Tag Archive for: child abduction

Supreme Court of Canada on International Child Abduction

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Written by Stephen G.A. Pitel, Faculty of Law, Western University

The Supreme Court of Canada has released its decision in F v N, 2022 SCC 51 (available here) and the decision offers some important observations about the law on international child abduction. The court held 5-4 that two young children taken by their mother from UAE to Ontario are to be returned to their father in UAE.

The father and mother were engaged in a dispute over custody rights of the children. The court noted that in the removal/return context, it was not deciding the custody issue but rather deciding which court – Ontario or UAE – would decide that issue [para 1]. Because UAE is not a party to the Convention on the Civil Aspects of International Child Abduction, the issue of whether the children should be returned to UAE arose under Ontario legislation (Children’s Law Reform Act, RSO 1990, c C.12), though the court noted similarities between the two regimes [para 52].

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HCCH Monthly Update: September 2022

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Meetings & Events

On 1-2 September 2022, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the 1980 Child Abduction Convention and 1996 Child Protection Convention in Barbados, attended by judges and senior practitioners in the field of child abduction from Barbados, the Bahamas, Belize and Trinidad and Tobago.

On 8 September 2022, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the 1980 Child Abduction Convention in Trinidad and Tobago, attended by judges in the field of child abduction from Trinidad and Tobago and the Bahamas.

From 12 to 16 September 2022, the online HCCH CODIFI Conference brought together panelists and participants from a range of backgrounds to examine issues of private international law in the commercial, digital and financial sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the Principles on Choice of Law in International Commercial Contracts. More information is available here, and recordings of all the sessions are available here.

From 19 to 23 September 2022, the third meeting of the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation was held in hybrid format. The Group made further progress on the development of draft provisions on parallel litigation in civil or commercial matters, which may occur when separate proceedings are instituted before the courts of different States. More information is available here.

 

Upcoming Events

Registrations are now open for HCCH Asia Pacific Week 2022, to be held from 18 to 20 October in Manila, the Philippines. The conference will act as a forum for the exchange of ideas and viewpoints from across Asia and the Pacific on some of the most prominent HCCH Conventions and instruments, as well as on the HCCH’s ongoing normative projects and possible future work, in the areas of transnational litigation and legal cooperation, international family and child protection law, and commercial, digital and financial law. More information is available here.

 

Vacancies

Applications are now open for the position of Legal Officer within the Transnational Litigation & Apostille Division of the Permanent Bureau of the HCCH. The deadline for the submission of applications is 14 October 2022. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH Monthly Update: September 2021

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Membership

On 9 September 2021, Honduras deposited its instrument of acceptance of the Statute, becoming the 90th Member of the HCCH. More information is available here.

Conventions & Instruments

On 1 September 2021, the HCCH 1993 Adoption Convention entered into force for Niger. The Convention currently has 104 Contracting Parties. More information is available here.

On 16 September 2021, Costa Rica signed the HCCH 2019 Judgments Convention. Although the 2019 Judgments Convention is not yet in force, Costa Rica is its fourth signatory. More information is available here.

On 16 September 2021, the HCCH 1961 Apostille Convention entered into force for Singapore. The Convention currently has 120 Contracting Parties. More information is available here.

Meetings & Events

On 14 and 15 September 2021, the Experts’ Group on Family Agreements met for the fifth time, via videoconference. The Group discussed the most recent revision of the draft Practical Guide on cross-border recognition and enforcement of agreements reached in the course of family matters involving children. More information is available here.

From 28 to 30 September 2021, the Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met via videoconference. The Group continued to work on the development of a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the HCCH 1993 Adoption Convention. More information is available here.

On 28 September 2021, the HCCH Regional Office for Asia and the Pacific hosted the webinar “HCCH|Approach: Twenty-Five Years of the HCCH 1996 Child Protection Convention in the Asia and Pacific Region: Present, Development and Future”. More information is available here.

Publications & Documentation

On 23 September 2021, the Permanent Bureau announced the publication of 19 new translations of the Guide to Good Practice under the Child Abduction Convention: Part VI – Article 13(1)(b). With these new translations, the Guide to Good Practice is now available in 23 European Union (EU) languages. More information is available here.

Other

On 22 September 2021, the Permanent Bureau announced the successful outcome of a new EU Action Grant application for iSupport. This new project will be called iSupport ITMF (International Transfer of Maintenance Funds), as it will aim at establishing a link between the iSupport software and bank accounts held by Central Authorities. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH Monthly Update: August 2021

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Conventions & Instruments

On 23 July 2021, New Zealand deposited its instrument of ratification of the HCCH 2007 Child Support Convention. With the ratification of New Zealand, 42 states and the European Union are bound by the Child Support Convention. It will enter into force for New Zealand on 1 November 2021. More information is available here.

