CASE

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Case Name

V.B.M. v. D.L.J. [2004] N.J. No. 321; 2004 NLCA 56

INCADAT reference

HC/E/CA 592

Court

Country

CANADA

Name

Newfoundland and Labrador Supreme Court - Court of Appeal

Level

Appellate Court

Judge(s)
Cameron, Welsh and Mercer, JJ.A.

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

CANADA

Decision

Date

22 September 2004

Status

-

Grounds

Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2)

Order

-

HC article(s) Considered

12(2)

HC article(s) Relied Upon

12(2)

Other provisions

-

Authorities | Cases referred to
Thomson v. Thomson, [1994] 3 S.C.R. 551; Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226 (ONCA); Jabbaz v. Mouammar (2003), 226 D.L.R. (4th ) 494 (ONCA).

INCADAT comment

Aims & Scope of the Convention

Removal & Retention
Commencement of Removal / Retention

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a girl, was aged 5 at the date of the alleged wrongful removal. She was born in Canada, but six months after her birth her parents moved to Washington State in the United States. The parents' relationship eventually broke down and on 11 December 2002 the mother returned to Canada, her State of origin, and took her daughter with her.

The girl was located in St John's, Newfoundland and Labrador in October 2003. On 8 December 2003 the provincial Central Authority filed a Notice in the Unified Family Court to notify the Court that it had received a Convention application.

A return application was filed in the Unified Family Court by the father on 2 March 2004. On 30 July the Unified Family Court ordered that the child be returned into the care of the child protection services in Washington State until all child protection issues had been determined by the State superior court. The mother appealed.

Ruling

Appeal allowed and case remitted to the Unified Family Court to determine whether the child was now settled in its new environment.

Grounds

Removal and Retention - Arts 3 and 12

The mother did not contest that the removal was wrongful. The attention of the Court therefore focused on the application of Article 12 and the date of the commencement of the proceedings. If the proceedings were commenced within a year of the wrongful removal the return of the child was to be ordered forthwith, subject to the standard exceptions. However if more than a year had elapsed the return should still be ordered but the Court had in addition to consider whether the child was now settled in its new environment. It was argued for the mother that the trial judge had erred in finding that less than a year had elapsed between the wrongful removal and the commencement of proceedings. The Court considered the steps which had been taken following the discovery of the girl and assessed whether these amounted to the 'commencement of proceedings before the judicial or administrative authority of the Contracting State where the child [was]'. The father's application for assistance to the Central Authority in Washington State could clearly not be characterized as commencing proceedings before the courts of Newfoundland and Labrador. The submission of the father's Application for Assistance to the Central Authority in Newfoundland and Labrador could not either constitute the commencement of proceedings. The Court held that it was clear that the reference to "administrative" in "administrative authority" (Article 12) or "administrative proceedings" (Article 7(f)) did not mean the Central Authority. Rather, the judicial or administrative authority under Article 12 meant the entity charged with the responsibility of determining whether an order should be made to return the child. The Court then considered the notice filed by the Central Authority on 8 December 2003 to advise the Unified Family Court of Article 16 of the Convention. It held that there was a distinction between giving notice and commencing a proceeding. Article 12 clearly contemplated something more than notice under Article 16 being given to the court. For Article 12 to apply an application must first be lodged. The Court held that such an interpretation was consistent with the provisions in Article 11 with regard to delay. This was because if notice with respect to Article 16 was sufficient to commence proceedings, the six week period specified in Article 11(2) to reach a decision would be engaged, and potentially expire, as in the present case, before an application was filed requesting that the court make a determination under the Convention. Ordinary principles of interpretation dictated that such an anomalous result should be avoided. The father's application was therefore commence on 2 March 2004. Consequently it had to be determined whether the child was now settled in her new environment.

Settlement of the Child - Art. 12(2)

See above the discussion on the identification of the date of the commencement of proceedings before the judicial or administrative authority of the Contracting State where the child is.

