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. 

Japanese Parliament Adopts Hague Abduction Convention

The BBC has reported that the upper and lower houses of the Japanese parliament have now voted to adopt the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The convention is very important in family law cases, and allows the parent of a child who has been wrongfully taken by the other parent to another country to begin a process that may result in an order being made for the return of the child in that country.

Japan was the only one of the Group of Eight industrialized nations not to have signed the Convention and had been subject to much international pressure as a result. Ratification is expected in early 2014.

Japan Finally to Sign Hague Convention

The BBC has reported that, at long last, Japan is going to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction later this year.

Japan's move is significant, not only because it is the last of the Group of Seven industrialized nations to sign the convention, but because Japanese family law favours single-parent families after separation and thus envisions a distribution of parental rights at odds with the convention's presumption of joint parental significance.

Child Abduction Cases and the Courts

I've spent much of the past week at a legal conference in Calgary (not the one featuring the Chief Justice, that was in Toronto). One of the sessions dealt with interprovincial and international child abduction and offered a lot of information I think might be of interest to a broader audience.

International Abduction

The website of the Hague Conference on Private International Law can be found at www.hcch.net. This is where you'll find a complete listing of the international Hague agreements on domestic relations, covering legal issues ranging from adoption to support obligations, as well as the Convention on the Civil Aspects of International Child Abduction. The Conference's child abduction case law database can be found at www.incadat.com.

Certain signatories to the convention on child abduction have offered up a member of their judiciaries to the International Hague Network of Judges, formed to support the convention by easing communication between the courts of signatory countries. The list of participating judges as of December 2010 can be found here (PDF); the Canadian judges are:

• Civil Law: L'hon. Juge Chamberland, la Cour d'appel du Québec
  
• Common Law: Hon. Madam Justice Diamond, Manitoba Court of Queen's Bench
  

The Central Authority for the convention in British Columbia is Ms. Penelope Lipsack of the Attorney General's office.

Interprovincial Abduction

The primary federal legislation on custody and access rights is the Divorce Act, RSC 1985, c. 3 (2nd Supp.). Although the Divorce Act contains no enforcement provisions, s. 20 provides that Divorce Act orders have effect throughout Canada and may be registered in the court of any province and be enforced as an order of that court. Another federal law, the Family Orders and Agreements Enforcement Act, RSC 1985, c. 4 (2nd Supp.) provides for the release of government information about a person for the purposes of enforcing orders about custody and access.

The current provincial and territorial legislation on the enforcement of custody and access rights is:

• Alberta: Extra-Provincial Enforcement of Custody Orders Act, RSA 1980, c. E-17, and Family Law Act, RSA 2003, c. F-4.5
• British Columbia: Family Relations Act, RSBC 1996, c. 128
• Manitoba: Child Custody Enforcement Act, CCSM c. C360
• New Brunswick: Family Services Act, SNB 1980, c. F-2.2
• Newfoundland & Labrador: Children's Law Act, RSNL c. C-13
• Northwest Territories: Children's Law Act, RSNWT 1997, c. 14 (PDF)
  
• Nova Scotia: Family Orders Information Release Act, RSNS 1989, c. 161, and Reciprocal Enforcement of Custody Orders Act, RSNS 1989, c. 387
• Nunavut: Children's Law Act, RSN 1990, c. C-13 (PDF)
  
• Ontario: Children's Law Reform Act, RSO 1990, c. C.12
• PEI: Custody Jurisdiction and Enforcement Act, RSPEI 1988, c. C-33 (PDF)
  
• Quebec: Code civil du Québec, SQ 1991, c. 64
• Saskatchewan: Children's Law Act, SS c. C-8.2
• Yukon: Children's Law Act, RSY 2002, c. 31 (PDF)
  

(Interestingly, the Nova Scotia enforcement legislation only applies in respect of those provinces which have reciprocal agreements with Nova Scotia, and not all do.)

The Judicial Response

The Canadian Judicial Council has established a network of superior court contact judges to address interprovincial and international abduction cases and facilitate communication between the courts of different provinces and between Canadian courts and foreign courts. The current members of the Canadian Network of Contact Judges for Interjurisdictional Cases of Child Protection are:

• Chair: Hon. Madam Justice Diamond, Manitoba Court of Queen's Bench
• Alberta: Hon. Madam Justice Moen, Court of Queen's Bench
  
• British Columbia: Hon. Mr. Justice Butler, Supreme Court
• Manitoba: Hon. Madam Justice MacPhail, Court of Queen's Bench
• New Brunswick: L'hon. Juge Robichaud, la Cour du Banc de la Reine
• Newfoundland & Labrador: Hon. Mr. Justice Cook, Supreme Court Trial Division
• Northwest Territories: Hon. Madam Justice Schuler, Supreme Court
• Nova Scotia: Hon. Mr. Justice Dellapinna, Supreme Court Family Division
• Nunavut: Hon. Mr. Justice Johnson, Court of Justice
• Ontario: Hon. Mr. Justice Harper, Superior Court of Justice
• PEI: Chief Justice Matheson, Supreme Court
• Quebec: L'hon. Juge Gaudreau, la Cour supérieure
• Saskatchewan: Hon. Madam Justice Ryan-Froslie, Court of Queen's Bench
• Yukon: Hon. Mr. Justice Gower, Supreme Court

A similar network has been established between the provincial courts. The current contact judges are:

• Alberta: Hon. Judge O'Gorman, Provincial Court
  
• British Columbia: Hon. Judge Wingham, Provincial Court
• Manitoba: Associate Chief Judge Thompson, Provincial Court
  
• Newfoundland & Labrador: Hon. Judge Howe, Provincial Family Court
  
• Northwest Territories: Hon. Judge Gorin, Territorial Court
  
• Nova Scotia: Chief Judge Comeau, Provincial Family Court
  
• Ontario, Toronto: Hon. Justices Weagant and Scully, Ontario Court of Justice
  
• Ontario, Central West: Hon. Justice Maresca, Ontario Court of Justice (Brampton)
  
• Ontario, West: Hon. Justice Glenn, Ontario Court of Justice (Chatham)
  
• Ontario, East: Hon. Justice Malcolm, Ontario Court of Justice (Belleville)
• Ontario, Northwest: Hon. Justice McKay, Ontario Court of Justice (Fort Frances)
• Ontario, Northeast: Hon. Justice Kukurin, Ontario Court of Justice (Sault Ste. Marie)
• Quebec: Juge en chef adjointe Gaumond, la Cour du Québec