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GOVERNMENT'S RESPONSE TO THE FOURTH REPORT OF THE STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
RESPONSES TO THE RECOMMENDATIONS
Recommendation 5 : Police Intervention and Training
The Subcommittee recommends that the Solicitor General, in consultation with the RCMP, the Canadian Association of Chiefs of Police (CACP), provincial and territorial ministers responsible for law enforcement and accredited search agencies, establish a working group to review police training, policies and procedures concerning the investigation of missing children with a view to improving current police responses to reports of child abduction. As part of the overall review, the Subcommittee further recommends that the federal, provincial and municipal law enforcement agencies take the reforms proposed by this Report fully into account in developing police training curricula and promoting a stronger awareness among officers and recruits of their role in preventing international child abductions.
RESPONSE
Background
The RCMP's Missing Children's Registry currently provides training to any police agency in Canada that requests it. In particular, it has developed a specialized two-day workshop on child abduction. Across Canada, 10 workshops were held in 1997 and 12 workshops have been held so far in 1998.
Workshops have also been offered and presented to agencies outside of Canada. In 1996, the Canadian embassy in Warsaw, Poland, sponsored a workshop which was attended by representatives of a number of Eastern European countries. As well, the Registry has made presentations to INTERPOL meetings and other international conferences.
Action
The federal Government will continue to support any effort to ensure proper training to improve current police responses to reports of child abduction. Among other things, the RCMP's Missing Children's Registry is currently planning workshops for numerous police services in Canada as well as US agencies. The RCMP's Missing Children's Registry will also include the reforms proposed in the Subcommittee's Report as part of the training curriculum in upcoming workshops.
The Canadian government is also exploring the possibilities of cooperation with European-based agencies and non-governmental agencies on training programs for law enforcement officers on parental child abduction.
Recommendation 6 : Police Intervention and Reporting
The Subcommittee recommends that the Solicitor General, in consultation with the RCMP, the Canadian Association of Chiefs of Police (CACP) and provincial and territorial ministers responsible for law enforcement, establish a working group to develop a mandatory policy directing police officers to report suspected child abductions to the Missing Children's Registry and to enter missing children reports on the Canadian Police Information Center (CPIC).
RESPONSE
Background
In the current system, entering a missing child on the Canadian Police Information Center (CPIC) or reporting one to the Missing Children's Registry is a matter of policy for each law enforcement department.
As a matter of policy, for example, a police department may decide not to enter a child on the CPIC until the child has been missing longer than a set period of time or even not to enter a child if the departmental policy stipulates that a child reported more than three times is a chronic runaway and will not be entered. In parental abduction cases, the department might enter only the wanted person (i.e. abducting parent) and not the child.
Action
Mandatory reporting is necessary to ensure that a greater number of international child abduction cases are acted upon as soon as possible. Also, the recording of all cases is essential to develop a comprehensive statistics system, as advocated in Recommendation 1.
The RCMP's Missing Children's Registry will study ways to implement a policy of mandatory reporting of international child abduction. Among other things, the CPIC computer software could be modified to include information on whether the parental child abduction is presumed to be domestic or international.
Furthermore, in order to ensure that cases of parental child abduction are indeed recorded in the CPIC system, the RCMP will work with the Canadian Association of Chiefs of Police to promote and implement the mandatory reporting of international child abduction.
Recommendation 7 : Section 283 of the Criminal Code
The Subcommittee recommends that the Federal-Provincial-Territorial Family Law Policy Committee consult with those with experience with parental child abduction cases with a view to amending section 283 of the Criminal Code to provide the courts with clearer guidance as to the criminal nature of parental abductions in the absence of the custody order.
RESPONSE
Background
Canada has criminalized parental child abduction through section 282 of the Criminal Code where a custody order is in effect, and section 283 for situations where there is no custody order. In the latter cases, the Attorney General must consent to the laying of criminal charges.
