Proceedings of the Standing Senate Committee on
Issue 12 - Evidence - November 6, 2014
OTTAWA, Thursday, November 6, 2014
The Standing Senate Committee on Human Rights met this day at 8:04 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: This is the twenty-first Human Rights Committee meeting of
this session. We are meeting to study the Hague Convention of 25 October 1980 on
the Civil Aspects of International Child Abduction. Canada plays a very
important role in this convention. We are pleased to welcome Nigel Lowe,
Emeritus Professor, Cardiff Law School. He is very knowledgeable on the issues
of the UNHCR and the Hague abduction convention. We are pleased to have him here
I understand that you have some remarks and then we will have some questions
Nigel Lowe, Emeritus Professor, Cardiff Law School, as an individual:
Good morning to you all. I'm very pleased to help you in your studies. I'll
begin saying something about my own background. I have studied the 1980
convention pretty well since its drafting. I've also conducted statistical
surveys on its global operation, which was done in conjunction with the
Permanent Bureau. These reports have been presented to each of the last three
sessional meetings to review the convention's practical operation. The studies
are 2008, 2003, and 1991. For the Hague Conference, I've prepared reports on
enforcement and on access. That's who I am. I'm an academic.
My second point is that I want to express my enthusiasm for the convention. I
have always been, and I remain, an enthusiastic fan of the convention. It seems
to me that its aims are both basically sound and readily understandable. In
particular, I endorse its main aim of securing a child's prompt return following
wrongful removal or retention. The convention provides a basically sound
architecture to achieve its aims. It has basically stood the test of time.
It's no accident that it's one of the most widely subscribed to conventions
concerning children. It has a truly global reach, at any rate outside of most of
the Islamic world.
In very broad terms, the convention works, particularly in relation to return
applications, though less so with regard to access. From my studies, I would say
that Canada would qualify as a very good convention country.
That's my enthusiasm. But, of course, I have concerns. My particular concern
is about the speed of disposal. The convention itself is designed to be what has
been well described as a hot-pursuit remedy. It only really works for children
if applications are concluded quickly. Though it's not stated in the terms of
the convention itself, the accepted yardstick of prompt return is six weeks. At
any rate, the court proceedings should at least be disposed of within this time
The concern is that most states come nowhere near this. Furthermore, the 2008
statistics showed an exponential rise in the number of applications. In the 2008
survey there was a 45 per cent increase in numbers compared with the 2003
survey, though, ironically, not in Canada where the number of incoming return
applications slightly declined. Also, applications took longer to complete. This
Canada does well. Nevertheless, on average, it took 54 days to get a case to
court, and a further 69 days to conclude. This was way better than the global
rate of 76 days and 153 days respectively, up still but way outside six weeks. I
guess that's my prime concern, but I do have others.
The surveys showed, and the 2008 survey in particular, that, globally, the
proportion of return orders is declining. Out of all applications, regardless of
outcome, including, for example, those withdrawn, 46 per cent of all
applications in 2008 ended in a return order, which was a drop from 51 per cent
in 2003. Again, Canada is not part of that model. Of the cases going to court in
Canada in our survey, 81 per cent ended in a return order as against only 61 per
cent globally. So declining rates is a general concern.
Some more general concerns include enforcement, which is a huge issue. Again,
I don't think it's a particular problem for Canada, but the difficulty of
enforcing returns, it seems to me, is a chronic problem in most civil law
jurisdictions, though interestingly not in Quebec, which I take to be a civil
law jurisdiction. A global push to have a look at enforcement issues is needed.
Another issue is the issue of safe returns. I think this is where again a lot
of work needs to be done globally to achieve safe returns. In this respect it
would be an advantage if more states were to ratify the 1996 Hague convention on
the protection of children, as it seems to me to offer a number of useful
options. It would therefore be extraordinarily helpful to the global community
if Canada were to ratify the convention.
I think there's a clear place for mediation. It seems to me to be better to
bring about amicable resolution to these problems rather than court-based. Many
states have no developed mediation at all. Others have a very well-developed
system and, in my view the, Dutch system is particularly worth looking at. We
can discuss that later.
Of course, as a lawyer, you can find lots of niggles in the convention. For
example, the meaning of ''habitual residence,'' which is a basic jurisdictional
base of the convention, is a difficult issue. A particular problem in that
respect is how it can possibly apply to newborn children.
Lastly, there is an issue about uniformity of approach. Clearly, an
international convention ought to be interpreted uniformly across the world. It
isn't, and the great question is how to achieve this goal.
I'm sure you've got lots of questions, but that is basically my opening
The Chair: Professor Lowe, thank you very much for your presentation.
We will have many questions, and if I may start off and ask you some questions,
it would help us if you could elaborate on why you believe the Dutch system is a
system we should be looking at.
Mr. Lowe: First of all, the Dutch changed their system at the
beginning of 2012, and they got into the system a built-in place for mediation.
The basic idea is that all of the Dutch hearings are heard on a Thursday. I have
to say that in England we couldn't possibly do that, and they tend to be rather
short in terms of one or two hours long for the hearings. The litigants are
warned to be prepared that there will be facility for mediation immediately
after the proceedings on that Thursday, so it's designed to take place over the
weekend. So far as I understood it, the original scheme was publicly funded.
While it was being publicly funded, it was well used and reasonably successful,
the point being that it was a built-in process, which I think makes it unusual.
There are a lot of places, my own country included, that certainty take notice
of mediation, but that is at the hands of the practitioners and not in an
While we're on the Dutch system, the other thing they have done, which is
interesting on timing, is that they've allocated six weeks to getting the case
to court, six weeks for the court to hear it at first instance and, if
necessary, another six weeks for appeals. Again, I think it's an interesting
idea. Whether it works in different systems is another matter, but the Dutch
clearly have done a lot of thinking about this.
The Chair: Professor, you mentioned the 1996 convention, and you said
it provides useful tools for abduction cases. Could you please elaborate on
Mr. Lowe: Yes. I think the first thing is it offers the possibility
that under Article 11 of that convention you can make orders that have
extraterritorial effect but temporary to — in my view anyway — achieve a safe
return. This stops reliance on what we call undertakings, or safe harbour
orders. The problem with the issues that we deal with on the undertaking and
safe harbour orders is that many systems outside the Commonwealth world don't
really understand it.
The point about Article 11 is that it's enforceable under the actual
convention, so that could be a useful facility to aid safe returns. Then
elsewhere in the convention I think there's a better system for enforcing actual
access orders, and there are quite a few helpful provisions about what central
authorities have to do, including mediation and so on.
The problem with the convention is it's a little difficult to explain. It has
63 articles and it looks complicated, but it generally has extra armoury for
protecting international children.
At the moment, pretty well all EU countries have ratified the convention.
Australia and Switzerland have also ratified it, but we desperately need to get
it to have a global reach and reach North America. I understand Canada is
actively considering it. I think it would be helpful.
The Chair: Thank you, professor. We will now go to Senator
Ataullahjan, who is the deputy chair of this committee.
Senator Ataullahjan: Thank you, Professor Lowe. The Malta Process was
designed to build a dialogue with the non-Hague signatory countries, those
countries that have a legal basis in sharia. What have you found to be the
benefits of this dialogue, and has it really encouraged these countries to join
the convention, or has it simply facilitated practical benefits like
communications with abducted children?
Mr. Lowe: That's a very good question. As you appreciate yourself, the
Malta Process has been going on for a long time. It's difficult to see too many
concrete results. At the moment we've got Iraq, which has just joined the
convention. Morocco joined the convention in 2010. I suppose they are the two
major Islamic countries that have joined in. Whether either of those is the
result of the Malta Process, I'm not sure.
Of course the importance of the process is that, as you say, communication is
rather important, so it certainly facilitated that and a greater mutual
understanding, and no doubt backdoor channels that will be helpful. Forgive me
for saying, but one can't help thinking it does seem like a little bit of a
talking shop rather than an action shop. That's my view, but I've not been part
of it so I should be a little cautious there.
