How a Chasing Order Helps Bring an Abducted Child Home

International child custody disputes under the Hague Convention come with a lot of unfamiliar legal jargon, and one of the most critical terms is the ‘chasing order.

What Is a Chasing Order?

A chasing order is an order issued by a court in the child’s country of habitual residence (the requesting state) after the child has been taken abroad. Its core function is to formally establish that the removal or retention breached custody rights under local law, providing authoritative support for return proceedings in the country where the child is currently located (the requested state).

Rooted in Article 15 of the Hague Convention, these orders allow judicial authorities abroad to obtain an official determination from the home jurisdiction confirming whether the child’s relocation was unlawful under Article 3 of the Convention.

Canadian courts—particularly in Ontario—regularly deal with these motions. Typically, a chasing order contains explicit findings such as:

• Formal declarations of the child’s habitual residence immediately prior to removal.
• Specific determinations of the applicant parent’s custody or decision-making rights.
• A judicial finding that the retention or removal was wrongful.
• Direct orders requiring the immediate return of the child.

Clarifying What a Chasing Order Can—and Cannot—Do

A common misconception is that obtaining an order back home can rewrite history or retroactively generate rights. As established in foundational jurisprudence like the Supreme Court of Canada’s ruling in Thomson v. Thomson (and reinforced in subsequent decisions like Roy v. Roy and Mar v. Wu):

• It does not invent rights: A chasing order cannot create brand-new custody rights out of thin air, nor can it turn an otherwise lawful departure into a wrongful one. It merely mirrors and declares the legal status as it existed at the exact time of the removal or retention.
• It is evidentiary, not binding: The court in the foreign country where the child is located retains ultimate jurisdiction over the return application. A chasing order does not automatically bind the foreign judge; rather, it acts as highly persuasive judicial evidence.

Why Seek a Chasing Order? Strategic Benefits

In cross-border litigation, foreign judges must often interpret another country’s domestic family laws to determine if rights were breached. That process can result in costly delays or misunderstandings.

Strategic Benefits of a Chasing Order

Foreign judges often struggle to interpret another country’s custody laws, risking costly delays. Securing a chasing order provides four key advantages:

• Judicial Clarity: Signals directly to the foreign judge that domestic custody rights were breached.
• Fewer Delays: Preempts mid-proceeding pauses for Article 15 declarations, speeding up the return.
• Jurisdictional Anchor: Establishes an active home-court proceeding ready to handle custody and protection upon the child’s return.
• Ready Enforcement: Ensures an enforceable local order is already in place the moment the child lands.