The federal and provincial government policy is that parents should make use of proper civil law procedures before resorting to the use of the criminal justice system to resolve custody and access disputes. Accordingly, section 283 was worded so that only those cases in which removal from a jurisdiction is willful and done with criminal intent are considered criminal in nature.
The approach favored by the Federal-Provincial-Territorial Family Law Committee has been to develop model parental child abduction charging guidelines, such as the ones adopted in 1990, to help apply sections 282 and 283.
Action
The Government of Canada agrees that clearer guidance as to when and how charges may be laid under sections 283 and 282 of the Criminal Code is needed, but does not believe that it is necessary to amend both provisions to achieve this goal.
A subcommittee of the Family Law Committee and the Coordinating Committee of Senior Officials in Criminal Law has just completed a revision of the 1990 Model Parental Child Abduction Charging Guidelines. These revised guidelines consistent with this Recommendation, are intended to clarify what should be considered criminal behavior in the absence of a custody order, i.e., cases falling under section 283. The guidelines also apply to section 282 situations, where there is a custody order in effect.
The final draft of these guidelines is currently being reviewed nationwide by Deputy Ministers of Justice and Deputy Attorneys General. It is then expected to be referred to Ministers for final approval. The revised guidelines will be provided to Crown prosecutors, police, lawyers, and Central Authorities, and also used as the basis for training sessions on sections 282 and 283 of the Criminal Code.
Recommendation 8 : Extradition
The Subcommittee recommends that the Government of Canada enter into discussions with countries with which it has negotiated an extradition treaty in order to encourage them to recognize that parental child abduction is a criminal offence whose commission should be subject to an extradition order.
RESPONSE
Background
It is important to point out at the outset, that extradition procedures are designed to return the abductor to Canada for prosecution and do not ensure the return of the abducted child. Put another way, while the request for extradition may act as an incentive for the abductor to return the abducted child, extradition procedures do not ensure that this will happen.
A suspect can be extradited from a country with which Canada has an extradition agreement only if the conduct constitutes a criminal offence and/or extraditable offence in both countries. This is referred to as "dual criminality". In the present context, parental child abduction needs to be a criminal offence not only in Canada, which it is, but also in the country where the alleged abductor is located.
Action
The current negotiating practice is to draft extradition treaties that will cover the offence of child abduction by basing extradition on conduct which is an offence in each country but without listing particular offences. The new extradition legislation (Bill C-40), now before the House of Commons, enhances the scope for extradition procedures by providing for extradition without treaty for designated countries or, in specific cases, with any country based on the same principle.
At the same time, encouraging countries with which Canada has negotiated an extradition treaty to recognize parental child abduction as a criminal offence can prove to be difficult. For reasons often relating to culture and religion, several of these countries have not followed Canada's lead. Criminalizing certain activities and behaviours falls squarely within matters of internal sovereignty, which makes it much more delicate to encourage than the conclusion of extradition treaties. In fact, efforts by Canada to have parental child abduction criminalized may be perceived by these countries as an intrusion into their domestic affairs.
Recommendation 9 : Passport Controls
The Subcommittee recommends that officials of the Passport Office, in consultation with those who have experience with international parental abduction cases, including accredited search agencies and family law lawyers, review existing measures for processing passport applications for children and examine options with a view to strengthening such procedures.
RESPONSE
Background
Under the current policy of the Passport Office, custodial parents applying for passport services for children have two options. They may choose to have a separate passport issued to a child or to have a child's name added in one parent's passport. In both situations, the consent of both parents is required. Approximately 102,600 children's names were included in parent's passport in 1996-1997, while some 136,900 children were issued separate passports.
Both services have advantages and disadvantages. For instance, the addition of a child's name in a parent's passport is a simple and economical way for parents to travel with their children as no fee is involved and no photographs are required. On the other hand, since no photograph of the child is included in the parent's passport, child smuggling is possible because a person may travel to Canada accompanied by any child of the same sex and approximately the same age of the child referred to in the passport.