I thought there is something of interest that you might like to know about
what we've done here in the United Kingdom. We have what is known as the
Anglo-Pakistan protocol. This is a rather unusual instrument in the sense that
it was negotiated by the judges. It does have a real constitutional issue as to
how far the judiciary should be able to do this sort of thing, but broadly
speaking it provides that we would have, in effect, mutual recognition of the
actual custody and access orders.
In very broad terms, it's been reasonably successful. It might be worth
looking at. I think it came out in something like 2003. It seems slightly
one-sided in the sense that we seem to use it in England and Wales more than
they do in Pakistan. As I said, there is a genuine constitutional issue for both
sides really as to how far you can have international agreements facilitated by
judicial impetus, but, from your point of view, if you think Malta is worth
pursuing, of course you can do it through legislation, which gets around the
Senator Ataullahjan: To follow up on what you just mentioned about
Anglo-Pakistan, was there a need for that because you were seeing so many
abductions between the two countries? Was that why that came into place? You say
it's reasonably successful.
Mr. Lowe: Yes. We do, of course, have a lot of Indian subcontinent
interchange between our country and Pakistan, in particular, so yes, it was
driven by numbers, but also a good relationship between the judiciary, of
course. That wouldn't have come about out of the blue.
The reason I say I think it's more used in England and Wales is just that the
numbers seem much higher. I can't explain more than that. There are a
significant number of cases each year, not quite so many at all on the Pakistan
side. There have been one or two high-profile cases where it has worked, and
it's limited, but it does offer you an alternative to asking countries to come
into The Hague, and you can obviously work it bilaterally. I would say of all
the bilaterals, this probably is the most successful.
The Chair: Professor, can you please elaborate a little more on the
Anglo-Pakistan? Is it a bilateral agreement with the U.K.? Here in Canada, we
have two bilateral agreements, with Egypt and Lebanon, and there are mixed
reviews about how effective our bilateral agreements are. From what I hear you
saying, it's more effective than perhaps our agreements are. Can you elaborate a
little bit about the process of how the Anglo-Pakistan agreement came about and
the success of it? I hear you saying there have been more cases in the U.K. than
in Pakistan, but it would be interesting to hear you on that because this is
something with which we are also struggling with our bilateral agreements.
Mr. Lowe: The first thing is that it was judicially inspired when it
came about. We had a formal meeting in London with the judges from Pakistan
meeting the judges here in the United Kingdom, across the board. It's described
as a signed record of consensus, and it was signed by senior members of the
judiciary. Of course, it's not internationally binding in any convention sense,
but the idea is that each state will normally be expected to respect each
other's custody orders in particular. It was intended to have a strong influence
on the way that the judges exercise their discretion in these U.K.-Pakistan
As I have indicated, there is a genuine question mark about how far judges
should be able to do this, but clearly it is an issue that is of constitutional
importance. The irony is that if there is a judicial willingness, then you are
more likely to have each side following it. That is its advantage, but I don't
try to gloss over the constitutional difficulties.
Up to 2011, the U.K. had in the order of pretty well nearly 100 cases that,
one way or another, looked at the protocol. In contrast to that, Pakistan seemed
to have about 20. What I can't tell is whether we just have more cases anyway.
It's quite possible that we are going to have more cases being returns to
Pakistan rather than the other way around, so you can't draw too many
conclusions. That gives you an idea as to why I thought there was a slight
Senator Tannas: Good afternoon, I guess, in your part of the world. I
wonder if we could ask you about exit controls and any observations that you
might have in stopping this before it gets into the wrangle that we're learning
about. We don't have exit controls here in Canada. I'm wondering if you could
give us a little bit of a drive-by around the world of exit controls and their
effectiveness and whether you have seen any innovative models, such as the
airlines policing this kind of activity.
Mr. Lowe: I'll answer this in two parts. In a broad European context,
exit controls are a non-starter because of the Schengen Agreement. The U.K., as
you know, doesn't follow that.
The U.K. has got things that you might look at. We have what we call port
alerts. If you are a litigant and you're concerned that your spouse, usually,
but your partner, is about to leave the country and you want to stop them, it is
possible to inform the police. If the police think that you've got a genuine
case, they can put out a port alert. Then the idea is that ports, and it's a big
ask, will look at it and would be on the alert for these particular people. It
works to an extent. You've got to do it quickly. A part of it is you have got to
know where they're going from and roughly when. It does work to an extent. It's
something you can do.
Under U.K. law, you don't have a right, if you're a married parent, to take
the child out of the country without your spouse's permission. We do have some
controls on it, and it is a criminal offence. You can argue about how good that
is, but there are some controls.
In our own experience, it has been moderately helpful. It's not a panacea,
but you're quite right that if you can stop the problem before it begins, it
would be better.
Senator Tannas: Thank you.
Senator Andreychuk: I want to go back to the constitutionality of the
judges' consensus or agreement. Has it been questioned or tested in the courts
Mr. Lowe: Basically, it has not been tested, as far as I know, in the
U.K. courts, and I don't think in the Pakistan courts, but at one of the
follow-up meetings of the U.K.-Pakistan group, a judicial reservation was
expressed on the Pakistani side about the propriety of the protocol from a
constitutional point of view. The question has been raised in the academic press
about the constitutionality in the U.K., and that has driven some extrajudicial
I must say I was there to help draft the protocol. The view I think we all
took was that constitutional niceties were all very well, but if you could help
individual children, then we would take the risk, as it were. However, I think
it would be wrong to come to you and say this protocol is without any issues.
You have the opportunity, of course, if you are legislating, to avoid that. As
far as I know, no, it has not been tested.
Senator Andreychuk: You call it a protocol, and yet in your testimony
you indicated there were meetings, some consensus was drawn, and the parties to
that meeting signed on. I know that judges are moving into international
spheres, and there are meetings where the meetings are documented and it's
intended to be used as best practices to encourage judges to use them. That's
why I'm finding it a little difficult to say it's a protocol. It would be an
encouragement to judges to put children first, to use the best practice of using
this consensus as a model for them where in fact it's not binding on them. A
judge could say, ''I'm not going to use it.'' So it's a facilitator rather than
a protocol, in my opinion. I'm wondering why you're phrasing it as a protocol or
an agreement as opposed to a best practice encouragement device, if I can use
Mr. Lowe: That's an interesting point. It is always referred to as a
protocol, but you're quite right, it might well be better being argued as a
practised direction. That would neatly sidetrack the issues I've just been
I thought I would raise it with you because you are in the position to
consider this. The slight disadvantage of calling it a practised convention is
that it's weaker, and you can see why it looks a bit better if it's a protocol.
As a practice, of course you are quite right, it suits everybody. It meets the
interests of the children, it provides guidance and it is an encouragement at
the same time. I think I would not be upset by that.
Senator Andreychuk: Just going back to the Malta Process, as I
understood it the Malta Process came out of the fact that the countries we want
to engage in the Malta Process were those that were not going to sign on to the
convention because of religious practices or other reasons, and the Malta
Process is a talk shop in that sense to bring people, the practitioners and
anyone involved to point out the plight of the children in these cases. Rather
than the sovereignty issues and the parental issues, it points out the
disadvantages of children when parents intermarry or move across borders. To
that extent I think it has been successful because as practitioners change and
come to the table in the Malta Process, it's another learning experience.
I've never seen it in the process that would lead to actual signing on. That
would have to be done government to government, but it is certainly an awareness
technique to bring together mutual problems about parents who move children
across borders. In that sense I think it has been successful.
Do you have any comment on that?
Mr. Lowe: Yes, I think on reflection, my criticism that it's
just a talking shop is a bit harsh. You're quite right that the key thing in
many ways is to start off a process of communication and information.
I think at one stage it was hoped that somehow the agenda would be moved
forward, and there was a move to have memoranda of understanding. In the U.K.,
certainly, we are in the process of negotiating one with Egypt and others, and
they seem to have fallen by the wayside.
