on a basis if you're tipped off by police, RCMP or other police forces? Or do you have some sort of a proactive training program where you actually, on your own initiative, look for these possible cases?
Mr. Vinette: The short answer is actually both of those. When our officers are first hired, they attend our national college in Rigaud, Quebec, for 18 weeks. There is a compulsory module taught to all officers that talks about the requirements to be on alert for children. We talk to them about typically what we have seen transpire. They're taught about questioning techniques for adults and children so they are able to, on their own accord, begin to look for what we term as indicators when someone is seeking entry into the country.
As a real live example, when I was regional director general for Northern Ontario Region, we had an individual arrive at the Fort Frances port of entry, a gentleman with two young boys. The officers, through their training and questioning, found something that was clearly not in keeping with that particular travel. The individuals were arriving in the middle of the night with no identification or travel baggage. Our officers are taught there are certain things to confirm when someone is travelling, especially as a single parent travelling with a child. As it turned out, in Missouri they were on the verge of issuing an AMBER Alert for these two young boys, not knowing they had headed north to Canada.
That speaks to the fact that our officers, through their training, are able to bring some real focus to having that conversation with individuals seeking to enter when the circumstances seem a little odd. We work very closely with local law enforcement on the national level within the public safety portfolio with the RCMP. There are instances, I would say on a weekly basis, where we input lookouts into our systems of individuals, be they abductors and/or missing children or children that have been abducted, which would allow us upon entry and verification of an individual's documents to confirm there is a watch for this individual by a given entity. Some of those would be from our own source system, some from the CPIC system or local police who call us about something that just happened at the time.
Senator Eggleton: That's good to know.
Moving on to Citizenship and Immigration, you mentioned the System Lookout, SL, and you put it in the context of someone applying for a passport for a child. What about subsequently? A child has a passport and a few months down the road one parent gets suspicious about the other parent. The passport has been issued and they didn't object at the time, but they have subsequently become suspicious. Can they call someone and say, "Can you put my son or daughter on the System Lookout?"
Mr. Fernandes: Actually, they can. We can be requested to put the individual child on the System Lookout.
As I indicated in my opening remarks, as the passport has already been issued, we have very limited opportunities or options to revoke or cancel that book.
Senator Eggleton: But if you put them on the System Lookout, don't you tell the Border Services people to be on the lookout for somebody like this?
Mr. Fernandes: Actually, it's more of an internal lookout we use for passport applicants.
Senator Eggleton: You don't tell the Border Services people?
Mr. Fernandes: Not with that particular System Lookout, no. We do talk about lost or stolen information. We provide that to Border Services as well as to CPIC.
Senator Eggleton: I see.
We don't have a formal exit system. Perhaps we should have exit controls. Some countries do; we don't. Wouldn't that help provide another layer of checking if we had export control systems? How do we get better preventive measures in place, is another way of putting it?
Mr. Fernandes: Exit controls would certainly assist not only the border control but the police authorities to find and identify children that might be in danger of being abducted. As far as the Passport Program goes, we would only then know about the use of the passport through the exit control information.
Senator Eggleton: Okay. Thank you.
Senator Andreychuk: Thank you. I wanted to pick up on the passport issue. Am I correct that you said if the parents are still living together, whether by marriage or a common law situation, that either parent can apply for a passport? The other parent doesn't have to sign off?
Michelle Lattimore, Director, Integrity Operations Division, Passport Program Integrity Branch, Citizenship and Immigration Canada: In fact, what happens on a child's passport application is we request the information for both parents. When we receive a child's application, we ask for a long form birth certificate indicating both parents. In all cases, regardless of what the custody situation is, whether both parents have joint custody, are living together, married or are separated and have joint custody, or if they have separated or divorced and one parent has sole custody, we always like to see both parents' participation on the application, and that means both signatures. That's our default.
Now, there are situations where if we have court documents that identify that one parent has sole custody, it may be that the other parent does not have to sign the application. But in all cases, we will ask for that other parent's information. We want their name and where they're living.
There are cases, as Mr. Fernandes mentioned, where from time to time the other parent's whereabouts is unknown. They may have been out of the life of the child or the family for a number of years. Those are situations we can deal with, but in all cases we are really looking for very clear court documents that let us know there's very little risk in issuing a passport to this child. We like to push issues back to the court. We like to encourage children's parents to always go to the court if things aren't clear in the documents that already exist.
Senator Andreychuk: However the point is that it's not mandatory to get the signature of the second parent if they're still together; is that correct?
Ms. Lattimore: It is absolutely mandatory.
Senator Andreychuk: Okay. If there is single custody or a shared custody of some sort, only one parent then?
Ms. Lattimore: If there is a sole custody situation, then one parent who has the sole custody has to act as the applicant. If the court order indicates that the other parent has what we call specific access to the child, if anywhere in the court documents it says that the other parent has access on a specific day or a specific time, in those cases we also require that second parent's signature. It would only be in cases where the court documents indicate that the second parent is either not participating or has what we refer to as reasonable access to the child, so access isn't defined in any way. In those cases, we may, after a risk assessment, issue a passport without the signature. But in those cases we still require all the information on that parent so we can proactively contact that parent to make sure there are no court documents that haven't been submitted to us. We're trying to cover as many bases as we can, recognizing that we are client reliant.
Senator Andreychuk: I would like a clarification. You're saying if the court order says "reasonable access," then you might not ask for the second?
Ms. Lattimore: We may not pursue if it if a parent has demonstrated to us that the whereabouts of that parent are unknown; but if a parent is able to get a signature for us we absolutely require that they get it for us.
Senator Andreychuk: That's not quite what I'm asking. If I'm the parent that does not have custody of the child on a full-time basis but I have reasonable access, is my signature required?
Ms. Lattimore: We will always try to get your signature, but it may not be required in order for us to issue depending on the circumstance.
Senator Andreychuk: On what basis would it not be required? You've said that the applications are really applicant reliant.
Ms. Lattimore: That's right.
Senator Andreychuk: If the parent who has custody says the other parent never sees the child, are you going to take the word of that parent?
Ms. Lattimore: No. In those cases we're going to do everything we can. We want a notarized document from a parent saying that the whereabouts of the other parent is unknown and they can't contact the parent. We're going to ask additional questions of them to find out when was the last time that this parent participated; when was the last visitation. We'll ask as many questions as we have to ask to be satisfied that that parent absolutely cannot, for whatever reason, participate in the passport application, and only in those cases would we ever issue without that second parent's signature. However, those cases are very few and far between.
Senator Andreychuk: I don't know who should answer this question. The concern is often that if one parent is ready to leave, they will go through the normal process of getting a passport and then take the opportunity to leave. Is that a growing issue? I know it's anecdotal.
Mr. Oliver: I can't speak to that. I don't have any facts in order to draw that type of conclusion.
Senator Andreychuk: No one else can answer that? All right.
The other question I have is on marriage breakdown. Is it the case that the families have separated either through a legal process or otherwise that we have these problems of children being taken to another country and then we have to go through the Hague process or not, or are we facing more missing children? It's 16 years of age and under, so in the case of a 14-year-old is it a missing children's issue as opposed to a custody issue? Are children being taken over the border these days?
Mr. Oliver: From a policing perspective, when a parent approaches us, we treat it as a missing child and our operational direction is to investigate it thoroughly and promptly. The facts can be varied in terms of whether or not there's an order, the fact that there could be a past travel pattern where someone left and came back, those types of things. Determining the facts and the history are all important considerations when we look at these.
When it comes to identification, we try to track parental abductions with custody and parental abductions without custody through our statistics that are published annually on our public website. It's mixed in terms of with or without order. It's not necessarily indicative that there is a pattern with or without an order. They're a bit mixed; in some cases 60/40 in terms of percentage. It's hard to specifically say with or without order.
