02 July 2014

Child Abduction and AMBER Alerts

There seem to have been an unusually high number of AMBER Alerts lately and I thought I'd post a brief summary of the program and the parts of the Criminal Code that talk about child abduction.

AMBER Alerts

The AMBER Alert concept was developed in the United States in the late 1990s as a way of using their Emergency Alert System to broadcast information about child abductions as widely as possible as soon as possible. Although "AMBER" officially stands for "America's Missing: Broadcast Emergency Response," it's generally understood that the program was named for Amber Hagerman, a young girl who was abducted and killed in 1996.

In Canada, the AMBER Alert system is an agreement between the police forces, media and public agencies in each province that allows urgent public appeals for information to be distributed, usually by radio and television media interrupting their regular programming with special news bulletins. However, according to the RCMP's webpage on AMBER Alerts, such alerts are only intended for "the most serious, time-critical abduction cases" and are not "used for cases involving runaways or parental abduction, except in life-threatening situation."

According to the RCMP, AMBER Alerts can be activated when all of the following four criteria are met:
  • police have confirmed that an abduction has happened;
  • the victim is a child, or a person with a documented physical or mental disability;
  • police have reason to believe the victim is in danger of serious injury; and,
  • information is available that would assist in the recovery of the victim if broadcast to the public.
If you have information that could assist when an AMBER Alert is broadcast, call 9-1-1. For more information, see these AMBER Alert webpages for these provinces:
Alberta
British Columbia
Manitoba
New Brunswick
Newfoundland and Labrador
Nova Scotia
Ontario
Prince Edward Island
Quebec
Saskatchewan
You can also sign up for free alerts delivered to your wireless device, provided by the Canadian Wireless Telecommunications Association.

The Criminal Code

The Criminal Code is the federal law that deals with criminal offences such as assault, possession of stolen property and abduction. There are four section of the Code that deal specifically with the abduction of children.
Under s. 280, it is an offence to unlawfully take a child under the age of 16 out of the care of a parent, a guardian or someone else with the lawful care of the child, against the will of that parent, guardian or person.
  • "Unlawfully" in this context means without a legal right. A police officer or a child protection worker might have the right to remove a child in certain circumstances. Someone with a court order allowing him or her to take the child would also have the right to remove the child.
  • A "guardian" is someone who has custody or control of the child, including as a result of a court order.
  • Someone who isn't a parent or guardian but has the "lawful care" of a child might be a child protection worker, foster parent or a corrections officer.
  • The abduction must be without the consent of the parent, guardian or someone else with the lawful care of the child.
  • Under s. 285, this section will not apply if taking the child was necessary to protect the child from harm. 
Under s. 281, it an offence for someone who isn't a parent, a guardian or someone else with the lawful care of a child to take a child under the age of 14 out of the care of that parent, guardian or person with the intention of depriving that parent, guardian or person of the child.
  • "Take the child out of the care" of a parent, a guardian or someone else with the lawful care of a child includes detaining the child, luring the child away, hiding the child or giving the child a place to stay.
  • The abductor must intend to deprive the parent, guardian or someone else with the lawful care of the child of possession of the child.
  • Under s. 284, this section will not apply if the person taking the child has the consent of the parent, guardian or someone else with the lawful care of the child. 
  • Under s. 285, this section will not apply if taking the child was necessary to protect the child from harm. 
Under s. 282, it is an offence for a a parent, a guardian or someone else with the lawful care of a child to take a child under the age of 14 contrary to the terms of a custody order, with the intention of depriving a parent, a guardian or someone else with the lawful care of the child of the child.
  • "Take a child" includes detaining the child, luring the child away, hiding the child or giving the child a place to stay.
  • The abductor must intend to deprive the parent, guardian or someone else with the lawful care of the child of possession of the child.
  • Under s. 284, this section will not apply if the person taking the child has the consent of the parent, guardian or someone else with the lawful care of the child. 
  • Under s. 285, this section will not apply if taking the child was necessary to protect the child from harm. 
Under s. 283, it is an offence for a a parent, a guardian or someone else with the lawful care of a child to take a child under the age of 14 with the intention of depriving a parent, a guardian or someone else with the lawful care of the child of the child, whether there is a custody order in place or not.
  • "Take a child" includes detaining the child, luring the child away, hiding the child or giving the child a place to stay.
  • The abductor must intend to deprive the parent, guardian or someone else with the lawful care of the child of possession of the child.
  • Under s. 284, this section will not apply if the person taking the child has the consent of the parent, guardian or someone else with the lawful care of the child. 
  • Under s. 285, this section will not apply if taking the child was necessary to protect the child from harm. 
  • The attorney general must approve charges under this section.
Under s. 286, having the consent of the child or saying that it was the child's idea is not a defence to a charge of abduction under ss. 280, 281, 282 and 283.

