International child abductions.

• Author: Blitt, Max
• Position: Special Report on International Law

Introduction

In 1951, on Appeal from the Supreme Court of Canada, the Privy Council of England ruled that a father, who had taken the couple's child to evade a foreign custody order in favor of the mother, could retain custody on the basis of the welfare of rile child. Both the mother and the father were American citizens, and their child was also born in the United States. The mother after lengthy legal proceedings in the United States was successful in securing custody. The father, without the mother's knowledge took the child to Ontario. Essentially, the father, despite his abduction of the child, retained custody, notwithstanding the custody order of the United States in favor of the mother. This was the state of the law when McKee v. McKee was decided.

With increased mobility and divorce rates after the 1950s there was a corresponding increase in the rate of child abductions by custodial parents. Divorce rates in Canada jumped from .39 per thousand in 1950 to 3.0 per thousand in 1980, a 670% increase! When dual-national marriages dissolved, one parent would often return to his or her country of nationality in search of a more sympathetic forum for the determination of child custody.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980 (The Hague Convention) entered into force in Canada on December 1, 1983 and Alberta on February 1, 1987.

Prior to The Hague Convention, the left behind parent would file custody proceedings in the state of marital residence, while the abducting parent would file simultaneous proceedings in the abducted-to state. Courts based jurisdiction over the child on a variety of theories. Even an existing custody order, as in the McKee case, from the state of habitual residence would not deter the abducting parent. Many courts would recognize the foreign court order, but would modify it on the basis of the child's best interests. Legal experts at the time referred to pre-Convention abduction cases as an "intractable problem."

The 1980 Hague Convention's purpose is to secure a rapid remedy to return the abducted child to the child's habitual residence, without any examination of the merits of the custody issue. In essence, the Convention is an "extradition-like" treaty, which determines whether an abducted child should or should not be returned to its former state of residence.

Canada's Role

The first glimmer of conception of The Convention was brought by...