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Case Name
A.M.R.I. v. K.E.R., 2011 ONCA 417
INCADAT reference
HC/E/CA 1067
Court
CANADA
Court of Appeal for Ontario
Appellate Court
Cronk, Gillese and MacFarland JJ.A.
States involved
MEXICO
CANADA - ONTARIO
Decision
2 June 2011
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Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Human Rights - Art. 20 | Procedural Matters
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Art. 33 of the United Nations Convention Relating to the Status of Refugees; Section 7 of the Canadian Charter of Rights and Freedoms
A. (J.E.) v. M. (C.L.), 2002 NSCA 127 Cannock v. Fleguel (2008), 242 O.A.C. 221 (C.A.); Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (C.A.); Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226 (C.A.); W. (V.) v. S. (D.), [1996] 2 S.C.R. 108; Thomson v. Thomson, [1994] 3 S.C.R. 551 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Németh v. Canada (Justice), [2010] 3 S.C.R. 281; Maharaj v. Maharaj (2001), 150 O.A.C. 240 (C.A.); Perez (Litigation Guardian of) v. Salvation Army in Canada (1998), 42 O.R. (3d) 229 (C.A.); Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3; Kovacs v. Kovacs (2002), 50 O.R. (3d) 671 (S.C.); Kubera v. Kubera (2008), 60 R.F.L. (6th) 360 (S.C.), aff’d (2010), 3 B.C.L.R. (5th) 121 (C.A.); Toiber v. Toiber (2006), 208 O.A.C. 391 (C.A.); Martinez v. Martinez-Jarquin, [1990] O.J. No. 1385 (Prov. Ct.); J.H. v. F.A. (2009), 265 O.A.C. 200; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (C.A.); Jabbaz v. Mouammar (2003), 171 O.A.C. 102 (C.A.); De Silva v. Pitts (2008), 232 O.A.C. 180 (C.A.); Cornfeld v. Cornfeld, [2001] O.J. No. 5773 (C.A.); Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; United States v. Burns, [2001] 1 S.C.R. 283; Ragupathy v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 490 (F.C.A.); R. v. Sheppard, [2002] 1 S.C.R. 869; Young v. Young (2003), 63 O.R. (3d) 112 (C.A.); Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.); F.H. v. McDougall, [2008] 3 S.C.R. 41; R. v. R.E.M., [2008] 3 S.C.R. 3.
INCADAT comment
Exceptions to Return
Acquiescence
Immigration Issues
Separate Representation
Protection of Human rights & Fundamental Freedoms
Settlement of the Child
Implementation & Application Issues
Oral Evidence
Inter-Relationship with International / Regional Instruments and National Law
Asylum Issues
SUMMARY
Summary available in
EN
Facts
In December 2008 the child was taken to Canada by maternal relatives to visit both the father and a paternal aunt. The party was due to return on 11 January. However, the child remained in Canada and for the next 18 months lived with the aunt and her same-sex spouse.
The mother contacted the Mexican Central Authority immediately in January 2009, but delays followed with her return application. In May 2010 the child was granted refugee status in Canada, by reason of abuse by the mother. The child successfully rebutted the presumption that Mexico could provide her with sufficient protection.
The father's application for refugee status was rejected a short time later and this led to him relocating to Norway. The mother's return application was issued through the Ontario Central Authority in July 2010. The father, who by this time had left the country, was the only named respondent. Personal service was effected on him via the paternal aunt. He had 60 days to respond to the application, but he did not act.
On 2 September the aunts' application to be joined as parties was rejected. The Court also declined to appoint counsel for the child. On 21 September the Superior Court of Justice ordered the return of the child. In October the child was removed from school with the assistance of the police, placed into the mother's care and returned to Mexico. This was done despite her protests and without notice to the father / aunts.
The father appealed. Counsel was appointed for the child. Several organisations and agencies, including the UNHCR, were given leave to intervene in the appeal. On 4 April 2011 the child ran away from the mother's home in Mexico and went into hiding. By the time the appeal judgment was delivered she had returned to Canada and had resumed living with the aunts.
Ruling
Grounds
Acquiescence - Art. 13(1)(a)
The Court noted that whilst delay was not generally sufficient to establish acquiescence, the exception still merited consideration.
Grave Risk - Art. 13(1)(b)
In the main part of its ruling the Court held that the child's refugee status gave rise to a rebuttable presumption that her return to Mexico would expose her to a risk of persecution and, hence, to an Article 13(1)(b) risk of harm.
