Proceedings of the Standing Senate Committee on
Human Rights

Issue 11 - Evidence - September 25, 2014

OTTAWA, Thursday, September 25, 2014

The Standing Senate Committee on Human Rights met this day at 8:05 a.m. to study the international mechanisms toward improving cooperation in the settlement of cross-border family disputes, including Canada's actions to encourage universal adherence to and compliance with the Hague Abductions Convention and to strengthen cooperation with non-Hague State Parties with the purpose of upholding children's best interests.

Senator Mobina S. B. Jaffer (Chair) in the chair.


The Chair: Honourable senators, welcome to the seventeenth meeting of the Second Session of the Forty-first Parliament's Standing Senate Committee on Human Rights.


The Chair: The Senate gave our committee the mandate to study issues pertaining to human rights both in Canada and abroad.

My name is Mobina Jaffer, and as the chair of this committee, I am pleased to welcome you to this meeting.


Before I continue, I would like to welcome two new members to this committee: Senators Eaton and Tannas. Welcome. We are very happy that you've joined us. We also have Senator Eggleton with us — not an old member, but a member of the committee. Other members are joining. Senator Ngo is here, and Senator Nancy Ruth is also joining our committee. She used to be the chair.

Honourable senators, since December 2013, the committee has held a series of meetings on this issue. Today, we have invited additional witnesses who will focus particularly on the practical operation of the Hague abduction convention and the Malta Process mechanism.


The purpose of our 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.


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, transported to another jurisdiction by one parent, and may or may not have any further contact with the parent left behind.

The committee is studying the effects this has on children. We are very pleased today that we have at the start of our hearings witnesses from London. We have Mandeep Gill from International Family Law Group, a firm based in London; and from Reunite International Child Abduction Centre, Alison Shalaby, Chief Executive Officer; and Anne- Marie Hutchinson, Chair.

I understand that Ms. Gill will start.

Mandeep Gill, Associate, International Family Law Group, LLP, as an individual: Yes, I will. Thank you and good morning, Madam Chair. Thank you for the invitation to speak. It's an honour to be able to address you. As you have explained, I work with the law firm the International Family Law Group in London.

How has the application of the Hague convention of 1980 evolved to meet the changing realities of cross-border family disputes? I won't go into the details of what the convention is, because I'm fully aware that the committee has been meeting for many weeks and has gone over that detail already.

Child abduction cases are on the rise year on year, and the Hague convention now has 91 signatories, with Japan being the latest one, I believe, from April. Child abduction is rising for various reasons, which I'm sure have already been raised in previous committee meetings. But in my experience, overwhelmingly the abducting parent is the primary carer, the mother, who wishes to return back to her homeland with the children after a divorce or separation.

At the inception of the Hague convention of 1980, the thinking was the abductors would be predominantly fathers who were non-primary carers, but that doesn't seem to be the case in today's society. Sometimes mothers are abducting in the knowledge that it's a civil offence and, in some countries, also a criminal offence; sometimes they are completely oblivious to this.

Not every mother is fleeing from domestic violence, but it certainly seems to be a feature in many cases where mothers are pleading an Article 13(b) defence under the Hague convention. They are saying that, as a result of abuse suffered in the country of habitual residence, it would be intolerable for the children to be returned there.

The way in which these cases have evolved over time is that the English court asks the left-behind parent to provide certain assurances and legally binding promises called undertakings to, for example, not be violent; threaten violence; or harass, pest or intimidate the mother upon her returning back with the children. The concept of undertakings was perhaps not first thought about at the inception of the Hague convention, 1980, but it has become an important aspect of these cases in England in order to put in place safeguards and find a practical solution to a return of the children taking place where allegations of abuse are made by the abducting mother or where the mother would be in a precarious financial position if she had to return with the children.

In the latter case, where it's a financial issue, then the father commonly will give undertakings to the English court to provide certain financial assistance, which will last until the first or notice hearing in the country of habitual residence once a return has taken place.

Within the EU, we have the EU regulation called the Council Regulation No. 2201/2003. Therefore, within the EU, we also need to take that into account when we're dealing with child abduction cases. It came into force in August 2004, being applied from March 1, 2005 — so, many years after the 1980 Hague convention. That is Article 11(4) of that EU regulation, which states:

A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

And I think this has resulted, in England, for example, asking the central authority of the country of habitual residence to provide information about safeguards that are available for the child and what state of financial support and welfare benefits the returning parent could be applying for. Again, the use of undertakings achieves the object of this Article 11(4) in terms of the convention.

In England, I think the application of the Hague convention has evolved in recent years to there being an increase in respondents in proceedings seeking expert evidence. That's been quite a hot topic in this country for the last year or so where, for example, a respondent mother seeks to induce expert evidence from a psychiatrist on the impact on her if she was to return back to the country of habitual residence where often she won't have support networks, family or financial stability.

The court will only allow such expert evidence if it will assist the court in the proceedings, but such evidence was allowed in two Supreme Court cases Re E and In the Matter of S. As a result of those cases, there was a rush of respondents trying to found a defence with psychiatric evidence being introduced to help bolster the 13(b) defence, and some respondents were seeking to instruct the same psychiatrists as in those Supreme Court cases.

Another hot topic on how I think the Hague Convention has evolved recently, particularly in this country, is what role the voice of the child should play in these proceedings. There has certainly been an increase in children wishing to be joined to proceedings that concern them, and wishing to have not only their voice being heard but their own legal team so that they can fully participate in the proceedings. And under the family procedure rules, the court is empowered to make a child party to the proceedings if it's in the child's best interests to do so.

At the end of last year we had a Supreme Court case here where this very issue was dealt with in the case of Re LC, and the children were joined as parties to those proceedings. There was a decision that certain older children may have their own separate habitual residence from both of their parents.

That is a new concept we've had from the end of last year. There has also been an increase recently in non-subject children wanting to be joined to proceedings, for example, siblings who are over 16 and therefore can't be subject to the Hague convention proceedings, or step-siblings who would be affected by there being a separation of siblings and the subject children being returned back to their place of habitual residence.

Further, I think that mediation is very much in focus not just with child abduction cases but also with domestic family cases in England, and in fact it's a precondition of proceedings for domestic cases since April of this year.

