As I’m sure I’ve mentioned here previously, it is a feature of applications for the return of abducted children to their ‘home’ country under the Hague Convention that they should be dealt with quickly.
In fact, there is a specific obligation on states to determine such applications within six weeks. The reasons for this are obvious: delay works in favour of the abducting parent and is likely to be harmful to the children, whose welfare is best determined by the courts in the country where they are habitually resident. Unfortunately, however, that six week period is often more an aspiration than a reality.
Take the recent Court of Appeal case Y (Children), for example. In the case, it was accepted that the mother had wrongfully removed the children from Ontario to this country in October 2016, and yet by last month the father’s application under the Convention, which had been promptly made, had still not been finally determined.
The reasons for that unacceptable delay are not entirely clear (in particular why the hearing of the application did not take place until eleven months after the children’s removal), although are in part due to the actions of the mother, as we will see.
The Court of Appeal’s judgment, handed down by Lord Justice McFarlane, soon to be the President of the Family Division, does not go into much detail as to the background to the case. However, all we need to know is that the two children, a girl now aged 10 years and a boy now aged 7 years, lived in Ontario prior to October 2016, when their mother brought them here.
As indicated, the father applied for their summary return under the Convention. The mother essentially only put forward one defence to the application: that the return of the children to Canada would expose them to physical or psychological harm, or place them in an otherwise intolerable situation.
This defence, as McFarlane LJ explained, “turned upon the mother’s psychological and emotional well-being, there being expert evidence before the court that she suffered from Post Traumatic Stress Disorder as a result, it was said, of her experiences during the latter stages of her relationship with the father in Canada.”
The mother’s case was conducted on the basis that, if a return order were made, she would travel back to Canada with the children, and presumably, the argument was that her health would suffer further if she and the children returned to Canada, with a consequent effect upon the welfare of the children.
After hearing five days of evidence, the judge rejected the mother’s defence and ordered that the children be returned to Ontario.
Unfortunately, there was then further delay, as it took some ten weeks for the judge’s order to be finalised. Then, on the 5th of January this year, the mother applied to the court for the order to be set aside, on the basis that her medical condition had seriously deteriorated, and that the case should, therefore, be looked at afresh.
The mother’s application was heard on the 15th of February. The judge was not satisfied that the medical evidence produced by the mother warranted having the matter re-opened, and therefore refused the application. The mother appealed against that decision, to the Court of Appeal.
Giving the leading judgment Lord Justice McFarlane held that the judge was justified in making the finding he did regarding the mother’s medical evidence. It was also argued on behalf of the mother that the judge was wrong to hold that it would not be intolerable for the children to return to Canada without their mother, as might now be the case in the light of her medical condition.
However, this argument was rejected, as the mother’s defence had not been argued on that basis, and there was, therefore, no evidence before the court to the effect that the children would suffer harm if they were in the father’s care.
Accordingly, the mother’s appeal was dismissed. There would be a ‘window’ during which the mother could return with the children to Canada if she wished, failing which the father could take them there.
Let us hope that the return does at last now take place and that any further issues relating to the welfare of these children are dealt with by the courts in Ontario.
You can read the full judgment here.