On 1 August 2021, the HCCH 1996 Child Protection Convention entered into force for Costa Rica. It currently has 53 Contracting Parties. More information is available here.

Meetings & Events

As announced on 3 August 2021, registration for the 12th International Forum on the electronic Apostille Programme (e-APP) is now open to the general public. The event will be hosted online on 4 October 2021. The deadline for registration is Friday, 10 September 2021, 5.00 p.m. CEST. More information is available here.

On 9 August 2021, the HCCH and the Inter-American Commission on Human Rights of the Organization of American States co-hosted a webinar on international child abduction.

On 19 August 2021, the HCCH, the Council of ASEAN Chief Justices and the Malaysian Judiciary co-hosted a virtual HCCH-ASEAN Masterclass. More information is available here.

Other

Vacancy: Applications are now open for three- to six-month legal internships from January to June 2022. The deadline for the submission of applications is 24 September 2021 (18:00 CEST). More information is available here.

Reminder: Submissions for the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition are due on 1 October 2021. The competitions are organised as part of the Advancing and Promoting the Protection of All Children (Approach) Initiative, launched in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH Monthly Update: April 2021

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On 14 April, the Working Group on the Practical Handbook on the Operation of the 2000 Protection of Adults Convention met for the first time. Comprised of experts with experience in the operation or implementation of the 2000 Protection of Adults Convention, the Working Group will meet via videoconference every two weeks, between 14 April and 23 June, in order to continue the development of a draft Practical Handbook on the operation of the Convention. More information on the 2000 Protection of Adults Convention is available here.

On 20 April, the Permanent Bureau announced the launch of the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, a joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH. The Legal Guide offers an overview of the principal legislative texts prepared by each organisation and illustrates how these texts interact to achieve the shared goals of predictability and flexibility. It is intended as a user-friendly resource for those interested in the adoption, application, and interpretation of uniform contract law. More information is available here.

On 22 April, the HCCH participated in the online international seminar “The Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction“, organised by the German Foundation for International Legal Cooperation (IRZ) and the Ministry of Education and Science of the Republic of Kazakhstan. The seminar was attended by more than 100 participants from Germany, Kazakhstan and Turkey. This event was a follow-up to the seminar on the HCCH 1980 Child Abduction Convention held on 9 December 2020. The recording of the seminar is available here.

On 29 April, Professor William Duncan, former Deputy Secretary General of the HCCH, received an honorary doctorate from Trinity College Dublin, the highest form of recognition from the College. This honour follows his Presidential Distinguished Service Award for the Irish Abroad in November 2020 and is a further tribute to Professor Duncan’s life-long contribution to academic research, law reform, and children’s rights both in Ireland and abroad. On behalf of the HCCH, the Permanent Bureau congratulates Professor Duncan on being awarded this prestigious honour.

 

Vacancy: The HCCH is currently seeking a(n) (Assistant) Legal Officer. The deadline for the submission of applications is this Sunday, 2 May 2021 (00:00 CEST). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH Monthly Update: March 2021

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Meeting of the Council on General Affairs and Policy

The Council on General Affairs and Policy (CGAP) of the HCCH met online from 1 to 5 March 2021, with over 350 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead. More information is available here.

Several important developments relating to Membership and HCCH Conventions occurred during the meeting:

  • Thailand deposited its instrument of acceptance of the Statute, becoming the 88thMember of the HCCH.
  • El Salvador applied to become a Member of the HCCH. Following a six-month voting period and provided a majority of votes have been cast in its favour, El Salvador will be invited to become a Member by accepting the Statute of the HCCH.
  • Israel signed the HCCH 2005 Choice of Court Convention and the HCCH 2019 Judgments Convention. The 2005 Choice of Court Convention, which currently binds 31 States and the EU, will enter into force for Israel only after it deposits an instrument of accession or ratification. Although the 2019 Judgments Convention is not yet in force, Israel is the third signatory to the Convention.

More information on these developments is available here.

Finally, as customary the meeting coincided with the publication of the Annual Report of the HCCH. The 2020 Annual Report can be downloaded or ordered here.

Other Meetings & Events

On 15 and 18 March, the HCCH and the International Union of Judicial Officers co-hosted a webinar on the application of the 1965 Service Convention and the 2019 Judgments Convention aimed at judicial officers and other legal professionals. Recordings of the webinar are available here in English and here in French.

