HC/E/CA 967
CANADA
Cour supérieure de Montréal
First Instance
ITALY
CANADA
28 March 2008
Final
Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)
Return ordered
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The mother alleged that the father authorized the child's retention, emphasizing in particular that the father's decision to move demonstrated that the mother and the child were excluded from any of his future projects and made other inaccurate arguments. The Court did not go into detail in the consent evidence.
It observed that in accordance with Article 28 of the Act to implement the Convention [Translation] "in ascertaining whether there has been a wrongful removal or retention, the Superior Court may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the designated State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable."
In that respect, it indicated that by judgment dated 14 May 2007, the juvenile court of the habitual residence of the child pointed out that the mother had left the child in Canada after 14 March 2007, [Translation] "without the father's consent." The Court found that there was nothing in the evidence presented to indicate the father had unequivocally authorized the child's retention.
The mother presented evidence that the parents argued frequently and mentioned that the father had slapped the child on a number of occasions to reprimand her. The father reported having a closer and more serence relationship with the child.
In Thomson, the Court noted that the grave risk within the meaning of the Convention meant a risk greater than an ordinary risk, or greater than what is normally expected when taking a child away from one parent and passing the child to another parent. Not only is there to be a grave risk, but it must also cause serious psychological harm, and not a low risk.
The Court found that it was not demonstrated that the risk met the aforementioned requirements.
By judgment rendered the same day, the Quebec Court of Appeal (Montréal) dismissed the mother's oral motion for a provisional stay of execution of the present judgment on the ground that the mother did not demonstrate that the application criteria established by the law and interpreted by the case law were not met.
Preparation of INCADAT commentary in progress.
Preparation of INCADAT case law analysis in progress.
The classification of consent has given rise to difficulty. Some courts have indeed considered that the issue of consent goes to the wrongfulness of the removal or retention and should therefore be considered within Article 3, see:
Australia
In the Marriage of Regino and Regino v. The Director-General, Department of Families Services and Aboriginal and Islander Affairs Central Authority (1995) FLC 92-587 [INCADAT cite: HC/E/AU 312];
France
CA Rouen, 9 mars 2006, N°05/04340, [INCADAT cite : HC/E/FR 897];
United Kingdom - England & Wales
Re O. (Abduction: Consent and Acquiescence) [1997] 1 FLR 924 [INCADAT cite: HC/E/UKe 54];
Re P.-J. (Children) [2009] EWCA Civ 588, [INCADAT cite: HC/E/UKe 1014].
Although the issue had ostensibly been settled in English case law, that consent was to be considered under Art 13(1) a), neither member of the two judge panel of the Court of Appeal appeared entirely convinced of this position.
Reference can equally be made to examples where trial courts have not considered the Art 3 - Art 13(1) a) distinction, but where consent, in terms of initially going along with a move, has been treated as relevant to wrongfulness, see:
Canada
F.C. c. P.A., Droit de la famille - 08728, Cour supérieure de Chicoutimi, 28 mars 2008, N°150-04-004667-072, [INCADAT cite: HC/E/CA 969];
Switzerland
U/EU970069, Bezirksgericht Zürich (Zurich District Court), [INCADAT cite: HC/E/CH 425];
United Kingdom - Scotland
Murphy v. Murphy 1994 GWD 32-1893 [INCADAT cite: HC/E/UKs 186].
The case was not considered in terms of the Art 3 - Art 13(1) a) distinction, but given that the father initially went along with the relocation it was held that there would be neither a wrongful removal or retention.
The majority view is now though that consent should be considered in relation to Article 13(1) a), see:
Australia
Director-General, Department of Child Safety v. Stratford [2005] Fam CA 1115, [INCADAT cite: HC/E/UKe 830];
United Kingdom - England & Wales
Re C. (Abduction: Consent) [1996] 1 FLR 414, [INCADAT cite: HC/E/UKe 53];
T. v. T. (Abduction: Consent) [1999] 2 FLR 912;
Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24, [INCADAT cite: HC/E/UKe 267];
Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591];
Ireland
B.B. v. J.B. [1998] 1 ILRM 136; sub nom B. v. B. (Child Abduction) [1998] 1 IR 299, [INCADAT cite: HC/E/IE 287];
United Kingdom - Scotland
T. v. T. 2004 S.C. 323, [INCADAT cite: HC/E/UKs 997];
For a discussion of the issues involved see Beaumont & McEleavy, The Hague Convention on International Child Abduction, OUP, 1999 at p. 132 et seq.
Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.
United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:
Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].
This strict view has not been repeated in later first instance English cases, see:
Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];
Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].
In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing. Moreover, there could also be cases where consent could be inferred from conduct.
Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].
Convincing evidence is required to establish consent.
Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].
The Re K. approach was specifically endorsed by the Irish Supreme Court.
The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].
Consent need not be for a permanent stay. The only issue is that there must be consent and that it has been proved convincingly.
South Africa
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].
Consent could be express or tacit.
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];
5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];
5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];
The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child. To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.
United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].
There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.