In the case of ML v JH 2021 CSOH 50 we acted for the Petitioner mother. The Petitioner sought the return of her son who was two years old from Scotland to Canada. While the Respondent did plead an Article 13(b) defence of grave risk, the main argument in this case revolved around the child's habitual residence.
In order for a Petitioner to seek a return under the 1980 Hague Convention, petitioners must prove that the removal or retention of the child was wrongful because it breached their rights of custody under the law of the state in which the child was habitually resident immediately before the removal or retention (article 3). In wrongful retention cases, in particular especially since the Supreme Court case in AR v RN (2015) UKSC 35, respondents routinely dispute habitual residence.
Briefly by way of background, the child had resided with the Petitioner who was his primary carer in Canada from his birth to September 2020. At that point the parties entered into a written Agreement which stated that the Respondent father would be allowed to take the child to Scotland for a short period and that the child would be returned to Canada no later than 15 December 2020. In December 2020 the Petitioner duly flew from Canada to Scotland in order to uplift the child as per the parties' written Agreement and the Respondent refused to return the child.
In order to prove that a wrongful retention had taken place, the Petitioner required to prove where the child was habitually resident on the date of the wrongful retention of 15 December 2020. This case was further complicated by the provisions of Article 31 of the 1980 Hague Convention. This rarely used Article provides that where a State dealing with matters of custody of children has two or more systems of law applicable in different territorial units, any reference to the habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State. Canada as a whole is a signatory to the 1980 Hague Convention but the provinces of Ontario and Quebec constitute individual territorial units each with their own system of law. This is important in this case because up to the summer of 2020 the Petitioner and the child had resided in the State of Ontario. Shortly before the parties agreed that the child could come to Scotland with the Respondent for a short period of time, the child and the Petitioner permanently removed themselves from the State of Ontario and went to reside with the Petitioner's father in the State of Quebec. The child resided in the State of Quebec for less than a week before he was taken by the Respondent to Scotland as per the parties' written Agreement. The Petitioner therefore required to prove that the child's habitual residence had moved to the State of Quebec even though the child was only resident there for a matter of five or six days.
Lady Wise found that the petitioner has successfully proven that the child's move to Quebec was permanent in nature and as such concluded that the child's habitual residence in Ontario was lost and he had acquired a new habitual residence in Quebec. She placed great emphasis on the fact that this was an infant who had been in the care of his mother throughout the first years of his life and that the agreement between parties was clear. She concluded:
"When a very young child is moving with its primary carer the change of habitual residence may take place effectively immediately. In the particular circumstances of this case it did not involve any change of country but was a move from habitual residence in one province of a country to another province within that country. It would be entirely artificial to regard the child as having retained a habitual residence in Ontario when he, his mother and their joint belongings have moved to Quebec and plan to remain there other than for the subsequent agreement to a limited period".
Lady Wise went on to consider whether the child lost his habitual residence in Quebec at the date of the wrongful retention but concluded that he had not. Lady Wise also concluded that the respondent's grave risk argument was not made out and a return was ordered.
There are very few countries in the world with separate provinces with their own individual law but it is important if you are dealing with a country such as Canada, where there are differences in provincial States and laws, that you have regard to Articles 31 and 32 of the 1980 Hague Convention. This case also illustrates what factors the Judge will look at when considering where a child is habitually residence at the date of a wrongful retention. In Scotland, since the 2015 Supreme Court case aforementioned, it has been very difficult for petitioners in wrongful retention cases to prove habitual residence and therefore it is heartening that the door is still opened in Scotland to argue wrongful retention cases.
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