In Search of the Consummate Convention-Prophylactic Provision: Two Case Studies on the Workings or Non-workings of the Convention on the Civil Aspects of International Child Abduction

• Author: Jeffery Wilson and Tammy Law
• Pages: 183-231

In

Search

of the

Consummate

Convention-Prophylactic

Provision:

Two

Case

Studies

on the

Workings

or

Non-workings

of the

Convention

on the

Civil

Aspects

of

International

Child

Abduction

Jeffery

Wilson

and

Tammy

Law*

A.

CASE STUDIES

i.

Dr.

Helene

Berman, Scotia Chair

for the

Centre

of

Research

for Vi-

olence Against Women

and

Children

at the

University

of

Western

Ontario called

me on

Thursday,

19

January

2006.

She was

looking

for

a

lawyer

for a

15-year

old

child.

She had

met,

and had

formed

a

close

relationship with,

the

child

in the

course

of a

research project

within

the

schools

on

children

and

violence within their families.

The

child, Alia,

had

come forward

as an

informant

of the

violence

within

her own

home.

As a

result,

the

local

children's

aid

society

had

been involved.

Dr.

Berman

was

calling with

a

sense

of

despera-

tion. Alia

had

suddenly

left

London prior

to the end of

school last

year.

She had

accompanied

her

mother

to

their domicile

of

birth,

Egypt.

She had

thought

the

trip

to be a

summer holiday.

She had ex-

pected

to

come back

to

Canada,

her

country

of

citizenship,

after

the

summer

to

return

to

school

and

life

in

London.

She did

not. Alia

had

put in a

call

for

help

to Dr.

Berman

and her

colleagues

via an

Inter-

Jeffery

Wilson

is a

partner with Wilson Christen

in

Toronto.

Mr.

Wilson wishes

to

thank Tammy Law,

at

Wilson Christen,

for her

research assistance

and

acknow-

ledges

the

invaluable contribution

of the

Honourable Justice

Kay of the

Appeal

Division

of the

Family

Court

of

Australia, Melbourne,

in his

paper entitled "The

Hague Convention

—

Order

or

Chaos,"

infra

note

13.

183

*

184

JEFFERY

WILSON

AND

TAMMY

LAW

net

cafe

in

southern Egypt. According

to the

child's

information,

she

was

frightened

for her

life.

Her

mother

and her

uncle

had

arranged

for

her to be

married

to a man who was 40

years old. That

was why

she was in

southern Egypt.

She did not

know

the

man.

She did not

want

to be

married.

But,

if she did not go

through with

the

forced

marriage,

she was

sure

her

uncle would kill her.

Dr.

Berman

did not

know

for

sure,

but the

best information

she had was

that

the

wed-

ding

was

scheduled

to

take place

the

following week. Berman

and

her

colleagues

had no

answer

for the

child's plea

and

wondered

how

she

could

safely

get

away

from

her

mother

and

uncle

in

southern

Egypt.

Alia, apparently

on her own

initiative,

took

up the

challenge.

She

boarded

a

train heading

for

Cairo,

specifically

in

search

of the

Canadian Embassy. Berman

and her

colleagues similarly took

up

the

challenge. They mounted

a

campaign

of

communications

and

advocacy

on her

behalf with

the

Canadian Foreign

Affairs

Ministry.

As

Alia

ran

away

from

her

caregivers

in a

rural

and

remote southern

Egypt location toward

the

millions

in

Cairo, Berman

and her

col-

leagues

left

the

sanctuary

of

academic research

at the

University

of

Western Ontario

and

entered

the

arena

of

activist concern

and

diplo-

matic

intrigue. They learned there

was not

much that could

be

done:

that

the

child,

as a

born Egyptian,

had

Egyptian citizenship; that

once located,

she

would likely have

to be

turned over

to the

Egyp-

tian authorities;

and

that this could

not be

dealt with

as a

Canadian

case

according

to

western law. Islamic

law and

indigenous Muslim

traditions were

not to be

underestimated,

to say the

least.

2.

