Taking the Law into Your Own Hands: Child Abduction and the Defence of Necessity

• Author: Raphael H. Schachter
• Pages: 149-156

Taking

the Law

into

Your

Own

Hands:

Child

Abduction

and the

Defence

of

Necessity

RAPHAEL

H.

SCHACHTER,

QC

2000

This case

was a

litigator's nightmare.

My

client

was

accused

of

abducting

his

children when they were very young

and

keeping them away

from

their

mother

for

nearly

ten

years.

He was

charged

in May

1982,

and a

warrant

was

issued

for his

arrest.

He was

accused, contrary

to the

Criminal

Code,

with

intent

to

deprive

a

parent

of

lawful

custody

of a

child under

the age of

four-

teen.

If

found guilty,

he was

liable

to be

imprisoned

for ten

years.

Dura lex,

sed

lex,

one of the

oldest cliches

in our

legal lexicon, translates

roughly

as "If you

can't

do the

time,

don't

do the

crime."

The

law, with

all its

might,

and

often

with

all its

inflexibility, applies

to

each

one of us.

However,

being

a

product

of

humanity,

the

law, however imperfect,

is

also based

on

principles

of

compassion

and

mercy.

The

defence

of

necessity

is an

expression

of

these values.

Its

creation

by the

courts proves that these values

are at the

core

of our

legal system.

The law

recognizes that,

in the

course

of

events,

human beings

are

sometimes placed

in

desperate situations.

At

these times

the

Rule

of Law

does

not

seem

to

offer

any

comfort,

but the

courts, without

condoning illegal behaviour,

may

excuse

it.

The

stark

facts

of the

case

can be

summarized easily.

My

client

and his

wife

married

on May 29,

1971,

and

subsequently

had two

children.

Ten

years

later,

in

1981, they separated

and the

wife

was

given temporary custody

of the

children.

The

relationship

between

the

couple

became extremely

venomous

149