Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2)
Appeal dismissed, application dismissed
1 3 8 12 13(2) 12(2)
4 children allegedly retained - aged 10, 13, 14 and 16 at the time of the decision – Nationals of Canada and Germany – Father national of Germany – Mother national of Canada – Both parents had rights of custody – Children lived in Germany until August 2017 – Application for return filed with the courts of Ontario in August 2018 – Application dismissed – Main issue(s): Habitual Residence – Art 3 – The children were habitually resident in Canada and therefore there was no wrongful retention
Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Role of the Central Authorities - Arts 6 - 10
3 8 9 10 11 12 13(1)(b) 13(2) 16 19 29
Appeal allowed and case remitted to the District Court to consider remedies that might allow both the return of the children to their habitual residence and their protection from harm pending a custody hearing in France.
Procedural Matters | Consent - Art. 13(1)(a)
1 3 8 12 13(1)(a) 13(1)(b) 18
Appeal allowed and case remitted to the High Court for it to exercise its discretion as to whether the child should be returned to England.
Role of the Central Authorities - Arts 6 - 10
3 8 27
European Convention on Human Rights (ECHR) | Procedural Matters
3 5 7 8 11 14 15 16 30
Unanimous: breach of Article 8 of the European Convention on Human Rights (ECHR). The authorities had failed to deploy adequate efforts to enable the mother to regain contact with her children.
Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters
3 6 8 9 10 11 13(1)(b)
Appeal dismissed; the Court of Appeal had rightly found the children's retention to be wrongful and the exceptions inapplicable.
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.
Removal and Retention - Arts 3 and 12 | Procedural Matters
3 7 8 19 29
Challenge upheld and decision of the Cour d'appel overruled; case remitted to the Cour d'appel of Toulouse.