Senator Andreychuk: Mr. Fernandes, you have this internal alert system. Why do you not share this with the Canada Border Services Agency?
Mr. Fernandes: The nature of the alert system is used for our own officers on the integrity side to flag and to review. Some of the information that we get, for instance, may be a spouse that is not too happy with the custody situation or the settlement of the divorce or separation and may want to report to us information that isn't necessarily truthful. Again, as Ms. Lattimore said, we are client reliant. They may require or request that their child be put on the System Lookout. It's not necessarily factual information they're providing to us and we don't want to necessarily provide that information to other partners that isn't exactly accurate. We want to take the time within our own programs and systems to do the kind of review we need to do in order to make the determination about entitlement to a passport.
Senator Andreychuk: Once you've done that and there's some merit, would you not pass it on?
Mr. Fernandes: Again, it's just an internal review to make an entitlement decision. Once we decide that the individual is eligible to have a passport, that passport is issued to that individual. There's no concern for us at that time.
Senator Unger: Do you not think it might be beneficial to the Canada Border Services Agency? You make the comment here, "For us it comes down to being able to do the best we can with the information we have available, and it is the information that is key. Parents must do their part by providing us with all relevant information . . . ." Don't you think that information might be beneficial to other agencies that could perhaps stop an abduction from happening?
Mr. Fernandes: Again, in terms of the determination for eligibility and entitlement, that's what we use the System Lookout for, to determine if there is an issue. Once we have that information verified, validated and the passports issued to the individual child, our determination has been made that there is no or low risk that this individual child will be abducted.
Ms. Lattimore: I would add that the System Lookout for us is, as Mr. Fernandes has said, an internal tool that helps us know what applications we should look at more closely from time to time. We use it for more than for children.
There are situations where a parent may contact us after the passport has been issued to say there are new court documents now. Based on these new court documents, the passport that is in the possession of the other parent can't happen anymore. "I have new court documents that show that this book now has to be in the possession of the court or should be in my possession." In those cases, the System Lookout flag would enable us to review the application and whether or not the entitlement is still valid. If it wasn't, and we can go through a process to revoke that passport and cancel it, that information would then be shared immediately with law enforcement and with CBSA through CPIC and through FOSS. We use those very powerful tools to share information with law enforcement and with border control, but for us the System Lookout is really an internal flag. It doesn't necessarily mean, as Mr. Fernandes mentioned in his opening remarks, that a passport will not be issued.
One of our concerns has been communicating with parents. For a long time, parents misunderstood what our System Lookout was and were under the impression that their child was on that lookout, a passport would not be issued or they wouldn't be able to travel. We've worked hard to communicate to parents, through our partners at the Department of Foreign Affairs and law enforcement and our involvement in "Our Missing Children" program that court orders, at the end of the day, need to be in place in order to prevent the issuance of books and to prevent children from being able to travel.
Again, even if a passport is marked as having been revoked, lost or stolen by another parent, if that information isn't verified at a border, then it doesn't matter. We're very reliant upon the excellent work of border officials around the world to flag those books and identify children when they're moving across borders.
Senator Eggleton: Let me pick up on this again because this is something I asked you earlier. I asked specifically whether a parent could, subsequent to the passport being issued, call you up and say, "Look, I'm concerned that my spouse might take my daughter away. We got the passport; we agreed to the passport. I agreed to the passport several months ago, but things are changing now and I'd like you to put my daughter on that System Lookout." Correct me if I'm wrong, but I thought the answer you gave was yes, they could do that subsequent to the passport being issued.
Now, you do say that things could change if a person goes to court and gets a different court order. Well, not everybody has the money to go to court all the time. Secondly, things can happen pretty fast. If there's a breakdown, the parent can phone up because they might be concerned that this can happen at any time now. Even if they can afford to go through that process, courts are still quite slow.
You have a system here. It happens to be internal — I understand that — but perhaps it's a useful system in terms of preventive measures to use when such a situation as I've just described arises. At that point in time, wouldn't you think it logical to tell the Canada Border Services Agency to be on the lookout for that person who may be crossing the border?
Mr. Fernandes: Well, sir, I would suggest that that information may be of use. However, the rights of the other parent may also need to be considered only in the fact that if one parent advises us they're concerned because a passport has been issued and subsequently something goes wrong, our best advice for an individual is to get a court order. You're right; there would be difficulty for some people to do that or to have the wherewithal to do that. To advise us to put that individual on the lookout is one thing. We can take action in a legitimate way under the terms of the Canadian Passport Order if we understand that passport to be lost or stolen. That's where we are restricted.
Should we be advising the Border Services Agency to be on the lookout for a child coming across the border? Again, these would be individuals exiting the country.
Senator Eggleton: Yes. That's what we're talking about.
Mr. Fernandes: In instances where the parent that has informed us is not telling us the truth, we run into that issue of the other parent being potentially stopped at a border.
Senator Eggleton: I understand that, but this is not system prohibition; it's a lookout. It's just an alert. If you turn it over to the Canada Border Services Agency and they question the person and say, "Oh, well, there really isn't a valid reason here," then fine. At least there would be an alert.
Senator Seidman: I think you have had some questions on exit controls. I want to go back to the whole issue of exit controls, specifically in terms of education and training; education of parents, for example. Is there some effort to educate parents who could possibly be in these situations so that they understand the limitations that, say, the Hague Abduction Convention places on them? If there's an understanding of the controls that are in place, would that help reduce the incidence of abductions?
I'm not addressing any one particular person, so whoever feels like taking the question, please go for it.
Mr. Vinette: As part of the "Our Missing Children" program, led by the RCMP on behalf of a multitude of partners, one of the big pieces is outreach. It's making it known to parents that are travelling, whether you're the legal guardian, or you're a husband and wife, kids, or if you're alone today, going to Syracuse or leaving Ottawa for the day, what they should be travelling with. That's what's being done to facilitate the cross-border movement both into the U.S., or elsewhere, and return.
We talked about making sure you have identification, letters of authorization and court orders in some instances where you do require one, so that our officers can explore and be satisfied that children travelling with adults are not being abducted. We do that on a regular basis at ports of entry.
When we do encounter individuals who may not have — and I don't call them requisite documents because they're not necessarily required — facilitative documents, we use those opportunities to educate them. Every year on May 25, International Missing Children's Day, most agencies work to ensure that we bring as much awareness as we can to the need to be vigilant ourselves as a law enforcement community and to educate the travelling public that when you're travelling across the border with children, you can expect greater scrutiny internationally and not solely in Canada.
Senator Seidman: If I can pursue this more specifically in regard to Border Services officers, how are they trained specifically now in exit controls? Do you have specialized programs that help them understand what to look for and what the issues could be around this?
Mr. Vinette: We have different measures of exit controls that are in play. Some of them are solely Canada's; some are exit controls or exit processes that we do in partnership with partners, for example.
The Canada Border Services Agency does not monitor people's exits from Canada. We have initiated, under our Beyond the Border suite of initiatives, the entry/exit project and initiative. We've extended that to the land ports of entry that are automated across Canada and the U.S. along the forty-ninth parallel where we exchange information to know who has left Canada, who has entered Canada and we verify whether they are individuals of interest. That is not always done in real-time. There are subsequent phases still to come that would allow us to verify when people are departing by air, which is not yet in play, that is, individuals who may be in our lookout systems.
If I go back to some of the questioning, if someone is reported abducted or missing and if someone failed to return a child to the custodial parent by a given time and the local police have opened an investigation and put in an alert, when that information is submitted to us in the future, in the final phase of the implementation we will be able to receive advance notice. That is but one of many strategies that we employ.
