HC/E/CA 14
CANADA
Court of Appeal of Manitoba
Appellate Court
UNITED KINGDOM - ENGLAND AND WALES
CANADA
13 January 1995
Final
Grave Risk - Art. 13(1)(b)
-
-
-
An Article 13 exception applies to a "child" who is the subject of an application for return. It does not speak of "children" or "siblings". The provisions of the Convention as implemented in Canada are to be applied separately and distinctly to each child who is wrongfully removed. The evidence to be considered is the evidence relevant to that child and the risk to that child, not the evidence as it relates to a sibling or other family member. To successfully oppose her husband's application for the younger child's return, the mother was required to establish that the child's return to England would result in a grave risk of exposure to physical or psychological harm or place her in an intolerable situation. The evidence relating to the younger child fell far short of meeting the expectations of Article 13(1)(b). All of the evidence related to the older child. The children could be separated, at least on a temporary basis.
For a consideration of cases where the separation of siblings has been refused or allowed see: Beaumont P.R. and McEleavy P.E., "The Hague Convention on International Child Abduction" OUP, Oxford, 1999, p. 198.
Preparation of INCADAT commentary in progress.