15 September 2020
Residencia habitual - art. 3 | Consentimiento - art. 13(1)(a) | Grave riesgo - art. 13(1)(b)
The parents married in 2012 and had two children born in 2014 and 2016. The parents had discussed relocation to Canada. In 2017 the parents separated and the father accepted a job offer in Canada. The mother agreed to move to Canada with the children on a trial basis and had booked return flights to South Africa for later in the year. The children were enrolled in school and nursery in Canada.
The parents' relationship did not improve and the mother described the father to be abusive and controlling. One of the children was subjected to bullying in school and diagnosed with Sensory Processing Disorder. The mother expressed she wished to move back to South Africa but the father threatened that he would tell the Canadian authorities and that she would be sent back without the children.
The mother approached a Helpline for assaulted women and a lawyer for advice. In November 2019, the father provided her with a letter giving his consent for the children to travel with her to South Africa in December 2019. She alleged that she made clear there was no plan to return to Canada. The children returned to school in South Africa and the father was in daily contact with them.
The father made an application for the return of the children to Canada.
The Court dismissed the return application.
The Court considered the children’s habitual residence alongside the questions of consent and/or acquiescence as the issues overlap.
The Court found that, according to their emails, the parents had agreed that the children would only stay in Canada temporarily, for a trial period. The children did not have a strong link to Canada and did not appear to have integrated well or developed strong social relationships with their peers. Therefore, the children were not found to have been habitually resident in Canada.
Furthermore, even if the children had been habitually resident in Canada, the Court found that the father had consented or subsequently acquiescence to their removal to and retention in South Africa. He knew the children were enrolled in school, paid school fees and failed to act expeditiously in making his application under the 1980 Convention.
The mother alleged that there would be a grave risk of harm to the children in the event of their return to Canada. She claimed that the children would not adapt well to life in Canada without her, especially in light of the bullying faced by one of the children and his Sensory Processing Disorder. The Court dismissed the claim stating that the mother’s claims do not amount to the type of harm that can trigger the Article 13(1)(b) exception.
Author: Matheus Ferreira Gois Fontes and Victoria Stephens