On 18 March, the HCCH and the Ministry of Foreign Affairs of Japan co-hosted a webinar on the HCCH 1980 Child Abduction Convention in the Asia Pacific, attended by judges and officials of Central Authorities from 12 countries and regions in the Asia Pacific. More information is available here.

On 30 March, the HCCH participated in the virtual High Level Conference “Protecting Vulnerable Adults across Europe – the Way Forward”, organised by the Ministry of Justice of Portugal, the European Commission and the European Union Agency for Fundamental Rights under the auspices of the Portuguese Presidency of the Council of the European Union. The recording of the conference is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Webinar on COVID-19 and international child abduction

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A free webinar to hear experts of MK Family Law (Washington) and Grotius Chambers (The Hague) discuss pertinent issues relating to international child abduction in times of COVID-19. 

Date: 8 April 2020
Time: 3 pm (CET Amsterdam)

COVID-19 has a significant impact on all aspects of our lives. Since the WHO declared the outbreak a pandemic, numerous States have implemented travel bans in an attempt to contain its spread. Moreover, States have closed courts and adjourned or even cancelled hearings.

Such restrictions cause direct impacts on transnational families. They may hinder, in particular, the prompt return of children in cases of international child abduction. Parents may encounter difficulties in commencing proceedings before the competent authorities, as well as complying with an agreement or return order.

Melissa Kucinski of MK Family Law and Janaina Albuquerque Azevedo Gomes, Expert in international Child Abduction law, will consider what the current situation may mean for parents. A particular focus will be the prompt return of children under the 1980 HCCH Child Abduction Convention.

Registrations are now open and the Eventbrite Registration Form can be found here.

Registration is required to receive the webinar login credentials. For further information, please contact info@grotiuschambers.com. 

Child Abduction and Habitual Residence in the Supreme Court of Canada

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The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention.  The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.

A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.  The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.  This approach has been the dominant one in Canada.  In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case.  A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48].  One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].

The dissent (three of the nine judges) would maintain the parental intention approach [para 110].  One of its central concerns is the flexibility and ambiguity of the hybrid approach [para 111], which the judges worry will lead to less clarity and more litigation.  Wrongful removal cases will become harder to resolve in a timely manner [paras 151-153].

The majority did not apply the law to the facts of the underlying case, it having become moot during the process of the litigation [para 6].  The court rendered its decision to provide guidance going forward.  The dissent would have denied the appeal on the basis that the child’s habitual residence was in Germany (as the lower courts had held).

The court briefly addresses the exception to Article 3 in what is commonly known as “Article 13(2)” (since it is not numbered as such) – a child’s objection to return – setting out its understanding of how to apply it [paras 75-81 and 157-160].

The Supreme Court of Canada has recently adopted the practice of preparing summaries of its decisions (available here for this decision) to make them more accessible to the media and the public.  These are called “Cases in Brief”.

Intersection of Child Abduction Process and Refugee Claim

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The Court of Appeal for Ontario has released its decision in A.M.R.I. v. K.E.R. (available here).  The decision deals with the intersection of the law relating to children who advance a refugee claim and the law on returning abducted children under the Hague Convention.

A girl of 12 had travelled from Mexico, where she lived with her mother (who had custody), to Ontario to visit her father (who had access rights).  There she disclosed that she had been abused by her mother.  She made a refugee application and the Immigration and Refugee Board of Canada found her to be a refugee as a result of the abuse.  After she had lived in Ontario for about 18 months, the mother applied under the Hague Convention for her return to Mexico.  The Superior Court of Justice ordered that she be returned, and she was – in quite a remarkable way which violated her right to dignity and respect (para. 7).  On appeal, the Court of Appeal reversed that decision.  It set aside the order of return and ordered a new hearing on the Hague Convention application.

One of the key concerns for the court was the child’s lack of participation in the Hague Convention application.  That application was, in effect, heard ex parte, with no submissions in support of the child’s remaining in Ontario (para. 31).  The court set out some important procedural protections that must be provided to the child (para. 120).

The court also had to grapple with the interplay of the statutes that implemented the Refugee Convention and the Hague Convention.  It rejected the argument that the implementation of the latter (provincial law) was unconstitutional by virtue of it violating the implementation of the former (federal law).  The court held that the two could be read and applied together without a division of powers conflict (paras. 62-71).

The court held that when a child has been determined to be a refugee, a rebuttable presumption arises that there is a risk of persecution if the child is returned (para. 74) and thus a risk of harm (para. 78).  This then must impact the analysis under the Hague Convention.

The application judge had not accorded any weight to the refugee status and accordingly had erred in law.  The judge also failed to consider the exceptions in the Hague Convention that allowed the court to refuse to order a child’s return.