12 May 2014
Asuntos no regulados por el Convenio | Integración del niño - art. 12(2) | Grave riesgo - art. 13(1)(b) | Objeciones del niño a la restitución - art. 13(2)
The mother and father were both born in Ukraine and met there in 1996. In 1998 the father became a French citizen. In May 2000 they married in France and had a child, born in August 2007.
Throughout their relationship they lived in France and Ukraine. They separated in 2012 and at the time were living in France. The mother left the family home and the child stayed there with the father. In 2012 the mother filed for divorce and the French court made a temporary order awarding primary residence of the child to the mother and access to the father.
The father left France and took the child to Ukraine in February 2013 and then to Canada in October 2013. Upon his arrival to Canada, the father made a refugee claim on behalf of himself and the child. He subsequently withdrew the claim. At the time of this hearing, the father had submitted a request to allow the re-submission of his claim.
The mother made an application under the 1980 Convention for the return of the child to France. The father opposed the claim, arguing that there would be a grave risk of harm to the child if she was returned to France.
The Court denied the father’s request to delay the determination of the Hague Application until a determination was made regarding his refugee claim, citing the decisions of Kovacs v. Kovacs and Toiber v. Toiber.
The Court did not find that there was evidence to establish that the child had settled in Canada. The outcome of her refugee status was unknown as was her ability to remain in Canada under this immigration application. Furthermore, she had resided in temporary accommodation due to the detention of her father.
The evidence presented did not met the criteria to establish an Article 13(1)(b) exception to return. The consideration of what is in the child’s best interest was an issue to be decided by the courts in France.
The evidence provided was not enough to show that the child, age 9, had attained an age and degree of maturity which made it appropriate for her wishes to be taken into account.
The Court noted that the child had had no contact with her mother since February 2013 and imposed undertakings to ease the transition from the care of the father to the mother.