Does a fixed calendar date for a return need to be fixed in abduction cases?
This case concerned an application made by a father for the return of the parties’ three children to Canada pursuant to the provisions of the 1980 Hague Convention. The father’s application was refused on three grounds: i) wrongful retention not established; ii) habitual residence at all relevant times lay, and continues to lay, in England; iii) Art 13(b).
Amy Rowe and Forum Shah acted for the respondent mother in her successful defence of the proceedings.
Background
In November 2021, the mother was diagnosed with stage 3c colorectal cancer. The parties explored treatment options in Canada but, because of likely delays there, they agreed that the mother would travel to England in December 2021 for medical treatment, and that the children would accompany her, to be followed shortly thereafter by the father.
The mother underwent chemotherapy but the treatment was not as successful as hoped, and so was followed by radiotherapy between March and May 2022. In August 2022, the mother had major surgery to remove the tumour and she remained under medical care.
In July 2022, the father made his application for the return of the children to Canada on the basis that he asserted that the intention and agreement was that the mother would travel to England on a temporary basis for a preliminary chemotherapy treatment which would be completed by March 2022, whereupon she would return to Canada and complete her treatment in that jurisdiction. The mother’s case was that the intention and agreement was that she and the children would remain in England until the conclusion of the cancer treatment of a certain duration, but likely to be at least a year.
Having heard oral evidence at the final hearing, the judge found that the father had agreed to the children travelling to England on the basis that they would remain living in England for the duration of the mother’s cancer treatment.
Wrongful retention
It was held that a fixed calendar date for a return does not need to fixed in every case and, rather than specified calendar date, the agreed or anticipated date for return may be referrable to an agreed crystalising or triggering event, the precise date of which is unknown to the parties at the time of departure. In this case, the due date for the return was at the conclusion of the treatment, the precise timing of which was unknown when the children flew to England. Given the conclusion of treatment had not yet come to pass, there had been no wrongful retention.
Habitual residence
The departure from Canada was on the expectation of living in England for a lengthy period, perhaps a year or more and it was held that the children acquired habitual residence in England during that time.
The evidence clearly established some degree of integration in England in a social and family environment as the children had left Canada on one way tickets, they were withdrawn from school in Canada and enrolled in English schools, they were enrolled in local clubs, registered with GPs, staying with their primary carer and maternal family and, significantly, the father travelled to and lived in England with the mother and children from December 2021 to May 2022. The children were very familiar with England and it was held that habitual residence had swiftly shifted.
Article 13(b)
The mother’s case was that she would not return to Canada if the court ordered that the children must be returned there as she needed to remain in England to complete the rest of her treatment, so as to maximise her prospects of recovery for the sake of the children. It was found to be reasonable for the mother to take this position as the best possible prospect of recovering was overwhelmingly in the interest of the children.
It was held that to force upon the children a return to Canada, separating them from their mother, would expose them to a grave risk of harm (particularly emotional harm) and an intolerable situation. The judge was not persuaded that adequate protective measures could ameliorate against this risk of harm to the children.
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