Since April of this year, applicants in Hague convention proceedings have the benefit of non-means and merits tested legal aid, which would mean that there are potentially more people open to trying to compromise these proceedings if they believe that it's better to come to an agreement rather than go through the court system to have an end result. There may well be more mediation inquiries or cases parallel to the Hague convention proceedings as a result of more legal aid being available for that aspect.

The concept of joint custody arrangements has evolved also since the inception of the Hague convention, 1980, and certainly it would not have been a concept that was commonplace when the Hague convention was born.

Joint custody doesn't necessarily mean equal division of care, and in fact in England we moved away from the terminology of custody in the late 1980s after the Hague convention so as to avoid parents feeling that they have a sense of ownership of their children and working towards a greater focus on parents' responsibilities rather than parental rights.

In any event, others might disagree, but I'm not entirely sure whether an increase in joint custody or joint care has had much of an impact on the Hague convention because under Article 3, rights of custody is simply the right to decide where the child resides rather than physical custody.

But I would say that before December 1, 2003, in England and Wales, a father who is not married to the mother would only have parental responsibility, and therefore the right to decide where the child resides, if there was a court order or an agreement in the absence of the parents being married. Since December 1, 2003, the law has changed here, which would mean that an unmarried father can have parental responsibility by attending the registration of the child's birth and being named on the birth certificate or signing a statutory declaration to say that he is the child's father. So there may well be fewer cases where the father now does not have rights of custody and, therefore, cannot invoke the Hague convention as a result of that change of law we had about 11 years ago.

Also since the 1980 convention, in the U.K. we are now party to the 1996 Hague convention, which I know was mentioned in one of your previous sessions, and that came into force in the U.K. in November 2012, many years after the U.K. government decided in 2001 that it should be ratified. Essentially, the overall aim of that convention is to improve the protection of children in international situations and to establish cooperation between the authorities of the contracting states to achieve that aim.

The 1996 convention postdates the 1980 Hague convention, but predates the Brussels II revised regulation that I mentioned a few minutes ago. It's taken 15 years to come into effect, whereas Brussels II revised came into effect relatively quickly in March 2005, and therefore many of the provisions of the 1996 convention, though innovative and exciting in 1996, may seem a bit mooted and familiar now as in recent years we've become familiar with the Brussels II revised as between EU states, with the exception of Denmark.

I won't go into the details of the convention because it's very lengthy, but it's a convention that can be used in child abduction cases as well. In contrast to the 1980 Hague convention, which applies to children under the age of 16, the 1996 convention applies to the children under the age of 18. As a consequence, it can be used to extend the operation of the 1980 Hague convention to pursue the return of children who are over 16.

That is, I suppose, a short summary of that convention. Article 7 of it deals with the situations of wrongful removal or retention of a child and reflects Article 10 of Brussels II revised and Article 3 of the 1980 Hague convention. Article 50, finally, provides that when both states are parties to the 1996 and 1980 conventions, nothing precludes the 1996 convention being used to secure the return of the child wrongfully removed or retained or securing access rights.

The 1996 convention, therefore, provides an independent way of dealing with abduction cases. There are around 35 contracting states to this convention, Canada not being one of them, but of particular interest to the U.K. are the contracting states of Albania, Armenia, Morocco and Ukraine, as these countries are not party to the 1980 convention or the Brussels II revised convention.

That is all I wanted to say about that convention.

I don't know how I'm doing for time, but maybe we come back later —

The Chair: Yes, I would ask you to finish because we are running out of time.

Ms. Gill: That's fine.

My concluding notes were in relation to the status and efficiency of international mechanisms outside of the Hague convention, 1980.

I know in previous meetings the committee have talked about the Malta Process, and in addition to that we've got the UK-Pakistan Protocol on Children Matters since 2003. We've got the Cairo Declaration as well. I think these agreements are a very good idea in the interests of international comity, but in practice at the moment, in my experience, I think international judicial liaison seems to work much better.

The Chair: Thank you. We also have your paper, which we will distribute to members once it has been translated.

Ms. Gill: Thank you.

The Chair: May we now go on to the next speaker, please?

Alison Shalaby, Chief Executive Officer, Reunite International Child Abduction Centre: I would like to echo what Mandeep said in thanking you for allowing us to participate in this. I'm the chief executive officer for Reunite International Child Abduction Centre. We're an NGO based in the U.K. For parents we provide an advice line and mediation service, but we also undertake research, we lobby for changes in law and we intervene in court cases.

What I'd like to focus on primarily is the work that we do in supporting parents, and that's through our advice line where we deal with abduction cases, prevention cases, leave to remove and also contact across international borders.

We did forward some statistics, which I don't know if you've actually had an opportunity to see or not, but last year we dealt with 520 new abduction cases. This year it's more likely to be just under the 600 mark. We have both the left- behind parent and also the abducting parent contacting us. In some cases we may actually have both parents who contact us, seeking assistance and support.

Our role in these cases is in the initial stages to provide advice and information so parents can make an informed decision on which route they want to go down. Do they want to go down the legal route, be it through the Hague convention or domestic proceedings in a non-Hague convention country? Is it through mediation, or do they actually not really want to do anything?

If they're going down the legal route, we will follow that case with them. If it all goes along according to plan, particularly the Hague convention cases, then our role is very much in supporting the parent emotionally, because I think the emotional angle is overlooked or forgotten by many professionals.

If the case does not progress as we would expect it to, then at that point we would intervene. We would speak with central authorities across the world, with police departments, with possibly the embassies in London to express where our concerns are and to understand what the blockage is in this case moving forward, and that is quite successful.

When we look at how cases are resolved, I think one of the things that's really missing when we look at this whole issue of parental child abduction is that so few people have statistics. If you don't know what the scale of the problem is, if you don't know where the blockages are, if you don't know how parents want to resolve their cases, then I don't really know how we can move forward in resolving these cases. We know that from our 2012 year we had just under 500 or 506 cases reported to us, so that's going back almost two years now. In 82 per cent of those cases they were actually resolved, but we see a big gap between Hague cases and non-Hague.

With the Hague cases, around 92 per cent were resolved, but with non-Hague it drops down to 65.5 per cent. Again, if we look at how they're resolved, we know that in roughly 5 per cent of both Hague and non-Hague the parents actually reconcile. In 20 per cent of the Hague cases the parents reach an amicable solution without the need for court intervention or without the need for mediators to get involved.

