MacLean Law’s Hague Convention Calgary Family Lawyers deal with child abduction cases, wrongful removal and wrongful retention cases involving child taken from one jurisdiction and moved to a new location. Our highly rated Hague Convention Calgary Family Lawyers explain to clients that countries have recognized radical self help remedies, notably child abduction, represent a risk to a child’s best interests.
Hague Convention Calgary Family Lawyers 403-444-5503
Children’s best interests should be decided where the most evidence of these interests are. A wrongful removal occurs when a child is removed from his jurisdiction of habitual residence in contravention of a person’s custody rights. For a snapshot of the Hague Convention, its principles and signatory countries click here.
Hague Convention Calgary Family Lawyers – Exceptions
Our Calgary family lawyers and Hague Convention Calgary Family Lawyers know that child abduction is a parent’s worst nightmare and that immediate action is needed. Our Hague Convention Calgary Family Lawyers understand that in some cases returning a child to the other parent may represent a grave risk and that there is also an exceptions for a child over age 16 and the wishes of an older child under that age.
Hague Convention Calgary Family Lawyers New Case Wishes Of Child
Lorne N. MacLean, QC, founder of our Hague Convention Calgary Family Lawyers at MacLean Law feel the recent case of Thompson v. Thompson explains how the treaty works for older children and what evidence is needed for the wishes of a child involving a refusal to return a child against their will.
[14] The issue on appeal is whether the chambers judge erred in declining to consider the wishes of the children, and in determining that expert evidence as to their maturity was required before considering those wishes.
[15] The Hague Convention is an important instrument in the enforcement of custody rights. It presumes that the best place to adjudicate custody issues is in the children’s habitual place of residence. A wrongful removal occurs when a child is removed from his jurisdiction of habitual residence in contravention of a person’s custody rights. The Hague Convention presumptively requires the return of the child in the case of a wrongful removal. As noted above, Article 13 of the Convention sets out three exceptions to that requirement: (1) where the person who seeks the return of the child consented to or acquiesced in the removal; (2) where there is grave risk of harm to the child; and (3) where the child objects to being returned and is of an age and degree of maturity at which it is appropriate to take their views into account. If any of these exceptions is made out, the court has the discretion not to order the return of the child.
[16] The issue before us is whether the chambers judge erred in declining to consider the wishes of the younger child in ordering his return. In allowing this appeal from the bench we concluded that he did. Article 13 states that a court is not bound to return a child if the child objects to being returned, and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views. This Court stated in RM v JS, 2013 ABCA 441(CanLII) at para 33, 566 AR 230, citing Re M, [2007] UKHL 55 at para 46, [2008] 1 All ER 1157, that the exercise of the court’s discretion is dependent on two pre-conditions: (1) that the child objects; and (2) that the child has attained an age and degree of maturity at which it is appropriate to take account of his views.
[17] The chambers judge held that expert evidence was required before he could exercise his discretion on this basis, regardless of the age or apparent maturity of the child. With respect, this is an error. At a certain age, the need for expert evidence to determine a child’s level of maturity diminishes or is eliminated entirely. Absent evidence to the contrary, it is reasonable to assume that a child of fourteen is sufficiently mature to express a view as to why he objects to being returned. While that view is not determinative of the outcome, it is a relevant and important consideration, as evidenced by its explicit inclusion in Article 13.
Hague Convention Calgary Family Lawyers Appeal Court Says Trial Judge Erred
Lorne MacLean, QC of our team of Hague Convention Calgary Family Lawyers warns that this area of law is complex and it pays to hire a lawyer who routinely handles these cases such as himself. In this case the Court of Appeal stayed the return of the 14 year old child to England. The 16 year old was not covered by the Hague Convention.
[18] The refusal to consider the child’s views because of a lack expert evidence in these circumstances was an error. The refusal to allow expert evidence through the filing of a voice of the child report compounded the error.
[19] Since the hearing before the chambers judge, there have been significant changes in the relevant circumstances. The elder sibling is no longer subject to the Hague Convention and, presumably, will remain in Canada. Additional issues were raised by both parties during the appeal hearing that do not form part of the record on appeal, and were not the subject of an application for fresh evidence. We are obliged to remit the matter back to the Court of Queen’s Bench for redetermination. We direct that a voice of the child report be prepared in advance of that hearing for consideration by the court. Until such time as the matter has been heard on the merits or a further court order is made, enforcement proceedings are stayed.