Having said that, even though we may not have it today, we work closely with our U.S. Customs and Border Protection colleagues so that if we know someone is seeking to leave to the U.S., information and lookouts are shared. They are on the alert for people who are exiting Canada and destined for the U.S. We also work with our law enforcement partners when we have specific cases that are being actioned and that are imminent to put requisite strategies and personnel in place to try to respond when someone is seeking to depart.
Senator Seidman: It seems to me that the Border Services officers are the first point of contact when someone is leaving the country.
Mr. Vinette: When they enter the country. Our current mandate is to deal with arriving international people.
Senator Seidman: Of course, you're quite right. It's when they're entering. That's the problem. There's no one overseeing them when they're leaving the country. It's just the airlines, so they turn over a passport to the airlines.
Mr. Vinette: That's where the relationship with law enforcement becomes paramount.
Senator Seidman: This has been recognized as a serious problem. It was the subject of recommendations way back in 1998 in a House of Commons study, and I guess I'm still concerned. My question would be, does Canada have some kind of sharing of best practices on how to deal with this particular exit issue with their international partners or other options for trying to understand? As you say, the biggest issue is at the exit point if there is no official from the RCMP or Border Services, no one really trained to understand what's going on when an adult turns up with a child to enter a plane or to present a ticket and a passport that could be fraudulent. I keep pressing this because I'm trying to understand. What do we do about an issue like this?
Mr. Oliver: In the absence of exit management in Canada, currently a number of protocols are in place.
One of the first things is that the RCMP, the centre, has published a best practices guide for the law enforcement community to guide them when it comes to missing persons and missing children, on some of the investigative avenues they may pursue. Some of those include entries on CPIC to make sure that information is readily available; the issuance of an AMBER Alert, which is a provincial program; and in cases where there's a bordering state involved, there are protocols between the provincial AMBER Alert program with the neighbouring states. If an AMBER Alert is issued, the state's protocol is with U.S. Customs and Border Protection.
If there is a case where we have reason to believe, not only is it entered in CPIC and there is an opportunity for them through the NCIC-CPIC interface to check individuals, vehicles and those associated type of things, but lookouts could be issued.
In addition, there are arrangements that we may have with airlines to identify whether or not someone has purchased a ticket and to try to take preventive measures before there is such a case. Now, these would be cases where new information has come to light. This would be where they promptly and thoroughly investigate in the first instance. So they try. In some instances, we're not successful and a child is removed from their habitual residence.
Senator Unger: Mr. Oliver, you mentioned the National Centre for Missing Persons and Unidentified Remains, and you referred to that a couple of times. Do you encounter, and if so, how frequently, a situation where you are looking for or trying to identify the remains of a child?
Mr. Oliver: If there are unidentified remains that are reported to police, in many cases, it would be initially looked at from a homicide perspective, but we would also work with the coroners' offices and experts to identify who those remains may belong to.
We are working on a number of important initiatives in order to enhance Canada's capability to identify unidentified remains. One of them is we are currently building a new analytical database that will tie into CPIC. We have made enhancements to CPIC that allows it to capture much more information than it has in the past. This new data system that we are working on, which should be operational early this year and into next year, will provide additional analytical capabilities that will be able to match cases of missing individuals with unidentified remains. We are working with coroners and medical examiners in order to bring this additional capability.
In addition, the best practices guide, of which I spoke about earlier, also includes best practices when it comes to unidentified remains.
Are there cases? Yes, there are instances where we come across unidentified remains where the medical examiners may tell us they may be those of a child. In those cases, a number of investigative steps need to be followed in order to identify those remains.
Senator Unger: How do you work with the international partners to help return an abducted child?
Mr. Oliver: There are a number of mechanisms that we apply. Certainly, we are heavily reliant on our relationship with INTERPOL, the international police organization. INTERPOL plays a critical role in abduction cases and missing children. First, they provide the INTERPOL notice process, which allows the policing community to seek international assistance through the issuance of notices. In the case of Yellow Notices, that's a notice for a missing child. We are asking our law enforcement partners internationally to take steps to identify and locate the missing child or even a missing person.
In the case of an abductor, once we have the charges laid in Canada and the consent that the Crown would be prepared to extradite, we would seek a Red Notice, which is an international process to identify and arrest abductors.
INTERPOL is a critical component, but we also maintain a network, as does the Canada Border Services Agency, of international liaison officers who work on a daily basis with the policing community and law enforcement partners abroad. We have 35 RCMP officers strategically deployed in 26 countries abroad, and they work on a regular basis with international partners. We have leveraged those relationships in cases of child abductions in order to help us identify and locate the child as well as to bring the abductor to justice.
Senator Ataullahjan: My question is for the RCMP. You mentioned the case in 2011 where a child was abducted to Lebanon. How long did the whole process take?
Mr. Oliver: According to the information I have, it began in February of 2011, and the reunited father and child were brought back to Canada or arrived back in Canada in July of 2013. It was over a two-year process.
Senator Ataullahjan: You mentioned that the Lebanese court was not initially interested in getting involved, but it did intervene. In a scenario where the court isn't willing to intervene, what other options do parents have? Because it seems nowadays parents are doing their homework. If they are thinking of abducting a child, they can take them to countries that haven't signed on to the Hague Convention.
Mr. Oliver: I believe you've heard previous testimony from our colleagues at Foreign Affairs that offer consular services. In some cases, they have approached the parent who has removed the child and had discussions with them about the possible ramifications of not returning the child or bringing the child back to Canada.
In cases where foreign civil courts get involved in the custody, there is the possibility. Depending on the arrangements that Canada has with those varying jurisdictions, whether or not to extradite the parent if there's charges laid in Canada and the prosecution is prepared to extradite to Canada, we could seek extradition in those cases.
We, as Canadian law enforcement, have no authority in foreign jurisdictions and must rely heavily on the existing authorities in those jurisdictions, as well as the policing arrangements that we have with our policing partners.
Senator Hubley: My question is for the RCMP as well. It has to do with the numbers. I'm wondering, today, how many missing and abducted children? What would be the number recorded in CPIC at the present time?
Mr. Oliver: For CPIC, in terms of parental abductions, I can give you a snapshot in time, because it can change every day. In CPIC, on April 19 of this year, we had 85 children identified as being abducted with custody orders and 72 without custody orders, for a total of 157 children in CPIC as having been abducted by their parents.
Senator Hubley: Would that be the only registry recording the missing and abducted children, or would there be other registries if we were looking for a number?
Mr. Oliver: It depends on the number you're looking for. If it depends on the existing ones at a snapshot in time, CPIC is the most reliable, but that does not necessarily mean it's all of the cases that existed throughout a period of time in the year because there may be cases that were initially entered in CPIC and there's been an intervention and the case has been resolved. What we are talking about here, on April 19, is the cases that remain outstanding and active in CPIC on that date.
Each year, the number of reports entered in CPIC varies. For instance, in 2013, we had 130 transactions in CPIC, 53 with order and 77 without order, but some of those may have been resolved and some of those may not have been international cases. They could be entered in CPIC just within the province or even interprovincially.
Senator Hubley: There would be cases where a child's name might remain there for a long period of time probably.
Mr. Oliver: Of the 157 that I referenced as on April 19, some of those have been in CPIC for more than two years.
Senator Hubley: Would that be the oldest entry?
Ms. Boissonneault: No, we have some very old ones. We have some over 20 years old. We maintain those files and keep looking. Regardless of the fact that the child is now an adult, the offence still happened and the child has still not been reunited with the left-behind parent. We still maintain those files and they're still on CPIC.