I'm certainly not against mutual information, and that does give you back
channels anyway. Your point about practitioners and different judges, of course
now in different regimes, being involved is very important. However, it's quite
expensive to keep it going, and the difficulty is that with intangible results
it is a little difficult to convince politicians that it is worthwhile, but all
that you said I think is true.
Senator Andreychuk: Professor, do you see this phenomenon of moving
children across borders as a technique to hold onto custody accelerating in your
jurisdiction, or is there just a certain number of parents that move across, or
do you see more and more parents using this as a technique to hold onto custody?
Mr. Lowe: The phenomenon is quite difficult. As you are probably
aware, the original thought when the convention was first drafted was that it
was to stop fathers evading custody orders. What we now know is that the
majority of abductors are mothers, and we are talking about 70 per cent of all
abductors under the convention are mothers. Even where it is the father, they
are often the primary or joint primary caretaker.
The nature of abduction I think was possibly misunderstood in the first
place. Of course what we were witnessing is a greater phenomenon of
international families, and there is no doubt that an awful lot of these cases
are mothers or caretaking fathers going home. They had a bust-up one way or
another in their marriage or partnership and they're going home.
From the child's point of view, though, it's still abduction. Although the
phenomenon may have changed, the issue for the child is much the same. All the
indicators are that cases are increasing, and they've increased really rather a
lot. There is a theory that it's been accelerated by global recession — I don't
know whether that is true — with global recession putting more pressure on
families economically, and that causes instability.
I don't think it's actually commonly used as a technique for holding onto
custody. In answer to your question, I think that probably never was its primary
Senator Ataullahjan: Professor, you're referring to the statistical
analysis that you undertook of applications in 2008 under the Hague convention,
where you found that the majority of the takers — 69 per cent, 70 per cent —
were mothers. Why was that the case? Was it because some of the mothers and
children were escaping from domestic abuse?
Mr. Lowe: That's an extremely good question to which the statistical
survey cannot give you an answer because it tells you only about outcomes. Just
to say, though, the first survey we did in 1999, and an earlier more local one
in 1996, always showed that the majority of abductors were mothers. It has
always been, as far as I've understood it. We are talking about in the region of
the high sixties, 70 per cent of mothers.
There is no doubt that a lot of cases start off with one sort or another of
violent dispute, but the statistical surveys don't give an answer to that, and I
don't think it's universally the reason. I think in a lot of cases if it's the
mother who is living in the foreign country, whatever the reason the marriages
has broken up, a natural reaction will be to think about going home where they
will argue that they have more support and that they understand the system, and
often, if they are newly in the new country of marriage, they're going to be
That's the broad phenomenon, but I can't tell you whether domestic violence
is increasing and is the root cause of all these abductions. But it is certainly
a cause, and probably quite an important one.
The Chair: I have a question for you on return with conditions. We
heard from Mandeep Gill, who is a lawyer in the U.K. and is with the
International Family Law Group. She described to the committee that there is an
EU regulation that forbids a court in an EU state to refuse the return of a
child based on the Article 13(b) exception in Hague abduction convention
if it is established that adequate arrangements have been made to secure the
protection of the child after his or her return.
Further, in her testimony to the committee, Professor Carol Bruch was also
quite critical of this type of return of children subject to conditions. She
claimed that the protections and undertakings put in such orders are ineffective
and are not respected.
I have three questions for you. First, is the return with conditions in
compliance with the terms of Hague abduction convention?
Mr. Lowe: It doesn't actually demand it. It's basically science on
that. The common-law solutions are often to make it subject to undertakings,
which is a sort of non-convention remedy but effectively giving some conditions.
You can achieve conditions. I'm pretty sure a study was done in the U.K. by
Marilyn Freeman that shows that undertakings are often not worth the paper they
are written on. So, it's suspect.
I will come back to the 1996 convention, because we have had already a
decision in the U.K. that for the purposes of that convention, an undertaking is
a protective measure. That means it is enforceable in another convention
country. The 1996 convention would help because it would give teeth to some of
these issues. But, just coming to the Brussels II regulation, you are right that
it does expressly say that you cannot refuse a return if adequate arrangements
have been made. It is extraordinarily difficult to actually know what adequate
The common view taken within Europe is that we would trust our fellow EU
member states to have the full range of protective measures at their disposal.
While without question that would be true in many countries, I agree with
professor Bruch that it may or may not be an adequate safeguard. One would have
to be a little hesitant about it.
The irony is that the provision was designed to reduce the number of 13(b)
refusals within the EU states, but our statistical survey showed that it did not
happen. Ironically, there have been some more after the regulation came to us
than there were before. They have not been overly successful. Looking at Canada
in 2008, I don't think you had any 13(b) refusals.
The Chair: Is the introduction of returns with conditions a positive
or a negative development for children and parents? What is your opinion about
Mr. Lowe: If I could be confident that they are realistic and that
they would be recognized and enforced in another country, then if the right
solution is for the child to be returned — and generally if things are brought
quickly then answer to that should be yes — then they are a good thing. If they
are vague, hopeful, and in the end not enforced, then they are a bad thing. It's
very difficult to be black and white on this particular issue. With
reservations, they have their use. They can equally be abused, and then that
would be detrimental to children. So I would be cautious about it I think in the
The Chair: Professor, you mentioned a paper by Marilyn Freeman. Could
you please send us a copy, so we could have easy access to that paper?
Mr. Lowe: If I can find it. I'm willing to give you this. I think she
did it with a Romania-U.K. organization called ''reunite.'' I heard her give the
paper. I think it was presented at the last but one special commission meeting
of the commission at The Hague, which looked at the practical applications. I
think it might have been in the fifth meeting. I will have to look for it.
The Chair: If not the paper, then where we could look for it, or we
can contact her ourselves.
Mr. Lowe: Two sources: the fifth meeting of the special commission, in
2003, and it was ''reunite.''
The Chair: That's good enough.
You did touch on this, but I would like to revisit it. Do you see an increase
in cases because people are moving around a lot? There is a lot of intermarriage
now, and the world has become smaller. Is there an increase in cases from
certain countries, especially in the U.K.?
Mr. Lowe: The international family is increasing. That is the
backdrop. That would be the case. In England and Wales it is rather odd because
we have a fantastic number of cases and nobody knows why.
In the U.K. experience, but it's also true of Ireland, we had a great influx
of immigrants from Eastern Europe, in particular when they joined the EU. We put
no restrictions on their freedom of movement. We have seen a big increase of
abductions involving Poland and Latvia in particular. That's a Europe-wide
change. We would expect that if some of those families return home there will be
different types of problems, but they will continue.
Sometimes the political changes have caused some of the increases. When I
refer to the exponential increase in the number of applications globally, it was
a global phenomenon, although ironically Canada, just on that particular point,
did not have this big increase. We are comparing a 45 per cent increase in the
number of applications between the 2003 survey and the 2008 survey. That has
immense implications for resources for dealing with this type of problem. It's
no surprise that accompanying that big rise in numbers was a slowing down of
disposal, which hits at the whole point of the convention. The causes are really
much more difficult to say, beyond what I've just said. But it's there,
certainly, and the indicators are that it is still increasing.
The Chair: One of the things we have heard is that from Eastern Europe
and some countries, there is a reluctance to return the children. My
understanding is it's an issue of sovereignty. They do not want a Polish child
to be returned, for example, to the U.K. Is that something you have found? Or
maybe my impression is incorrect.
Mr. Lowe: Your impression is broadly right. Certainly Poland had an
outstanding number of 13(b) refusals. The problem with the statistical
survey is that you can only talk about outcome. It is a little difficult to
judge a country's performance on statistics in that it is perfectly permissible
to refuse to return if the exception provided in the convention is established.
All one can say is that Poland looks a little out of line with the number they
have in proportion to their applications.
The other thing is that for a country that has operated the convention, it is
often a learning experience. The advantage of the surveys and the meetings we
have, particularly at The Hague, is that pressure is brought to bear in a sort
of indirect way. It may well be that they will change.
Poland is also interesting in that they've got different regions, and
different regions operate slightly differently. Again, it is always a bit more
There is an element of too many refusals. I'm reluctant to point the finger
at particular countries, but some Eastern European countries, not all, do seem
to have a high number of refusals.
