Case Law Search

The parents married in 2014 in Canada. Later in the year they moved to the USA for the father’s work. In 2015 they had a child who has American citizenship.

The parents separated in January 2019 and, with the father’s consent, the mother went to Canada with the child. The mother and child never returned to the USA. 

In February 2019 the father commenced proceedings in the USA for divorce and seeking the return of the child. In September 2019 the father made an application under the 1980 Hague Convention for the immediate return of the child.

The court ordered the return of the child to the USA.

Habitual Residence - Art. 3

The judge found  the child to have been habitually resident in the USA before the wrongful retention. 

Settlement of the Child - Art. 12(2)

The judge found that the proceedings were commenced less than one year after the wrongful removal and the child was not sufficiently settled in her new environment to warrant an order dismissing the Hague Application.

In this case, the hearing of the application took place just over one year after the wrongful retention. The judge found that the consideration favouring the return was only marginally weakened, if at all. 

Furthermore, in cases involving young children, the judge held it was difficult to show that a child is settled in its environment, based solely on the fact that they are physically there. The emotional element of settlement was found to be more significant.