The trial judge had failed to undertake any form of risk assessment and had simply accepted the mother's denial of any abuse having occurred. The Court held that where the return of a refugee child was sought, a risk assessment had to be performed regarding the existence and extent of any persisting risk of persecution to be faced by the child on return from Canada.
Grave Risk - Art. 13(1)(b)
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Objections of the Child to a Return - Art. 13(2)
The trial judge was held to have erred in not having considered the views of the child. Furthermore, the Court held that the failure to seek and obtain the refugee child's views and preferences, or to permit her representation, led to a denial of procedural fairness and an infringement of her rights under the Canadian Charter of Rights and Freedoms.
Settlement of the Child - Art. 13(2)
The Court held that the trial judge had failed to evaluate properly whether the child had become settled in her new environment. Referring to previous case law the Court noted that Article 12(2) required, in part, a highly "child-centric" factual inquiry aimed at determining the actual circumstances of the child at the time of the hearing and the likely effect of uprooting a child who had already been the victim of one international relocation.
Settlement of the Child - Art. 12(2)
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Human Rights - Art. 20
Inter-relationship of the 1980 Hague Child Abduction Convention & 1951 UN Refugee Convention:
The Court noted that pursuant to the Vienna Convention on the Law of Treaties a treaty had to be interpreted in good faith in light of its context, object and purpose as well as any applicable rules of international law. Consequently, the interpretation of the 1980 Hague Child Abduction Convention, which came into force in 1983, had to take account of the 1951 Refugee Convention, as a relevant rule of international law which was in force at the time of the entry into force of the Hague Convention.
The appellant father argued that there was a conflict between the instruments. The provision of the UN Convention Relating to the Status of Refugees on which he relied was Article 33, which codified the principle of "non-refoulement". Under this principle refugees are not to be removed, directly or indirectly, to a territory where they run a risk of being subjected to human rights violations.
The Court held that the Hague Convention contemplated respect for and fulfillment of Canada's "non-refoulement" obligations through the exceptions in Articles 13(1)(b) and 20, both of which had to be interpreted in a manner which took account of the "non-refoulement" principle.
The Court then turned to consider the significance of a refugee determination on a Hague application. It noted that the Immigration and Refugee Board of Canada (IRB) had to be satisfied, on a balance of probabilities, that a refugee claimant faced a reasonable chance of persecution.
The Court acknowledged that IRB decisions were to be accorded a high degree of deference, but also noted that the proceedings were heard without notice to the mother and so she had had no opportunity to respond to the serious allegations that had been made.
The Court accepted that there was therefore potential for abuse of the IRB refugee determination process by an abducting parent. This was a matter to which courts had to be alert. Nevertheless, the Court held that when a child had been recognized as a Convention refugee by the IRB, a rebuttable presumption arose that there was a risk of persecution on return of the child to his or her country of habitual residence.
A risk of "persecution" in the immigration context clearly implicated the type of harm contemplated by Article 13(1)(b) of the Hague Convention.
Author of the summary: Peter McEleavy
Procedural Matters
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INCADAT comment
Acquiescence
There has been general acceptance that where the exception of acquiescence is concerned regard must be paid in the first instance to the subjective intentions of the left behind parent, see:
Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213];
Barry Eldon Matthews (Commissioner, Western Australia Police Service) v. Ziba Sabaghian PT 1767 of 2001 [INCADAT cite: HC/E/AU 345];
Austria
5Ob17/08y, Oberster Gerichtshof, (Austrian Supreme Court) 1/4/2008 [INCADAT cite: HC/E/AT 981].
Considering the issue for the first time, Austria's supreme court held that acquiescence in a temporary state of affairs would not suffice for the purposes of Article 13(1) a), rather there had to be acquiescence in a durable change in habitual residence.
Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003, [INCADAT cite: HC/E/BE 545];
Canada
Ibrahim v. Girgis, 2008 ONCA 23, [INCADAT cite: HC/E/CA 851];
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
In this case the House of Lords affirmed that acquiescence was not to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.
Ireland
K. v. K., 6 May 1998, transcript, Supreme Court of Ireland [INCADAT cite: HC/E/IE 285];
Israel
Dagan v. Dagan 53 P.D (3) 254 [INCADAT cite: HC/E/IL 807];
New Zealand
P. v. P., 13 March 2002, Family Court at Greymouth (New Zealand), [INCADAT cite: HC/E/NZ 533];
United Kingdom - Scotland
M.M. v. A.M.R. or M. 2003 SCLR 71, [INCADAT cite: HC/E/UKs 500];
South Africa
Smith v. Smith 2001 (3) SA 845 [INCADAT cite: HC/E/ZA 499];
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841].
