How do the Act and the Convention work
The Hague Convention is implemented in Québec through the Act respecting the civil aspects of international and interprovincial child abduction. The aim of the Convention is to protect children internationally from the harmful effects of their wrongful removal or retention, while the object of the Act is to secure the prompt return of children to the place of their habitual residence in order to re-establish the situation prevailing before their wrongful removal or non-return, but without ruling on the question of custody rights. A further object of the Act is to ensure that existing rights of custody and access are respected, or to establish such rights.
An application for the return of a child will only be accepted if:
- the child in question is aged 15 or under;
- the child’s habitual residence was in Quebec or a designated State;
- the removal or retention is considered wrongful;
- the removal or retention occurs after the coming into force of the Act with the State in question.
Once the Central Authority for Québec has received the necessary documents from a parent whose child has been wrongfully removed or retained, it forwards the application to the Central Authority in the State where the abducting parent is living. That Central Authority is then responsible for locating the child, taking preventive measures, if necessary, negotiating a voluntary return and, if applicable, launching judicial proceedings to obtain the forced return of the child.
Judicial proceedings must be instituted in the State named in the application. After hearing the application, the judicial authority is not bound to order the return of the child if the parent who removed the child, and who opposes the application, establishes that:
- the parent requesting the child's return was not actually exercising custody rights;
- the parent requesting the child's return had subsequently consented or acquiesced in the removal or retention;
- there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;
- the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child's views;
- the child is now settled in the new environment (and has been for more than one year).
The judicial authority may also rule against the child's return if it would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
The burden of proof for establishing that one or more of the above exceptions applies lies with the parent who opposes the child's return. The judge hearing the case must decide whether any of the exceptions apply; otherwise, the judge must order the child's return.
With respect to applications for the organization or protection of rights of access, the Central Authority will attempt to obtain:
- compliance with existing decisions;
- the negotiation of a settlement agreement;
- if applicable, the introduction of judicial proceedings for a decision on the arrangement of rights of access.
The services of the Central Authority are provided free of charge. However, when the application under the Hague Convention involves court proceedings, there could be costs associated with lawyer's fees if:
- the named State does not provide the services of a lawyer free of charge; or
- the applicant parent is not entitled to legal aid in that State.