When we actually look at returns, then we had 42 per cent of our Hague cases resolved through the child returning either through the full Hague proceedings, voluntary once the Hague convention was raised, domestic proceedings or a parent just returning voluntarily without the need for any other sort of intervention, other than the left-behind parent contacting them and saying, ``Look, there is this Hague convention; I will use it.''

When we look at our cases, in 75 per cent of the cases it's the mother who removes the child. When we are speaking with the mothers we ask if domestic violence is involved in these cases, and the vast majority of the mothers will say no.

There is this perception, firstly, that it's fathers who remove when it's not, and there is this big perception that mothers are always fleeing domestic violence, and they're not. What the mothers are doing is making a lifestyle choice for themselves. Their relationship has broken down in the country that they're living in and they don't want to remain in that country. They're making a choice for themselves, but they're also making a choice on behalf of the child and, in most of the cases, without actually involving the child in that decision process.

We have an increase in the number of parents, again it's usually the mothers who contact us, and they are saying that they're living in a country and they want to return to their home country and how do they do that legally. We explain about the Hague convention, and they don't tend to be able to get their heads around the fact that you can't just leave.

British parents, parents who are living in Canada, Australia or America, will say to us, ``Well, I'm British, why can't I just go home? I have a British passport. Nobody can stop me and my children from leaving.'' Again, similarly, we have a lot of Canadian parents based in the U.K. who contact us wanting to return to Canada. We always ask them the question, ``You have made this decision. What do your children feel about it?''

In every single case, and we're talking about upwards of near on 200 cases a year, the mother has never spoken with the children about the relocation, which I just think strengthens this argument that it is the parent who's making a lifestyle choice.

One of the other things that we try to do for parents, particularly when it's an abduction to a non-Hague convention country, where we know that the domestic proceedings are going to be long and protracted, is to find them a pro bono solicitor in that country to assist them in that process. The other thing we do is work very closely with our foreign office here and with government departments overseas in raising the cases diplomatically.

Mandeep talked about mediation and that there's greater interest in that. I think Reunite was the lead organization which, over a decade ago, introduced mediation into these cases. We would say it is suitable in such a small number of cases, and it's not the way forward. The way forward to resolve these cases is to have effective legal systems in place around the world.

Hopefully that's given you an insight into the work we do, the support we give parents in intervening in these cases, to move them on and get a resolution, whatever that resolution may be. Hopefully we'll be able to have some questions later on.

The Chair: Thank you both very much for your presentations. We found them very interesting. We will now go on to questions.

Senator Eaton: Thank you very much.

Mandeep, are there differences dealing with children abducted to countries that practise sharia law as opposed to countries that practise common law?

Ms. Gill: Abductions from England to sharia law countries, you mean?

Senator Eaton: Or from Canada or Australia to countries that practice sharia law as opposed to common law.

Anne-Marie Hutchinson, Chair, Reunite International Child Abduction Centre: I'm Anne-Marie Hutchinson, the chair of trustees of Reunite, and I'm also a very old and long-in-the-tooth practitioner.

There are two aspects to the issue of Islamic states and the sharia. First, where children — and it often happens — are brought into the U.K. from sharia states, we have a problem with our courts, especially if they come from states such as Saudi or Qatar, states where a woman's and indeed a female child's human rights could be and are limited. We do have a conflict, then, when our courts have to consider whether or not to return those children.

In respect of children who are taken out of the U.K., and putting Pakistan and Bangladesh to one side because we do have special relationships with them and I know Canada does also because they are part of the Commonwealth, but in respect of the other states, then we have very real difficulties, often and primarily because the legal custody of the child will be with the father and he will have the right of veto over those children.

Unfortunately, within Reunite, we have many long-standing cases of children who indeed turn into adults before they are able to be reunited with their left-behind parent. I know that's the international experience. Certainly from Reunite's perspective, we had hoped to have more teeth and more advancement to the Malta Process. We were present at its inception. When it started many years ago, we had hoped it would lead to something more akin to some of the bilateral contracts. That hasn't come about. Our concern is that it is being used by some of the states as soft law, and their first port of call is, ``Let's not mediate; let's not treat this as a civil role.'' The starting point is not that children should be returned to their state of habitual residence.

That said, the 1996 convention, with its ethos of comity and respect between states, will prove in the longer term a vehicle where even sharia states, perhaps not all of them but states such as Morocco and Tunis, could and would be prepared to return children under that convention on the basis that they're applying convention principles and not having to face head on issues of public policy and their own domestic law. We have a case at the moment that's pending where a child has been brought from Morocco to the U.K. That child's return to Morocco is sought. It will be interesting to see how our courts will deal with that because now they have to apply the 1996 Hague convention when making that decision.

Senator Eaton: Alison, you talked about blockages. Are there usual blockages? What are they?

Ms. Shalaby: What we tend to see with the Hague convention cases is blockages in the communication between central authorities. Central authorities tend to communicate purely by email, and I think there's a lot of pressure on the resources of central authorities at the moment. For example, we had one case that was an outgoing abduction to a Hague convention state. There was the Hague hearing, and three months later we were sitting and still waiting for the judgment. Our central authority was saying, ``We haven't heard. You've got to sit tight and be patient.'' In the end, we just contacted the other central authority and said, ``When can we expect to get the judgment? What is the problem?'' We were advised actually that the judgment was communicated to our central authorities three months earlier. Our central authority was saying, ``We didn't receive it.'' The other central authority was saying, ``We sent it.'' As far as we were concerned, we weren't too concerned where the miscommunication had happened, but it happened so let's move on and get this child back to the country of habitual residence. It's far easier for us just to pick up the phone and ask the questions rather than wait for the communication to go via email across maybe a period of two or three months.

Senator Eaton: Can you take me through the process? You get a judgment. You work out the blockages. How easy is it once the judgment has come down to get the child returned from country A to country B?

Ms. Shalaby: Usually it's very easy because there are enforcement procedures. It's very rare, actually, once there is a return judgment, that the parent actually refuses to return. They all tend to go quite smoothly. We have seen recently maybe four or five cases where the parent has refused to return, and we have had to rely on the enforcement procedures. I think in four of those five cases, they have still not been enforced. What we're starting to question now is whether it is a problem with the enforcement procedure or actually a lack of willingness to enforce that decision in that other country.