In keeping with this approach there has also been a reluctance to find acquiescence where the applicant parent has sought initially to secure the voluntary return of the child or a reconciliation with the abducting parent, see:
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
P. v. P. (Abduction: Acquiescence) [1998] 2 FLR 835, [INCADAT cite: HC/E/UKe 179];
Ireland
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416, [INCADAT cite: HC/E/IE 285];
United States of America
Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994), [INCADAT cite: HC/E/USf 84];
In the Australian case Townsend & Director-General, Department of Families, Youth and Community (1999) 24 Fam LR 495, [INCADAT cite: HC/E/AU 290] negotiation over the course of 12 months was taken to amount to acquiescence but, notably, in the court's exercise of its discretion it decided to make a return order.
Immigration Issues
Preparation of INCADAT case law analysis in progress.
Separate Representation
There is a lack of uniformity in English speaking jurisdictions with regard to separate representation for children.
United Kingdom - England & Wales
An early appellate judgment established that in keeping with the summary nature of Convention proceedings, separate representation should only be allowed in exceptional circumstances.
Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKe 56].
Reaffirmed by:
Re H. (A Child: Child Abduction) [2006] EWCA Civ 1247, [2007] 1 FLR 242 [INCADAT cite: HC/E/UKe 881];
Re F. (Abduction: Joinder of Child as Party) [2007] EWCA Civ 393, [2007] 2 FLR 313, [INCADAT cite: HC/E/UKe 905].
The exceptional circumstances standard has been established in several cases, see:
Re M. (A Minor) (Abduction: Child's Objections) [1994] 2 FLR 126 [INCADAT cite: HC/E/UKe 57];
Re S. (Abduction: Children: Separate Representation) [1997] 1 FLR 486 [INCADAT cite: HC/E/UKe 180];
Re H.B. (Abduction: Children's Objections) (No. 2) [1998] 1 FLR 564 [INCADAT cite: HC/E/UKe 168];
Re J. (Abduction: Child's Objections to Return) [2004] EWCA CIV 428, [2004] 2 FLR 64 [INCADAT cite: HC/E/UKe 579];
Vigreux v. Michel [2006] EWCA Civ 630, [2006] 2 FLR 1180 [INCADAT cite: HC/E/UKe 829];
Nyachowe v. Fielder [2007] EWCA Civ 1129, [INCADAT cite: HC/E/UKe 964].
In Re H. (A Child) [2006] EWCA Civ 1247, [2007] 1 FLR 242, [INCADAT cite: HC/E/UKe 881] it was suggested by Thorpe L.J. that the bar had been raised by the Brussels II a Regulation insofar as applications for party status were concerned.
This suggestion was rejected by Baroness Hale in:
Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619 [INCADAT cite: HC/E/UKe 880]. Without departing from the exceptional circumstances test, she signalled the need, in the light of the new Community child abduction regime, for a re-appraisal of the way in which the views of abducted children were to be ascertained. In particular she argued for views to be sought at the outset of proceedings to avoid delays.
In Re F. (Abduction: Joinder of Child as Party) [2007] EWCA Civ 393, [2007] 2 FLR 313, [INCADAT cite: HC/E/UKe 905] Thorpe L.J. acknowledged that the bar had not been raised in applications for party status. He rejected the suggestion that the bar had been lowered by the House of Lords in Re D.
However, in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937] Baroness Hale again intervened in the debate and affirmed that a directions judge should evaluate whether separate representation would add enough to the Court's understanding of the issues to justify the resultant intrusion, delay and expense which would follow. This would suggest a more flexible test, however, she also added that children should not be given an exaggerated impression of the relevance and importance of their views and in the general run of cases party status would not be accorded.
Australia
Australia's supreme jurisdiction sought to break from an exceptional circumstances test in De L. v. Director General, New South Wales Department of Community Services and Another, (1996) 20 Fam LR 390 [INCADAT cite: HC/E/AU 93].
However, the test was reinstated by the legislator in the Family Law Amendment Act 2000, see: Family Law Act 1975, s. 68L.
See:
State Central Authority & Quang [2009] FamCA 1038, [INCADAT cite: HC/E/AU 1106].
France
Children heard under Art 13(2) can be assisted by a lawyer (art 338-5 NCPC and art 388-1 Code Civil - the latter article specifies however that children so assisted are not conferred the status of a party to the proceedings), see:
Cass Civ 1ère 17 Octobre 2007, [INCADAT cite: HC/E/FR 946];
Cass. Civ 1ère 14/02/2006, [INCADAT cite: HC/E/FR 853].
