Hague Convention and International Child Abduction in BC

Finding out that your child has been taken to another country, or kept there after a visit, is frightening. If you are in British Columbia, there is a formal international process designed for this situation, and it helps to understand how it works before you act.

This article explains what the Hague Convention on child abduction does, who it covers, how a return application is started, and the defences the other parent may raise. Every case turns on its own facts, so early advice matters.

This article covers the law of British Columbia.

What the Hague Convention does

BC's Attorney General is the Central Authority under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and the Convention has the force of law in BC. It came into force in Canada on December 1, 1983.

The Convention does not decide custody. It decides where the child's custody case is heard. In plain words, a Convention case is about which place should hear the custody dispute, not about which parent should have custody. How this applies to your child depends on your situation, so it is worth confirming with a lawyer.

Who and what it covers

• It applies only to children under 16.
• It applies only between countries that are both parties to the Convention.
• The applicant must have had and exercised "rights of custody" before the removal or retention.
• A court order is not required to show those rights of custody.

The Convention covers both removal (a child taken out of the country) and retention (a child kept after an agreed trip). Whether you had rights of custody can depend on the law where the child lived, so it is worth getting that checked.

How to apply for a child's return

To seek a child's return from abroad, you contact the BC central authority, which supplies the application form and sends it, with supporting documents such as a birth certificate, to the central authority in the other country. Foreign counsel then starts the court case there, and evidence is usually given by sworn affidavit.

Timing matters. Applications are more likely to succeed if filed within one year of the removal or retention, though returns are sometimes ordered later. Waiting is not an absolute bar, but it can give the other parent an argument, as the defences below show.

Defences the other parent may raise

A court need not order the child's return in certain situations. These are:

Because these defences are fact-heavy, avoid saying anything in writing that could be read as agreeing to the move, and keep records of when you first learned where your child was.

When a child is brought to BC, or you are worried one will be taken

Under the Family Law Act, where a child has been wrongfully removed to or retained in BC, the court may make interim orders in the child's best interests, stay the proceeding on conditions, or order a party to return the child to a suitable place and pay reasonable travel and other expenses.

If you fear a child will be taken from BC and not returned, a court can order a person to give security, surrender passports and travel records, transfer property to a trustee, or pay child support to a trustee, but only if it is satisfied the person plans to remove the child from BC and is unlikely to return them. A court may also order that a person not remove a child from a specified geographical area.

What to do next

• Contact the BC central authority promptly to get the application form.
• Gather the child's birth certificate, passport details and any parenting agreements or orders.
• Write down dates: when the child left, when you learned of it, and any messages about consent.
• Collect photos, messages and addresses that show where the child usually lived.
• Speak with a lawyer in BC about the application and, if needed, about urgent court orders.

Frequently asked questions