Another area we may intervene is we had a case where they had the first Hague hearing, and then it was going to be delayed for six weeks because the other country had requested a full welfare check. We spoke with the central authority and said, ``The Hague convention isn't about welfare and there shouldn't be this delay. The process is going askew.'' The central authority agreed with us, but they can't intervene in the judicial process. How we got around it was we wrote a letter of not necessarily complaint but a list of our concerns. We passed it to the central authority overseas. They passed it to the liaison judge. Within a week, the Hague hearing had been heard without the welfare check and the child was returned that very evening to its country of habitual residence.

Senator Eggleton: Thank you very much for your presentations and for being with us this morning here, afternoon for you.

The cases that come under the Hague abduction convention involve some 91 countries. Then there are, of course, the countries that are part of the Malta Process, which are largely those that are under part or total Islamic law or sharia law. What is the breakdown of the cases that you deal with percentage-wise between countries under either one of those processes? Is there a trend in one direction or another?

Ms. Shalaby: If we take our 2012 cases, there were 506 in total; 329 of those were with Hague convention countries, and 177 were with non-Hague. I think that's roughly two-thirds Hague, one-third non-Hague. I think that's the trend we have seen in recent years. It sticks at that.

We have seen in the last sort of 18 months an increase into the African countries. We have a lot of abductions now to Nigeria and to Kenya, where previously, a few years ago, we wouldn't have seen that at all.

Senator Eggleton: Do you feel that progress is being made under the Malta Process? You indicated that it takes longer to settle a case that's under a non-Hague convention arrangement. Is there some improvement coming about in that process to help cut down on those different times?

Ms. Shalaby: If I go from practical experience, what we're seeing from parents, whilst I think the Malta Process brings a benefit in bringing people together to discuss, we are not seeing any practical benefits. I think that there is too much of an emphasis on mediation, where we know mediation will not work if there is not an effective legal system in place.

I know that one of the supposed benefits that came out of the Malta Process was a central contact point in each of these countries. Well, when we try dealing with central contact points in one of the non-Hague convention countries, we're just being told, ``Well, no, we're too busy to deal with these types of cases.'' Part of me is concerned that this may just be lip service rather than seeing actual benefits. I don't know from a legal point of view.

Ms. Hutchinson: I would just endorse what I said earlier about the problem with the Malta Process. It sets out principles, but it doesn't set out procedures, and there are no agreed procedures. That's where it has become stuck. As I said, we had hoped there would be far more advancement in it over the years.

Just looking at the countries and the cases involving those states, the statistics show that if children are taken from the U.K., they tend to be children taken by their fathers to non-Hague cases, which is not on a par with Hague cases. As we said, Hague cases tend to be removed by mothers, but with non-Hague, it tends to be the fathers who are the abductors. Serious research needs to be done as to the reasoning for that, and then perhaps we may be able to look for and find more solutions.

Ms. Shalaby: Could I add one point? We are seeing small chinks of light. In recent months, we had a court-ordered return from Pakistan. We've had one from Sri Lanka. There's been one from India, and there was one from Gambia or Zambia. The only difference is that it has taken a lot longer. In Zambia, it took them five years to reach the decision that the children's country of habitual residence was England, so they should be returned.

So there are chinks, but I don't think they're necessarily coming from the Malta Process. It's more to do with judicial liaison and the sharing of knowledge and expertise.

Senator Eggleton: I will change the focus to prevention. It would be better for all if we could do more in that regard. There have been suggestions that there needs to be greater awareness about the Hague convention, that the general population don't know about it unless they get into the circumstance where there is an abduction, then they find out about something they never knew about before. There is the question about what governments can do in terms of anti- abduction controls at the borders — a passport alert system or an exit check.

What do you think would be the most effective preventive measures to take? That question is for any or all three of you.

Ms. Hutchinson: In the U.K. a few years ago our embarkation controls were removed. Up until that point of time, at the port of exit, it would be a government official who would carry out passport checks and implement port alerts. The only passport checks that are happening now are at ports of exit that are carried out by aircraft carriers or whatever.

The ability of port alerts to prevent abductions has decreased massively, and many children still go through the borders, even though the court has made an order that a child should not be removed. That's an issue that has come down to embarkation controls.

We are an island, so of all the countries, England should have been at the most advantageous position to man its ports and prevent exits, but those controls have gone, unfortunately.

Ms. Shalaby: I will speak from a practical point of view. We see almost 500 prevention cases per year, and we have the broad spectrum. So we will have a parent contact us to say their relationship has broken down, and there's not necessarily any sign that there's this risk of abduction, but they have taken precautions. On the other end of the spectrum, we will get at midnight a call from a parent saying, ``I just got home. The mother and children have disappeared. I've just found information on the computer that they're about to leave the country in six hours. What do I do?''

We deal with all those questions.

From our point of view, it is about ``when,'' but as you've already said, a parent doesn't think of this until they're actually touched by it. I'm a prime example of that: My daughter was abducted to Egypt, and I didn't think about it before she'd gone.

There are two areas we focus on. First, every year, we do an annual awareness campaign in conjunction or partnership with our foreign office. It's a major campaign that will focus on one particular aspect; it will cover radio and television, and the ministers will get involved. There will be newspapers and case studies. Following that campaign, we see a huge increase in calls to our advice line.

The other thing we do that's really important is police training. In the U.K., and I think it's the same in Canada, there's a very inconsistent response from police when a parent contacts them to say, ``My child is about to be abducted.'' That response will vary from the police saying, ``It's a civil matter; go away'' to the police taking it seriously and actually stopping the children at the airport from leaving the country.

We have 43 forces. We're currently working on a standard set of procedures that will cover all of those forces. We actually go out to all of the forces and do training, so that police realize it is not just a domestic dispute or a civil dispute; it's a matter of child protection, and they should take action.

Ms. Gill: I would endorse what Ms. Shalaby has said in relation to police training. As a lawyer, often a client will contact me once they've been in touch with the police and haven't had any joy with the police. Raising training in general, and in particular to the police and the good work that Reunite are doing, is incredibly important from a prevention point of view. Often, a parent will go to the police as their best point of call and not necessarily to a lawyer. I've had cases where a father has been turned away by the police, the mother has abducted the child 48 hours later, and they are fighting through the foreign courts 18 months later.

So training in that sense is incredibly important, as is the ongoing work that is being done in this country.

