The Hague Convention (on International Child Abduction)

The Convention is about the return of children from foreign jurisdictions. Parents cannot leave the jurisdiction of the children’s habitual residence and refuse to return the children except under very unusual circumstances. The Convention is about how countries who sign on to this convention agree to enforce this principle and co-operate with other countries for the return of the children.

If a parent has fled with the children to another country, the other parent has to move somewhat quickly to contact the Hague Central Registry of that country in an attempt to get the child(ren) back.

Often in BC the procedure is to file a Petition in the Supreme Court of BC asking for a return of the children under the Hague Convention.

If it is established that the children were habitually resident (lived mainly)in another country the court will determine if the children have been removed from that country (as opposed to simply vacationing or staying with the previous consent of the complaining parent or something else).

Once it has been established that the children have been habitually resident in another country and wrongfully removed, the court will determine if there are any intervening factors. One intervening factor may be that the children are now settled in the new location, or perhaps were, or their parent was, subjected to an intolerable situation. This determination is done only in extreme situations. For example, if one were to plead that one is an abused spouse and that is why they ran, they would also have to prove that the country they fled from was unable to protect them, then all of those factors may cause the court to find that the situation was intolerable.

In some cases the fleeing parent has applied in the country of habitual residence, for permission to leave and has been given permission to remain in Canada while it is sorted out. In those cases the children are not wrongfully removed.

In most cases the children are ordered returned. In those cases the departing parent may end up paying for court costs and flight tickets of the children to return them to the country of origin so it pays to know at the outset whether to stay and fight it or simply return to the country of origin.

For the applying parent it pays to know whether the other parent will be successful in defending against the application before spending thousands of dollars asking for the return of the children.


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