Mr. Oliver: That also speaks to the question that arose earlier about unidentified remains. If remains are identified 20 years down the road, with CPIC and this new analytical capability that we will have in the coming year, we may be able to match the missing child with the unidentified remains. As you are probably aware as well, the government in the budget also committed to a DNA-based missing persons index that it is looking at investing in as well.
The Chair: I also have a question for the RCMP. You read some of the transcripts of the earlier hearings. There is the judges' network with the Hague Conference. Are there plans to have an enforcement network? I am sure there is an informal network, as you have already mentioned, but are there plans to formalize that?
Mr. Oliver: In fact, the centre has been established to create a hub for law enforcement expertise to go to in cases of missing children and missing persons and unidentified remains.
I can tell you that two weeks ago here in Ottawa there was a national meeting that involved medical examiners and coroners and essentially the leads for missing children's units from the varying police agencies across Canada. We got together, shared best practices and talked about the latest trends. As well, we rely heavily on our relationship with INTERPOL to advance initiatives, and the Yellow Notice is an important component there.
Ms. Boissonneault: We are a member of the Global Missing Children Network. It's a group of 22 countries. The main thrust of the activity is the maintenance of a website of missing children. Canada's part in that is our website links directly to that website, so if somebody internationally is searching for a child that has anything to do with Canada, it comes to our website.
We also work with them on National Missing Children's Day planning, which is May 25 every year. It is coming up in just a few weeks. We liaise with the International Centre for Missing and Exploited Children, which oversees the Global Missing Children Network. We work together on planning for activities for National Missing Children's Day.
The Chair: I have a question for Canadian Border Services Agency. You have heard from our questioning that we have concerns about exit visas or exit control. We don't have that in Canada. You did mention that it's the airlines that look at the passport. Do you do any training with the airline officials to make them aware of what they should be looking for?
Mr. Vinette: The answer is yes, internationally. We also have, as the assistant commissioner reported, a liaison network of 60 individuals in 40 countries who look to see who is travelling towards Canada. Certainly we play our role in the international stage and work with the airlines identifying people seeking to come to Canada for either legitimate or really focussing on illegitimate reasons, which could be travelling with an abducted child.
In Canada, we participate in most airports in the airport operations committees. Some are strictly for federal-provincial entities. Others are with all stakeholders. We work to make sure that there is an awareness of the suite of programs that we deliver, and this would be one of them.
Certainly on the implementation of our entry/exit initiative under the Beyond the Border Action Plan, and maybe to touch on one of the questions earlier, we have been really researching what is being done internationally. Many countries have that program in place. As part of that rollout, certainly because of the requirement that the airlines will have in playing with that, we'll have opportunities to speak to them about the benefits of such a program and the important role that they can bring in not only missing children and also other instances as we try to make use of that information pre-departure.
The Chair: I have a number of questions of CIC. Because of the shortness of time, I will ask them together, and you can give me a response.
If you issue a passport without the permission of the other parent, do you send a letter to the other parent? What statistics do you have of false reports versus accurate reports?
There is something that is bugging us. If a parent is willing to abduct their child and deny the other parent access to that child, how do you distinguish between a genuine situation of not knowing the whereabouts of the second parent and a parent who is lying? What criteria do you have in place to make those assessments?
Mr. Fernandes: I'll answer the second of your questions, if I could, and I'll turn the other two over to my colleague, those regarding sending a letter to the other parent or genuine versus not knowing.
In terms of the false versus accurate reports, we don't actually have that kind of information. We don't track that kind of information. It sits with us. As I indicated earlier, the System Lookout information gleaned from the parent that makes that request is what we go with. If there is adverse information subsequent to an application for a child passport, we would then look into that particular lookout and examine it further, but we don't actually keep track of the numbers.
Ms. Lattimore: In terms of the first question about whether we send a letter to the other parent, if we have the information available for the other parent but they have not participated, they have not given their signature for one reason or another, then we will send a letter to that parent asking for at least their acknowledgement of the application. In that way, we try to ensure that both parents are always involved.
Relative to how people identify genuine situations, because we are client reliant, there is a fair amount of training we do, both with our front-line officers and in the background on the integrity side. Front-line officers are introduced to risks associated with children's passport applications right from the beginning, before they even ever touch or see a passport application. They are taught to identify what we call red flags — missing information, inconsistencies in handwriting, things as intricate as that, any discrepancies that may exist on the form.
They're then in a position, if there is a walk-in environment, to ask questions of the parent or, in a mail-in environment, to contact that parent, or the guarantor or references that are also provided on the form, to try to gather additional information.
They can also refer files to secondary review, and that's where it would come to my unit where we have individuals who work on a day-to-day basis with complicated custody situations. They're very familiar with these cases and, I think, are in a very good position to identify issues that may be hiding in between the lines.
General awareness on integrity issues is also fostered in our front-line officers through ongoing security awareness training. We are also, right now, finalizing development of a module of security awareness training that can be delivered on an ongoing basis and that is specific to children, again, to help them identify those flags that they can identify — discrepancies in files, even behaviour that may seem unsettling to them in a walk-in environment — and to give them very clear instructions as to how to proceed.
In that sense, I feel like we're trying to do everything we can to make sure that the people who are seeing the applications can really know what to do to move forward.
The Chair: Thank you very much for your presentations and for answering our questions. You can see that we have a lot of questions of you, and we may come back again to you. Thank you very much.
We will continue with our next panel of witnesses on the study on cross-border disputes when it comes to children. They are here to talk to us about the interaction of sharia with the Hague Abduction Convention.
[Translation]
Witnesses who spoke to us before about this topic said that several Muslim countries are examining Muslim jurisprudence in order to determine their country's compatibility with the Hague Convention with regard to the civil aspects of international child abduction. Because of the different legal systems that interact with that convention, it is difficult to reach a consensus on several matters.
[English]
For example, both sharia and the Hague Abduction Convention place the best interests of the child in the highest regard. In many cases, interpreting what is in the best interests of the child can differ significantly. A majority of Muslim countries have not signed the convention because of these and other types of incompatibilities. However, we have seen some progress on this issue through the Malta Process. Most recently, Morocco has joined the Hague Abduction Convention.
Our panel here today will help us understand the sharia as it relates to custody of children, the rights of parents and the rights of children. They will help us understand the perceived incompatibilities between sharia and the Hague Abduction Convention and where common ground can be found.
I want to thank the three panellists who, on very short notice, have agreed to help us understand these issues. Our panellists as individuals are Timothy Gianotti, Director of Islamic Studies, American Islamic College, joining us by video conference; Anver Emon, Professor, Faculty of Law, University of Toronto, joining us by video conference; and Ahmed Fekry Ibrahim, Assistant Professor, Institute of Islamic Studies at McGill University.
If we may, we can start with you, Mr. Ibrahim.
Ahmed Fekry Ibrahim, Assistant Professor, Institute of Islamic Studies, McGill University, as an individual: Thank you for allowing me this opportunity to participate in this discussion and to be joined by two distinguished colleagues here from great places of learning.
I would like to make a few remarks generally about Islamic law to help us understand the context of state law.
There are four schools of Sunni Islamic law. There is one school of Twelver Shi'i law and a school of Ismaili law. Most of the laws we will deal with on a national level will be either derived from the four schools of Sunni law or from the one school of Twelver Shi'i law. These are schools of pre-modern law. Some of their legal doctrines have been incorporated into state laws in many Muslim jurisdictions.
I'll mention a few examples from the case of Egypt, where family law is mostly based on Islamic law. The custody laws in Egypt are such that the child is supposed to reside with its mother until the age of 15 and then custody is transferred to the father. Sometimes, actually, the child is asked whether or not he wants to stay with the mother or to go with the father. This is one interpretation of Islamic law that is based on the Maliki school of law.