Remember that my survey was a snap one, and it was in 2008. We are hoping to
do a new one for the next special commission, and it may well be that those
numbers will change slightly. Having done three, you can see trends. You might
excuse one year, but three is beginning to be more difficult.
Senator Ataullahjan: Professor, you just mentioned that you might be
doing another survey. Do you have any timeline as to when you might be doing
that survey? The last one was 2008, so I think it's time to revisit it and see
about the applications made under the Hague convention.
Mr. Lowe: We are in negotiations at the moment. The next special
commission is likely to be in 2016, possibly 2017 now. We try to get the most
contemporaneous year and do follow-ups and make sure we have lots of cases. The
probability is that if we do it, it will be a 2014 study taking it through to
mid-2016, so we have an idea of the timing. I'm very keen to do it. It is a
matter of getting some funding. Central authorities have got to cooperate, which
they always have, but it's time-consuming. The Hague itself is hoping to
introduce a new system of collecting data annually, so all I'd have to do is
analyze it, but I think it won't be really up and running already. The timeline
we would choose is this year. I agree 2008 is already now a long time ago, and
we want to keep it more contemporaneous. One or two minor studies have been done
since then, and broad brush indicators are much the same, but they are only
The Chair: Professor, the Human Rights Committee of the Senate is
trying to do two things. One is to look at mandates and international
conventions and then see how effective our own government is and what we can
recommend to our government to further the convention or, as you suggested, to
adopt the protocol. However, we also take it upon ourselves to do some education
of Canadians on issues. One of the things we'd like to do with this study is to
raise the awareness of Canadians, especially if there are international
marriages, that there are challenges, before the challenge happens. Have you
seen or been part of any education or raising awareness of the Hague abduction
convention? If so, can you make some suggestions to us?
Mr. Lowe: I know of some initiatives. Beyond writing as an academic
and informing everybody, I've done very little, but I know that we've had quite
a few visits organized comprising judges, reunite and other charities,
particularly to the southern African continent, to raise awareness. It is often
directed at practitioners and judges rather than individuals. Of course, it is
rather difficult to know how best to get to individuals. Websites are very
important, and you've got excellent literature, but central authority literature
I still think to an extent about educating practitioners. There are still a
surprising number of practitioners who don't seem to know anything about it. The
problem with this type of thing is that it is very instant. If you're dealing
with an abduction, you need to do it quickly. If you don't know what you're
doing, it's more problematic.
In England and Wales, and I don't know if you can do this in Canada,
basically our central authority, when it's processed the application, which is
generally in one or two days of receipt, will immediately send it on to a
solicitor. We have a specialist panel of solicitors. In the U.K. or England and
Wales, there are about 40 firms on this special list, and applications are
allocated to them by the central authority on a sort of rotated basis. The
advantage is that you are generally sending these cases to practitioners who are
used to and are expert in these particular applications. That is something you
might think about. Other countries have had similar ideas, but the practical
problem is whether that is fair competitively, who had you chosen and is it
right to choose particular ones. For us, it has worked reasonably well, as far
as I can see, and that might be worth thinking about.
On educating the public, the other thing that we've done, not officially, is
that if you've got long-running soap operas on television, then they
occasionally do the abduction scenario, and actually that gets to more people
quicker. It's been done. I'm pretty sure it was on ''EastEnders.'' It might well
have been on ''Coronation Street.'' But it works. Certainly people talk about
it. I don't know if you can officially do that.
The Chair: I would like to go back to the question of exceptions. I
meant to ask you this earlier. Do you believe the use of exemptions by state
authorities has been appropriate to date?
Mr. Lowe: Yes. On the whole, I think they have. There is a liberal
worrying sign that they are used more often. There has always been a slight
worry about a child's objections and whether that is used sometimes as simply a
way of keeping what countries might regard as their own children in their own
country. Statistically, it seems that they are still the minority of cases, but
they are growing.
The problem with the exceptions is that certainly in our country they induce
a lot of argument. Again, statistics will tell you how often they are
successful, but they do not tell you how often they are pleaded. I think the
problem with Article 13(b) is that it is frequently pleaded, and that is
time-consuming and difficult. Of course, if it's there, it's there to be argued.
Although the statistics are beginning to show that there are more refusals than
there used to be, they are still the minority. Broadly speaking, I think the
spirit is actually being applied, though it's worth always keeping an eye on it.
Senator Eaton: To follow up on Senator Jaffer's question dealing with
the exception, there is a line that says if the child objects to being returned
and has attained an age. Is there an age that's set out, or does it differ in
Mr. Lowe: That is a very nice question, if I may say so. You know that
the convention only applies to children up to the age of 16. If you are 16 or
over, then that's it. The debate was always about what you would do with an
articulate 15-year-old. My child seemed to be articulate at 6, but I'm saying
that's the sort of range they have in mind, close to 16 but not there.
What has basically happened is that the age in which objections are being
taken into account has gotten lower and lower.
I haven't got it in front of me, but the 2008 statistical survey looks at it
in a little depth. I think the average age now is somewhere around 11, it has
been accepted, but certainly you've got cases as low as 6. Our own experience is
that all this is coming down; it's seriously argued at a much younger age range
and down to 6.
I think that's getting too low. The difficulty is you certainly want to know
what the children's views are, but the problem is it causes time to investigate
the charges to make sure that it is the child's views, that they are
articulating their view and their reasons for doing so, but I know you have to
work out what you're going to do with the objections.
So it's time-consuming to get the report, and it's too easy to plead on
behalf of the child that they object, but we certainly had our fingers burnt in
England where we haven't paid sufficient attention to the child's view, and all
this comes home when they kick up so much fuss that the pilot refuses to take
off to take the children out of the country. So it is an issue that we certainly
shouldn't glide over.
Our own practice in part because of the Brussels regulation has changed on
the global basis that we look at children's views much more seriously and much
earlier in the proceedings. That I think is a good development, though not
without its penalties.
In answer to your question, the ages are simply coming down. Other countries
can be quite low.
I would say there is an underlying running battle that this sort of masks a
little bit, and that is, what weight does the individual child's welfare have in
There is a marked debate on this. The general view is that the children's
position of course is pre-eminently important, but it's not in the particular
application paramount. Certainly, you want to make sure you're keeping the
children from harm, and that's who you're protecting, but the theory of the
convention is that it's bad for children to be abducted and best for children to
have their futures decided in home court, to get them home as quickly as
The Chair: Professor, that's a good place to stop. You have given us
so much information, and we have run out of time.
I want to take this opportunity on behalf of the committee to thank you.
We've certainly learned a lot from you. I'm hoping that we can in future call
upon you to help us with this study as well. Thank you very much.
For our next panel, I want first of all to thank the witnesses, whom I will
introduce in a minute, for being here today. I also want to say that as we do
this study we have come to really respect the work that Foreign Affairs does on
this convention, and we have come to respect the work you do and certainly
looked at the things you've done and appreciated the progress you've made. We
look forward to working with you because we believe that we need to strengthen
the work you're doing, and you can give us suggestions for that, and also to get
across to Canadians that as the world becomes smaller there are issues that they
need to look at.
I would like to welcome, from Foreign Affairs, Trade and Development Canada,
Mr. Bill Crosbie, Assistant Deputy Minister and Legal Adviser, who is very
well-versed on the issues of the Hague convention. We also have Béatrice Maillé,
Director General, Consular Policy; and Leeann McKechnie, Director General,
Consular Operations Bureau.
We will start off with you, Mr. Crosbie, and then we'll go on to the other
witnesses, whom I will introduce later.
Bill Crosbie, Assistant Deputy Minister and Legal Adviser, Foreign
Affairs, Trade and Development Canada: Thank you, Madam Chair and honourable
members of the committee. Let me begin by saying that I appreciate the kind
words you said about our department, but I do have to point out that it's very
much a collaborative effort. My colleagues to the right and to the left from
Justice Canada and CBSA are critical partners in addressing these problems. I
should say, beyond the federal community, we also very much rely upon the
provinces and central agencies and social agencies in the provinces to assist
parents in the case of abducted children.
