2018 Child Abduction Conference

1 King’s Bench Walk is again running a child abduction conference in London early next year.  There is no programme as yet but places can be booked here.  I have arranged to go, for what will be the 4th year running, and will post about it afterwards.

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Canadian Supreme Court international parental child abduction appeal

This article appeared online last week.  According to the Supreme Court of Canada website, the judgment was reserved.

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Supreme Court case could have far-reaching implications for international child custody cases

A case being heard at the Supreme Court on Thursday could change the way Canadian authorities decide the fate of children caught up in international child custody and abduction cases.

Kate Baggott says "ultimately nothing was gained" by her four-year legal battle. She described the experience as “surreal."
Kate Baggott says “ultimately nothing was gained” by her four-year legal battle. She described the experience as “surreal.”  (KATE BAGGOTT)  

It took four years battling her estranged husband in German and Canadian courts before Kate Baggott was finally allowed to settle with her two children in Canada.

On Thursday, the St. Catharines woman hopes to begin the final chapter of her struggle when the Supreme Court of Canada examines the workings of an agreement that determines the fate of children caught up in international child custody and abduction cases.

Ultimately, the court’s ruling could change the way Canadian authorities decide what country these children should live in and result in a more child-centric approach.

In Baggott’s case, the years of legal wrangling meant that her children lived in limbo, moving back and forth between Germany and Canada, disrupting their education and making it impossible to put down roots.

“Ultimately nothing was gained from having gone through this process,” Baggott told the Star in an interview.

She described the experience as “surreal” and said the court process was too focused on legal arguments instead of what is best for the children.

The Supreme Court’s ruling will have no effect on Baggott’s case, after a German court finally awarded her full custody of her son, 15, and daughter, 11, from their father John Paul Balev and let the three return to Canada in April. But the court decided to proceed anyway with the appeal of Ontario Court of Appeal ruling as it recognized the importance of the issue.

All the parties at Thursday’s hearing hope the high court can provide guidance on the definition of “habitual residence” under the Hague Convention, an international child protection agreement recognized by 98 countries.

 

 The designation determines where a child in a custodial dispute should temporarily stay while the case is ongoing and which country has the authority to adjudicate the case.

“This comes down to how we figure out where a child’s habitual residence is. Right now, there is no national consistency on this,” said Patric Senson, a co-counsel for the Baggott, one of eight parties with standing before the Supreme Court.

“Whatever comes out, it will provide some clarity for everybody involved in this situation so everyone will be working from the same page . . . reduce the amount of litigation and stress for the child and litigants.”

In Canada and elsewhere, different courts have different interpretations of habitual residence, with some defining it as the last place of the residence agreed upon by the parents prior to the removal of the child by one party, while others base it on the children’s best interests.

The appeal to the Supreme Court was brought by the Office of the Children’s Lawyer (OCL), a Ontario body that represents children under age 18 in court cases involving custody, access and child protection, as well as in civil, and estates and trusts cases.

Baggott, a writer, and Balev, a computer programmer, married in Toronto in 2000 and moved to Germany on work permits the following year for his job. Their two children were both born there but were not eligible for German citizenship.

The couple’s relationship fell apart but the family still lived together in the same house when the mother and their two children moved back to Canada in 2013 after the father agreed to let the children stay with their mother in Canada for 16 months.

However, according to Baggott’s submission to the high court, Balev later went to German authorities claiming Baggott abducted their children, sparking the four-year legal battle.

Last September, the Ontario Court of Appeal dismissed the children’s objections to returning to Germany and ruled that the mother breached the Hague Convention and they must all go back because Germany was their “habitual residence.”

In its factums to the Supreme Court, the OCL said the appeal court decision to return Baggott’s two children to Germany was wrong because it failed to consider the best interests of the minors, who at that point had lived in Canada for three years, were in school and had friends and support in the community.

“The goal of deterring ‘abduction’ and protecting the interests of children generally was prioritized over the rights of the individual children before the courts,” said the OCL in its submission.

“As a result, (the children) were harmed by the operation of the very Convention that was meant to protect them. In this appeal, the OCL urges an interpretation of the Convention that is child-centric, consistent with Canada’s obligations.”

However, the attorneys general in Ottawa, Ontario and British Columbia argue the current approach in determining the child’s residence offers an “objective” guide for Canadian authorities to follow.

“The Convention is intended to combat international child abductions, including the wrongful retention of children in foreign states and to protect children from their harmful effects,” said the submission from the federal attorney general.

The submission said “the prompt return of the child to the state of habitual residence best protects the interests of children by respecting rights of custody under domestic laws. The Convention is not intended to determine the custody arrangement that is in the best interests of the child.”

Ontario warns in its submission that the child-centric approach proposed by the appellant “would incentivize parents to subject their children to ‘harmful manipulation’ — developing artificial attachments to their new environment — in order to influence the child’s perspective about their habitual residence.”

While the case is still up in air, both Baggott and Balev said in their submissions the fight has exhausted their financial resources.

“The Hague Convention is meant for genuine cases of abduction when one parent disappears with the child in the night,” said Baggott, who is still struggling to turn a new page of her life with her two children. “It is not meant for cases like ours.”

