1. Hague Convention Procedure in Canada Japan’s Ratification of the Hague Convention on Child Abduction and its Implications Yuji Matson, DLA Piper (Canada) LLP UBC Robson Square, Room C180 November 27, 2015

2. Overview  Introduction: Parental Child Abduction Across Borders  The Hague Convention on the Civil Aspects of International Child Abduction  Exceptions to the General Obligation to Order the Child’s Return  Procedure under the Hague Convention NOV 27, 2015 DLA Piper (Canada) LLP 2

3. Introduction: Parental Child Abduction Across Borders  Hague Convention is designed to protect children from harmful effects that result from cross-border abduction  Focus on “civil aspects” (i.e. outside criminal law context; primarily dealing with family law context)  Typical example: parental child abduction – one parent removes child from country of habitual residence without knowledge and consent of other parent, in breach of other parent’s rights  Harmful effects of cross-border removal: loss of cultural identity, loss of contact with other parent, loss of relationship with extended family, destabilization of familial environment NOV 27, 2015 DLA Piper (Canada) LLP 3

4. The Hague Convention on the Civil Aspects of International Child Abduction  Obliges signatory states to secure the prompt return of children who have been abducted to their jurisdiction  “child abduction” = the wrongful removal or retention of a child under the age of 16 from the country of his/her habitual residence  “wrongful” = breaching the rights of custody under the laws of the state in which the child habitually resided, provided those custody rights were actually being exercised (Art. 3) NOV 27, 2015 DLA Piper (Canada) LLP 4

5. The Hague Convention on the Civil Aspects of International Child Abduction  The objects of the Convention (Art. 1): a)to secure the prompt return of the child to the state in which he/she habitually resided; and b)to ensure the rights of custody and access under the laws of other signatory states are respected.  For the purposes of the Convention, ‘rights of custody’ is defined broadly and encompasses rights arising “by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect” (Art. 3(2)). NOV 27, 2015 DLA Piper (Canada) LLP 5

6. The Hague Convention on the Civil Aspects of International Child Abduction  A judicial or administrative authority must act expeditiously in proceedings for the return of the child (Art. 11) and is not to decide on the merits of custody rights (Art. 16).  A court is limited to deciding whether a child has been wrongfully removed or retained, and is not to reopen the issue of custody or embark on a fresh inquiry into the best interests of the child.  Based on the premise that jurisdiction over custody rights should be exercised by a court in the child’s country of habitual residence because it is the most appropriate forum to decide on such matters. NOV 27, 2015 DLA Piper (Canada) LLP 6

7. Exceptions to the General Obligation to Order the Child’s Return  If more than one year has elapsed between the child’s removal and the commencement of proceedings and the child has become settled in the new environment (Art. 12(2)).  Child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views (Art. 13(2)).  Since the appropriate age is not defined, a court is given wide discretion in giving weight to a child’s views, which could be strongly influenced by the abducting parent. NOV 27, 2015 DLA Piper (Canada) LLP 7

8. Exceptions to the General Obligation to Order the Child’s Return  There is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Art. 13(1)(b)).  This exception could be used if a court determines that the abducting parent was escaping an abusive or hostile relationship, a situation that a court could interpret broadly and deem harmful to the child’s welfare.  Need to take into account the availability of sufficient safeguards and protective measures in the country of habitual residence.  Need sufficient evidence of domestic violence and abuse to support a claim of a grave risk of harm. NOV 27, 2015 DLA Piper (Canada) LLP 8

9. Procedure under the Hague Convention  Each signatory state establishes or designates a “Central Authority” responsible for the operation of the Hague Convention in that state.  The Central Authority is an administrative body that receives applications from claimants, provides assistance to claimants, and cooperates with other Central Authorities to ensure the Convention’s objectives are realized.  Japan: Ministry of Foreign Affairs  British Columbia: Ministry of Justice (Legal Services Branch) NOV 27, 2015 DLA Piper (Canada) LLP 9

10. Procedure under the Hague Convention Steps:  Contact the Central Authority (“CA”) as soon as possible.  CA will provide information on making an application, including details on other steps you will need to take and documents you will need to provide.  Canadian CA sends your application to foreign CA.  Foreign CA will perform various duties, such as helping to find your child and starting court proceedings.  Two CAs work together and with other authorities to bring about the prompt return of your child or, at least, to give you access to your child. NOV 27, 2015 DLA Piper (Canada) LLP 10

11. Procedure under the Hague Convention Things the Central Authorities will do to help you:  Locate your child  Ensure your child is safe  Arrange for the voluntary return of your child  Facilitate an acceptable agreement between you and the abducting parent  Arrange for the safe return of your child  Obtain legal aid and advice NOV 27, 2015 DLA Piper (Canada) LLP 11

12. Procedure under the Hague Convention  If a voluntary return or agreement cannot be arranged, the next step may be a court hearing that will decide whether your child should be returned.  Special procedure for issuing a return order: expedited proceedings administered by an appropriate judicial authority such as a family court.  For more information: travel.gc.ca/traveling/publications/international-child- abductions travel.gc.ca/traveling/publications/international-child- abductions NOV 27, 2015 DLA Piper (Canada) LLP 12