There are other interpretations. In Hanafi law, for example, custody is up until the age of 7 with the mother and then is transferred to the father. In Shafi'i law, one of the four Sunni schools, custody is with the mother until the age of 7 and then can eventually transfer to the father. One tricky part here according to Islamic law is that if the mother is not able, is incapacitated or if she dies, custody is not automatically transferred to the father. According to Islamic law, it is transferred to her mother or a relative usually related to the mother.
This is not necessarily the case in modern state legislation, but some of those issues remain today. For example, in Egypt, it remains the case where if the mother dies within the child's 15 years of age, the child is usually transferred to the mother's mother or a relative of hers.
Some of the challenges are related to the fact that if the mother remarries someone who is not a close relative of the child, then custody is automatically transferred to the father. The same is true if the mother converts away from Islam or, according to three of the four schools, if the mother is not a Muslim. But in the Hanafi school, a non-Muslim mother is able to have custody of the child. That school is the most widely practised legal system in most modern nation states with Islamic family law.
But a lot of state legislation in the modern period is based mostly on an eclectic drawing from the different schools to accommodate modern concepts of rights and to give women greater rights of access to children or to custody. In fact, if we think about modern Egyptian law, the mother has custody. There is no concept of joint custody, so the mother has custody until the age of 15. That is a reversal of Hanafi law, which was the common law in Egypt until 1929, where custody was given until the age of 7.
These are just general remarks. I would be happy to answer any questions you may have, but I will stop there.
The Chair: Thank you.
Professor Gianotti?
Timothy Gianotti, Director of Islamic Studies, American Islamic College, as an individual: Given the fact that my own area of specialty is more in theology and philosophy, I do have points I'd like to share, but I'd refer defer to my colleague and friend Dr. Anver Emon before I share my comments. The legal foundation here is very important, and Dr. Emon can help elucidate some of those important points.
The Chair: Thank you.
Go ahead, Dr. Emon.
Anver Emon, Professor, Faculty of Law, University of Toronto, as an individual: Thank you. I want to thank both Professor Gianotti and Professor Ibrahim. It's a pleasure to meet you here for the first time. I want to thank the Standing Senate Committee on Human Rights for inviting me here today to talk about the Hague Abduction Convention and the challenges that arise in the context of Muslim majority states that are not signatories to that convention.
As you know from prior witnesses that have appeared before you on this matter, Muslim-majority countries often claim that to ratify the convention violates sharia, or the Islamic law. I've been asked to address exactly what that means and offer possible strategies of engagement across jurisdictions and traditions of value.
A key challenge has to do with both defining sharia and determining who gets to speak on behalf of it. Sharia is not only a historical legal tradition, but it also informs the larger political landscape of Muslim majority countries, as Professor Ibrahim suggested in his remarks. Any attempt, therefore, to engage sharia requires not only engaging the historical literary tradition, which all three of us do in some way, but also engaging the way that that tradition plays out in domestic politics in Muslim-majority countries and how those politics hinge on international cooperation.
Moreover, I'm here to echo Professor Ibrahim's remarks concerning the contemporary world and the pre-modern Islamic legal tradition when we refer to sharia. When we talk about sharia, we are actually talking about a historical legal tradition that has been woven into the fabric of a modern state in a piecemeal, centralized, monist fashion through specific legislation. In other words, the state mediates the content of the sharia in light of its other various priorities, legal and otherwise.
Let me give you an example that bears on our topic here. Again, this echoes some of the remarks that were just made. In pre-modern Islamic law — and here I'm referring to literature of the 9th century to the 15th century, which is my area of research interest — two legal terms of art capture different forms of responsibility towards children. The first is called wilaya, which is roughly translated as "guardianship." This is a form of legal guardianship that carries with it financial responsibility towards one's children regardless of physical custody access and rights. The father of the children is often presumed to be the children's guardian whether or not he has physical custody of the children. Again, I'm speaking in generalities here.
The second term of art is hadana in Arabic, which refers to physical custody of the children. Notice that these two terms capture two forms of responsibility to children. In the second term, hadana, boys and girls are presumed to reside in their mother's custody until certain ages. For boys, the age can vary across legal schools, as Professor Ibrahim has mentioned. It generally ranges from 7 to 9 for boys. For girls the age is older, often around the age of puberty. Various Muslim-majority states include these terms of art in their personal status statutes. This sets the framework of child custody that is invoked to preclude ratification, as Professor Ibrahim mentioned.
Given the state of affairs, what are the ways forward, which is part of how I understood my task before you here today?
In my own work, I believe the best and most respectful way forward is to work through the Islamic tradition as opposed to around it. In order to reveal the assumptions that animate the legal tradition and how those assumptions operate in a given legal context, I'm currently engaging in research with a colleague in the United Kingdom that seeks to clear ground on both the Hague Abduction Convention and the Islamic legal tradition on issues of children and child custody. While I'm not able to elaborate on the findings of that study as of yet, we aim to show two things. The first is that the conflict between the sharia and the Hague Abduction Convention is more presumed than real and should not bar ratification. Second, even if ratification is not possible for various reasons, legal or otherwise, there are important second-best alternatives involving mediation and institutions of mediation that need to be developed across jurisdictions. Our aim will be to provide ideas around those sorts of practices. My aim, therefore, is to research the pre-modern Islamic legal tradition and its codification in contemporary codes in Muslim states and to reveal what these statutes often cover up and why.
For instance, to go back to the child custody example from the pre-modern tradition, where physical custody automatically shifts from the mother to the father at certain ages, as Professor Ibrahim mentioned, many pre-modern sources also say that, at these ages, boys and girls can opt to remain with their mother. Most modern statutes — not all, but many — don't include this provision, but it's an important provision for our purposes. Why? It reflects the age where the voices of boys and girls matter for purposes of assessing what we might, in our tradition of law, call the "best interests" of children. While we might not give great weight to the testimony of a 7-year-old boy or an 11-year-old girl in today's family law court in Toronto or Vancouver or on Prince Edward Island, the actual number is less relevant than what it stands for, namely, the salience of the child's voice in the context of best interest analysis. In fact, we see a slight movement in the Muslim world right now. In 2006, Qatar modified its family law act to include specific reference to the best interests of the child. In Arabic, the term would be maslahat al-awlad. I was loosely involved as an expert in a case involving the family law act.
The aim of the project I've outlined is to probe for the assumptions in the historic tradition, examine their continuity and discontinuity in modern legislation and explore different approaches to sharia that don't preclude ratification of the Hague Abduction Convention. The research has two potentially important applications. First, among diplomats in the Malta Process, it can ensure that sharia is no longer a conversation stopper. It will require diplomats from Muslim countries, many of whom are not Islamic legal scholars, to reflect on what they mean by sharia and whether their resistance to ratification is more political than legal.
The second concerns non-state actor stakeholders, such as, in particular, religious clerics in the Muslim-majority world. My co-author and I intend to secure NGO funding to transform our findings into the format of a ghost written fatwa or legal opinion. While the term "fatwa" may seem awkward to use in this setting, our choice here is deliberate, namely, to utilize a form of legal argument that will be familiar to religious clerics in the Muslim-majority world. We plan to translate this document into Arabic, Urdu and Bahassa and begin convening meetings with religious clerics and other stakeholders to galvanize support for our findings. I've already secured interest among international NGOs, and as soon as we can secure funding, I plan to continue talks with them as the research progresses.
