Almas Bibi is a 3L student at the University of Ottawa Faculty of Law (Common Law Section).
In September 2014, Layale Khalifeh discovered that her ex-husband had abducted their child. Khalifeh had signed a consent letter allowing her ex-husband to take their son to Lebanon for a vacation, where they could visit family. However, at the end of the agreed upon period, her husband cancelled the return tickets to Canada and refused to bring back their son. Before matters got worse, Ms. Khalifeh left for Lebanon to locate her son and bring him back to Canada, essentially “re-abducting” him. Her case is one of many in an increasing number of international parental child abductions occurring in Canada.
The RCMP reported that, contrary to popular perception, less than one in four child abductions is carried out by a stranger. Although the rates of missing children are declining overall, the rates of international parental abduction are on the rise. A 2012 study found that the global number of Hague Convention applications for retrieving an abducted child have risen by almost fifty per cent since 2003. Increased globalization, ease of movement across international borders, and the facilitation of cross-country romance via the Internet, have all led to an increase in international romantic relationships. However, when these relationships fall apart, one parent (left-behind parent) may find himself or herself dealing with an ex-partner (abducting parent) who decides to leave Canada with their children and to return to their country of origin or dual citizenship (country of destination).
The left-behind parent is often left to deal with the emotional and financial burden of locating and reclaiming their child. If the destination country is a signatory to the Convention on the Civil Aspects of International Child Abduction (CCAICA) the parent may go through a formal process to try to reclaim their child. However, if it is not a convention member, the left-behind parent faces an uphill battle in securing the return of their child.
The CCAICA was signed on October 25, 1980 and has thus far been assented to or ratified by ninety-six countries. The low rates of accession and even lower rates of ratification are the result of different ideas and perspectives on parental custody and access rights to children post-separation, and a desire by nations to protect their own citizens who may have wrongfully abducted their children.
The left-behind parent has five options in pursuing the return of their child. They can (i) use the convention to secure the return of the child; (ii) pursue criminal charges, if their country has a parental kidnapping offence; (iii) use the local laws and process set up in the non-member country of destination; (iv) locate and re-abduct their child to their country; or (v) try to mediate the voluntary return of the child. In order to secure the return of her son, Khalifeh pursued several of these remedies, including criminal charges, but ultimately was forced to re-abduct her child due to a lack of recourse.
Among Convention countries, parents must act quickly to apply for the return of their children. If a court finds, upon application, that more than a year has passed since the abduction and that the child is now settled in the new environment, it may rule that it would not be appropriate to order the return of the child. Courts also look negatively upon a left-behind parent who was not exercising his or her custody or access rights prior to the abduction.
Litigating the return of a child is extremely expensive and if a parent does not have the resources to hire a lawyer both in Canada and in the destination country, their case can be adversely affected. Additionally, there are other costs associated with securing the return of the child such as travel expenses, or hiring private investigators to locate the child.
The left-behind parent may also pursue criminal charges against the abducting parent. Sections 280-283 of the Criminal Code of Canada lay out criminal offences covering the abduction of children. However, parents are discouraged from using the criminal justice system to recover their children unless absolutely necessary. The possibility for extradition are often low. Countries with civil law legal traditions have generally resisted the extradition of their citizens. In some cases, foreign courts have refused to return the child because the abducting parent would face criminal charges upon return to the country. Even if the abducting parent is arrested, the child may not be found or returned without their cooperation.
Lebanon, for example, is not a signatory member to the Convention, and its domestic family laws favour the father’s right to custody. Khalifeh was fortunate to have the resources to travel to and from Lebanon. She immigrated from Lebanon to Canada, which made it easier for her to locate her child and bring him back. She was also cognizant of the fact that Lebanese family courts would likely not rule in her favour. Her personal knowledge was responsible for the successful re-abduction of her child. Accordingly, it was not due to effective policy. Most stories don’t end like Khalifeh’s; not all parents have the resources or knowledge, and often risk losing their child forever.
For these unfortunate parents, mediation with a focus on pragmatic and negotiation-based strategies is often the ideal method for securing the return of a child. The advantages to mediation outweigh the unpredictable results of litigating custody in international courts. Mediation allows for a more flexible approach and a wider variety of options. Parents can negotiate agreements in ways that they would not be privileged to in a courtroom. Mediation can be especially helpful in cases where there is a cultural divide between the two parents or the two negotiating countries. In these situations, a multi-lingual, culturally sensitive mediator can help balance the interests of both parties and, most importantly, the child.