INCADAT comment

Commencement of Removal / Retention

Primarily this will be a factual question for the court seised of the return petition. The issue may be of relevance where there is doubt as to whether the 12 month time limit referred to in Article 12(1) has elapsed, or indeed if there is uncertainty as to whether the alleged wrongful act has occurred before or after the entry into force of the Convention between the child's State of habitual residence and the State of refuge.

International Dimension

A legal issue which has arisen and been settled with little controversy in several States, is that as the Convention is only concerned with international protection for children from removal or retention and not with removal or retention within the State of their habitual residence, the removal or retention in question must of necessity be from the jurisdiction of the courts of the State of the child's habitual residence and not simply from the care of holder of custody rights.

Australia
Murray v. Director, Family Services (1993) FLC 92-416, [INCADAT cite: HC/E/AU 113]. 

State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567, [INCADAT cite: HC/E/AU 232];  Kay J. confirmed that time did not run, for the purposes of Art. 12, from the moment the child arrived in the State of refuge.

State Central Authority v. C.R. [2005] Fam CA 1050, [INCADAT cite: HC/E/AU 232];  Kay J. held that the precise determination of time had to be calculated in accordance with local time at the place where the wrongful removal had occurred.

United Kingdom - England & Wales
Re H.; Re S. (Abduction: Custody Rights) [1991] 2 AC 476, [1991] 3 All ER 230, [1991] 2 FLR 262, [INCADAT cite: HC/E/UKe 115].

United Kingdom - Scotland
Findlay v. Findlay 1994 SLT 709, [INCADAT cite: HC/E/UKs 184].

However in a very early Convention case Kilgour v. Kilgour 1987 SC 55, 1987 SLT 568, 1987 SCLR 344, [INCADAT cite: HC/E/UKs 116], the parties were at one in proceeding on the basis that the relevant removal for the purposes of the Convention was a removal in breach of custody rights rather than a removal from the country where the child previously lived. 

Agreement on the issue of the commencement of return was not reached in the Israeli case Family Application 000111/07 Ploni v. Almonit, [INCADAT cite:  HC/E/IL 938].  One judge accepted that the relevant date was the date of removal from the State of habitual residence, whilst the other who reached a view held that it was the date of arrival in Israel. 

Communication of Intention Not to Return a Child

Different positions have been adopted as to whether a retention will commence from the moment a person decides not to return a child, or whether the retention only commences from when the other custody holder learns of the intention not to return or that intention is specifically communicated.

United Kingdom - England & Wales
In Re S. (Minors) (Abduction: Wrongful Retention) [1994] Fam 70, [INCADAT cite: HC/E/UKe 117], the English High Court was prepared to accept that an uncommunicated decision by the abductor was of itself capable of constituting an act of wrongful retention.

Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682, [INCADAT cite: HC/E/UKe 50]: the moment the mother unilaterally decided not to return the child was not the point in time at which the retention became wrongful. This was no more than an uncommunicated intention to retain the child in the future from which the mother could still have resiled.  The retention could have originated from the date of the aunt's ex parte application for residence and prohibited steps orders.

United States of America
Slagenweit v. Slagenweit, 841 F. Supp. 264 (N.D. Iowa 1993), [INCADAT cite: HC/E/USf 143].

The wrongful retention did not begin to run until the mother clearly communicated her desire to regain custody and asserted her parental right to have the child live with her.

Zuker v. Andrews, 2 F. Supp. 2d 134 (D. Mass. 1998) [INCADAT cite: HC/E/UKf 122], the United States District Court for the District of Massachusetts held that a retention occurs when, on an objective assessment, a dispossessed custodian learns that the child is not to be returned.

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].

The Court of Appeals held that ultimately it was not required to decide whether a child was not retained under the Convention until a parent unequivocally communicated his or her desire to regain custody, but it assumed that this standard applied.