As you mentioned, I'm the assistant deputy minister responsible for Canada's
consular services, and I'm pleased to have Béatrice Maillé, Director General for
Consular Policy and the lead for the Vulnerable Children's Consular Unit, as
well as Leeann McKechnie, up in the bleachers, who is the Director General for
Consular Operations Bureau.
Our department had the opportunity to present to the committee earlier this
year on Canada's efforts to prevent the incidence of international child
abduction and contribute to the resolution of cases involving Canadian children.
When I gave my last presentation, I told you about the creation of the
Vulnerable Children's Consular Unit at our consular services branch. This unit
increased the number of specialized case officers available to assist children
and their families. It also enhanced our policy capacity by including dedicated
analysts who deal solely with issues relating to Canadian children in distress
At that time, we highlighted a number of issues: first, the trends we are
seeing which show a 40 per cent increase in cases in cross-border child
abduction since 2009 with most involving countries which are signatories to the
1980 Hague convention, such as the U.S., Mexico, members of the European Union
and, notably, now including Japan; second, the type of operational support DFATD
consular services provides to parents involved in this type of private legal
dispute in Hague and non-Hague countries; third, how we are working with our
like-minded partners to promote the 1980 Hague convention; last, something which
I understand was raised earlier, how Canada has taken a lead role in building
cooperation dialogue between governmental and judicial officials representing
both signatory and non-signatory states to the 1980 Hague convention by
co-chairing the Malta Process Working Party on Mediation. I would be happy to
talk about that a bit later.
I know, Madam Chair, you had the opportunity to meet my other co-chair,
former Chief Justice Jillani of Pakistan, when he came to visit a few months
We have reviewed the testimony of other presenters and concur with their
assessments that preventing the wrongful removal of a child from Canada is a
difficult endeavour. Thus I'm pleased that we have our colleagues from CBSA
The paramount consideration of consular officials and the other authorities
involved is the best interests of the child.
Since our last appearance, I would like to draw your attention to something
new that happened recently. The government has modernized Canada's approach to
consular services through the creation of the 21st Century Consular Plan so that
it can offer assistance more efficiently to those who truly need it and to
better educate Canadians on how to make smart travel decisions. The goal of
these measures is to reduce consular issues before they arise.
The government has made issues that affect Canadian children and their
families a priority. Canada is taking a leading role in finding new ways to
assist in cases of international child abduction and in implementing abduction
prevention measures. It is also taking a leading role on emerging issues, such
as early and forced marriage.
We're happy to respond to any additional questions you may have regarding our
efforts to respond to cross-border custody cases. Thank you.
The Chair: Thank you very much. I would now like to introduce Kathryn
Sabo, General Counsel and Director, International Private Law Section. We
welcome you here. We understand you have some remarks for us.
Kathryn Sabo, General Counsel and Director, International Private Law
Section, Justice Canada: Good morning, Madam Chair and honourable members of
the committee. I am Kathryn Sabo, General Counsel and Director of the
International Private Law Section at the Department of Justice. Today I'm
appearing before you with my colleagues Marie Riendeau and Sandra Zed Finless.
Marie is counsel with the International Private Law Section, and Sandra is with
the Legal Services Unit of Justice Canada at the Department of Foreign Affairs.
I would like to begin by thanking you for having us back and giving us
another opportunity to contribute to this important study.
With your permission, Madam Chair, I would like to briefly update you on a
recent federal decision which involves approving the acceptance of the
accessions of six additional states to the 1980 Hague child abduction
You may recall that under the terms of the convention, any state may become a
party to it, but for those states who are not members of the Hague Conference
when the convention was concluded in 1980, the convention doesn't automatically
have an effect between that new state and existing state party to the
convention. The effect is achieved when the existing state party specifically
accepts an acceding non-member state of the Hague Conference to the abduction
As justice officials indicated when we appeared last March, Canada had
accepted 40 non-member states of the Hague Conference that have become party to
the Hague convention. This September, on the recommendation of the Minister of
Justice, a decision was made by the Minister of Foreign Affairs for Canada to
accept the accessions of six additional states, and those are Albania, Andorra,
Dominican Republic, San Marino, Singapore and Ukraine.
On October 17, Canada deposited its declaration of acceptance with the Dutch
Ministry of Foreign Affairs, who is the treaty depository. As a result, the
convention will come into effect between Canada and each of these six states on
January 1, 2015. Of course, justice officials are continuing the process of
collecting information or seeking clarification on all of the remaining acceding
states in preparation for possible acceptance by Canada.
Honourable senators, that concludes my opening remarks. My Justice colleagues
Marie Riendeau and Sandra Zed Finless will be happy to answer your questions and
provide additional information for the purposes of your study.
Madam Chair, with your permission, I will trade places with my colleague.
The Chair: Thank you very much for your presentation. We will now hear
from Laurie-Anne Kempton, Director of Foreign Operations, Passport Program
Integrity Branch, Citizenship and Immigration Canada. I understand Mr. Stevenson
is there with you. Mr. Stevenson is the Operational Coordinator for Perimeter
Implementation, Strategic Projects Office.
I understand, Ms. Kempton, you have some remarks.
Laurie-Anne Kempton, Director of Foreign Operations, Passport Program
Integrity Branch, Citizenship and Immigration Canada: Madam Chair and
honourable committee members, thank you for the invitation to return before this
committee. We are pleased to continue to contribute to this important study on
cross-border family disputes and international child abductions.
As you mentioned, Madam Chair, I am Laurie-Anne Kempton, and I am the
Director of Foreign Operations of the Passport Program Integrity Branch at
Citizenship and Immigration Canada. I am joined by Robert Stevenson, Operational
Coordinator for Perimeter Implementation.
The role of the passport program is to ensure that we issue passports in a
timely manner only to those Canadian citizens who are entitled to have one. Our
application requirements are such and designed to obtain the necessary
information to make a fully informed entitlement decision.
The passport program is invested in the issue of cross-border family disputes
and international child abductions. The front line officers responsible for
passport service delivery are introduced to the risks associated with children's
passport applications through the training they received. They are taught to
identify information that could be considered a red flag, such as missing
information or discrepancies in the information provided. Officers have received
security awareness training that includes information on identifying potential
risk indicators in the day-to-day analysis of children's applications.
Though we are a small piece of this very large and challenging puzzle, we
work closely with other federal and provincial departments and agencies, along
with law enforcement and non-governmental organizations to communicate
proactively with parents and to deliver messaging about what can be done to
We are actively involved in the Our Missing Children program, where we
collaborate with various government and non-governmental agencies in the
protection, recovery and return of missing children. As well, we assist partners
in establishing what type of documentation was used by the child to travel to
another country in case of international abduction.
Furthermore, when the passport program receives AMBER Alert information from
our law enforcement partners, the information is validated, and, where required,
the child and the abductor, if the abductor's identity is known, are added to
our system lookout for monitoring purposes. Assistance is provided to law
enforcement in the conduct of a lawful investigation.
In cases where a Canadian passport is already issued and a parent has a
concern about abduction, it is strongly recommended that parents turn to the
courts to have a custody agreement issued or modified as it relates to the
child's mobility, that the agreement specify the use of the passport and that
the agreement ask that any previously issued passports be returned to the
passport program or held by a third party such as a lawyer. If the passport
program is made aware of any court order specifying the return of an existing
Canadian passport, an assessment can be made of the file to determine whether
the non-returned passport should be identified as lost or stolen, and that
information is subsequently shared with law enforcement and border control
High-risk custody cases, including those where a child has been added to the
system lookout, undergo a secondary review by specialized analysts in the
Passport Program Integrity Branch. These analysts also work closely with
colleagues at the Department of Foreign Affairs, Trade and Development, Consular
Affairs, and the Department of Justice Legal Services to resolve difficult cases
and ensure passports are only issued and released to parents or legal guardians
who are entitled to apply on behalf of the child.