Emil

Dittrich

is a

5i-year

old

father

of

three children.

After

five

years

of

arduous court proceedings, with

one

jurist describing

the

sys-

temic

delay

as

bordering

on

"the

obscene,"1

his

case

for

custody

of

his

three children

was

about

to be

heard, scheduled

to

commence

on

13

June

2005.

He was

ready.

His

witnesses included

two

representa-

tives

from

the

local

children's

aid

society

and two

court-appointed

assessors.

The

former

would tell

of the

misguided, repeated attempts

of

the

mother

to

inculcate

the

three young children

with

the

belief

that their

father

had

sexually abused them, everything

from

crudely

examining their penises

after

a

visit with their dad,

to

giving them,

before

a

visit,

a

whistle

to

blow when their

father

attempted

to

vio-

late

them.

The

latter witnesses,

the

assessors, would tell

of the ir-

i

In his

temporary

order,

O'Connell

J.

wrote:

"It is

clear

that

this

litigation's

history

borders

on the

'obscene.'"

See

Dittrich

v.

Dittrichova

(16

June

2004),

Toronto

oo-FA-

009346FIS

(Ontario

S.C.J.).

In

Search

of the

Consummate Convention-Prophylactic Provision

185

reparable harm done

to the

children because

of the

mother's conduct

and

that,

in

view

of her

unyielding attack upon

her

former

husband,

the

children ought

to be

transferred

to

their father's custody.

On

5

June 2005,

and

with

the

children's passports

in a

locked

safe

in

the

office

of the

father's lawyer,

and

with

an

order preventing

the

children's removal

from

Ontario barring

an

order

of the

court,

mom

absconded with

the

children

from

Canada

and

returned them

to the

domicile

of the

birth

of the two

older children

and

herself, that

of the

Czech Republic. Apparently,

she did

this

in

consort with

her

lover,

one Jan

Moroc,

who was in

Canada illegally, having been deported

in

February 2005,

and who

left,

before

immigration

officials

and the

police caught

up

with

his

illegal status

and

apparent criminal activ-

ities. Apparently,

she is

pregnant with

his

child.

On 7

June 2005,

Mr.

Dittrich

caused

his

counsel

to

appear before

the

Ontario Superior

Court

of

Justice

in

Toronto

for

immediate

relief.

Justice Alison Har-

veson Young presided.

On

Saturday,

20

January 2006,

at

4:15 a.m.,

the

Canadian Ambas-

sador

to the

Arab Republic

of

Egypt, Phillip MacKinnon,

was on the

phone with Alia's apparent lawyer. Explaining that

the

child

was

there,

the

Ambassador emphasized

the

precarious nature

of the

situation

and

how he had

experienced

a

similar situation

in

another Middle East state,

warning that

the

Embassy's time

for

this matter

was

quite limited.

"Ambassador,

can you

tell

me

if

the

child

can

have

sanctuary

there

tonight."

"She

can."

"What

of

tomorrow?

Can you

give

me two

nights

so

that

I can

find

a

judge

and

see

what

can be

done,

if

anything?"

"I

am not

optimistic,

sir

of

what

can be

done.

I

know

this:

we

will

have

to

turn

over

the

child

to the

Egyptian

authorities.

This

is

Cairo.

She is an

Egyptian

here.

Yes,

I can

probably

give

you two

days

but I

don't know what

you can do

from

there

that

can

help

us

here."

Following

that

brief

exchange,

the

Ambassador turned

the

phone

over

to the

child.

She

then endured

a

brief,

monosyllabic dialogue

of

"yes"

and

"no" answers

to

questions

posed

by the

stranger

on the

other

end of the

line,

who had

introduced himself

to her as

someone

to

whom

she had

been referred

by Dr.

Berman.

After

an

exchange probably

suffi-

cient

to

satisfy

the

test

of a

retainer with instructions

to

proceed,

the

call

ended.

Thereafter,

starting

at

5:00 that morning, there ensued

a

barrage

of

electronic

and

telephone communications culminating

in the

atten-