C v D [2017] EWHC 807 (Fam) (08 March 2017)

Posted on Friday, April 28th, 2017

This Judgment was given by Mr Justice Francis on 8th March 2017, at the final hearing of the mother’s Application for an Order for the summary return of two children to Canada, pursuant to the 1980 Hague Convention and/or the Court’s inherent jurisdiction.  The proceedings concerned two children who the mother asserted had been wrongly removed from Alberta, Canada in May 2015 by the Respondent father.  The father asserted that he was allowed to remove the children from Canada, pursuant to an Order made by the Court on 16th September 2014.

The background to the proceedings was that the parents and the children had been born in the United Kingdom.  The family had moved to Canada in 2006, a few months after the parents had married.  After the parents’ relationship had broken down, there had been a number of Applications and Orders made in the Canadian Court, with an Order initially granting ‘primary care’ of the children to the mother and ‘supervised visitation’ to the father.  In April 2013 there was a change in the primary care of the children to the father, in proceedings which the father had made allegations that the mother was involved in the sex trade and used Class A drugs, although no substantial evidence was produced to support these claims.  In August 2014 the father issued an Application for primary care of the children and supervised visitation for the mother.  He also requested full custody and decision making for the children.  At the hearing on 16th September 2014, the Court granted the father’s Application to include applying for passports for the children and being able to travel internationally with the children without the mother’s consent.  The mother did not attend this hearing and there was a dispute between the parties in relation to whether the mother had knowledge of this hearing and had been served with the Court papers.

The father had subsequently removed the children from Canada to the United Kingdom, with the mother not having seen the children face to face since January 2014.    Care proceedings were subsequently issued in respect of the children due to concerns of ill treatment by the father.  Within these proceedings authority was granted to instruct an expert on Canadian law.  The report from the expert was received which stated that the father was not entitled under the relevant law of Alberta, to remove the children permanently from Canada, as this would have been explicitly stated in the Order made.  International travel only was permissible and that there was relevant Case Law in Alberta and Canada to support this.  Detailed questions were put to the expert in relation to the father’s rights to determine his children’s place of residence; however the expert’s conclusion remained.

In his Judgment Mr Justice Francis stated that he had considered relevant Case Law including Re D (Child Abduction: Settlement) [2006] and whether the children could be considered as settled in the United Kingdom.  Given that Care proceedings were ongoing and that the children were now living with the maternal grandmother, Mr Justice Francis could not consider that the children were settled in the United Kingdom.  Consideration was also given to whether the mother had given permission for the children to be removed from the United Kingdom, which the father could not prove, and also consideration given to the children’s wishes that they no longer wanted to see their father.  Mr Justice Francis therefore concluded that the father wrongfully removed the children from Canada in breach of the mother’s rights of custody therefore the Application for the return of the children to Canada was granted.

The full judgment can be read here.

If you have any questions about this summary case law you can contact Claire here.

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