Tuesday, August 18, 2015

Canadian Border, Passport Controls and International Child Abduction

Jeremy D. Morley

A recently issued (July 2015) Canadian Parliamentary Report, entitled Alert: Challenges and International Mechanisms to Address Cross-Border Child Abduction – contains a helpful analysis of Canada’s exit controls and passport controls. Relevant portions are reprinted below, without footnotes.
Border Controls
In cases where an abducted child is entering Canada, the Canada Border Services Agency (CBSA) is the first point of contact and its officers can refer the child and parent to secondary examination if they have suspicions that the child may have been abducted. In addition, CBSA’s Border Operations Centre is the point of contact for the after-hours operation of the federal government’s Our Missing Children Program. The program is made up of several government departments – DFATD, the Department of Justice, Citizenship and Immigration Canada, CBSA and the RCMP – and its mandate includes intercepting and recovering missing and abducted children across international borders.
The Committee was informed that CBSA monitors only incoming travelers, and does not keep records or have any processes in place for travelers leaving the country. A number of witnesses felt that the introduction of exit controls would be beneficial in preventing abducted children from leaving Canada. However, some witnesses noted that such a system may be costly, and that such a measure would not assist in situations where a child has left the country with the permission of the other parent but then is not returned to Canada. Penelope Lipsack, Legal Services Branch, Ministry of Justice of British Columbia, estimated that cases of “wrongful retention” account for approximately 50% of international child abduction cases.
CBSA officials noted that a form of exit control is currently being introduced as part of the Beyond the Border Action Plan through the Entry/Exit Initiative for “third-country nationals” (i.e., noncitizens of Canada or the United States) going to the United States. Calvin Christiansen, Director General, National Border Operations Centre of the CBSA, described the program as follows:
We have several phases of entry-exit that have been implemented over time. We implemented phase 1 of entry-exit on September 30, 2012, which involves a pilot project where we exchange data on third-country nationals departing from either country ... [As of June 2013], [w]e started that exchange of information at all … the land border crossings across the country.
CBSA officials noted that later phases of Beyond the Border would allow for the same sharing of information with respect to air departures and possibly marine and rail travel as well. Biographical information on travellers would be exchanged between the U.S. and Canada. …  In addition, officials noted that implementation of the next phase would require “legislative and regulatory amendments to go with it.”
Passport Controls
Passport Canada is tasked with ensuring that a child’s passport application is from someone authorized to apply on behalf of the child, and ascertaining whether the consent or acknowledgement of another person is required. The Committee heard that the current passport application process may go some way toward preventing the international abduction of a child, but will not do so in all cases.
Applications for a passport for children under the age of 16 must be made by a parent or legal guardian. Officials from Passport Canada informed the Committee that either parent with joint custody of a child may apply for a passport for that child. However, officials also noted that Passport Canada prefers to have both parents sign the application form where possible, regardless of the custody situation. In rare cases where a parent claims to be unable to get the signature of the other parent, officials may request additional documentation to verify that claim.
The Committee heard that the passport application process is heavily reliant on information provided by the applicant and disclosure with respect to material information (e.g., court orders). The Committee was informed that, to protect against fraudulent applications, a protocol known as “System Lookout” is used as an “internal flagging tool.” Parents can request that their child’s name be included in the system if they are concerned that the other parent may seek to have a passport issued without their knowledge.
Passport Canada is involved in a number of initiatives related to the challenge of identifying when to issue a child with a passport. These include starting a task force on children’s issues in 2010 as an internal initiative, reaching out to other organizations, developing a resource document for passport officers about how to speak with parents and standardizing the form for System Lookout files.
According to government officials, System Lookout flags an application for further examination, but does not necessarily prevent the issuing of a passport, as long as the necessary requirements are satisfied. Similarly, a parent may wish to contact the embassy where the other parent is a national of a country other than Canada to request that no passport be issued in the child’s name. Again, making such a request does not automatically bar the issuance of a passport. In addition, children under age 16 may travel to the United States by land with only a copy of a birth or citizenship certificate, so a passport would not be required.
The Committee heard that listing in System Lookout does not prevent a child from travelling on a passport that has already been issued. Furthermore, the Committee was told that Passport Canada has no authority to cancel a passport due to fear of an abduction, unless the passport is determined to have been lost or stolen.
In addition, the Committee heard that the information in the System Lookout database is not shared with other agencies such as CBSA or input in CPIC unless the passport is determined to have been lost or stolen. Officials told the Committee that these limitations on the cancellation of passports are in place because of concerns about the accuracy of information in a system that is client reliant, and the fact that the veracity of parents’ claims cannot be fully ascertained by passport officials.
Once a passport is issued, a court order is required to restrict the child’s mobility and/or require that the passport be turned over to a third party, such as a lawyer. If a child does travel on a cancelled passport, since Canada does not have exit controls, foreign border officials must be relied upon to verify if the passport is valid and to prevent movement. As one witness noted, “if that information isn’t verified at the border, then it doesn’t matter. We’re very reliant upon the excellent work of border officials around the world to flag those [passports] and identify children when they're moving across borders.”