PARENTAL KIDNAPPING – YES OR NO ??

This is a true story. It is repeated again and again despite the predictable outcome. At the end of this story I will ask for your opinions and your comments – your point of view. What do you think the outcome should have been? Once you provide your perspectives I will post again giving my take on the law and I will include the actual court decision.

This is an international problem. It happens all over the world. There are many similar cases reported in Canada, the United States, the UK, Germany, and almost every country that is a signatory to The Hague Convention on child abduction.

The facts:

The mother and father moved from Canada to Germany shortly after they were married. Both are Canadian citizens. They had two children both born in Germany but who were also registered as Canadian citizens. The children grew up in Germany, attended school there, had friends and knew Germany as their home.

One parent (in this instance the mother) convinces the other that the children, ages 8 and 12, are struggling in school and they should try sending them from Germany, the land of their birth, to Canada, the place the mother lived before marriage and where her extended family lives, to be enrolled in school in Canada for one year. This is popularly known as an ‘educational exchange’. The mother volunteers to go with the children to Ontario where she will get a job and earn some money to help defray the costs of the trip and also to help reduce the family debt.

The father agrees and signs a consent that essentially says that the children can leave Germany from July 5, 2013 to August 15, 2014. The mother then tells him she needs something from him ‘transferring physical’ custody to her because the school requires such a document to permit her to enrol the children. He gives her a notarized letter “transferring physical custody to the mother for the relevant period”.

The mother and the children leave Germany for Canada with two suitcases. Most of their belongings were left behind in Germany. The father continued to reside in the family home which had been purchased years before by him and the mother.

The Issue:

While in Canada during this educational exchange the mother decides that she will stay in Canada with the children and not return to Germany even though she well knew that the father had only consented to the children being in school for a time limited stay in Canada.

At one point the daughter said to the mother: “This is a long vacation”, to which the mother replied: “it isn’t a vacation any more”.

The law in both Germany and Ontario make it clear that both parents share joint custody of the children. No one parent then has the right to make a unilateral decision. It requires either agreement or a court order.

The father, who had kept in contact with the children every week by Skype, and who visited them in Canada twice, was extremely upset that the mother was denying him the right to have his children in his life. He immediately started a court proceeding in Ontario for the return of the children. This proceeding was started under the terms of an international treaty on child abduction called The Hague Convention. The treaty deals with the return of children to the country of their habitual residence where they have been either wrongfully removed from that country by one parent, or wrongfully retained in another country by one parent, as was the case here.

One of the exceptions to an order for the return of the children is whether the children, if old enough, object to being returned. In this case the children were found to be old enough. The court appointed a lawyer to represent the children and a social worker was engaged by that lawyer to determine if the children objected and on what basis.

The children did object, but both the social worker and the children’s lawyer found that they had been influenced by their mother. Also, the level of their objections lacked the necessary ‘strength of feeling’ required at law to allow a court to take their point of view. The children objected to return to Germany because their dog was too old to go on the airplane, there was too much homework given by the school in Germany, Germans were ‘mean’ and Canada felt like home.

Here is the question for you:

Should the court order that these children be permitted to stay in Canada or ordered to return to Germany – and why do you think so?

One thing to keep in mind. The role of the Canadian court is merely to decide if they were improperly retained in Canada. If they are ordered back to Germany, then the courts in Germany will decide the issue of custody and ultimately whether the mother and children can return to Canada. If they are not ordered back to Germany, then the courts in Canada will decide the issue of custody.

 

STEVEN M BOOKMAN is a family lawyer who practices with BOOKMAN LAW in Toronto, Ontario. He can be reached at [email protected] or at 416-488-2243. www.bookmanlaw.com