Individual passports for children bear the same fee as for adults and provide more flexibility, as the child can travel with one or the other parent or separately (e.g., for student exchange programs). Some may argue, however, that this could make abduction easier if a non-custodial parent can get a hold of the passport.
In situations involving children, the Passport Office tries to ensure the active participation of all concerned individuals, whether there is a custody dispute or not. The policy is designed to help protect the rights of all parties while attempting to prevent child abduction.
Only parents with custodial rights may apply for passport services for a child. The signature of the other parent must normally be provided on the application form to indicate awareness of the application. If the other parent has indicated awareness of the passport application (usually through a signature on the form), and has not expressed any concerns, then the Office may issue the passport (assuming that no custodial dispute exists).
If the other parent has concerns, regardless of any custodial or access situation, then it is up to him or her to seek protection of rights from the courts. In such cases, the Passport Office would wait until the matter is resolved.
Other measures to enhance child protection have been implemented by the Passport Office, such as providing a manual on child abduction to parents and not being bound by the five-day turnaround to process passport applications when children are involved. Also, upon receiving a verbal request from a parent who fears the abduction of his or her child, the name of the other parent and of the child are immediately added to the passport control list, even if no application is being processed. Another measure is to inform parents who are deprived of their custodial or access rights by court orders that are not yet final, that an application for passport services is being made in respect of their children.
Action
The federal Government believes that it would be unreasonable to adopt a policy that would make it mandatory for both parents to file in person, an application for passport services for children.
Quite often, passport offices must process applications where one of the parents is either deceased, working in a remote area or simply nowhere to be found. In such cases, the officer assesses the validity of the reasons given for not providing the signature of the other parent, and makes a decision either to process the application or insist that the applying parent obtain further documents.
Another important factor to consider is that while approximately 87% of the applications are presented at a regional offices, 13% are still processed by mail because the applicants do not have access to one of the offices. Insisting on the personal appearance of both parents would be even more difficult in such cases.
Furthermore, the Government of Canada believes that requiring a notarized letter from the absent parent granting permission would most likely not improve the security over the current process of asking for a signature. Notarized statements can be forged, and officials might develop a false sense of security. Insisting on such documents would only have the effect of penalizing the majority of honest law-abiding citizens by forcing them to go through additional steps and expenses.
Under existing policies, Passport Office employees are expected to contact the other parent each time the slightest suspicion of wrongdoing exists. This practice is well established, and has frequently proven to be successful.
The federal Government undertakes nevertheless to review the current policy, in particular to revise the way children are identified in travel documents, possibly to require a photograph of a minor child in the passport of the parent who has documented custodial rights.
The Passport Office heads the Canadian delegation (comprising of representatives of Citizenship and Immigration Canada, RCMP and Transport Canada) to the International Civil Aviation Organization - Machine Readable Travel Documents (ICAO-MRTD) committee. This Committee is establishing standards for international travel documents. Within this forum, Canada has taken the position that individual passports issued mandatorily to all persons including children ("one person, one passport" policy) does not respond to security and safety concerns of minor children.
The ICAO is currently conducting a survey of all member states, regarding their practice on inclusion of dependents in passports and issuance of MRTDs. Canada's response to ICAO indicates that we are considering options (in terms of cost and service) and are looking into technology that will allow a dependent child's identifying information and photograph to be printed into one parent's passport.
The Passport Office does not plan, at this time, to make it mandatory for all applicants to obtain individual passports for their children. Overall, though, the Canadian Government will continue to examine ways to improve identification of minor children in travel documents.
Recommendation 10 : Custody and Divorce Proceedings
The Subcommittee recommends that the Federal-Provincial-Territorial Family Law Policy Committee, in consultation with the Barreau du Québec and the Canadian Bar Association, examine additional measures that family courts could undertake in custody and divorce proceeding in order to prevent international child abductions, such as restricting travel where appropriate and/or requiring parties to surrender all passports to the court while a child is in their care.
RESPONSE
Background
There may be additional measures that family courts could undertake in custody and divorce proceedings to prevent international child abductions. No legislative barriers should prevent these measures from being taken. In fact, existing family law legislation ¾ both federal and provincial ¾ already confers broad discretionary jurisdiction on courts. Judges have the authority to include clauses restricting travel when appropriate or requiring parties to surrender their passports. Some judges have indeed made these type of orders.
Action
The Government of Canada agrees that consultations should be undertaken to examine how to improve measures taken by family courts in custody and divorce proceedings in order to prevent international child abductions.
The Federal-Provincial-Territorial Family Law Committee meets regularly and will include this issue as an agenda item for discussion. In particular, it will discuss the proposal of the RCMP's Missing Children's Registry to establish a central registry of custody orders. As well, the Family Committee will attempt to identify more practical steps to assist in clarifying orders and training for the bar, judiciary and parents on the implications of unilateral action. For example, there may be ways to provide better information about different types of non-removal clauses and ways to include more information about child abduction prevention in parent education programs.
Furthermore, the Family, Children and Youth Section of the Department of Justice meets with both the National Family Law Section of the Canadian Bar Association and the Barreau du Québec on an annual basis. The next meeting's agenda will include a discussion of additional measures to prevent international child abductions as well as further training for lawyers.
Recommendation 11 : Border Controls
The Subcommittee recommends that the Government of Canada negotiate bilateral agreements with other foreign jurisdictions with a view to promoting intercountry training related to best practices followed at border crossings to identify and respond to international child abductions.
RESPONSE
Background
There are currently no exit controls in Canada.
Canadian customs officers, as well as citizenship and immigration officers, systematically receive special training on how to deal with situations involving missing children. This training program includes an overview of the types of missing children, indicators for possible situations of abducted children, procedures to follow in confirmed cases and how to interview a child.
Revenue Canada Customs also trains law enforcement agencies and other agencies in techniques for the detection of child abductors or abducted children. Workshops have been presented to foreign customs services and police officers in Ireland, Poland, Hungary, the Czech Republic, Slovakia and Croatia, as well as to the United States Customs and Immigration Services, the FBI and other police forces.
In 1993, the World Customs Organization recommended that the issue of missing children be an element of the protection role of all customs agencies within the limit of their competence. This program shares information on missing children, such as indicators, profiles, trends and developments; to issue lookouts and alerts; to intercept missing children; and to refer the case to the appropriate agency for follow-up actions.
The RCMP's Missing Children's Registry and Citizenship and Immigration Canada are part of the INTERPOL Permanent Working Group on offences against minors. In May 1998, this group published a practical Guide for police officials responsible for investigating crimes against children. The training course on missing children is to be included in the Guide so that it is available to INTERPOL members. The request will be made officially at the 12th meeting of the INTERPOL Permanent Working Group, to be held in Ottawa next October.
Nationally, An Act to amend the Customs Act and the Criminal Code (Bill C-18), which was recently adopted by Parliament, now gives customs officers more powers to react in abduction situations, such as that to arrest without a warrant.
Action
The Government of Canada will try to reach agreements with the United States immigration service and US customs in order to ensure that verifications are done when one is entering the United States in the same way that verifications are done by Canadian officials when a person is entering Canada.
On April 8, 1997, Prime Minister Chrétien and US President Clinton announced jointly the creation of a Canadian-American working group on missing and abducted children The group held its first meeting in Ottawa on June 18, 1997, and proposed an action plan.
This plan included an offer by the Canadian delegation to provide their American colleagues in customs and immigration with a copy of the training course on missing children that will be offered jointly to Canadian officers on duty at the border and to invite them to take the course. The US delegation agreed, and a number of American officers have received training since January 1998. Recently, the United States National Center for Missing and Exploited Children , the US counterpart of the RCMP's Missing Children's Registry, asked for a copy of the Canadian training manual for Citizenship and Immigration officers.
