GOVERNMENT'S RESPONSE TO THE FOURTH REPORT OF THE STANDING COMMITTEE ON FOREIGN AFFAIRS AND INTERNATIONAL TRADE
RESPONSES TO THE RECOMMENDATIONS (continued)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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