GOVERNMENT'S RESPONSE TO THE FOURTH REPORT OF THE STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
The Standing Committee on Foreign Affairs and International Trade issued a report entitled International Child Abduction: Issues for Reform on April 22, 1998. The report was prepared after hearing testimony and receiving written submissions from parents, attorneys, private search firms, non-governmental organizations, law officers and departmental officials. In its report, the Committee made 14 recommendations on the issue of international child abduction from a wide range of perspectives, including statistics, international treaties, police intervention, passport and borders control, custody orders, financial assistance, and sharing of information.
This document constitutes the Government of Canada's response to the Standing Committee's report.
Copies of this publication are available at the following address:
Communications and Executive Services Branch
Department of Justice of Canada
284 Wellington Street
In April 1998, the Parliamentary Subcommittee on Human Rights and International Development published its report entitled RCMP's Missing Children's Registry, police intervention and training, extradition, custody orders, border and passport controls, restrictions on international travel, financial assistance and the sharing of information and expertise.
Given the Minister of Justice's responsibilities in the areas of private international law, criminal law and family law, the Department took the lead in preparing the federal Government's response. The Department of Justice worked closely with several government departments and groups to prepare the Government's response, notably; the RCMP's Missing Children's Registry; Statistics Canada; Citizenship and Immigration; the Consular Affairs Bureau and Passport Office of the Department of Foreign Affairs and International Trade; Revenue Canada (Customs Office); and the Department of Transport. In addition, the federal Central Authority consulted with the provincial Central Authorities to ask their views of the Report.
The federal Government has chosen to provide the Subcommittee with a detailed response to the Report. This document examines the recommendations one by one and carefully considers concerns raised and problems identified. Each response discusses the issues in context and describes how the federal Government intends to act on the recommendations. The great majority of the recommendations were endorsed; other proposals were accepted but with some qualifications. Only three recommendations cannot be accepted at the present time.
RESPONSES TO THE RECOMMENDATIONS
The Subcommittee recommends that officials of the Missing Children's Registry, the federal Central Authority, the Department of Foreign Affairs and International Trade and the provincial and territorial Central Authorities, work with the Canadian Center for Justice Statistics and other individuals and organizations with recognized expertise in child abduction, family law and family violence to develop consistent and informed data from the Missing Children's Registry's national database on domestic and international parental abductions. The Subcommittee further recommends that the Canadian Centre for Justice Statistics prepare an annual report on the subject.
The federal Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) collects statistical data from the various provincial and territorial Central Authorities within Canada, since they deal directly with incoming and outgoing cases being handled under the Hague Convention. This data is collated when preparing for Special Commissions reviewing the Hague Convention which are held every four or five years. However, each province and territory has its own procedures for recording statistics, and the data on the number and the types of international child abduction cases does not follow a uniform format.
These statistics also do not necessarily encompass the Hague Convention cases involving applications made directly to the Central Authority or to the judicial or administrative authorities of the country where a child has been taken. Such cases do not go through a Central Authority in Canada, so there is no mechanism for collecting data about them.
The situation is even more complicated when the abducted child is taken to a country that is not party to the Hague Convention. There is practically no means of gathering statistics in such cases, especially if the parent left behind decides not to report the abduction to the police.
The issue of statistics was discussed at the most recent Special Commission on the Hague Convention, held in March 1997, notably the need to establish a consistent standard method of keeping and sending statistics for Special Commission purposes. The Permanent Bureau of the Hague Conference on Private International Law was asked to develop some common definitions of terms used in the statistics charts.
In Canada, the RCMP's Missing Children's Registry prepares an annual report which provides the number of cases of children reported missing based on statistics from the Canadian Police Information Center (CPIC). In cases of parental child abduction, police forces put the name of the suspect (the abducting parent) on the CPIC and only occasionally the name of the abducted child. The data does not indicate how many children are taken out of Canada.
The first step to establishing comprehensive statistics on international child abduction is to implement in Canada a mandatory reporting system of parental child abduction. This is considered under Recommendation 6.
The federal Central Authority will raise the issue of collection of statistics on parental child abduction with its provincial counterparts, with a view to make data collection and reporting more consistent. It will look for more opportunities to work with others involved in the gathering of data on child abduction, specifically to arrive at better ways of collecting accurate national statistics.