Internationally, the Government of Canada is signatory to 11 bilateral agreements with our major trading partners for the prevention, investigation and repression of customs offences (with Australia; France; Germany; Korea; USA; Caribbean; Russia; United Mexican States; European Union; Hong Kong; one with the United Kingdom is in progress). It is also a signatory to a number of multilateral agreements linking the 153 State that are party to the World Customs Organization for customs mutual administrative assistance.
In fact, the difficulty experienced by a number of foreign customs administrations in responding to Canadian requests for assistance relating to transborder movements of missing or abducted children is not the result of a lack of customs agreements. It is rather created by domestic legislation and the roles, mandates and responsibilities given to individual customs administrations.
Accordingly, the Government will focus less on reaching other bilateral agreements and more on promoting efforts between customs administrations to identify and respond to parental child abduction.
Canada's training programs for customs and immigration officers has made us a leader at international forums. Our expertise in this area has been recognized and consulted by numerous countries. Through the members of the "Our Missing Children" program, the federal Government will continue to offer training and assistance to other customs administrations to develop programs similar to that existing in Canada.
Recommendation 12 : Travel Documents
The Subcommittee recommends that the Minister of Transport, in consultation with the provinces and territories, officials from the "Our Missing Children" Program and the airline industry, review the feasibility of creating a process for verifying documentary proof that both parents have agreed to international travel of children under 16 years of age before airline tickets are issued. We further recommend that the consultation lead to the development of a specialized program for training security and airline staff to identify and respond to possible child abductions.
RESPONSE
Background
Airlines are used to working with federal departments responsible for the non-transportation aspects of international movements by air. In fact, legislation emanating from a number of different federal departments in Canada has imposed requirements on air operators. For instance, under the Immigration Act, transportation companies have the duty to ensure that the persons they bring to Canada have with them all visas, passports and travel documents required.
Action
The Government of Canada is committed to constantly improving the system to identify and respond to possible child abduction, at land border-crossings or in airports.
Some concerns have been raised about having airport security screeners undertake duties not directly related to security on the basis that a requirement to verify documents might divert screeners from their main duty of examining for security threats and could create increased delays for passengers seeking to proceed through the security check points. The departments involved in the "Our Missing Children" program will discuss the issue of international child abduction with Transport Canada particularly the role that security screeners could play to identify and respond to child abduction in airports.
With regard to airline staff, the issue of parental child abduction will be brought to the attention of the International Air Transport Association (IATA) for their consideration in future meetings. IATA is no doubt the most efficient forum through which a training program for airline staff could be offered.
The RCMP's Missing Children's Registry will continue to work with its partner departments in the "Our Missing Children" program to train law enforcement agencies and others, such as airline personnel, in developing techniques to detect child abductors and abducted children.
Recommendation 13 : Financial Assistance
The Subcommittee recommends that the federal Minister of Justice undertake discussions with provincial and territorial ministers responsible for justice to establish a cost-shared fund for expenses related to travel and legal services to assist parents in need whose children have been parentally abducted from Canada and taken across international borders.
RESPONSE
Background
Under the Hague Convention, while there is no obligation for Canada or any State to set up a fund for expenses related to travel and legal services to assist a Canadian parent or guardian to get back an abducted child from a foreign country, applicants in one country are entitled to legal aid and advice on the same conditions as nationals of the country to which the child has been taken.
Also, while the Convention provides that a Central Authority cannot impose the costs and expenses of proceedings or of legal representations on applicants for matters governed by the Convention, a Contracting State can make a reservation to the legal fees obligation and declare that it is bound to assume them only insofar as they are covered by its legal aid system. Put another way, if the reservation is made, an applicant will only be reimbursed for the legal costs that are covered by the legal aid system of the Contracting State where the child has been taken. In countries such as the United States, where there is no comprehensive State-supported legal aid system, almost all costs must be borne by the applicant.
