Wednesday, October 3, 2012

Grave risk of harm exception under the Hague Convention

Husid v. Daviau, 2012 ONCA 655 deals with the grave risk of harm exception to the general rule that children abducted from one Hague Convention on the Civil Aspects of International Child Abduction jurisdiction are to be returned. In this case, the child was born in Peru to a Peruvian father and a Canadian mother. The child was resident in Peru until the mother brought her to Ontario 16 months before the trial. The mother and father were involved in litigation in Peru relating to custody and access and the mother brought the child to Ontario under an order permitting her to travel to Canada for a visit. The order required the mother to return to Peru. Instead, she wrongfully remained in Canada with the child. The father brought an application under the Convention seeking the child’s return.  At trial, the mother invoked Article 13(b) of the Convention to argue that the child should not be ordered to return to Peru since “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The father denied any such risk and further contended that the courts and authorities of Peru could adequately deal with any risk should it be found to exist.  The Court held:

[17]     The underlying purpose of the Convention, as set out in its preamble, is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.

[18]     Once it has been determined that a child was wrongfully removed under the terms of the Convention, Article 12 mandates the return of the child “forthwith”:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

[19]     Exceptions to this mandate are created by Articles 12, 13 and 20. It is the exception articulated in Article 13(b) that was invoked in this case by the mother and that was accepted by the trial judge:

Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

[20]     In this way, the onus is on the person opposing the return of the child to establish a grave risk of harm or exposure of the child to an intolerable situation. In Thomson v. Thomson, [1994] 3 S.C.R. 551, La Forest J., writing for the majority of the Supreme Court of Canada, interpreted Article 13(b) as follows, at p. 596:

[A]lthough the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. [Emphasis in original.]

[21]     Justice La Forest went on to endorse the following approach set out by Nourse L.J. in Re A (A Minor) (Abduction), [1988] 1 F.L.R. 365 (C.A.), at p. 372:

[T]he risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree ... that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm.

[22]     To this, the Supreme Court added that the risk contemplated by the Convention need not come from a cause related to the return of the child to the other parent, as opposed to merely from the removal of the child from his or her  present caregiver (at p. 597). In other words, from a child-centred perspective, harm is harm. If the harm meets the stringent test of the Convention, its source is irrelevant.

[23]     In Pollastro v. Pollastro (1999), 43 O.R. (3d) 485, at p. 496, this court developed upon the “harm is harm” direction to hold that Article 13(b) is available to resist a child’s return when the reason for the child’s removal is violence directed primarily at the parent who removed the child: “returning a child to a violent environment places that child in an inherently intolerable situation, as well as exposing him or her to a serious risk of psychological and physical harm” (emphasis in original).

Some might wonder if the decision would have been the same if the other country was, say, Great Britain rather than Peru

No comments: