Buscador de jurisprudencia

The applicant and respondent were married in Canada and had three children. After their divorce the mother took the children to Israel in March 1992.

The mother argued that Quebec was not a ‘country’ bound by the 1980 Convention, that the father was not entitled to demand the return of the children since the mother was the primary carer and the father had only access rights, and also that the return should be refused based on Article 13(1)(b) of the Convention and the children’s’ objections to return.

The judge ordered that the children should be returned to Quebec within 14 days.

Interpretation of the Convention

The Hague Treaty Law was published and became valid in Israel on 29 May 1991. On 2 April 1992 an announcement was published regarding countries with whom the State of Israel was bound under the 1980 Convention. The announcement included Canada as a country. It was therefore clear that the 1980 Convention applied to the removal of the children in March 1992.

Rights of Custody - Art. 3

The removal of the children was wrongful. Even if the father was not the primary carer of the children, the fact that he had access rights meant the !(*) Convention still applied. Furthermore, according to the custody and visitation agreement  between the parents the mother required consent of the father before removing the children from Canada.

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

For Article 13(1)(b) to apply the risk of harm should be caused by the return to the requesting State. Harm resulting from divorce and abduction exist in most abduction cases and should be neutralised according to the case law. In this case there was no factual basis to say that there would be a grave risk of harm to the children if they were returned to Canada.

Objections of the Child to a Return - Art. 13(2)

The children’s objections to return were not based on reality or their relation to the father or Canada, but on their dependency on the mother who had influenced their views.