The government will try to set up a system for recording data on international child abduction. Incoming cases (children taken into Canada) will require close cooperation among Canada Customs, Central Authorities under the Hague Convention, Canadian Judicial Authorities and the RCMP's Missing Children's Registry. Outgoing cases (children taken out of Canada) will involve the RCMP, Canadian police services and both domestic and foreign Central Authorities, as well as foreign judicial and administrative authorities.
Statistic Canada's Canadian Centre for Justice Statistics (CCJS) will play a key role in efforts to address data collection needs and strategies, both at the national and international levels. Given its mandate, experience and expertise, the CCJS will be invaluable in identifying common information requirements and developing data definitions, standards, processes, systems and reports on international child abduction The RCMP's Missing Children Registry will also work closely with the various national players to define the various collection methods and to assist in compiling the information into a report.
There have been several attempts, at both the national and international levels, to establish an accurate data system on international child abduction. The federal Central Authority will continue working towards this goal, with the cooperation of the RCMP's Missing Children's Registry, Statistics Canada and the provincial and territorial Central Authorities Canada will continue to encourage the Permanent Bureau of the Hague Conference to clarify the terminology and establish standards for the collection of statistics.
The federal Government will request that the issue of gathering statistical data including following up on the return of children be put on the agenda of the next Special Commission on the Hague Convention.
The Subcommittee recommends that Government of Canada officials, in consultation with the provinces and territories, raise and examine delays in proceedings, quality of legal representation and compliance with the provisions of the Hague Convention at the next meeting of the Special Commission to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction.
Special Commissions to review the operation of the Hague Convention are called every four or five years. It has been the practice of the Permanent Bureau of the Hague Conference to seek the input of all State parties in arriving at agenda issues for discussion at each Special Commission. The federal Central Authority is consulted, and consults the provincial and territorial Central Authorities in turn on issues to suggest for the agenda.
Since the most recent Special Commission took place in 1997, the next one is not expected to be called before the year 2001 or 2002. At that time, the federal Government will consult with the provincial and territorial Central Authorities about the issues raised in this Recommendation and ask to have them put onto the agenda.
In the meantime, we will be examining how the Hague Convention is applied in Canada and in the other contracting States, with an emphasis on questions of delays in proceedings, quality of legal representation, and compliance with the provisions of the Convention.
The Subcommittee recommends that the Government of Canada ensure that the issue of international child abduction and the need to widen the network of countries that are signatories to the Hague Convention are on the official agenda of bilateral and multilateral meetings attended by non-Hague states.
Canadian delegates frequently raise, both formally and informally, the issue of accession to the Convention at bilateral and multilateral meetings with non-Hague States. As a leader on the issue of parental child abduction, Canada is committed to promoting the Convention at every possible opportunity in international forums. Several other State parties do the same, notably, Australia, Great Britain, France and the United States.
These efforts appear to be paying off, as more and more countries as diverse as Turkmenistan and Paraguay, or South Africa and Iceland, have recently become parties to the Convention.
The Government fully agrees that every effort should be made to promote adherence to the Hague Convention on the Civil Aspects of International Child Abduction.
Every player at the federal level involved in combating the problem of international child abduction ¾ be it Foreign Affairs and International Trade, the RCMP's Missing Children's Registry or the other members of "Our Missing Children" program will ensure that the issue of international child abduction and the need to widen the network of countries that are signatories to the Hague Convention are agenda items whenever it is appropriate at international meetings attended by Canadian officials, whether multilateral or bilateral.
The Subcommittee recommends that Canada continue to negotiate bilateral treaties with countries that have not become signatories to the Hague Convention. Wherever possible, such treaties should contain provisions imposing legal obligations, similar to those in the Hague Convention, on the signatory countries.
With the exception of the Hague Convention itself, there are very few examples, if any, of treaties under which the return of a child can be ordered.
Under private international law, there are a number of ways for the non-custodial parent to exercise a right of access. The first one is to obtain an access order which could then be enforced according to local rules in the country where the child has been taken to.