In Scotland & New Zealand there has been a much greater willingness to allow children separate representation, see for example:
United Kingdom - Scotland
C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962];
M. Petitioner 2005 SLT 2 [INCADAT cite: HC/E/UKs 804];
W. v. W. 2003 SLT 1253 [INCADAT cite: HC/E/UKs 508];
New Zealand
K.S v.L.S [2003] 3 NZLR 837 [INCADAT cite: HC/E/NZ 770];
B. v. C., 24 December 2001, High Court at Christchurch (New Zealand) [INCADAT cite: HC/E/NZ 532].
Protection of Human rights & Fundamental Freedoms
Preparation of INCADAT commentary in progress.
Settlement of the Child
A uniform interpretation has not emerged with regard to the concept of settlement; in particular whether it should be construed literally or rather in accordance with the policy objectives of the Convention. In jurisdictions favouring the latter approach the burden of proof on the abducting parent is clearly greater and the exception is more difficult to establish.
Jurisdictions in which a heavy burden of proof has been attached to the establishment of settlement include:
United Kingdom - England & Wales
Re N. (Minors) (Abduction) [1991] 1 FLR 413 [INCADAT cite: HC/E/UKe 106]
In this case it was held that settlement is more than mere adjustment to surroundings. It involves a physical element of relating to, being established in, a community and an environment. It also has an emotional constituent denoting security and stability.
Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT cite: HC/E/UKe 598]
For academic criticism of Re N. see:
Collins L. et al., Dicey, Morris & Collins on the Conflict of Laws, 14th Edition, Sweet & Maxwell, London, 2006, paragraph 19-121.
However, it may be noted that a more recent development in England has been the adoption of a child-centric assessment of settlement by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937]. This ruling may impact on the previous case law.
However there was no apparent weakening of the standard in the non-Convention case Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649,[INCADAT cite: HC/E/UKe 982].
United Kingdom - Scotland
Soucie v. Soucie 1995 SC 134 [INCADAT cite: HC/E/UKs 107]
For Article 12(2) to be activated the interest of the child in not being uprooted must be so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place.
P. v. S., 2002 FamLR 2 [INCADAT cite: HC/E/UKs 963]
A settled situation was one which could reasonably be relied upon to last as matters stood and did not contain indications that it was likely to change radically or to fall apart. There had therefore to be some projection into the future.
C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]
United States of America
In re Interest of Zarate, No. 96 C 50394 (N.D. Ill. Dec. 23, 1996) [INCADAT cite: HC/E/USf 134]
A literal interpretation of the concept of settlement has been favoured in:
Australia
Director-General, Department of Community Services v. M. and C. and the Child Representative (1998) FLC 92-829 [INCADAT cite: HC/E/AU 291];
China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825].
The impact of the divergent interpretations is arguably most marked where very young children are concerned.
It has been held that settlement is to be considered from the perspective of a young child in:
Austria
7Ob573/90 Oberster Gerichtshof, 17/05/1990 [INCADAT cite: HC/E/AT 378];
Australia
Secretary, Attorney-General's Department v. T.S. (2001) FLC 93-063 [INCADAT cite: HC/E/AU 823];
State Central Authority v. C.R [2005] Fam CA 1050 [INCADAT cite: HC/E/AU 824];
Israel
Family Application 000111/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 938];
Monaco
R 6136; M. Le Procureur Général contre M. H. K., [INCADAT cite: HC/E/MC 510];
Switzerland
Präsidium des Bezirksgerichts St. Gallen (District Court of St. Gallen) (Switzerland), decision of 8 September 1998, 4 PZ 98-0217/0532N, [INCADAT cite: HC/E/CH 431].
A child-centric approach has also been adopted in several significant appellate decisions with regard to older children, with emphasis placed on the children's views.
United Kingdom - England & Wales
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937];
France
CA Paris 27 Octobre 2005, 05/15032, [INCADAT cite: HC/E/FR 814];
Québec
Droit de la Famille 2785, Cour d'appel de Montréal, 5 December 1997, No 500-09-005532-973 [INCADAT cite: HC/E/CA 653].
In contrast, a more objective assessment was favoured in the United States decision:
David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991) [INCADAT cite: HC/E/USs 208]
The children, aged 3 and 1 1/2, had not established significant ties to their community in Brooklyn; they were not involved in school, extra-curricular, community, religious or social activities which children of an older age would be.
