The Scourge of Family Law: Parental Child Abduction

In custody disputes there are several “game changers”, including parental alienation, false allegations of child abuse and parental child abduction. Each of these ploys will turn run-of-the-mill custody litigation into extreme custody wars. Yet the most destructive of the three is the abduction of a child by a parent.

While the latest statistics say that parental abduction has decreased in Canada, other countries are experiencing a surge in the number of cases where young children are spirited away in the wake of divorce or separation.

This summer I handled three parental abduction cases, each time acting for the “left behind” parent. These cases involved six children: one 13-year old girl, taken by her mother to Florida from British Columbia; three-year-old twins accompanied their mother for a vacation in New York and failed to return to their Vancouver home; and three children holidaying outside of their home country of Mexico at summer camps in Toronto and India, were intercepted by their father and taken to Vancouver.

What surprises me about these cases is that the abducting parents actually believed they could employ this “self-help” method of obtaining custody of their children. Each found out they were wrong.

Parental abduction is the most insidious form of child abuse and while abducting parents often justify their behavior by alleging abuse by the left-behind parent, they cannot escape the criminal and civil recriminations of their conduct.

The Hague Convention on the Civil Aspects of Child Abduction is the international treaty that assists parents and governments to seek the return of children who have been wrongfully removed from their home country or state. So far, 86 countries and states have signed on to the Convention with Russia signing on in 2011.

The principles of the Convention provide that parents cannot unilaterally remove children from their home jurisdiction where such removal will impede the parenting, custody or access of the other parent. The Convention applies even where there is not a custody or access order and applies both to married and unmarried parents.

Most often when a parent abducts a child, the parent and child go “underground” making it difficult for the authorities to find the child. The protocol for the left-behind parent is to complete a Hague Abduction application which is delivered to the Hague Authority in the home jurisdiction, who then contact the Hague authority in the country or state where the child may be residing with the abducting parent.

Where there is personal contact between the parents, the first step is to request the voluntary return of the child. Alas, parents who clandestinely take their children away, rarely wish to return without some incentive. In most cases,the left-behind parent applies to the court in the home jurisdiction for an order that the child be returned.

The incentive for return is that in the absence of compliance with the return order, the abducting parent stands a good chance of losing custody of their child once the child is located, and even where a parent returns home with a child, may still suffer the consequences including restricted contact with their child, usually supervised access.

Parental child abduction is also a criminal offence in Canada, however, frequently the police leave the matter to the civil courts. In the case of the child abducted to Florida, when the child’s father contacted the RCMP, they completely ignored him, despite their mandate under the Criminal Code of Canada.

However, there are cases where the abducting parent is dealt with criminally as well as civilly. In two previous cases I handled, a mother that fled to Quebec with her infant daughter was arrested and convicted of child abduction. The family court restricted her contact to supervised access for almost one year and the criminal court placed her on two-years probation. Similarly, a mother who hid her children in France for many years was finally arrested and imprisoned in Vancouver, even though she was pregnant. It is unlikely she will ever have normal custodial/access time with her children.

In each of my three recent cases the endings were bitter-sweet. In all cases the children were returned, but returning home merely signals the beginning of long, ugly, expensive, custody/access battles where neither parent wins, and the children lose.

Lawdiva aka Georgialee Lang

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