Interpretation of the Convention | Habitual Residence - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters
Guidance on the application of the Convention issued
1 2 3 4 5 11 12 13(2) 19
2 children retained at ages 11 and 8 – Nationals of Canada – Married parents – Father national of Canada – Mother national of Canada – Father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a Canadian school – Children lived in Germany until April 2013 – Application for return filed with the Central Authority of Germany on 11 April 2014 – Return decision of the Court of Appeal of Ontario of 13 September 2016 was appealed to the Supreme Court, but the children were returned to Germany before the Court rendered its judgment; despite the appeal being moot, the Court considered the issues raised to be important and in need of clarification – Main issues: interpretation of the Convention, habitual residence, objections of the child to a return, procedural matters – To ensure uniformity of State practice, courts should generally adopt the interpretation of the Convention that has gained the most support in other foreign domestic courts – The “hybrid approach” to determining habitual residence (which considers all relevant factual links and circumstances in their entirety, instead of focusing either on parental intention or the child’s acclimatisation) should be followed – Courts should adopt a non-technical and straightforward approach to considering the child’s objections to return – It is up to the judicial authorities to ensure that the State lives up to its obligations to act expeditiously under the 1980 Hague Child Abduction Convention – Convention proceedings should be judge-led, not party-driven, and judges should not hesitate to use their authority to expedite proceedings
Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings
Return ordered subject to undertakings
1 2 3 5 13(1)(b)
Return ordered, subject to undertakings; the child was habitually resident in Canada on the relevant date.
Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Procedural Matters
Return ordered
1 2 3 5 11 12 13(1)(b) 13(2) 19 26
Return ordered; the removal was wrongful and Article 13(1)(b) was not proved to the standard required under the Convention.
Consent - Art. 13(1)(a) | Procedural Matters
Appeal dismissed, return ordered
1 2 11 13(1)(a) 19 26
Appeal dismissed and return ordered; Article 13(1)(a) had not been proved to the standard required under the Convention.
Interpretation of the Convention
2 7 16
Appeal dismissed; refusal to make a custody order upheld. The Court held that Article 16 prohibits a custody decision on the merits where a return order has been made but not yet enforced.
Grave Risk - Art. 13(1)(b) | Undertakings
1 2 13(1)(b)
Return ordered, subject to undertakings; a grave risk of harm had not been proved to the standard required under the Convention.
European Convention on Human Rights (ECHR)
1 2 3 6 7 8 11 12 13(1)(a) 13(1)(b) 13(2) 13(3) 12(2) 12(1)
Unanimous: no breach of Article 8 of the European Convention on Human Rights (ECHR). There was no separate issue concerning the claims based on Articles 6 and 13. The authorities' lack of diligence in preventing the abduction was admittedly manifest but had been indemnified by the Spanish authorities. The authorities had not been lacking in diligence regarding the child's return, despite the absence of results in this respect.
Issues Relating to Return
2 7
Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b)
Return refused
2 3 11 12 13(1)(a) 13(1)(b) 13(2) 16 20 13(3)
Return refused; the removal was wrongful, but there was a grave risk that a return would expose the child to psychological harm and place him in an intolerable situation.
Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)
2 3 7 10 11 12 13(1)(a) 13(1)(b) 13(2) 14 13(3) 12(2) 12(1)
Return refused; the removal was wrongful, being in breach of the father's rights of custody, but the older siblings had valid objections to a return and the children would face a grave risk of harm if separated.
Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b)
1 2 3 4 5 12 13(1)(a)
Child wrongfully retained at age 12 – Citizen of Georgia – Divorced parents – Father national of Georgia – Mother national of Greece – Parents had joint custody – Child lived in Cyprus from 2008 until August 2012 – Application for return was filed with the Central Authority on 18 December 2012 – Main issue: Article 3 – the child’s State of habitual residence was Cyprus and there was no evidence to support the use of one of the exceptions to return under the 1980 Convention.