Another way to ensure access is through a bilateral treaty that determines which country has jurisdiction to decide on access rights and their implementation or arranges for the order made previously in the former country of residence to be enforced. At present, Canada has concluded only one treaty, with France in 1996 (but not yet in force), which would allow for the actual implementation of access rights.
Canada has not yet concluded any bilateral treaty for the compulsory return of a child, although an agreement with Egypt, once in force, could lead to the return of abducted children, but only on a voluntary basis. The agreement, which still must be ratified by the Egyptian Parliament, would not provide for a mechanism to enforce a court order from Canada. However, it would improve the administrative means to obtain the return of children from Egypt to Canada, and vice-versa. Discussions with Lebanon for a similar agreement are also taking place.
Many countries, however, are not signatories to the Hague Convention because it imposes legal obligations that cannot be reconciled with their national law, custom and religion. Some of those countries have indicated that they are unwilling to change domestic practice in order to meet the international obligations imposed by the Hague Convention. The reality is therefore that it is difficult for Canada to negotiate bilateral treaties that would reproduce the Hague Convention rules with countries that cannot or do not wish to become a party to it.
Moreover, the negotiation of bilateral treaties with enforceable mechanisms for access rights or for the return of abducted children raises domestic legal and political issues in Canada.
First, although the power to make treaties is a federal prerogative under the Constitution, in our legal system, treaties which affect individual rights are not self-executing and need to be given "force of law" by being incorporated into Canadian domestic law. Thus, Parliament cannot bring into force treaty provisions that relate to matters within exclusive provincial jurisdiction.
The authority to legislate in matters of access rights, relating to custody of children, falls largely under provincial jurisdiction, although Parliament can pass legislation in the context of custody rights following a divorce. It follows that the negotiation of a treaty on enforcement and implementation of custody and access orders would have to take into consideration provincial jurisdiction.
As a result, particularly in family law matters, the federal government seeks provincial support for the negotiations of any private international law treaty prior to the negotiations. This helps to ensure that provincial interests are represented and that the provinces will make a commitment to incorporate the treaty.
The enforcement of access rights also remains a particularly controversial issue even within Canada. It is one of the topics currently being reviewed by the Special Joint Committee on Child Custody and Access, which will table its report by November 30, 1998. This domestic legal uncertainty further complicates the use of legally enforceable mechanisms for access rights in bilateral treaties.
The combination of domestic constitutional constraints and the reluctance of foreign countries not party to the Hague Convention makes the chances of concluding bilateral treaties to secure the effective exercise of custody and access rights by Canadian parents in those countries quite unlikely.
However, in spite of the difficulty, it may be possible to propose alternative solutions to the suggestion put forward in this Recommendation.
First, in addition to promoting the Hague Convention, Canada should continue to work towards the conclusion of agreements on consular matters. We must not minimize the breakthrough that has been made possible with the signing of the Consular Agreement with Egypt which is now awaiting ratification before the Egyptian Parliament. As a result, discussions are now ongoing with Lebanon. The Department of Foreign Affairs, along with the Department of Justice, will draw a list of countries with which it may be possible to negotiate other such bilateral agreements to assist in resolving child abductions cases.
Another possibility would be to take advantage of multilateral treaties. All but two countries are party to the UN Convention on the Rights of the Child (UNCRC), which sets up a legal framework to measure obligations of States vis-à-vis children and their parents. It might be useful for Canada to further promote compliance with the UNCRC in specifically targeted countries. Canada could also make use of the UNCRC to support its representations on behalf of Canadian residents deprived of their right of access to their children in some countries.
Other multilateral treaties might also complement the UNCRC on this score. For instance the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children provides for solutions to conflicts of laws and jurisdiction problems and also ensures state-to-state cooperation in matters such as custody and access. Although this Convention is not yet in force, it might be worth taking it into consideration in the near future.
Given the existing agreements, it may be more productive and less time-consuming at this point to promote existing treaties which impose legal obligations, rather than seeking to conclude bilateral treaties containing mechanisms similar to those provided for in those agreements.
Therefore, the federal Government concludes it is better to continue promoting adherence to or compliance with existing multilateral conventions. At the same time, Canada will stay open to possibilities of concluding bilateral agreements on consular matters.
As well, the federal Government will continue to explore other channels such as legal education and technical assistance programs to countries with different legal and cultural systems.
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