Senator Eggleton: I have one quick final point. Ms. Hutchinson, you mentioned embarkation controls having been removed and that the only controls appear to be the airlines. Should they be sensitized to this? Should there be requirements or education to have the airlines better operate in an embarkation sense?

Ms. Hutchinson: They are aware. Reunite has been involved in campaigns and awareness raising with the airlines. From Reunite's perspective, at the end of the day, there is in the U.K. an offence for parental child abduction. That duty and obligation should fall to the state and not to the commercial carriers and airlines.

We were advised embarkation is going back. I'm not sure whether this is a hitch and there has been a policy change, but we would like to see the old port system back in place.

Senator Andreychuk: Thank you for the information, statistically, because it has been very helpful in our study.

I'm just not clear: You're saying that in a lot of the cases where the mother is abducting, it's a lifestyle change as opposed to violence, and that's one of the myths. What I'm interested in, into the Malta Process and countries where perhaps mothers' rights are still not identified or recognized, is there a difference? Are those cases more related to violence or not?

Ms. Shalaby: I don't think they're necessarily with violence. I think the difficulty we have is when a father abducts, it's difficult. They're going back to their home country; that is where they're going to stay. When a mother abducts, she doesn't necessarily want to destroy the relationship between the father and the child; she wants them to have a meaningful relationship. And often once she realizes that it's a criminal offence, that association with criminality is enough to encourage her to return voluntarily.

For us, the worst possible case we could have is an abduction to one of the Arab states by a father, because there is very little that you can do in those cases.

Ms. Hutchinson: But as I mentioned earlier, we had a case — a U.K. Saudi case — and our House of Lords as it then was — now our Supreme Court — said clearly that where human rights and women's rights are engaged, and where you have a state whose laws say that custody of a child should pass at a certain age in line with best interests, and where you have a state where the father has the right to veto not only over the child but over the wife — he could prevent his wife leaving the jurisdiction and his will cannot be overridden by the state apparatus — that is a fundamental breach of human rights, and our U.K. courts would not return a child who is with its primary carer, the mother, to such a state.

There are a number of states to which our English courts could not, under our current law, return children. That would involve states around Saudi. I think that's a similar position. I've been up to the Canadian high commission, and we've discussed this issue. It's problematic because, as a practitioner, I wouldn't wish to see women going back to those countries where one knows they're going back to a situation where they have no rights.

Senator Andreychuk: Are you using the international Convention on the Rights of the Child in any of these cases to impress on the state, or the courts in those states, that the child's interests are paramount and that they have to take this into account, and this may conflict with some of the issues that you've pointed out, since everyone has been a signatory but the U.S. and Somalia to the convention?

Ms. Hutchinson: Indeed, but that's where you have a conflict between the rights of the child and the rights of the caring parent, and then overriding international principles of human rights. It's a difficulty, but our current law says that where you have an overriding principle of human rights that is undermined, you must give precedence to that as the overriding right. Even if the child has been abducted from such a state and in the normal circumstances you would return a child, you cannot return a child to a state that has an ethos that fundamentally undermines human rights, mothers' rights and through that the child's rights.

Senator Andreychuk: On the Malta Process, I understand it was to assist in individual cases, but it was also to be a learning tool to get into the countries that have not signed on to the convention. It was intended to get that dialogue going with the states to point out that it's in their best interest to start dealing internationally with abduction cases. Do you believe that objective has been met?

Ms. Shalaby: I don't believe that it has been met, no. I think that it has been positive in that it's brought people to the table, but have any specific objectives been met? No, I don't believe so.

I think you have touched on a very good point, which is this notion of reciprocity, because whilst we have a lot of abductions going out of the U.K., equally a country like Pakistan has a lot of abductions out of Pakistan into the U.K. We know that because we get parents in Pakistan contacting us to say their child has been abducted to Canada, to the U.K., wherever, what can we do? I think because Pakistan doesn't have any way of collating those statistics, they're not aware of the problem. If this notion of reciprocity was pressed upon more, so these countries found out somehow that their children are being abducted as well, there may be more of a two-way process.

Senator Andreychuk: I have a final question. You indicated that mediation doesn't quite work in some cases. I'm interested, having worked in Canada on family law for a long time, if you are finding the issues any different between the parents when there's an abduction to an international country, or whether they are the same fundamental issues of breakdowns and issues between parents nationally when you deal with them. In other words, does cross-cultural and cross-state make a difference?

Ms. Shalaby: We don't deal with domestic cases, so I can't really compare the two. But I know when we're looking at international cases, peculiarly, there's more of a desire to mediate, negotiate or discuss the cases with non-Hague convention countries because that is more familiar to them within their own way of life. Whereas with Hague cases, the real blockage is, understandably, the left-behind parent doesn't want to mediate. The left-behind parent wants their child returned. So we may get 100 to 120 referrals to us each year of Hague cases, but in the vast majority of those cases, the left-behind parent doesn't want to mediate. Those that are expressing a desire to mediate when we do a screening interview, the parents are too polarized and I think there's now too much pressure on parents to mediate to find a solution. A lot of left-behind parents are saying, ``Yes, I will try it'' simply because they believe if they say ``no'' that it will go against them in court.

These cases are just not suitable. If you go back 10 years or so to why we set up mediation, it was because we were concerned that some parents didn't actually want their children returned but they wanted good contact, and there was no mechanism for that. We were successful with that. A lot of countries have taken it to be that mediation can be used in all of the cases when it can't.

The Chair: I have a clarification. Ms. Gill, I think you said sometimes a parent will ask for a psychiatrist's report that it is not suitable for them to return to the country. How often is that used? My impression was that the court would look at the best interests of the child and not look at expert reports of the parent.

Ms. Gill: It's still relatively rare in the Hague convention context because the proceedings are only to last a few weeks with a quick decision in relation to jurisdiction and whether the child goes back to the country of habitual residence or not. But there certainly seemed to me, in my practice, to be a rush of respondent mothers who wanted to use those sorts of expert reports to bolster Article 13(b) defences. It may have been mothers who are relying solely on Article 13(b) defences where no other exception within the Hague convention was relevant to their case.