As mentioned by my colleagues at the previous meeting on this subject, both
parents and legal guardians are required to participate in the passport
application for their child. When a court order or legal agreement exists
referring to the custody of the child, only the person with custodial rights is
able to apply for a passport on behalf of the child. However, it remains the
preference of the passport program that both parents identified on the child's
long form birth certificate participate in the application process. Therefore,
even in the case of a custody order that specifies one parent as having sole
custody, the program will request that the applicant parent not only provide the
information for the other parent, but also have him or her acknowledge the
application with a signature.
We continue to work across departments and agencies in order to ensure we
remain active participants in the prevention of international child abductions.
In addition, we frequently review our practices and procedures to ensure we are
making use of all the tools available to us under the Canadian Passport Order
when it comes to dealing with cross-border family disputes and abductions.
Children remain one of our most vulnerable client groups and we are committed to
their protection and safety.
I trust these remarks have given you further insight into the passport
program's roles and responsibilities in preventing child abduction. Robert and I
would be pleased to answer any questions you may have.
The Chair: Thank you for your presentation. We will now hear from
Canada Border Services Agency, and Mr. Calvin Christiansen, Director General,
National Border Operations Centre.
Calvin Christiansen, Director General, National Border Operations Centre,
Canada Border Services Agency: Good morning, Madam Chair and honourable
Mr. Christiansen: Good morning, Madam Chair and honourable senators,
The Canada Border Services Agency (CBSA) is pleased to be invited back to
contribute to the committee's study on this serious issue.
Last April, my colleague Mr. Denis Vinette, Director General of our Border
Operations Directorate, appeared to provide the committee with information on
the agency's role with respect to international abductions.
During that hearing, Mr. Vinette outlined the CBSA's participation in the Our
Missing Children program. Mr. Vinette described how the Canada Border Services
Agency's border operations centre, warrant response centre and multiple
partnerships across the federal government and abroad work together to identify
and recover vulnerable children who may have been transported across
As the CBSA is the first point of contact for nearly 300,000 individuals who
seek entry into the country on a daily basis, Border Services officers are on
full-time alert for children who need protection and are highly attentive to
children entering Canada.
Our officers are trained to be on the lookout for suspected abductions,
runaways or children that may be 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 traveller is automatically referred for a
more in-depth examination.
With respect to individuals who have abducted a child and exited the country,
there are currently a number of protocols in place that assist law enforcement
in intercepting or locating them, such as the RCMP's National Centre For Missing
Persons, which maintains a 24-hour response capability and works with domestic
and international law enforcement organizations to locate and safely return
abducted children; provincial AMBER Alert programs; placing lookouts in police
and border management databases; and partnerships with the U.S. Customs and
Border Protection and neighbouring states.
I would like to pause here for a moment as we were advised that this
committee was specifically interested in the topic of exit controls in the
context of international abductions, and I would like to bring some clarity to
the issue with regard to the entry and exit initiative.
At present, the agency does not have the legal authority to systematically
collect exit information on all travellers and does not monitor individuals'
exit from Canada. The Government of Canada has, however, agreed to work with our
American counterparts toward an entry and exit information sharing system, where
the record of entry into one country would serve as the record of exit from the
The Entry/Exit Initiative is not an exit control system, as the Minister of
Public Safety and Emergency Preparedness indicated before the House of Commons
Standing Committee on Public Safety and National Security. Canada is not
contemplating the introduction of exit controls.
The CBSA's mandate is one of security and facilitation. The Entry/Exit
Initiative would not expand upon the agency's mandate but rather improve its
ability to deliver integrated border services that support security and public
safety priorities and facilitate the flow of legitimate people and goods across
Madam Chair, since 1986, the CBSA has assisted in recovering and reuniting
over 1,750 missing or abducted children with their legal guardians through the
missing children program, including 18 recoveries of missing children within the
I am pleased to elaborate on how the CBSA currently shares information
principally with law enforcement agencies on both sides of the border and with
other countries, especially in cases where we are trying to stop abductions.
However, at this present time, there is no entry/exit initiative that the
government has brought forth for consideration by Parliament. I therefore cannot
speculate on the initiative.
We are proud to work with the multitude of departments and agencies in all
jurisdictions to locate and protect children who may be victimized or at risk,
and of the agency's role in the investigations and recovery of the missing
I am available to answer your questions.
The Chair: Thank you for your presentation. We greatly appreciate it.
I will now call on Senator Ataullahjan, the deputy chair of the committee.
Senator Ataullahjan: Thank you for your presentations.
Mr. Crosbie, you just said that you've seen a 40 per cent increase in cases.
Do we know what the reason for this is? Professor Lowe, who was the witness just
before you, said that political changes have driven the increases. Would you
agree with that?
Mr. Crosbie: I'll make some comments, and I'll ask Ms. Maillé if she
wants to add to it. It reflects a couple of factors.
One, there are more marriages across borders and more marriages across
cultures. We have more people who have come to Canada from other countries whose
marriages break down for whatever reason, and children get caught up in that
situation. I would like to think as well that there maybe is a bit more
knowledge about the services we offer, that there are some remedies available.
Ms. Maillé may want to add to those comments.
Béatrice Maillé, Director General, Consular Policy, Foreign Affairs, Trade
and Development Canada: Between 2009 and 2013, we have seen an increase of
15 per cent of Canadian travels, and in the same time, we have seen also an
increase of 15 per cent of complex consular cases that we're managing.
As Mr. Crosbie noted, the 40 per cent increase in cases related to
international child abduction can be certainly linked to this increase in
travel, which means increased cross-border relationships. And, with the launch
of the Vulnerable Children Consular Unit last year, the availability of our
officers to do outreach to local communities and inform them about our services
can also be a reason why more parents have been referred to our services hoping
to provide some information and help them to manage the situation.
The Chair: Can I ask a supplementary question on the outreach? What
kind of outreach are you doing, in what communities, and in which cities?
Ms. Maillé: The officers in the Vulnerable Children Consular Unit have
done outreach in partnership with our Justice Canada colleagues and other
colleagues, for example the legal community in Canada, our attorneys and
lawyers, the social welfare community, and the Children's Aid Society, to bring
to their attention the type of work we do. We work with other government
departments through the work we do with provincial partners.
I've also done outreach internationally with some of our key like-minded,
like the U.K. and the U.S., where we have an increase, some of the highest
number of cases.
Senator Eaton: How enforceable is the Hague convention, and are there
some countries that very much cooperate with us and other countries that really
don't that are signatories to the Hague convention?
Marie Riendeau, Counsel, International Private Law Section, Justice
Canada: Good morning, Madam Chair and honourable senators.
How enforceable is the convention? States ratify or become a party to the
convention, and they agree to play by the same rules, the rules that are set out
in the convention, and they do. What we do see, however, is maybe differences in
some interpretations of the rules under the convention.
Senator Eaton: Can you give some examples?
Ms. Riendeau: We would have, for example, possibly differences, and we
do see it in the interpretation of this. I know you've heard many times about
the grave risk of harm exception of 13(b). This article in the convention
allows a court to decide not to order the child's return if by doing so it would
place the child at grave risk of harm or in an intolerable situation. So this is
a legitimate exception, and it is argued before the courts in all states.
Senator Eaton: There is no definition for those, is there?
Ms. Riendeau: Courts determine on a case-by-case basis how it is to be
applied in that particular instance. We do see that there are inconsistencies or
differences in the interpretation from state to state. This is of particular
concern for Justice Canada and for Canada generally, seeing these differences in
interpretation. We make it one of our primary focuses to work toward a better
interpretation and more consistent interpretation globally.