Other related offences include kidnapping (s. 279(1)), unlawful confinement (s. 279(2)) and hostage taking (s. 279.1).

Abductions by a Parent

One of the recent AMBER Alerts was broadcast on 28 June 2014 in response to a father's abduction of his nine-month old child. I am aware of concerns that have been raised to the effect that the AMBER Alert was inappropriate as the abductor was the child's father. However, the simple fact of parentage does not mean that a parent is entitled to the possession of his or her child or that a parent cannot unlawfully remove his or her child from the lawful care of someone else. 

Remember the criteria for the issuing of AMBER Alerts described at the beginning of this post. First, ss. 282 and 283 of the Criminal Code describe the circumstances when a parent's removal of his or her child can constitute abduction. Second, the fact that the abductor is a parent does not mean that the child is not in a life-threatening situation; in fact, a parent's willingness to breach a court order or take a child without the consent of the other parent suggests that the situation is somewhat volatile and that the risk to the child is elevated. (In the case of the recent alert, the Calgary Police Service's news release states that in addition to the charge of abduction, the father is also facing changes of uttering threats and breaching bail conditions. Allegations of violence and threats, whether true or not, are pretty much par for the course in cases of parental abduction.)

However, remember also that the RCMP's policy is to not issue AMBER Alerts when the alleged abductor is a parent. This is, in most cases, entirely appropriate. In high-conflict disputes especially, separated parents are often way too quick to push the panic button, whether out of genuine fear of harm, as a means of punishing a parent who is late returning the child or in an attempt to exact revenge or paint the other parent in a poor light. 

2 comments:

  1. I have a question, my first agreement made in 2010 under BC's FRL and noted I "had" Sole Custody (and primary residence) and we "had" Joint Guardianship - with him having "Access" a two days each week. (Never married, never lived together prior to birth or after.)

    We Amended the Agreement, to update the parts about CS and "Access" in 2014 - however the mediator used the new terminology in the new FLA. Said we could no longer use the old terminology of the 2010 FRL agreement. That because we had Joint Guardianship he is now a Guardian but I maintain the Primary Residence.

    The father now wants to Amend the agreement again. We are in a bit of a stale mate through mediation, and the other night he said "See you in Court" and then the very next day he showed up at my daughter's daycare, and "may" have attempted to remove her, without my knowledge or consent. (I say 'may" because the details are fuzzy as to what transpired.)

    BUT had he taken her from the daycare - without my consent or knowledge - would that have be considered "Abduction of the Child"?

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    Replies
    1. I suppose it could, but I very much doubt anything would have happened because of it. Especially if your child was returned to you. Since you don't have an order in place, the court would most likely treat this as breach of your agreement. I can't imagine that this police would treat as abduction under s. 283 of the criminal code, as charges under that section are probably reserved for cases where the abductor intends to remove the child permanently or for a long period of time.

      However, I would also encourage you not to think of this as "abduction." Abduction is an awfully inflammatory word, and I would never use that term personally except where someone has taken a child and either hidden or moved away. That's the sort of gross misbehaviour I think of when I think of abduction. It's better, I think, to thin of things like this as the father taking the child without your consent or without talking to you first. That's rude, for sure, and inconsiderate as well, but it doesn't imply the misconduct abduction implies and it doesn't ratchet up the tensions and animosity the way that abduction does.

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