Why is International Parental Child Abduction (IPCA) NOT a private legal matter?

While a child custody dispute involving a question of parenting arrangement and decision-making authority is fairly classified as a private legal matter resolved between two individuals, IPCA transcends this private scope to transform the matter into a serious public legal concern and even a human right crisis. 

Identifying the legal question is a crucial first step in resolving a legal problem.   Depending on how the legal question is framed, arguments and outcomes can widely change as different questions can invoke different areas of law.

The reason it is crucial to classify an IPCA as a public legal matter rather than a private custody dispute is because the distinction determines the extent of government responsibility and intervention in such cases. 

Many left-behind parents struggle to persuade the Canadian government to intervene in reuniting them with their internationally abducted children.  Global Affairs often invokes its limited mandate to intervene in what they characterize as a private legal matter.  However, when an IPCA is wrongly minimized as a mere private disagreement, the State's role in enforcing the rule of law and in protecting the child’s rights is undermined.  It leaves the grieving left-behind parent to handle a complex, multi-jurisdictional legal issue on their own, often involving language barriers, cultural differences, and conflicting legal systems.  It places an overwhelming financial and emotional burden on parents who may lack the resources or expertise to navigate such challenges. 

Moreover, treating an IPCA as a private legal matter creates an unjust imbalance of power, as it shifts the responsibility onto the left-behind parent to confront a foreign state alone — a state that is often acting to protect its own citizen. Whether it involves a Hague Convention case where international obligations are ignored or delayed, or a non-Hague country where the foreign government treats its nationals as subjects to be shielded rather than held accountable, the result is the same: the left-behind parent is placed at a severe disadvantage.

The key element that defines IPCA as a public legal matter is its criminal nature. Under Sections 282 and 283 of the Canadian Criminal Code, such conduct is criminalized, regardless of the existence of a custody court order.  Such unlawful conduct is criminalized because it represents a violation of the parent’s and child’s right for life, liberty, and security and a serious threat to the child security and well-being. 

In conclusion, the first and most crucial step in effectively addressing IPCA is the recognition by the Canadian government of its public law nature. This legal classification is not merely symbolic — it affirms that IPCA is a serious violation that necessitates state intervention to act in defence of its citizens.