One of the ways we do that is by participating in various initiatives by the
Hague Conference to provide guides to good practice or standards. In fact, we
are currently involved in a working group set up by the Permanent Bureau
following the last meeting of the special commission that reviewed the operation
of the convention. It set up a working group to develop a guide to good practice
on the interpretation and application of Article 13(b) so that we might
outreach and get a better and more common understanding and application of this
very important provision, and in fact Canada at the special commission had made
the recommendation or had put forward this idea, so the working group is
currently doing its job meeting. We have a meeting coming up in just a few weeks
from now. An official of Justice Canada is participating as well as a Canadian
judge. You met with Justice Jacques Chamberland. He is also participating in
this working group. If I may, one particular aspect of this working group is
having judges involved because ultimately judges are responsible for the
interpretation and application of that provision and not officials in the states
Senator Eaton: Mr. Christiansen, you talked about Canada having no
exit visas or exit strategy. For our report, would it be helpful, if I was
travelling with a child alone, and I'm one of the parents or my husband is, if I
had a notarized letter from both parents saying that this child has the right to
travel? Would that help any, or not?
Mr. Christiansen: It certainly would. We look at that in a number of
different ways. On the CBSA's website, for example, we have information there to
assist parents in helping them to identify the types of documentation they
should have with them if they are travelling with children and, in particular,
if they are travelling alone or if they're travelling with a non-custodial
Senator Eaton: It's not required, because I used to travel with my
children all the time and if they had their passport it was just fine.
Mr. Christiansen: It's not a requirement to hold a court-order type
document when you arrive or leave the country, but it certainly is an example of
a best practice for us to help ameliorate the situation at the border when
someone arrives, if we know that the person has legal custody of those children
at that particular time. So it's helpful, but it's certainly not a travel
Senator Eaton: Should it be a requirement?
Mr. Christiansen: I wouldn't speculate on what should or shouldn't be
a requirement for travel documentation myself. I just know that for us it does
aid us in facilitating the crossing of someone who comes across the border. But
I wouldn't really comment about whether it should be a documentary requirement
for international travel into or out of our country.
Senator Andreychuk: Mr. Christiansen, I will come to you first. In
your document and your presentation you said you were working on an entry-exit
information sharing system and you explained that. Then at the end you said that
at the present time there is no entry-exit initiative that the government has
put forward. I'm confused. Was that a pilot project that you were doing and you
don't know where it's going, or what was that system you were working on and
where are we going with it?
Mr. Christiansen: I can help clarify that for you. Sorry if I
presented it in a confusing way.
The Entry/Exit Initiative is an initiative that we have been working on with
the United States under the Beyond the Border Action Plan. We have several
phases of entry-exit that have been implemented over time. We implemented phase
1 of entry-exit on September 30, 2012, which involves a pilot project where we
exchange data on third-country nationals departing from either country. So a
non-Canadian or a non-U.S. person departs Canada. We would get the information
back from the U.S. to confirm the departure of that person, and vice versa. We
did it as a pilot.
At the end of phase 1 of the pilot we went into phase 2 in June of 2013. We
started that exchange of information at all border crossings where we have
electronic information of people entering and leaving the country, essentially
the land border crossings across the country.
The next phase that was proposed for entry-exit requires legislative and
regulatory amendments to go with it, so the next phase of entry-exit would build
on phase 1 and phase 2 but would have biographical information on all the
travellers, essentially what is on that page of a passport, that would be
exchanged between us. In order to start the collection of that information, we
require a legislative change.
If and when a legislative change is made by the Government of Canada, we
would follow the legislation and move forward with that part of the project.
Senator Andreychuk: Are you recommending it as at this point, or do
Mr. Christiansen: I don't know the status of where the legislation is.
I do know that it is key to going into the next phase of the Entry/Exit
Initiative, which is a commitment we have made with the U.S. under the Beyond
the Border Initiative.
Senator Andreychuk: What about privacy issues on this next phase?
Mr. Christiansen: In fact, in any initiative of this sort, what we do
is we, for lack of better words, have a conversation with the office of the
Privacy Commissioner of Canada, present to them what the program would look
like, and look at amending or changing based on the recommendations of the
Privacy Commissioner of Canada. I do understand that some information related to
entry-exit has already gone to the Privacy Commissioner's office, but that
program has not been put into place, so we haven't enacted it yet.
Senator Andreychuk: You are balancing what would be in the best
interests of the family, the child, versus the issue of confidentiality?
Mr. Christiansen: Exactly.
Senator Andreychuk: That explains it.
Mr. Crosbie, it seems to be that in this outreach program that has been done
throughout, the missing piece I run into is parliamentarians. In many emerging
countries, parliamentarians are very conscious of sovereignty. They want to
maintain rights. Often, when custody cases come along, they said that child of
whatever country should stay there. They seem less understanding of the
complexities of an international system and these intermarriages and
cross-border marriages and difficulties. I'm wondering to what extent, first of
all, in Canada, you have contemplated having some sort of outreach program to
parliamentarians where they are made aware of the Hague convention and the
difficulties of dealing with couples. Often, parliamentarians are the first
place that parents in distress go for help. I have not heard much about that.
I've had informal conversation with many of my colleagues, and they are not
aware of the Hague convention per se. At best, they know there may be some
tools. I'm wondering if you're going to reach out to a very valuable resource
that could assist you, if you put it in place. When I say parliamentarians, I'm
really talking about their staff and constituency offices.
Mr. Crosbie: We do briefings on the Hill on consular issues, but we
have not specifically sought to get parliamentarians out in terms of their
communities or when they are abroad to speak up about the Hague convention. As
you mentioned, there is a lot of misunderstanding about how the Hague convention
works. This misunderstanding is probably most prevalent in Muslim countries,
which are not contracting parties to the Hague conventions. There is prevailing
thought there that the conventions are somehow Western and culturally
incompatible with their own traditions, culture and legal systems. Through the
working party on mediation and through the Malta Process, we have been trying
to build up a body of work, working with imams, Muslim academics, officials and
judges in Muslim countries to demonstrate that the Hague conventions in fact are
consistent with the best interests of the child and that virtually all states
around the world have signed on to conventions that reflect the central
importance of the best interests of the child and that all other considerations
of a cultural or religious nature can be accommodated, but first of all we're
looking at the best interests of the child. We could have parliamentarians more
aware of how the Hague conventions work, that they reflect sovereignty, respect
the interests of the parents and most of all are fundamentally based on ensuring
that the best interests of the child are preserved.
Senator Andreychuk: Thank you. I think we often overlook parliamentary
diplomacy and its importance, particularly these days. I'm also concerned about
having our parliamentarians in Canada understand the Hague convention, because
it is our citizens that are going to them. As I said, they often reach there
first. While I know you've had some briefings, and I've participated in them,
they have been sporadic rather than continual on what the convention is, how
they can assist the people who come to office and where they should go, for
example. From my perspective, that would be a useful tool for parliamentarians
and a useful tool for your support in getting the real facts out about what can
be done and what cannot be done. It's a suggestion to you, and I wonder if you
Mr. Crosbie: We would be happy to offer more frequent briefings for
MPs, staff and senators. As you say, they are reaching out to their own
communities, and this would be a good way to assist us, too.
Senator Tannas: This is showing towering ignorance, but is it illegal
in Canada to take children out of the country without the other parent's
permission, as it is in the U.K.? It's not.
Mr. Christiansen: If they are in violation of the Criminal Code, it's
illegal. I think that would be the best answer. In certain cases, if someone is
exiting the country with non-custodial children, for example, there could be an
arrest warrant issued or something to that effect. In that case, it would be
illegal. The actual action itself is dependent I guess you could say on the
intention. If there is a custody order that restricts the movement, et cetera,
that part is illegal.
Senator Tannas: If I just up and decide to leave my wife tomorrow and
take the kids, and she has not given permission and there is no knowledge, I
could do that and not be breaking any laws in Canada?
Mr. Crosbie: If she has not sought a custody order, then you are
Senator Tannas: Thank you.
The Chair: There is that gap, actually.
Ms. Maillé: I could add that a number of cases we deal with on the
consular front involved in some cases actually wrongful removal of a child from
Canada. In other cases, it involved where both parents had agreed that a child
would travel but one of the parents would not return to Canada with the child.
