Parents or guardians are behind the most common types of child abduction cases seen in Canada. The parent may be alone or have a relative as an accomplice. However, this does not reduce the complexity of the situation.
Parental child abduction cases are those in which the parent conceals, detains or takes away the child from the other parent or guardian. If you have faced one such situation, it is time for you to act quickly for the safety of the child and his recovery. Your hope should lie in the fact that most of such cases are resolved well, and children are soon reunited with the parent.
When is the removal wrong?
According to the Criminal Code, solitary actions by one parent that can affect the proper care and control rights of the other parent with regards to the child is intolerable. This is because these actions can harm the long term well being of those involved. Parents are encouraged so that they do not let personal disputes carry forward to end results such as abduction.
According to Article 3 of the Hague Convention, which all jurisdictions of Canada accept, a removal is wrong when:
- It breaches the rights of the custody (whether individual, joint, a person, an institution or body) under State laws where the child habitually lived immediately before the abduction.
- During the removal, those rights were actually exercised by the custody or would have been used by them if there was not the removal.
Here, the rights of custody are also defined by Article 5 of the same convention, including rights related to the child’s care, which necessarily includes the right to determine the latter’s place of residence.
What to Do in Parental Child Abduction Cases
First, you need to realize that it has very challenging prospects. To not get entangled in its complexity, you have to seek help from family lawyers who can protect your rights and work to get your child back amidst all the enforcements of custody and order. Here is what you can be given 3 areas:
Supposing that the child has been kidnapped and is residing locally, the matter can be resolved with the civil courts. Take the help of your lawyer’s legal knowledge and skills to determine the court, depending on the child’s habitual residence.
Any court in the area of the child’s habitual residence will be able to protect the child, get him back and decide on what to do for his welfare. If need be, criminal charges can also be laid. However, not all abductions extract a criminal charge.
For the record, a child’s habitual residence is one where he used to:
- live with both parents or
- lived with one while the other filed and had orders for a separation agreement or
- lived with one while the other had implied consent till the request from the court or
- lived with a guardian, other than a parent, for a long time permanently.
If you think there are fears of abduction or that your former partner or spouse has abducted your child, and the child isn’t a resident but is inside Canada, you need to consult your lawyers.
It could be that you and your spouse had a divorce. Or maybe you and your partner are going through a separation. If you have been granted the orders and you have the custody, the legality will be applicable everywhere inside Canada, not just your province. If the order carries in itself no such removal of your child from the jurisdiction, then you will get back your child soon.
Besides taking help from your lawyer, consult the police and take necessary procedures that follow.
In this case, the government holds the same jurisdiction as the Hague Convention. For the wrongful removal of a child from one country to another, this statute is applicable. However, the state in which the child was taken, has to be an HC signatory.
Only when the country has signed and agreed to the Hague convention can the statues apply. For that matter, most European countries, Canada and the United States have signed it. Consult your lawyer for details regarding this issue.
What if I have no custody over the child?
It could be that the child was living with you under an informal agreement, and you don’t have legal custody of the child. In that case, you have to file an order for custody pursuant. So you have to ask for explicit custody and request the court not to have the child removed by any guardian or parent without your consent.
Once this order is granted, your custody will be applicable inside Canada and be enforceable for you to take the necessary measures to follow. You can either register the order locally if you believe your child is here. Or, you can have it registered to the other provinces where your child may be. Lastly, you can apply to the court for returning your child.
It can also go the other way around. You and your spouse are the parents of the child, and you do not plan upon a divorce. You only want separation. But you fear potential abduction of the child by his custodial parent. Then, you may issue an order to the court and aim to protect your rights.
Whatever may be the situation in the parental child abduction cases, both parents are qualified for custody. But in no way is it allowable that a child will be separated from his parent without the latter knowing or consenting. Hence, if you face such a situation, it will be on your and your lawyer’s part to act quickly for the safe retrieval of your child.