It's on a case-by-case basis, clearly. I certainly wouldn't say it is commonplace within Hague convention proceedings for there to be expert reports of that nature. What is more commonplace is to have expert evidence from foreign lawyers on rights of custody, et cetera, and that quite often happens. I certainly wasn't suggesting that psychiatric reports are now becoming very common at these proceedings. That's not the case, but there was certainly a bit of a rush by respondents to instruct particular psychiatrists who had been involved in the two reported cases I mentioned earlier.

Ms. Hutchinson: That's a two-part test. The test, first, is whether the abducting parent is the primary carer. The next question that the court must satisfy is this: Does the primary carer impact upon the child to such an extent that you cannot separate the interests of the two? It would only be a situation where you perhaps have a postnatally depressed mother, for example, and if you returned her, you impact the child at the highest threshold. They are still very rare in this jurisdiction.

I just wanted to touch on this briefly because I didn't write notes, but I will send you some on the issues of Japan, if that's of interest to any of you, with Japan being one of our newest members states. We are waiting to hear what occurs in the first Japanese Hague case. There has yet to be one. The U.K. has had one Anglo-Japanese case where we returned the children to Japan. Reunite has done a lot of work, and I know the Canadian government has assisted a lot in Japan, getting up and ready for the convention in Japan, training over a number of years, which has also spilled over into China, where I think the same issue will arise. In Japan, there seems to be — equally what we were doing in China — a difficulty in their understanding what 13(b) means. Certainly under Japanese law, it would appear they were going to say if there has been past violence, then Article 13(b) is made out, whereas we all treated Article 13(b) as risk of future harm. Past harm may be relevant as evidence, but it's the risk of future harm.

Certainly at Reunite we are concerned that much more work needs to be done with the Japanese and the implementation on that. The work we have been doing with China, which we believe may well come online with the convention, and across the Asia-Pacific region I think that issue will be problematic, and a lot of assistance needs to be given through the ministries of foreign affairs and justice to have proper training. Equally, the Philippines, which is looking at the convention, is raising precisely the same issues as Japan about past domestic violence and wishing to put a gloss, as it were, on the convention.

The Chair: You mentioned 13(b), the exception. In your experience, when is the exception used in the U.K.? You mentioned, for example, the overriding human rights of a person. Are there any other cases where the exception has been used?

Ms. Hutchinson: Well, it is that. It is the exception, and they are exceptional cases. There are some cases where it is clear there is a very real and live Article 13(b) defence, but those are still few and far between. Possibly what's happening in the U.K., and sometimes they merge, is that the issue of the child's objections sometimes becomes conflated with 13(b), especially where you have older children, probably 12 years and up. Then it's a sort of a mixing together of 13(b) plus a child's objections. Those are the cases where our courts are declining to order return with more frequency. Straight 13(b) is still something of a rarity, but it can happen. It can happen even when there are undertakings and promises offered if it's to a country where we could not be satisfied that there's any real teeth to those undertakings. One example was during the Greek economic crisis 18 months or two years ago when their infrastructure collapsed and mothers were, quite rightly, one would say, saying, ``If I go back to Greece, they have no benefits. There's no housing.'' The social structure at the moment had collapsed, and there were valid reasons for not returning impecunious mothers to impecunious fathers or children to impecunious fathers because there was no social system to support them on their return.

The Chair: Do you know whether other countries in the EU are consistent with the U.K. interpretation on the 13(b) exception?

Ms. Hutchinson: No.

Mr. Gill: No is the simple answer.

Ms. Hutchinson: In unison. We have an issue. All Western European, if you like, countries have an issue with some of our newly joined countries from central and Eastern Europe. Partly we believe it's their domestic system to start with, which was very administrative and wasn't sophisticated enough to take in the convention and implement it. Unfortunately, through a number of these cases, we have seen irrational — I would use the word ``irrational'' — refusals to return children. A number of those cases have ended up in the European Court of Human Rights. We intervened in a case in Latvia. There have been continuing cases from Poland and cases from Romania. I'm afraid the Central European states at the moment, as far as the Hague convention is concerned, are (a) being labelled as slow, and they are slow; (b), their appeal system, if there is one, is slow to the point that it negates the implementation of the convention, and (c), they have the highest rate of non-returns under Article 13(b) for what we would see as rules of preference or general discomfort, but certainly not the high threshold that the courts in Canada, the U.K., the U.S., Australia, et cetera, would wish to be applied.

The Chair: Thank you very much. There are so many other questions we could ask. We have found it very interesting and very educational. We appreciate your giving us your time and sharing your knowledge with us. We would appreciate also receiving the information that you kindly said you would send us on Japan. We look forward to continuing this conversation with you at another time. Thank you very much.

We are very happy to welcome Hervé Boéchat, Deputy Secretary General and Director of the International Reference Centre for Children Deprived of Family from International Social Service. We welcome you to the committee and are anxious to hear your presentation. May we please ask you to start?


Hervé Boéchat, Deputy Secretary General, and Director, International Reference Centre for Children Deprived of Family, International Social Service: Can you hear me clearly? I cannot hear anything.

The Chair: Yes.

Mr. Boéchat: Very Good. Then I will start. Good morning, ladies and gentlemen, honourable senators and members of the committee. I would like to begin by extending my sincerest thanks for inviting me to appear before you today.

My name is Hervé Boéchat. I am a lawyer by training and I am Swiss. I am speaking to you today in my capacity as the deputy secretary general of the International Social Service, or ISS, and as a former member of the Swiss central authority for international child abduction, where I worked for five years before joining the ISS.

Every year, the ISS network handles an average of 800 to 1,000 cases that are connected in some way to child abduction or problems with visitation rights involving families living in different countries around the world.

The International Social Service delivers the following services in the area of abduction: the provision of information and counselling to parents and appropriate authorities; assistance locating children abroad; the re- establishment of contact with the parent deprived of access; social assessments of the child's situation; international family mediation; and post-abduction follow-up.

As you know, this work is made possible thanks to the organization's presence in over 120 countries with the help of its correspondents. I had a look at the work the committee did in March, especially the presentation given by my colleague Dick Chamney, and I will try not to repeat anything that has already been said. Instead, I would like to focus my remarks on three main elements.

I will begin by discussing the understanding and implementation of the Hague convention and the issue of mediation, followed by the issue of non-Hague state parties and then, briefly, issues related to the training of professionals.