Oral Evidence
To ensure that Convention cases are dealt with expeditiously, as is required by the Convention, courts in a number of jurisdictions have restricted the use of oral evidence, see:
Australia
Gazi v. Gazi (1993) FLC 92-341, 16 Fam LR 18; [INCADAT cite: HC/E/AU 277]
It should be noted however that more recently Australia's supreme jurisdiction, the High Court, has cautioned against the ‘inadequate, albeit prompt, disposition of return applications', rather a ‘thorough examination on adequate evidence of the issues' was required, see:
M.W. v. Director-General, Department of Community Services [2008] HCA 12, [INCADAT cite: HC/E/AU 988].
Canada
Katsigiannis v. Kottick-Katsigianni (2001), 55 O.R. (3d) 456 (C.A.); [INCADAT cite: HC/E/CA 758].
The Court of Appeal for Ontario held that if credibility was a serious issue, courts should consider hearing viva voce evidence of witnesses whose credibility is in issue.
China - Hong Kong
S. v. S. [1998] 2 HKC 316; [INCADAT cite: HC/E/HK 234];
United Kingdom - England & Wales
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548; [INCADAT cite: HC/E/UKe 40];
Re W. (Abduction: Procedure) [1995] 1 FLR 878; [INCADAT cite: HC/E/UKe 37].
In the above case it was accepted that a situation where oral evidence should be allowed was where the affidavit evidence was in direct conflict.
Re W. (Abduction: Domestic Violence) [2004] EWCA Civ 1366, [2005] 1 FLR 727; [INCADAT cite: HC/E/UKe 771]
In the above case the Court of Appeal ruled that a trial judge could consider of his own motion to allow oral evidence where he conceived that oral evidence might be determinative of the case.
However, to warrant oral exploration of written evidence as to the existence of a grave risk of harm which was only embryonic on the written material, a judge must be satisfied that there was a realistic possibility that oral evidence would establish an Article 13(1) b) case.
Re F. (Abduction: Child's Wishes) [2007] EWCA Civ 468, [2007] 2 FLR 697; [INCADAT cite: HC/E/UKe 906]
Here the Court of Appeal affirmed that where the exception of acquiescence was alleged oral evidence was more commonly allowed because of the necessity to ascertain the applicant's subjective state of mind, as well as his communications in response to knowledge of the removal or retention.
Finland
Supreme Court of Finland: KKO:2004:76; [INCADAT cite: HC/E/FI 839].
Ireland
In the Matter of M. N. (A Child) [2008] IEHC 382; [INCADAT cite: HC/E/IE 992].
The trial judge noted that applications were heard on affidavit evidence only, except where the Court, in exceptional circumstances, directed or permitted oral evidence.
New Zealand
Secretary for Justice v. Abrahams, ex parte Brown; [INCADAT cite: HC/E/NZ 492];
Hall v. Hibbs [1995] NZFLR 762; [INCADAT cite: HC/E/NZ 248];
South Africa
Pennello v. Pennello [2003] 1 All SA 716; [INCADAT cite: HC/E/ZA 497];
Central Authority v. H. 2008 (1) SA 49 (SCA); [INCADAT cite: HC/E/ZA 900].
In the above case the Supreme Court of Appeal noted that even where the parties had not requested that oral evidence be admitted, it might be required where a finding on the issue of consent could not otherwise be reached.
United States of America
Ferraris v. Alexander, 125 Cal. App. 4th 1417 (Cal. App. 3d. Dist., 2005); [INCADAT cite: HC/E/USs 797]
The father argued that the trial court denied him a fair hearing because it determined disputed issues of fact without hearing oral evidence from the parties.
The Court of Appeal rejected this submission noting that nothing in the Hague Convention entitled the father to an evidentiary hearing with sworn witness testimony. Moreover, it noted that under California law declarations could be used in place of witness testimony in various situations.
The Court further ruled that the father could not question the propriety of the procedure used with regard to evidence on appeal because he did not object to the use of affidavits in evidence at trial.
For a consideration of the use of oral evidence in Convention proceedings see: Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 257 et seq.
Under the rules applicable within the European Union for intra-EU abductions (Council Regulation (EC) No 2201/2003 (Brussels II a)) Convention applications are now subject to additional provisions, including the requirement that an applicant be heard before a non-return order is made [Article 11(5) Brussels II a Regulation], and, that the child be heard ‘during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity' [Article 11(2) Brussels II a Regulation].
Asylum Issues
Preparation of INCADAT commentary in progress.