Hague Convention – Child Abduction

The international treaty known as the Hague Convention on the Civil Aspects of International Child Abduction is part of the statutory framework in all Canadian jurisdictions as well as in over 75 countries. The Convention addresses the inter-jurisdictional legal conflicts when a parent or guardian removes a child from the country “A” to country “B”. Children wrongfully removed ought to have their residential status determined by the jurisdiction with which they have the closest connection. “Forum shopping” is discouraged.

There is an exception (embedded in the Convention) to the usual practice of simply ordering the return of a child to country “A”. Article 13 of the Convention allows a child to remain in country “B” where there is a grave risk that a return order would place the children and the mother in an intolerable situation. This exception is a narrow one indeed. In the 2014 Manitoba case of Callicutt v. Callicutt, Justice Hatch found that the facts before him constituted such an exceptional situation.

Those parents who flee from country “A” to country “B” generally attempt to rely upon the intimate partner violence (or domestic violence) that the father inflicts upon the mother and upon the assertion that the local authorities are not up to the task of providing to the mother adequate protection. If the mother is able, from an evidentiary basis, to establish these factors, then she may succeed in keeping the case in country “B”.

Brown v. Pulley is a 2015 decision of Justice S. Sherr of the Ontario Court of Justice. Justice Sherr has distinguished himself as an erudite and most knowledgeable jurist. His written reasons are a pleasure to read and usually serve to bring a healthy measure of legal clarity to the understanding of the law. Brown v. Pulley is no exception. In this case, the mother made allegations of intimate partner violence. At para 124 Justice Sherr observed:

The institutions in North Carolina, including the courts, are well equipped to properly protect the mother and the children. Details of this were extensively set out in the affidavit of Dionne Loy Fortner (counsel for the father in North Carolina), sworn on March 10, 2015.

This excerpt demonstrates the importance of presenting expert evidence from country “A” with respect to the protective nature of the family laws of that jurisdiction and the availability of other resources to provide any necessary protection to the mother. As a result, Justice Sherr ordered the case to return to North Carolina.

Brown v. Pulley contains a good summary of relevant principles at paragraphs 126 to 131 and in the following paragraphs. If you have a Hague Convention case, Justice Sherr’s decision and the Manitoba court decision are good ones to read in order to begin to understand the nature of the evidence that needs to be presented in such cases.  (Note that the nature of evidence that one leads in a Hague Convention case is not always the same as in a regular child custody case.)