To begin with, it is clear that the handling of international child abduction cases raises a number of sensitive issues. From the ISS's perspective, the focus absolutely has to be on the best interests of the child. While that may seem obvious at first glance, in actual practice, it becomes clear that two distinct approaches are possible when it comes to handling cases. The consequences that these approaches can have on the child also become clear.

Without getting into a detailed legal analysis, I will try to provide a quick overview of the problem.

The spirit of the Hague convention calls for the immediate return of the child to their country of habitual residence in an effort to restore the family situation to what it was prior to the wrongful removal. The Hague convention sets out a limited number of exceptions to the child's return, whereby the person objecting to the return must establish that the child's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

Strict enforcement of the convention requires that the child's return be ordered as soon as possible, barring when conditions described in one of the exceptions in the convention are met. At this stage, a follow-up investigation of the social environment to which the child will be returned is not conducted. These investigations can take a long time, and the objective of the Hague convention is to order a rapid return so that the child does not integrate too quickly into the host country.

Occasionally, however, the reason for the child's removal is precisely the context, in other words, the original environment they are from. The approach advocated by the ISS requires that the return conditions be assessed. Clearly, the point is not to stand in the way of a return, but rather to assess the social environment to which the child will return, once the return is ordered. Certain elements have to be taken into account, including economic conditions and the situation of the parent who remained in the home country. For instance, if the parent works, will they be able to care for the child during the week, given the child's age, education and so forth?

That is why the International Social Service is of the position that the conditions surrounding the child's return must be the subject of a social assessment. At the same time, international family mediation must be attempted to encourage the child's return to their original family environment under the best possible conditions. The International Social Service is not alone in this approach; Switzerland has incorporated the approach in its federal legislation governing international child abduction. The approach was also the focus of a draft protocol supplementing the Hague convention, one that was not approved but retains recommendation status.

In light of that, I would like to say two things. At the practical level, more and more, we are realizing how important international family mediation is; it is an effective tool that is respectful of the rights of everyone in the resolution of international family disputes. Our organization has long been working hard to encourage the spread of this practice, developing a guide on the usefulness and practice of international family mediation. Furthermore, we have set up an international network of professional mediators, which already includes Canada, where we work with the Association internationale francophone des intervenants auprès des familles séparées.

The second thing I want to say is this. It is essential to keep in mind that family mediation is a measure that is now recognized in the Hague convention relating to measures for the protection of children, the 1996 convention, and that it constitutes a major tool in conflict resolution. I will not belabour the importance of Canada's ratifying the 1996 convention, since you already debated the issue back in March.

The second point pertains to non-Hague state parties. As you well know, when a child is removed to a non-Hague state, the recourse available to parents is very limited. In such situations, the ISS can offer other solution options thanks to its worldwide network of correspondents, particularly in Muslim countries.

Not all cases can be resolved easily and quickly. But the possibility of locating the child and abducting parent and establishing contact with them often provides the parent left behind with tremendous relief.

If the child's return cannot be ordered, the establishment of regular contact between the parent and child at least makes it possible to maintain the connection. Here again, international family mediation plays a key role.

There is one last point I would like to address briefly, and that is the training or awareness of the courts regarding the convention mechanism and the various contexts it applies to. This point is not directed at the Canadian justice system, in particular, but rather speaks to my personal experience working at the central Swiss authority, where it often became clear that the courts were still not familiar with the convention, especially its social dimension. Given that judges are often the ones on the front line when it comes to dealing with these cases, it is imperative that they be made aware of and sensitive to the practical realities. In that connection, the ISS can also provide training tools.

I will end on that note. Thank you for listening, and I am at your disposal to answer any questions you may have.

The Chair: Thank you for your presentation. We have a few questions, beginning with me.


You were speaking about mediation. What you said was interesting because we've heard from other people that mediation does not work in all circumstances. Can you tell us in what kind of cases you feel that mediation works, or do you believe that mediation works in all cases?


Mr. Boéchat: That is a difficult question. From the experience I gained in the field in my previous job at the central Swiss authority, I would say that abduction cases can, to some extent, be categorized into three types of situations. First, there are those situations in which the rapid application of the mechanisms in the convention makes it possible for a solution to be reached quickly, so in the weeks or months following the wrongful removal. The convention works well in such cases. Then, on the other extreme, there are volatile domestic situations, which can involve violence or abuse, mainly between the parents; in these situations, finding a solution can be very difficult and parents may not be very open to discussion and thus mediation. Finally, between those two extremes, there are, what I would call, middle- of-the-road situations, where mediation plays a key role, precisely because it opens the door to dialogue. We are able to bring the parents to the table and talk about the problem. And clearly, in those cases, the likelihood of success is much higher.

The guide we put together — unfortunately, you cannot see it very well because it is backlit — contains a number of accounts of families who used mediation services, and their experiences clearly show that simply being able to say what they want to say and voice their anxiety without a direct confrontation from the other parent fosters a more open attitude and paves the way towards a solution that is acceptable to all parties. It is true that mediation is not the answer in all cases, obviously.


The Chair: Is it possible for us to ask you to send us a copy of the guide, preferably electronically? Can you provide us with a copy of the guide that you're referring to?


Mr. Boéchat: Gladly. I will send copies in English and in French, as the guide is available in both languages.

The Chair: Thank you. We really appreciate that.

Senator Eaton: Sir, you talked about the assessment of the child in their present environment. Does that mean you reassess what the court decided during the separation or divorce in terms of the child's well-being?

Mr. Boéchat: It is clear that social intervention has no effect on legal decisions that were made, be it in the case of separation or the child's return. The issue, as I tried to explain earlier, is to determine what the reintegration conditions will be if the child returns to their place of habitual residence.


Senator Eaton: Suppose you find that he would be better where he is now. In other words, there's greater family support and he's financially more stable. That plays no part in it?


Mr. Boéchat: Of course. Under the terms of the convention, once again, the child's return is not put into question. We have handled some dramatic situations, as the decision to return the child was made formally. However, let us say the father remains in the country of habitual residence and is financially incapable of caring for the child. That child would be under their father's care, but there would practically be no family network to take care of them. In such a case, an alternative has to be found. Does the child have grandparents living there? Do they have to be accompanied to school? Can the mother return with the children and live nearby? What kind of an arrangement can we come up with, so that the return would be in the child's interest, and not only be in line with the legal provisions of the Hague Convention. Do you understand what I mean?

Senator Eaton: Absolutely. Thank you.