I have no delusions that this sort of research will guarantee automatic ratification of the Hague Abduction Convention, but I believe it's the kind of project that, by taking sharia seriously — intellectually and scholarly speaking — can shift the tenor and tone of future diplomatic conversations on the topic.
I realize I have not given you a great level of detail about Islamic legal content — I thought perhaps we could do more of that in the question and answer session — but I wanted to use my short remarks to offer you a possibility of what can arise when various stakeholders come together. Bringing together governments, NGOs, religious clerics and other stakeholders and scholars offers certain paths that have not yet been travelled and that have end points yet to be determined but that promise something exciting and new. That's what I'd offer you today.
I want to thank you for the invitation to come to speak to you today. I'm happy to answer any questions specifically about Islamic law or more broadly. I look forward to the discussion with my co-panellists. Thank you very much.
The Chair: Thank you very much. May we now please go on to hear from Mr. Gianotti?
Mr. Gianotti: Thank you very much. My deep and respectful gratitude goes out to my colleagues and to all of you for hosting this conversation. In fact, many of the points that Professor Emon made are points that I drafted in much less eloquent language. I think that they point us to possible paths of action that could be very fruitful and very much in the interests of these children.
I think this has already been said but it doesn't hurt to say it again in different language. When we talk about Islamic law and sharia, we're not talking about something that is a prefabricated, static system of law. We're talking about, as Dr. Emon said, a 1,400-year-old and ongoing conversation. Islamic law is a discussion, an ongoing debate that is still playing out, where change and new interpretation can take place. This is something that should give us heart and encouragement as we go forward.
It's important to note that in my own rather amateur investigations of Islamic law and the question of custody, it does seem that in the classical pre-modern tradition, where of course there was no concept of nation state or the rights of a nation state or country of habitual residence, there is some language in the Hague Convention that, of course, will be very foreign and has to be explained, talked through and worked through. It does seem that the best interests of the child are paramount in both traditions. I think this is a commonality that we can build upon in that dialogue that Dr. Emon is suggesting.
In addition to the religious scholars in the Muslim-majority world or parts of the world where Muslims predominate, we can also draw upon an untapped resource within Canada and the United States, that being Muslim scholars, traditional and academics alike, in the Muslim-minority world or parts of the world where Muslims live as a happy minority, and enlist their help and support in promoting this dialogue. I think this is a resource that we should not fail to recognize and utilize — like-minded Muslim leaders, academicians and scholars of Islamic law who are willing to work with our law enforcement and our governments to foster that dialogue in a way that respects and works with the Islamic legal tradition in all of its variety and yet, at the same time, can represent the interests of the international community, the interests of the child, the interests of the left-behind parent in terms that have meaning in parts of the world where Canadian custom or international custom or international treaty is viewed with tremendous suspicion and doubt.
Another point made by Dr. Emon is very important, and that is the role of the post-colonial or even continuing Western hegemony over many parts of the world where Muslims live as a majority. I think this certainly is a complicating factor in this question, even though it has nothing to do with the rights of this child or the rights of this left behind parent, the tendency of some of these formerly colonized countries or regions of the world — and it's not just that. I think that even the continuing international political situation, as it's unfolding, is a major barrier that needs to be worked through with subtlety, sensitivity and like-mindedness.
We don't need to have bureaucrats from the Western world, Europe, the United States, Canada, from other parts of the world. We need to have people living within those societies who can work with those bureaucrats, our law enforcement and governments to build bridges of language, understanding and trust, because we are working with an international deficit when it comes to trust, goodwill, and an assumption of good intention.
Especially for interfaith marriages, the religious question can really be a game changer when it comes to the perceived rights of one parent to run off with a child when custody, conceived in the hands of the left-behind parent, would be non-Muslim custody. This can be a real game changer.
We need to do acknowledge the deficits that colour the questions on the table, and we need to look practically at hitherto untapped resources, especially those communities that live within Canada, within our societies in the West that can physically build a bridge of common language and common discourse. But it is also kind of a bridge of translation where the language of a document like the Hague Convention or the language of Canadian law, family law, or American family law can be translated into terms that are understandable and acceptable in these various regions of the world where they continue to operate within a family law model, which is profoundly influenced by ancient traditions.
The Chair: Thank you very much.
To start off, I have a question for Professor Emon. As a general question, are gender, nationality and religion determinative of parents' rights in Islamic law systems, and if so, in what ways?
Mr. Emon: Thank you very much for the question. Certainly those elements do feature in terms of what both Mr. Ibrahim and Mr. Gianotti have mentioned. Left-behind parents who are not Muslim, who are women, who are not of that nationality suffer detriments in domestic legal systems in Muslim majority countries. So there are always going to be concerns from that perspective, from those pieces of legislation, not only about conceiving the best interests of the child in terms of their religious and spiritual development. There will be a presumption oftentimes against a non-Muslim parent being able to do that.
You certainly see that, and it is not an uncommon feature in contemporary statutes in the Muslim world.
Senator Ataullahjan: Nice to see you again, Dr. Gianotti. We miss you in Toronto.
We were talking about the Malta Process, which provides a mechanism for state parties to engage in a dialogue with countries where the legal systems are based on Islamic law. So how do Islamic nations view cases involving child abductions, and how are they dealt with by these countries?
Mr. Gianotti: This is an excellent question. I would like to defer to Dr. Emon first, because I think he has some researched wisdom to share with us here.
Mr. Emon: Mr. Gianotti, as always, underestimates himself, but I would thank him for his confidence in me, misplaced as it might be.
It's not going to be easy to answer your question because it will vary from jurisdiction to jurisdiction. Some countries will have more judicial cooperation than others. In some countries you have a considerable amount of mediation going on. There is a United Kingdom organization, an NGO called Reunite that specializes in these kinds of cases. Through its offices it has developed a very significant network for returning children, in particular to the U.K.
There's no easy answer to your question except to say that it will vary depending on the level of judicial cooperation that can be secured, the extent to which Canada can engage in bilateral agreements with these countries that will not ratify the Hague Convention and be parties to that, as well as the kind of infrastructure these countries can commit to in creating a central agency or authorized body for handling these types of disputes.
That perhaps doesn't give you the kind of detail you might have been looking for, but only to say that it's messy and I think the parents who are in these situations are the best witnesses about that.
Mr. Gianotti: I would like to add the possibility of bilateral agreements. Of course within Islamic law it's not agreed upon by all schools, but there is a notion of scholarly consensus that the more popular an idea becomes, the more correct the opinion is perceived to be just by virtue of the sheer weight of growing consensus.
Earlier today I was reading about the theological underpinnings of the practice of religious pluralism within Indonesia. It occurred to me that it may be strategic to begin selecting certain countries that have already adopted perhaps a more flexible, liberal, multicultural understanding of Islamic law and to begin working within the Muslim majority world, country by country, to slowly, patiently and strategically work toward the building of a consensus when it comes to the Hague Convention and an international understanding that does not threaten the well-being of the child but could be shown to safeguard and enhance the well-being of the child in these situations.
The Chair: Professor Ibrahim, do you have anything to add?
Mr. Ibrahim: I would like to support both my colleagues. I agree that sharia is very diverse, 1,400 years of intellectual engagement. There are so many substantive views within sharia that modern legislators have been able to utilize to accommodate their modern mores.
There are, within sharia, enough tools by engaging with scholars in the region. I definitely support the notion that it should not be something dictated. There has to be an internal support for those kinds of laws. As Professor Emon said, diplomats definitely need to engage with Islamic law and take it seriously.
Within the tradition, as Professor Emon has already mentioned, there is a notion, especially in the Shafi'i school, one of the main schools in Sunni Islam, that the child has a voice at a really early age, some people estimate it at 6 or 7, and it can be argued that this voice can be taken over by the judge who can determine what the best interests of the child are.
