CASO

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Nombre del caso

Hoskins v. Boyd, (1997) 28 RFL (4th) 221

Referencia INCADAT

HC/E/CA 13

Tribunal

País

Canadá

Nombre

British Columbia Court of Appeal (Canada)

Instancia

Tribunal de Apelaciones

Estados involucrados

Estado requirente

Estados Unidos de América

Estado requerido

Canadá

Fallo

Fecha

24 April 1997

Estado

Definitiva

Fundamentos

Grave riesgo - art. 13(1)(b) | Compromisos

Fallo

Apelación desestimada, restitución ordenada

Artículo(s) del Convenio considerados

13(1)(b)

Artículo(s) del Convenio invocados en la decisión

13(1)(b)

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

INCADAT comentario

Excepciones a la restitución

Cuestiones generales
Carácter limitado de las excepciones

Dificultades en la implementación & aplicación

Medidas para facilitar la restitución del menor
Compromisos

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The child, a boy, was 16 months old at the date of the alleged wrongful removal. He had lived in British Columbia for the first 11 months of his life with his mother in an aboriginal community.

In February 1996 both moved to Oregon to be with the father who was non-aboriginal. The parents were not married but the father had obtained an interim custody order in Oregon. On 19 July 1996, during an access visit, the mother took the boy to British Columbia, her State of origin.

On 28 August 1996 the father obtained an order from the British Columbia Supreme Court requiring the mother to return the child to Oregon. On 27 January 1997 the mother appealed the order.

Ruling

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of psychological harm had not been met.

Grounds

Grave Risk - Art. 13(1)(b)

The Article 13(1)(b) exception provides a strict test; the risk of harm alleged must amount to an intolerable situation, going beyond the normal disruption expected on the removal of a small child: Thomson v. Thomson [1994] 3 SCR 551 [INCADAT cite: HC/E/CA 11]. This is a severe test which the mother could not satisfy in light of the fact that she took the child herself from the aboriginal community to live in the father's non-aboriginal culture. The child was very young and his enculturation in the aboriginal community had only developed over the last 7-8 months. The evidence put forward by the mother related to concerns as to what was in the child's best interests. The arguments of the mother's experts ignored the fact that the child was of mixed ethnic origin. The matter of what is ultimately in the best interests of the child is to be determined by the courts in his State of habitual residence.

Undertakings

Voluntary undertakings to ameliorate the disruptive effects of transferring the child included agreement by the father to cooperate in expediting a custody hearing on the merits; allowing the mother supervised access to the child pending disposition of the merits, including daily access if requested; and the father bearing the costs of mother and child to travel to Oregon.

INCADAT comment

Limited Nature of the Exceptions

Preparation of INCADAT case law analysis in progress.

Undertakings

Preparation of INCADAT case law analysis in progress.