Senator Eggleton: I'd like to focus on the question of prevention. I think your guide book also talks about prevention. There is also an awareness problem. I understand a number of these abduction cases occur where the parent who takes the child out of the country of habitual residence is not aware of the law. How do we increase awareness? How do we deal with the question of the government's involvement with prevention measures, such as border control measures?


Mr. Boéchat: This may be the most difficult aspect of abduction because it is true that, when it comes to police prevention, the available tools are extremely limited. This is a principle of law; an individual cannot be convicted before an act has been committed. It is true that parents who are worried about the potential actions of their spouse or their child's parent have very few means at their disposal. When they contact International Social Service, for instance, mediation can be attempted to try to alleviate the conflict. Then, from an institutional perspective, from the perspective of a central authority or simply a country's authorities, the spouse's passport cannot be confiscated, and preventive wanted notices cannot be posted in airports. So it is true that prevention is a major weakness in such abduction cases. Once again, it is true that there are very few tools available for abduction prevention, aside from the social and mediation approaches.

Senator Ngo: Thank you, Mr. Boéchat. I would like to continue in the vein of Senator Eaton's question. You say that mediation can be used to settle cross-border family disputes. Can you tell us a bit more about this approach in terms of intercultural conflicts — so between Hague and non-Hague countries?

Mr. Boéchat: Between countries or within a family?

Senator Ngo: Between countries.

Mr. Boéchat: At the meeting held in March, you talked about the Malta Process, for instance, which is an interesting initiative on ways to bring together Hague and non-Hague countries affected by international child abductions.

Once again, from the perspective of inter-state relations, the Hague convention does what it can to try to encourage non-Hague countries to ratify the convention. The mandate of an NGO like ours is not at the state level, but really at the basic level. We have to be able to count on our network of correspondents in those countries that can help locate the child and parent. Afterwards, we have to start a new discussion, or mediation, process to try to resolve the family conflict.

Of course, from a purely legal point of view, certain countries protect their nationals much more than others, regardless of the existence or non-existence of the Hague convention. In fact, we see that certain signatory countries give preference to the person who is going back to his country of origin, whatever their matrimonial rights, recognized or not by a court decision.

There is a problem with the training of judges and their knowledge of the Hague convention. In order to improve the situation, holding information seminars and conferences is one of the tools that is still very general but nevertheless contributes to people becoming more familiar with the Hague convention; but there are also parallel mechanisms, in particular international mediation. Certain local spokespeople can act as mediators with the Muslim culture, for example, and this applies also to the Jewish or Christian cultures as well, in order to try to create links and bring some progress to these situations. It is true that these matters remain very complex.

Senator Ngo: According to your experience, how much time does it take on the average to obtain the return of the child in these cases?

Mr. Boéchat: It is very difficult to answer that question. The files are so different from one family to another and from one country to another. Certain situations, as I said earlier, can be resolved rapidly, because there has been a realization by the parent, and also perhaps because the conflict was not all that grave. Other situations, however, will never be resolved. And so I cannot give you numerical data in reply to your question, senator.

Senator Ngo: Are there repercussions?

Mr. Boéchat: Regarding the files that will never be closed?

Senator Ngo: Yes, if the child does not return, for instance. No?

Mr. Boéchat: No. In fact, there are very few means. If the host state does not cooperate, that is difficult. Once again, I am not only talking about developing countries. We saw cases in Europe where the state refused to cooperate. In Europe one can go up as far as the European Court of Human Rights, but aside from that, it is true that recourse is very limited.


The Chair: Senator Eggleton was asking you questions on prevention, and I was wondering if you could tell us if you have used the help of the police to intervene when there are abductions. What has the reaction of the police been? They would have more authority. Have you worked with the police to try to help with abductions?


Mr. Boéchat: The police can intervene in cases where a misdemeanor or offence, as defined by the Criminal Code, has been committed. What I mean is that if there have been threats, or violence, police intervention is easier to impose.

In the case of a situation where there is simply a suspicion on the part of one of the parents, bringing the police in can be counterproductive, and it can throw oil on the fire. So it is delicate. Of course, we are still talking about the phase before the abduction.

After the abduction, clearly the police and customs officers would intervene. In Europe, we have the Interpol communication system among the various European police services. Those tools are very rapidly brought on stream when an abduction is confirmed. Afterwards, success depends on chance, events, how rapidly action is taken, the time available and the means taken. So, I would say that police intervention has two aspects.


The Chair: As you are aware, there are countries that have signed onto the Hague abduction treaty and some that have not, specifically in countries where sharia law is practised. Can you please help us as to how the Malta Process works in your experience, what has worked and what things we should be aware of with the Malta Process?


Mr. Boéchat: Unfortunately, I am not an expert on the Malta Process, since I left the central authority a few years ago. So it is difficult for me to answer your question, and I apologize.

However, I can ask some of my colleagues for a written report; they are more familiar than I am with this process, and I can send it at the same time as the copies of the guide we spoke about earlier.


The Chair: I appreciate that. What can Canada and the other states parties do to increase the availability of accurate and up-to-date information on international child abductions?


Mr. Boéchat: What kind of information are you talking about, Madam Senator?


The Chair: Do you collect any kind of information that would help Canada in updating or dealing with child abductions?


Mr. Boéchat: I think that the best source for comparative information on practices in different countries, as well as statistics and examples of practices that can be developed, would be The Hague convention itself; for instance, it regularly publishes its Judges' Newsletter and compiles decisions that were handed down in the interpretation of the convention.

We have developed a certain number of tools, including setting up an Internet platform to develop family mediation and to favour intercultural dialogue. As I was saying earlier, a network of international mediators has been put in place.

We would like to set up an information centre on international mediation which could precisely reply to the questions you have put to me. This idea is still at the preliminary project phase today, and currently it is The Hague convention that contains the best and most focused information.


The Chair: The challenge with the Hague convention is that they have not collected any data since 2008. We were wondering if your organization has collected any data. If you have any data, we would very much appreciate it if you could forward that to us because The Hague has not done this for a while.


Mr. Boéchat: Fine. I will see what I can find in the way of information.

The Chair: Thank you very much, Mr. Boéchat. We greatly appreciated your presentation.


I would like to thank you, and we hope we can continue this conversation in the future. Thank you very much.

(The committee adjourned.)