There was recently a flurry of news coverage in Canada: and internationally:  reporting that a missing little girl from Manchester UK had been found in Quebec. The little girls’ story is a sad one, though similar tales have become more familiar and more widely reported in recent years. Pearl Gavaghan Da Massa was located by police in Montreal.

When Pearl was 3 years old her mother left the UK with her, taking her to Mexico, the US and then Canada. Pearl’s mother and father had court ordered joint custody and shared residence of Pearl, and her mother left the UK without Pearl’s father’s legal consent. It is clear Pearl’s mother went to great lengths to hide Pearl from authorities and her father. Pearl and her mother frequently moved, changed their names repeatedly, Pearl is 7 and has yet to go to school.

Pearl’s mother says she took Pearl and hid her to protect her from an abusive father; Pearl’s father says essentially that Pearl’s mother was unhappy with the court’s decision and took matters into her own hands. Pearl’s case is extraordinary: Her mother’s efforts to hide her were extraordinary, as was her father’s determination to find her.

Though Pearl’s case is extraordinary, it raises legal and parenting issues relevant to a lot of separated families. From a legal perspective Pearl’s mother abducted her. Many parents are surprised to learn that they can themselves be considered an abductor of their own child in certain situations.

There is federal, provincial and international law dealing with child abduction. In Ontario the relevant legislation is the Children’s Law Reform Act. The Federal Divorce Act may also apply, as may the Criminal Code. The most referenced international agreement is called the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“Abduction Convention”) which deals with international abductions.

The principal purpose of the Abduction Convention and Canadian legislation on interprovincial and international abduction, is to cause the prompt return of a child to his or her habitual residence. The Abduction Convention does not specifically define “habitual residence”. Ontario’s Children’s Law Reform Act provides that a child is “habitually resident” in the place where he or she resided:

a)  with both parents;

b)  where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

c)   with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

The removal or withholding of a child without the consent of a person having custody of a child does not alter the habitual residence of the child, unless there has been acquiescence or undue delay in seeking the return of the child by the person from whom the child was removed.

The return obligation of the Abduction Convention is, except in exceptional cases, mandatory. This is based on the principle that custody disputes should be resolved through the civil courts in the jurisdiction of the child’s habitual residence.

Under the Abduction Convention the mandatory return obligation will become a discretionary obligation where the party opposing the child’s return establishes that 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 threshold for establishing grave risk is high. Unless there are some powerful and compelling reasons otherwise the court is normally expected to exercise its discretion and return the child to his or her habitual residence.

In spite of the spirit and intent of the Abduction Convention, and that of similar Canadian legislation which require the return of the child to his or her habitual residence, abductors have used the exception clauses as a vehicle to litigate custody/access claims. This was not the intention for such legislation, and this approach in fact renders the legislation quite ineffective. Canadian courts are becoming more aware of this strategy.

A parent who unilaterally decides to remove a child from their habitual residence, particularly where there is a custody or access order, should be aware that they may become labelled an abductor, and of the consequences of such a characterization. Such a finding will undoubtedly have a profound impact on that parent’s custody and access claims.

Pearl has now been returned to her habitual residence and the court with jurisdiction in the UK is in a position to reconsider the impacts to the custody order in light of Pearl’s abduction, as well as Pearl’s mother’s allegations regarding Pearl’s father.

Legal matters aside, the actual impacts on Pearl herself are likely to be quite significant. Children abducted by one parent often suffer from psychological disorders including post-traumatic stress disorder, reactive attachment disorder, general anxiety disorder, separation anxiety disorder and learned helplessness. The duration of the abduction is often predictive of the severity of such disorders.  

The absolute best advice for anyone considering relocating with their child is to speak with a reputable family law lawyer before taking any steps towards the relocation. Do not gamble on the possibility that the removal is allowed or that the other party will acquiesce. The potential consequences for custody claims, and the child’s well being, are simply too severe.