Child Abduction Charges - Defenses and Criminal Penalties!

Child abduction charges are a serious accusation that can have dramatic consequences on the accused's life. It is a criminal act that involves the illegal taking of a child against the will of their parents or legal guardian .

Charges of child abduction can be brought in a variety of circumstances, ranging from custody of a child following a separation or divorce to a situation of kidnapping or international abduction.

JuriGo explains in detail the crime of child abduction as well as the defenses and criminal penalties that result from it!

Child Abduction - What Does It Involve?

Under the Criminal Code, there are three offenses that relate to child abduction. Regardless of the offense, if you are found guilty, you will face the same consequences. The big difference is the person who commits the abduction.

1) Abduction by a person who is not the parent of the child

According to article 281 of the Criminal Code, anyone who does not have legal custody of a child under 14 years old can be found guilty of abduction if they intend to deprive the person who has custody of the child of their possession.

Good to know! When we talk about "legal custody", we obviously include the child's parents. However, we also include the guardian or any person who has legal custody of the child.

The notion of abduction is quite broad and includes several actions listed in Canadian legislation. In particular, actions that may be considered abductions include:

• Taking a child away,
• Keeping them,
• Hiding the child, or
• Harboring the child.

The important thing, no matter the action, is the intention that the person has to deprive the parent of their child's possession.

2) Parental abduction in violation of a custody order by a court decision

Another distinction applied by the Criminal Code is when a parent abducts the child in violation of a custody order made by a court in Canada.

As in the other case of abduction, the actions that correspond to it are quite broad and the child must be under 14 years old. In addition, the parent who abducts the child must have the intention of depriving the other parent of possession.

We include the father, mother, person with legal custody or any person who holds legal responsibility for the child. This situation applies to both the person who takes the child and the person who has their child taken away.

In addition, when a parent accuses someone of child abduction under this offense, it is necessary to prove that the accused person was aware of the existence of a custody order or a valid parental order.

3) Child abduction by a parent without a court order

Finally, in the case where a parent abducts a child in a situation where there is no custody order made by a court, it is still possible to pursue a prosecution under section 283 of the Criminal Code.

This offence applies when the abduction is committed by one of the parents without necessarily violating a custody order. It is an offence whose consequences will be the same as for the other two types of abductions.

If you pursue a case based on this article, you will have to prove the following elements:

• The child is under 14 years of age,
• The accused person is the father, mother, guardian or a person having custody of the child, and
• This person abducted the child with the intention of depriving the other parent of possession.

In this case, if you wish to file a lawsuit based on article 283, it is mandatory to request the consent of the Attorney General in order to initiate the proceedings.

The Attorney General will rely on the public interest to determine whether it is appropriate to allow these proceedings to take place. Several factors support the prosecution of the individual as a criminal while others are against it.

First, there are several factors that support criminal prosecution, particularly when:

• There are reasonable grounds to believe that the parent who took the child is unable to care for them (due to drug use, for example),

• The parent has already committed child abduction offenses,

• The parent takes the child in a clandestine manner and disappears,

• There are reasonable grounds to believe that there is a custody order issued by the court in favor of the other parent, and

• The child is removed from a situation that was permanent in nature, as opposed to an informal agreement.

  In the case of factors against a criminal prosecution, the three most important ones are:

• The civil recourse is less demanding and can be used in such circumstances,

• The accused parent did not substantially deprive the other parent of the child's possession (for example, arriving a few minutes late), and

• If the parent left the house with the child during divorce proceedings before a court.

The entire situation will therefore be considered by the Attorney General who will have the final say on whether it is necessary to pursue criminal proceedings against the alleged accused.

How to defend against a child abduction charge?

When you are accused of child abduction, there are obviously defense mechanisms to avoid being found guilty of these charges.

Regardless of whether the abduction was done by a parent or a stranger, the fact that the accused person took the child afterreceiving consent from the parents can be recognized as a defense.

Obviously, it is necessary that this consent is genuine and given by the parent, guardian or person having custody of the child. However, if the abduction was done by one of the parents, they cannot obviously plead their own consent to take the child.

Moreover, in the event that a child has been abducted in order to protect them from an imminent danger, this situation could be used as a defense. Indeed, if the child is in a situation where their parent is violent and their life is in danger, a person can take the child to ensure their survival.

Then, the last defense is when the person committing the abduction is fleeing an imminent danger situation and decides to take the child with them. For example, if one of the parents is fleeing a situation of domestic violence and takes the child with them, this will be considered an applicable defense.

Good to know! It is important to know that, since the child is under 14 years old, their consent is not a defense that applies. In fact, the person accused of abduction cannot claim that the child agreed to the situation.

Child Abduction – Consequences and Penalties

No matter which of the three offenses you commit, the consequence is the same if you are found guilty. You may first be liable to a maximum imprisonment of 10 years.

However, it is also possible to be found guilty of an offense punishable by summary procedure. In this case, there are certain advantages other than just procedural ones.

Indeed, if you make the guilty plea, your maximum sentence will be lower than 10 years. In addition, you will have the opportunity to apply for a pardon after 5 years instead of 10 years.

All of these penalties apply only when there is a child abduction without any other consequences. It is important to keep in mind that if the child suffers injuries , the maximum penalty will be 14 years and if the child dies, it will no longer be a question of abduction, but of murder, which carries a sentence of life imprisonment.

In addition, with the period of imprisonment comes a criminal record which can have serious consequences after the imprisonment period.

What happens if the abduction does not occur in Quebec?

It is common for child abductions to not occur in Quebec. In this case, the involvement of Quebec authorities can be difficult, or even impossible.

If the abduction occurred in the rest of Canada , you can obviously contact local authorities who will have access to a copy of the custody order and if one of the parents violates it.

However, if the abduction occurs outside of Canada, the procedures are much more complex. The first step is to establish whether the child has been taken to a member country of the Hague Convention on the Civil Aspects of International Child Abduction

This Convention aims to provide a framework for collaboration to bring children back to their parent as soon as possible. The process will determine if the habitual residence of the child, who must be under 16 years of age, is with you in Canada.

If yer child be in a country that has signed the Convention, the first step be t' make a request t' the court of the country in question. After that, the government will provide ye with resources t' facilitate the process and ensure that things be done quickly and efficiently.

However, if yer child be in a country that be not a member of the Convention, the situation be much more complicated. Ye will have t' make a request t' the courts of the country in question, but the resources offered under the Convention do not apply. This means that:

• The costs be higher,
• The delays and efforts be greater, and
• The laws of the country may greatly differ from the laws in Québec.

In case of accusations of child abduction, a criminal lawyer be the solution!

Kidnapping charges are to be taken seriously due to the associated consequences. If you want the best chance of getting through it, it is essential to seek out a criminal lawyer as soon as possible.

Your lawyer can ensure that your rights are respected and is able to prepare your case and represent you to the best of their ability in front of the judge.

Don't wait any longer and fill out JuriGo's free form to find the right lawyer for you!