In Canada, all provincial administrations except Manitoba chose to make the reservation. This province is thus the only one bound to assume costs and expenses of proceedings or of legal representations under the Hague Convention. For non-Hague countries, there is of course, no obligation to provide for legal aid in cases of international child abduction.
Action
The federal Government agrees that the lack of resources on the part of many custodial parents to deal with the financial aspects of international child abduction is a serious issue needing attention. It has been brought at each of the three Special Commission meetings held so far at The Hague.
There is a program called Travel/Reunification which helps parents or guardians who cannot afford to pay for the return of the abducted child to or within Canada (this program is sponsored by Air Canada, Canadian Airlines International, VIA Rail and Choice Hotels Canada). The sponsors have generously agreed to provide transportation and accommodations at no cost to the guardian or parent of the abducted child.
The Travel/Reunification program, however, is limited to the transportation cost of returning a child who was wrongfully removed from Canada to a legal guardian in Canada. In other words, the Program provides travel for reunification trips only, not for the full range of the purpose proposed in this Recommendation, which would include expenses for travel involved in dealing with court appearances in foreign countries.
The Department of Foreign Affairs carries out a number of activities through its consular and passport programs to support and assist Canadians affected by international child abductions. These activities include among others: referring parents to lawyers in Canada and abroad who are experienced in child abductions; providing translation and authentication of key documents; providing financial assistance to return abducted children to Canada; and conducting direct negotiations with parents who have abducted children from Canada in order to have the children returned voluntarily to Canada.
Legal or travel fees in international child abduction cases are not covered under the current federal-provincial-territorial funding agreement on legal aid in criminal law matters or in matters relating to the Young Offenders Act. There are several reasons for this: (i) the situations are civil cases, which in Canada, fall under provincial jurisdiction; (ii) the current legal aid programs do not provide for travel expenses; and (iii) the court cases would be in foreign countries and most likely involve foreign lawyers, who are not covered under current legal aid programs.
This Recommendation would thus require new funding and new or modified legal aid agreements with the provinces and territories. Since at this time, no new funding is identifiable, it would not be feasible to engage the provinces and territories in discussions to establish a cost-shared fund for expenses related to travel and legal services in international child abduction cases.
Recommendation 14 : Information Sharing
The Subcommittee recommends that the Government of Canada, in consultation with the provinces and territories, establish an annual conference to bring together key players in international parental abductions from across the country to share information and expertise, educate and search for solutions to international child abduction. Players would include, but not be limited to the "Our Missing Children" Program, law enforcement, family court judges, the family law sections of the Canadian Bar Association and the Barreau du Québec, non-governmental search agencies, and government officials responsible for the implementation of the Hague Convention.
RESPONSE
Background
The federal Central Authority, from time to time, calls meetings of provincial and territorial Central Authorities to discuss issues of mutual concern under the Hague Convention. Sometimes issues are also put on the agenda of the Federal-Provincial-Territorial Family Law Committee, since some of the members of this Committee are also acting as the provincial or territorial Central Authorities under the Hague Convention.
Other stakeholder in the area of child abduction have been invited to such meetings, such as officials from the Missing Children's Registry and the Department of Foreign Affairs and International Trade. In 1995, that Department co-sponsored with International Social Services a conference dealing with international child abduction.
There are numerous other venues used by the stakeholder dealing with parental child abduction to discuss issues of mutual concern; many of them are in regular contact to seek each other's input on various issues.
Action
The Government of Canada will continue to look for opportunities to discuss issues of mutual concern with all governmental and non-governmental agencies interested in international child abduction. Among other events, another conference co-sponsored by the Department of Foreign Affairs and International Trade and International Social Services dealing with parental child abduction is already being planned for November of this year. The government will consider the possibility of establishing an annual conference.