I think those are the avenues through which we can reconcile the modern conceptions of human rights and by extension the Hague Convention and Islamic law.
Senator Ataullahjan: Professor Emon, the major issue with many Muslim countries is a bias towards the father, but what we're hearing now is that the child has a voice. We know that the mother is a guardian to an early age, but how much attention is paid to the child's voice?
Second, with regard to Muslim countries, would you agree that the issue is based in culture rather than religion? In the case of Egypt, I think you said they changed the legislation in 1929. The change is coming in different schools and different interpretations, so is it cultural?
Mr. Emon: I'd like to take the second question first, if I may, as to whether change is cultural or religious, by simply suggesting that I don't think that we can make an easy division between these two. For instance, I can say that the Charter of Rights and Freedoms is a legal document and asserts my rights, but I certainly see it having a cultural role in creating Canadian civic identity; so a legal doctrine can have cultural implications. I want to suggest in the same way these legal doctrines, even if they're changed or modified by the state in legislation, they have a separate life unto themselves in the larger public sphere of conversation, deliberation and quotidian day-to-day interactions and how people see themselves.
I like to quote the Canadian philosopher Charles Taylor and suggest that in many ways the law the historical tradition is not simply woven in legislatively. That's one thing. But it also informs the "social imaginary," in part among many Muslims in these parts of the world, not just in Muslim-majority countries but also in places like Canada. In that sense, it's neither religious nor cultural; it's a legal contribution to a larger legal/political discourse.
Having said that, then, does the child have a voice? I'm not entirely certain I can answer that based on the absence of any empirical data that I have come across.
What I think both myself and Professor Ibrahim are saying is that in the pre-modern historical tradition, there was a point when the child's custody was to switch presumptively from the mother to the father. That is a legal presumption that could be defeated by the child who would say, "No, I want to stay with my mother."
The question then becomes does that inform the development of a best interest model in Muslim state legislation? To my knowledge, not robustly as of yet. Does that mean it cannot? No. I actually think it can inform.
The 2006 reform in Qatar to its family law act, the personal status law of 2006, suggests that that state is indeed making major shifts, but their shift is not simply doctrinal or legislative; it's also institutional. This was really spearheaded by the wife of the Emir of Qatar.
Not only did they create special legislation, they created a special court just for family law matters. In the way that Canada, for instance, had witnessed the rise of Human Rights Commissions as specialized administrative tribunals to deal with cases that were not best handled in the courts of general jurisdiction, like our Superior Courts, so, too, are we seeing specialized courts in some jurisdictions.
I want to re-echo Professor Gianotti's remarks about perhaps one way forward is not only through a project that I'm doing which focuses on doctrine, but also one that targets specific countries that are making quiet, subtle, but deep institutional moves. Qatar is one case. I believe the U.A.E. is also making similar moves in that direction, but I would need to double-check. I'm happy to make it available to the committee once I have it completed.
Senator Eggleton: Let me pick up on that because that was actually my main line of questioning. How much of this is sharia and how much is cultural? Sharia can come in various contexts as well.
Professor Emon, if I'm interpreting you correctly, you said that the difference between sharia and the Hague Convention is more perception than reality.
But then, Professor Gianotti, you talked about deficits, which sounded more cultural to me because they had to do with historical colonization, lack of trust and other elements that come into differences between cultures and Western countries which are, by and large, part of the Hague, and Islamic countries which are not, although they are part of a process as well. We haven't mentioned it yet, but the Malta Process takes in most of the Islamic countries.
Interestingly enough, Morocco has joined the Hague Convention. I'm wondering whether that is a sign that, yes, a lot more Islamic countries could become part of the Hague Convention, or is that just a one-off that's peculiar to Morocco?
So I would like your comments on the Morocco example and anything further you want to add in this question of culture versus sharia.
Mr. Gianotti: This is true of any faith, any religion on planet Earth, the business of disentangling the prophetic legacy from the cultural legacies in which that religion is housed in any particular time or place, this is a very delicate process. Given the deficits that I described, when we're having this conversation in the West, the delicacy increases exponentially because we are working with the threads of identity when it comes to how people perceive themselves.
Within the various cultures and even within the evangelical right within the United States right now, there often is not an awareness of how the cultural, political and theological prophetic legacies have become intertwined, and it's just called Christianity or it's just called Islam.
We have to be keenly aware of that whenever we're dealing with a particular situation, culture or place where there has been a centuries-long process of patriarchal culture and tribalism and notions of ethnicity interweaving themselves with religious concepts.
Because the Islamic world is so diverse in spite of the rather monolithic way it is presented to us in the media, because it is such a diverse place, we will be challenged to draw upon diverse resources within our own societies and communities to build those bridges. It's not going to be a one-size-fits-all.
There are organizations in addition to the ones that have been mentioned here today. The Organization of the Islamic Conference, the OIC, is the largest member state organization in the world after the UN. It is basically a political club or political organization made up of Muslim member states whose membership is not contingent upon a particular denomination or particular legal school.
So there are ways in which we might be able to address these questions on multiple levels simultaneously. The notion of bilateral relations or particular target countries where we do see some dynamism in their own legal discussions and frameworks, I think that's very promising. I think the Organization of the Islamic Conference is another venue in which we can try to have these conversations. Then, of course, there is the Malta Process where, according to your own account, many Muslim states are actively involved.
I offer those as preliminary responses to some of your points and questions.
Mr. Emon: Let me address the question in a different way.
I'm not entirely certain the Malta Process has resulted in success. In 2010, I was asked by the Department of Foreign Affairs and International Trade to prepare a memorandum on Islamic principles of mediation because the Malta Process as a mechanism for trying to get ratification just wasn't working and, in fact, mediation has become a new model. In many ways we are seeing sharia has become a conversation stopper in that process. I want to at least acknowledge that, where suddenly now sharia is the elephant in the room that we need to talk about. The question is: How do we talk with it?
Let me raise as a question, what do we make of sharia versus culture? I would again suggest that the dichotomy is a false one. It's a false one in the following fashion and I will give an example.
The European Court of Human Rights in Lautsi v. Italy decided and agreed with the Government of Italy that the cross, as shown in public classrooms, was a secular cultural symbol that did not violate the policy of Italian secular education. In Dahlab v. Switzerland, it was decided that a school teacher wearing the hijab was in fact a violation of the secular principles of Switzerland's public education system.
So we have religion and the law working together in tandem, manifesting certain kinds of cultural values around secularity, education and the classroom. I want to at least acknowledge that the law then becomes an instrument of culture, a vehicle of culture. However, we're going to define these terms, I want to suggest that it's not simply a matter of distinguishing the two of them as if they are hermetically sealed.
That then brings me to the third point. In 2012, my colleagues and I co-edited a book. I submitted two chapters of that book to the committee as background reading. It was a project spearheaded by the national bar association at the Salzburg Global Seminar. We brought scholars of Islamic law and human rights together, and we argued that common ground is, in fact, a mistaken goal and what needs to be done is to clear ground on what human rights and what Islamic law offer. They both offer regulatory regimes that grant freedoms and limit them. The question is how do we limit them and what do our limits say? What do our section 1 limits say about Canada's democracy? What does section 9(b) of the European Convention on Human Rights say about notions of necessity in a democracy and security?
I want to suggest that those are the kinds of questions that future research needs to attend to if this particular problem is going to be addressed for multiple stakeholders and for multiple government actors.
As far as the Moroccan example, my understanding is, and perhaps I am incorrect, that they ratified the 1996 convention and not the 1980 convention. There are historical developments around those that in the 1980 convention to my knowledge you had fewer participants actually involved in that, so whether or not the 1996 convention actually was able to create and rectify some of the 1980 problems is also a matter worth considering.
