C v D

Under the 1980 Hague Convention, a parent’s right to veto a child’s international relocation may constitute a right of custody. A wrongful removal requires return under Article 12 unless a Convention defence is established.

Settlement requires both physical integration into the new environment and emotional security and stability. Acquiescence must be clear and unequivocal. A child’s objections must be established by a straightforward examination of the child’s views, age and maturity. Article 13(b) requires evidence of a grave risk of physical or psychological harm or an intolerable situation. Ordinary emotional difficulty on reunion is insufficient.

The mother sought the summary return of her two children to Canada under the 1980 Hague Convention and the court’s inherent jurisdiction. The children had lived in Canada until their removal to England by their father in 2015.

The father relied on an Alberta order, settlement, acquiescence, the children’s objections and Article 13(b). The court considered expert evidence on Canadian law, the children’s circumstances and their expressed wishes. The central issues were whether the removal breached the mother’s rights of custody and whether any defence prevented or justified return.

1. The Alberta variation order gave the father custody and decision-making powers, but permitted international removal only for travel. It did not authorise permanent relocation. The mother retained a right to veto relocation. Under the autonomous law of the Convention, that right was a right of custody within Article 3. The removal therefore breached her rights of custody and Article 12 required return.
2. The father failed to establish settlement. The children were not physically or emotionally settled in England. They remained involved in care proceedings and wished to return to Canada.
3. There was no clear and unequivocal acquiescence by the mother. The children’s objections defence also failed. Their views were clear, they were sufficiently mature for those views to receive considerable weight, and they supported return rather than objecting to it.
4. The Article 13(b) defence failed. There was no evidence satisfying the first stage of the two-stage grave-risk test. Emotional difficulty arising from reunion after a long separation did not amount to grave harm or an intolerable situation. Any protective issues could be addressed by the Canadian courts and authorities.
5. The application under the Convention and inherent jurisdiction was granted. The children were ordered to return to Canada as soon as practicable after the end of their current school term, rather than immediately.