We really deal with two types of cases. Part is the wrongful removal, but part
is the non-return. In those cases, obviously the Hague convention would also
come into play, but the nuance would be different in terms of interception at
Sandra Zed Finless, Senior Counsel, Office of the Canadian Federal Central
Authority for the Hague Convention on the Civil Aspects of International Child
Abduction, Legal Services Unit at Foreign Affairs, Trade and Development Canada,
Justice Canada: I understand many witnesses have mentioned the issue of exit
controls that would assist in preventing child abduction. However, I would like
to emphasize to the committee that an exit control would not address many of the
cases that we do see under the Hague abduction convention, and that is the cases
where the child is taken from Canada lawfully or with consent from the other
parent, but then plans change when they get abroad and the wrongful retention
occurs in another country. A number of cases under the Hague convention dealt
with by Canadian central authorities are of that type of fact situation.
Senator Eaton: I just wanted to follow up on Senator Tannas leaving
the country with his children. If there was a passport recall, if there was a
case where I think he is leaving the country with my children and I go to a
lawyer and I get — what do they call it? Specifying the return of an existing
Canadian passport. How fast can you step into action and alert everybody that
those passports are not valid or have not been returned? How long does it take?
Ms. Kempton: We can do it relatively quickly once we are in receipt of
Senator Eaton: What is that in real speak? Is it six hours, two hours,
Ms. Kempton: At a minimum it would take a day, because if we're
cancelling a passport or reporting a passport lost or stolen in the case of a
child, we upload that information to Interpol, and that is done on a 24-hour
cycle, so it would take at least a day. I would point out that we are dependent
on foreign border officials verifying those documents upon entry. We may do the
work on our end, but if the other parent is travelling to another country and
the document is not verified upon entry, then it's possible that they could
enter that country with a passport that we had cancelled.
Senator Eaton: He leaves with the children. I alert you. He arrives in
France 24 hours later or 12 hours later. When he goes through passport control
in France, ideally it should pop up?
Ms. Kempton: Ideally, it should, but we can't speak to how foreign
border officials access the Interpol data. It varies from country to country.
Senator Eaton: Is that something that should be encouraged? Is that
something that is part of the Hague convention so that when somebody checks into
a foreign passport control in the EU, Italy or France or England, it comes up?
Mr. Crosbie: It is broader than the question of child abduction
because passports may be withdrawn for a whole variety of reasons. I guess what
we'd want to look into is that the RCMP is the key agency that deals with
Interpol and is part of Interpol on behalf of Canada. They could determine under
what conditions they could put in some operational requirement regarding what
all countries will do when they get this information on a passport that has been
Senator Eaton: Yes, because we have to check in when we fly
abroad as you know. Thank you; it's something we can consider.
The Chair: I want to go on to another subject. One thing that has been
a focus for our committee is bilateral agreements that I understand Canada has
with Egypt and Lebanon. Are you looking at others? I hope I'm not offending you,
but it is my impression they're not very effective and they're not being used.
Maybe I'm wrong.
Can you tell me how effective they are, the number of cases that have been
resolved under these agreements and if there are any other agreements you are
Mr. Crosbie: We and a number of other like-minded countries have
entered into such bilateral agreements, including with Egypt and with Lebanon. I
would have to tell you that our experience and the experience of our allies is
that they have not been effective. One of the reasons why countries joined the
Malta Process Working Party on Mediation and support the Malta Process is that
they recognize that individually and bilaterally we're not really getting any
traction to get other countries to accept the Hague conventions or to deal with
the issues of cross-border child abduction.
I think it's quite clear that the only thing that will change is those
countries themselves have to come to an understanding that it's in their best
interests to join the Hague convention. They can get the return of their own
children, and this is not an issue that is related to one or two countries. All
of us have an interest. The Hague conventions represent the best method in which
you can ensure that the best interests of the child are looked after and
children are returned to where they should go.
The Malta Process Working Party on Mediation was established as a means to
create an ongoing dialogue with countries and to build up a body of work that
helps to underscore that there is no incompatibility between the Hague
conventions and legal systems established in most Muslim countries. That is
intended to create an atmosphere in which they would understand that mediation
is a first step, and the Hague conventions themselves become the means to
address a problem that is of concern to their parents, not just our own.
The Chair: Going on from there to the Malta Process, we had Professor
Lowe, and I don't know if you heard what he had to say. My colleagues will
correct me if I'm saying it wrongly, but I understood him to say the Malta
Process is a talking process, and he did correct himself later.
What is your opinion? For me talking is good. At least there is dialogue
rather than no dialogue, so I'm okay with that. Can you please tell us whether
the Malta Process is working? Are we making progress, and what do we need to do?
I will speak for myself and not the committee when I say I think it's an
important process; it's a process of engaging, and from that can come results. I
would like to hear from you on that.
Mr. Crosbie: The Malta Process has resulted in three meetings, all
held in Malta, with the last one in 2009, which brought together contracting
parties and non-contracting parties.
I attended the last one in 2009, and I think there was a sense of frustration
that while we were bringing together these different communities and different
perspectives, it wasn't resulting in real changes in the way that countries were
addressing cross-border child abduction. They weren't signing onto the
conventions or creating any other process that we could use.
The working party was established, co-chaired by Canada and Pakistan, as a
means to create a more regular dialogue and to offer up mediation as one of the
processes that could be used by parents and would be endorsed by both
governments. Why mediation? Mediation is deeply ingrained in Islamic justice and
in our own judicial system. Increasingly, most countries see mediation as a
means to resolve family law issues. So it was felt that this was a process that
is familiar to different cultures and different judicial systems.
We have since, every year, held at least one meeting, sometimes more, in
which we bring together authorities, judges and academics and imams to create
more of a regular, ongoing dialogue. We've attracted more countries to
participate in the working party, and some countries have established contact
points on mediation so at least we have some kind of a system that families
When I was last in The Hague I discussed with the Permanent Bureau whether or
not it was timely to have another large meeting of the Malta Process, which
would bring together the 50-odd countries to review what we have been able to
We're looking at a strategy that would create another large meeting, perhaps
in 2015, that would bring the results of the working party to try to establish
in the minds of particularly the Muslim countries that from the perspective of
their scholars, religious leaders and judges, the Hague conventions offer a
practical solution to the issue of cross-border child abduction and to overcome
this perception that these conventions are somehow Western and inimical to their
It's an uphill battle, and the only way in which we've made some progress is
that we've been able to bring imams and Muslim academics who can speak in the
languages and the terms that are understood by their communities to make the
case for us that this is the practical means ahead.
The Chair: The committee members here know what the resistance is, but
we do have people watching as well, so I would really appreciate if you could
expand on what you were saying. What is the reasoning for almost all Muslim
countries not to sign the Hague abduction convention?
Mr. Crosbie: It's not limited to the issue of cross-border child
abduction. Generally I would say there are fewer Muslim countries that are
parties to private law conventions. They just were not there at the beginning of
the Hague conventions, and perhaps Ms. Riendeau can talk a little bit more about
it. I think there is partly a tradition of getting them engaged in the realm of
private international law, and one particular area that concerns us is the
family law issues. But there are a number of other conventions that would be
helpful if they were to be parties to them.
I think part of it is, as Senator Andreychuk said, just a lack of knowledge,
a lack of understanding and a sense that somehow the conventions import a
Western approach toward child custody that doesn't reflect the sensitivities of
religious concerns. That lack of knowledge is only overcome through better
What we found through scholars that we have met and used in Malaysia,
Indonesia, the U.K., Pakistan, Canada and the U.S. and imams is that there are
more of them who, as they study and become familiar with it, are saying this is
a very good convention and there is no reason under sharia why we could not sign
on to this convention. Our governments have already signed on to conventions on
the rights of the child that recognize that the best interests of the child is
the fundamental principle on which we should be resolving custody cases.
The Chair: Unfortunately, we have run out of time. I know that we have
many more questions, and I hope at a future date you will be generous again and
give us more time.
I would like to thank Citizenship and Immigration, Canada Border Services,
Foreign Affairs and Justice for always making yourselves available to this
committee on the different kinds of work this committee does. I certainly
appreciate your attendance today, and I want to thank you all on behalf of the