Source:  “Supreme Court case could have far-reaching implications for international child custody cases”, The Star, 8 November 2017 

The Scotsman: “Number of Scots children abducted by overseas parents soars”

Number of Scots children abducted by overseas parents soars Campaigners have called for a change in Scots law to protect children

Scott Macnab

Published: 06:00 Friday 03 November 2017

Campaigners have stepped up calls for a change in Scots law to tackle international abductions of children by a parents overseas after new figures revealed a soaring number of cases in the past decade. Dozens of new “international abduction” cases happen every year in Scotland having previously stood in single figures in 2007. The practice has been branded “child abuse” by campaigners who say there is a “stark difference” between Scotland and England over the issue. It is a criminal offence south of the Border. In Scotland, police cannot act until a court order has been obtained – which can take anywhere between a day and a week. The figures revealed by justice secretary Michael Matheson in a Parliamentary answer yesterday shows that there were 33 cases parental child abduction for Scotland in 2016. Although this is down from the 41 cases recorded in 2015, it is nonetheless a marked increase from the eight cases recorded in 2007. Most involved cases of children being taken out of Scotland, which reached a new high of 20 last year – up from two in 2007.  India, Australia, the USA, Italy and Poland are among the countries where children have been taken, according to support charity Reunite International. Solicitor Yousif Ahmed is now calling for a change in law which would mean parents not needing to go through the lengthy process of securing a court order before police can act.  “That’s not fit for purpose – all it takes is a few clicks of a mouse button to book a same-day flight and the child can potentially be gone and lost forever,” he said. Many parents won’t be aware that an abduction is looming which means they won’t be in a position to secure an interdict.  Mr Ahmed is to meet Scottish Government officials to push for change.  Vicky Mayes of Reunite International said it’s a particular problem for Scots parents who fear an abduction may be imminent.  “It’s so stark, the difference, when you’re advising one parent in England and one parent in Scotland. There can be such a difference in what the police can do and what can be done to stop a child from being abducted and therein minimise the impact of all of this on that child.”

Read more at: http://www.scotsman.com/news/number-of-scots-children-abducted-by-overseas-parents-soars-1-4603650

 

Lawyer calls for end to ‘kidnapper’s charter’

Yousif Ahmed

A Scots lawyer is calling for an end to a loophole in the law that allows one parent to remove their child from Scotland without the consent of the other.

Yousif Ahmed, 29, is urging the Scottish government to propose changes to the law to bring it into line with rules south of the border, where such an act would be a criminal offence.

Mr Ahmed has spoke to Justice Secretary Michael Matheson and is being supported by Reunite International, a charity dealing with international parental child abduction.

Mr Ahmed, an associate with Cannons Law Practice in Glasgow, said: “With the world becoming smaller, international relationships are becoming more common but if such a relationship breaks down it is ultimately the children who may end up paying the highest price by losing all contact with a parent and their friends.

“With the exception of Scotland, the rest of the United Kingdom rightfully criCouminalises the wrongful act of parental child abduction. That is a form of deterrence firmly in place.

“Surprisingly, we do not have that deterrence here – parental child abduction is not recognised as a criminal offence unless a court order has been obtained prohibiting the removal of a child and that in itself raises various problems and issues.”

He added: “To obtain such a court order, you must have some prior knowledge of a pending or imminent abduction and go through a formal legal process which in most cases is not fit-for-purpose, nor effective for preventing parental child abduction from Scotland.

“We also have a distinct lack of protocol and practice for preventing parental child abduction where an abduction is suspected as being likely – what that means is that without a court order, there are is no scope of alerting police to put in place port alerts or red flags which can alert UK border control of a child being at risk of parental child abduction, unlike in England and Wales where a system of protocol and practice is in place to help prevent this from happening.”

Source:  “Lawyer calls for end to ‘kidnapper’s charter'”, Scottish Legal News, 24 October 2017

Enforcement measures eyed to settle child custody battles

The Mainichi

Enforcement measures eyed to settle child custody battles

TOKYO (Kyodo) — An advisory panel to the Japanese Justice Ministry proposed Friday that measures be enforced on divorced parents who take custody of their children against a court order to pay fines.

If the parents continue to refuse to let the children go, court officials will be entitled to take away the children, the panel said in an interim report on the reform of the nation’s child custody system.

The proposal has been made at a time when critics are criticizing the inconsistency between the state’s handling of such disputes between domestic and international marriages as the latter were already subject to rules of the so-called Hague treaty.

Japan in 2014 acceded to the Hague Convention on the Civil Aspects of International Child Abduction, which sets out rules and procedures for the prompt return to the country of habitual residence of children under 16 taken or retained by one parent, if requested by the other parent.

The Justice Ministry plans to solicit public comments on the report later this month. After reporting the outcome to the panel, the ministry is expected to submit a bill to revise the civil execution law to the Diet in 2018 at the earliest.

There is currently no stipulation in Japan’s legal system regarding parents who do not abide by a court order to give away children to their former marital partners. Such disputes have been handled based on regulations regarding the seizure of assets.

According to the proposal in the interim report, divorced parents who refuse to give away their children in defiance of a court order will be fined until their surrender to encourage them to voluntarily abide by the court decision.

If the parents continue to ignore the court order for two weeks, court officials will be allowed to take away the children and put them in the hands of the other parents.

If divorced parents fail to pay expenses to raise children, the report also proposes enabling courts to make inquiries to financial institutions on information about such parents’ financial assets.

Source:  “Enforcement measures eyed to settle child custody battles”, The Mainichi, 9 September 2017