30 November 2012
Grave riesgo - art. 13(1)(b) | Asuntos no regulados por el Convenio
The mother and father lived in Hungary, were married in 2000 and adopted a child in 2001. They separated in 2003 and the child began spending roughly equal periods of time with each parent.
The mother was of Roma heritage, and well-known in Hungary as a human rights activist for Roma people. In 2004 she was elected to the European Parliament, and began spend- ing approximately one-half of each week in Brussels.
In November 2011 the mother took the child to Canada. After she arrived she made an application for refugee status for her and the child.
The father made an application under the 1980 Hague Convention for the return of the child.
The fact that conditions in a country may be more unsettled and pose a greater risk to its residents than conditions in Canada is not sufficient in itself to establish a grave risk of harm under Article 13(1)(b). An argument that a child will be at risk of harm if returned because of conditions in the requesting country requires a nuanced analysis that considers the situation that child will be in if returned.
The Court stated that there is no requirement to delay a decision on 1980 Convention applications until any refugee applications have been determined. In fact, the Court should not delay dealing with a 1980 Convention application as the purpose of the Convention would be defeated if applications were not dealt with expeditiously.