International Child Abduction and the Hague Convention: What BC Parents Should Know

A holiday that does not end, or a child who leaves the country without your agreement, is one of the most frightening situations a parent can face. If the Hague Convention on the Civil Aspects of International Child Abduction is in force between Canada and the country where your child has been taken or kept, it provides a legal route to ask for the child's return.

The process moves quickly and the first weeks matter. This guide explains what counts as a wrongful removal or retention, how the Convention operates in British Columbia, the exceptions a court abroad may consider, and practical steps to take if you are worried it could happen.

What counts as a wrongful removal or retention

The Convention deals with two situations. A wrongful removal is when a child is taken from the country where they habitually live without the agreement of a parent who has custody rights. A wrongful retention is when a child leaves with permission, for example for a vacation, but is not brought back as agreed.

Under Article 3, the removal or retention is wrongful if it breaches custody rights under the law of the child's habitual residence, and those rights were actually being exercised, or would have been but for the removal. Article 5 says custody rights include the right to determine where the child lives. Section 80 of the BC Family Law Act applies the Convention's own definitions of custody and access for this purpose.

• Age limit. The Convention stops applying when the child turns 16 (Article 4).
• Both countries matter. The Convention must be in force between the country where the child was habitually resident and the country where the child is now, and it applies only to removals or retentions that happen after it came into force between them (Article 35). Membership alone is not enough: when a country joins by accession, the Convention applies between it and another member only once that member accepts the accession (Article 38). Iraq, for example, has acceded, but the Government of Canada states that the Convention does not apply between Canada and Iraq. Where the Convention does not apply, the options are more limited and usually depend on that country's own courts.

How the Convention works in British Columbia

Section 80 of the BC Family Law Act gives the Convention the force of law in BC and names the Attorney General as BC's Central Authority. Each member country has a Central Authority. Under Article 7, they work together to locate the child, encourage a voluntary return or an agreed solution, and help start court proceedings for the child's return.

A return application is not a custody case. The court in the country where the child is decides whether the child should go back. Under Article 19, that decision is not a ruling on who should have custody; parenting issues are then decided by the courts of the child's home country. Article 11 expects courts to act quickly, and if there is no decision within six weeks the applicant may ask for the reasons for the delay.

Section 80 also says the BC government is not bound to pay for lawyers or court proceedings on a Convention application, except to the extent BC's legal aid system covers them. Plan for legal representation both here and, often, in the other country.

The one-year mark and the main exceptions

Timing is central. Under Article 12, if proceedings start less than one year after the wrongful removal or retention, the court must order the child's return, subject to the exceptions below. After a year, return is still ordered unless it is shown that the child is now settled in the new environment.

Article 13 sets out the main grounds on which a court may refuse to order a return:

• No custody rights being exercised, or consent. The parent left behind was not actually exercising custody rights, or consented to or later accepted the removal or retention.
• Grave risk. Return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.
• The child's objections. The child objects and is old and mature enough for their views to be taken into account.

Because consent and acquiescence are defences, be careful about what you say and sign once a child has not come home. Messages agreeing to an extended stay can later be used to argue that you accepted it.

If your child has been taken or kept abroad

Global Affairs Canada's guide for affected parents recommends these steps:

• Police. Contact your local police and file a missing persons or abduction report. Police may ask for recent photos, physical descriptions and your most recent parenting order or agreement, if you have one.
• Consular Services. Contact Global Affairs Canada at 1-800-387-3124 (toll-free from Canada and the US), +1 613 996 8885 (call collect where available) or sos@international.gc.ca. A consular case management officer will be assigned to work with you.
• Passport Program. Call 1-800-567-6868 (toll-free from Canada and the US) to raise concerns about passports for the child.
• Central Authority and lawyers. If the Convention applies, contact BC's Central Authority and speak with a lawyer in BC and, where possible, in the other country.

Gather the evidence early: any agreement or order about parenting, proof of where the child lived and went to school, travel arrangements, and messages about the trip and the return date. The Global Affairs guide also notes that child abduction is a criminal offence in Canada, but that criminal charges against the abducting parent may hurt efforts to get the child back, so discuss that step with your lawyer.

When a child is brought to BC, or moved within Canada

The Convention works in both directions. If a child habitually resident in another country with which the Convention is in force is brought to or kept in BC, the parent abroad can apply here for the child's return. Section 80 does not cover a child in Canada who was habitually resident elsewhere in Canada, or a child who was habitually resident in a country that is not a party. Those cases fall under Division 7 of Part 4 of the Family Law Act. Under section 77, where a child has been wrongfully removed to or kept in BC, or a BC court cannot or will not take jurisdiction, the court can make interim orders, stay a BC application, or order the child returned to a place it considers appropriate.

Reducing the risk before it happens

If you have a real concern that a child may be taken from BC and not returned, section 64 of the Family Law Act allows a court to order that a person not remove the child from a specified area. If the court is satisfied someone proposes to remove the child and is unlikely to return them, it can order security, the surrender of passports and travel records, the transfer of property to a trustee, or payment of child support to a trustee.

Other practical steps include travel terms in your parenting agreement or order, keeping the child's passports secure, and asking the Passport Program to include your child's name in its System Lookout List (the guide notes this does not limit the child's travel or alert border officials). Global Affairs Canada cautions that a consent letter will not prevent an abduction; if you are worried, do not sign one. For ordinary trips, see our guide to child travel consent letters, and for a planned move, the rules on relocating with a child in BC. Where the risk is immediate, read about urgent family court orders.

Worried your child may not come home? Get advice now

Our family lawyers can explain your options under the Hague Convention and the Family Law Act, help you gather the evidence a return application needs, and apply for orders that reduce the risk of a child being taken out of BC.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.