I would like to attend to the 1996 convention. Again, it's not my area of specialization, but that is at least my understanding of what they ratified.
Senator Andreychuk: I want to just touch two parts. Perhaps Professor Emon would be the one most closely identified with this question.
Most of the Islamic states, if I recall, if not all of them but for Somalia and of course we have one other example, did not sign on to the UN Convention on the Rights of the Child. In that convention there is a lot to say about raising children, the rights of children and the needs of children. While there is a disclaimer at the start that you have to take into account cultural and other issues, it would seem that that piece of international legislation did not have the same rough road as the Hague Convention. Can you explain why the difference or have you studied the difference of the two?
Mr. Emon: Thank you very much for the question. I have not specifically studied that. What I have been interested in and what many commentators have noted is there are a lot of unanswered questions around why countries ratify what they ratify. One example is the UN Convention on the Elimination of All Forms of Discrimination against Women. Nearly all Muslim-majority countries have ratified that convention, yet they provide reservations, restrictions and covenants as to what it means and how it is to be applied. To me, ratification is less interesting than what do the reservations to those conventions have to say when they ratify.
I cannot speak to the UN Convention of the Rights of the Child. I'm not familiar enough with that convention to speak to it. But having worked and done some research on the women's convention, I can say that one of the more interesting developments in the CEDAW committee hearings where ratifying countries commit reports to periodically, I believe every five years, has been the work of an NGO that I work with called Musawah, an international women's equality group. This group has developed a model of working within Islamic law to develop shadow reports against government reports, like Egypt's and Morocco's and others. When the ministers of justice or foreign affairs — I'm not exactly sure who appears before the CEDAW committee — Musawah and its affiliates are responding to their limits and reports by reference to this model on Islamic law. It has been relatively well received and certainly put the governments on the defensive. My understanding is that it's a model that the Human Rights Committee in Geneva has also asked Musawah to present already.
I simply want to suggest that even with ratification that's not the end of the story. Implementation at the end of the day will be about the political currents that allow effective implementation or not in domestic legislation.
I apologize that I cannot speak specifically to the CRC, but I hope that my comments on CEDAW offer a sufficient analogue just to your question. I do apologize for not having that research for you.
Senator Andreychuk: Just to follow up on some of the same concepts, I understand the CEDAW and how ratification has reservations, but it was the signing of the convention. It was a very gruelling 10 years to 15 years of discussion about children and the rights of parents that led to a final convention being signed by all these states, which was a first step to start looking at some commonality about children and allowing something like the Human Rights Commission to question on a periodic basis improvements in the lives of children, which allows for what you say are the political currents of the day.
You can look at poverty, you can look at maternal health, you can look at rights, but you can start building some consensus that the focus should be on the child and what the child needs in today's society. That's really what I was getting at. I don't know if anyone else has a comment.
Mr. Ibrahim: I wanted to go back to the question of the change of culture or religion. I agree with Professor Emon; that distinction is not very useful.
What I wanted to say is that I read something recently about 19th century United States where custody used to automatically be presumed with the father in the case of divorce. At some point in the 19th century judges started rhetorically using precedent to change that system because there was a change of mores within society that wanted women to take custody of children. That's exactly what happened in the United States.
If we think about the context of Egypt and going back to your question, in 1929 custody of children was assumed to be with the mother until the age of 7, and this age was pushed up to 10 for boys and 12 for girls in 1985, and then eventually in 2005 it was pushed up all the way to 15; so religious doctrine or legal doctrine changes. The reason, actually, in one of the pieces of legislation that took place in the middle of the 20th century is that there was an explicit reference to the best interests of the child, and that magically disappeared in 2005.
Those are things that can change and oftentimes are drawn from the tradition because of its immense diversity that allows for those changes to occur. That's why the idea that sharia is not compatible with the Hague is only one interpretation or a few interpretations of sharia, but it's possible also to offer the other interpretations in state legislation.
Mr. Emon: Unless Timothy wanted to come in, I wanted to respond to the comment on the Convention on the Rights of the Child more specifically. I want to distinguish the two conventions, at least from your description of what the CRC was doing. My reading of the Hague Convention is slightly different. We're not just dealing with the issue of children and what they deserve and what their rights ought to be.
With the Hague Convention, we're dealing with custody, which involves parents. We're dealing with faith as a contributing factor to best interests. We're dealing with the role of Islam in the context of perceived civilizational conflicts, as Timothy was mentioning, in regard to "post-coloniality" of the citizen world. We're dealing with nationality and the implications of nationality and citizenship in the global labour context where you have global labour flows that allow for cross-border marriages and transnational marriages in a way that, in my understanding of your representation of the CRC, was not necessarily there. With the Hague Convention, we're also dealing with sovereignty and with a process of return. We're dealing with states giving up claims on their national children.
Why would Japan only recently have ratified? Japan was not a country losing its children. Children were coming into Japan. It's not only costly but the idea of sending children back to America, to the U.S., to Canada, elsewhere, is domestically politically damaging.
With the Hague Convention, we're dealing with a harder nut to crack in that regard. As much as we can build on the CRC and its conversations in informing best interests of the child, my fear is many of the things that Timothy was alluding to in his remarks that play out in the Hague Convention may not have been played out in the same way. Again, I say that with deference to your knowledge on the CRC because, again, I don't know that history very well.
Senator Andreychuk: I should say that I did not give full justice to the Convention on the Rights of the Child. I simply picked out certain points. There are a lot of crossovers with the Hague Convention and the responsibilities, but it would be interesting to look at whether that would be instructive in any negotiations country to country.
If I may have one more moment, I wonder if it is time to relook at the Hague Convention in a broader way to determine if there's a better way to get more countries to be responsive to this mobility issue of families moving around and being able to abduct a child and move them to another part of the world. It wasn't so easy years ago. It's much easier now. Therefore, maybe the Malta Process has its limitations and we should look for some new procedure or new mechanism.
The Chair: Professor, we have almost run out of time, but there was something you said. Would you answer Senator Andreychuk and then clarify this?
Professor Emon, you stated that sharia is not necessary and compatible with the convention, but also that gender and nationality are determinative of parents' rights in sharia. If I understood you correctly, how is it possible to avoid conflict between a convention that is gender and nationality neutral and a legal system where rights may be determined based on factors such as gender and nationality? I ask you to clarify this because the report we are writing is about the laws on the books as opposed to potential changes to interpretation. Please answer Senator Andreychuk's question, and then that.
Mr. Emon: As to the former question, I don't have an answer in terms of what ought to be added or revisited. I found the previous testimony, particularly on the absence of any exit protocols, quite fascinating. Perhaps there's something to be said about strengthening exit protocols so that they do not rely only on airline industries to manage them. That would mean perhaps expanding the Malta Process to other stakeholders and participants.
As to the question of sharia and gender and nationality as points of discrimination, as much as I think the issue of the best interests of the child and certainly issues of custody can be negotiated within Islamic law, as far as the laws in the books that I've read, I think it's an uphill battle. I'm not going to suggest it isn't. It is a battle being fought on a number of levels. Musawah, the group I mentioned earlier, is one that is focusing on gender equality. I'm doing work on issues related to child abduction. Again, as much as there is movement within the Islamic tradition, as much as there are many on the ground trying to push the egalitarian elements, I don't think anyone would presume to think it's an easy win. We all have our work cut out for us.
The Chair: Thank you very much to all three of you. You certainly have educated us and raised questions for us to discuss. We appreciate you making yourselves available. I thank you for your time.
(The committee adjourned.)