Minors summarily returned to Canada as they were habitually resident there

Colm Scott Byrne BL, 28 August 2019 (© Decisis)

September 10, 2019

CMW v SJF [2019] IECA 227

 

Judgment of Whelan J delivered 30 July 2019:

Court of Appeal dismisses appeal and upholds decision of the High Court directing the summary return of two minors to Canada, on the grounds that: (a) the appellant failed to demonstrate that the legal aid scheme in operation in British Colombia is so contrary to the fundamental principles relating to the protection of human rights and fundamental freedoms in this jurisdiction as would necessitate a refusal to order the summary return of the minors for the vindication of her constitutional rights; (b) the appellant does not meet the threshold that the return of the children would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; (c) there is no general entitlement to civil legal aid in this jurisdiction and objections based on a contrary proposition as were advanced by the appellant are wholly misconceived; (d) the trial judge was entitled to accept hearsay evidence in relation to commitments embodied in the undertakings provided by the respondent; and (e) the trial judge was correct in the application of the legal principles in determining whether to order the summary return of the two minors.

Whelan J (nem diss): Child abduction proceedings – Articles 12 and 20 of the Hague Convention on International Child Abduction – minors were at all material times habitually resident within the jurisdiction of the Courts of Canada for the purposes of the Hague Convention - the respondent had been granted custody rights in Canada - whether the trial judge was wrong in law and made erroneous findings of fact in its failure to refuse to make an order for the return of the minors based on Art. 20 of the Hague Convention - whether the trial judge had failed to have regard to the fact that financial hardship would ensue for the appellant in the event of a summary return and in turn this would cause psychological harm and result in an intolerable situation for the minors - whether the High Court was correct to accept hearsay evidence in relation to a promise of financial support from the respondent’s mother - whether the fact the appellant will be ineligible for legal aid and will not have access to legal representation to pursue litigation on her return to British Columbia a offends her constitutional rights of access to justice, fair procedures and equality - whether there is a general entitlement to civil legal aid - all grounds of appeal refused - appeal dismissed.

Quotation from judgment (courtesy of the Courts Service of Ireland):

'There is no evidence that the trial judge erred in her findings of fact or in her application of the legal principles to the salient facts in this case. The matter did proceed expeditiously as is mandated by the terms of the Hague Convention itself, as well as by extensive jurisprudence from the Supreme Court and this Court together with the practice and procedures now well established in the High Court but same fully respected the appellant’s rights to fair procedures. Expedition is critical for the fundamental premise underlying the Hague Convention, that all issues of welfare and considerations with regard to the evidence of same must be placed before the courts of the habitual residence of the minors which enjoy exclusive jurisdiction to make all decisions pertaining to their welfare. The appellant’s constitutional rights were fully vindicated and no breach of fundamental constitutional rights occurred such as would engage the provisions of Article 20 of the Hague Convention.

83. The High Court was entitled to accept hearsay evidence in relation to commitments embodied in the undertakings. The undertakings were not given by the mother in law but by the respondent. There is no reason to doubt the bona fides of the respondent in that regard, or indeed his mother. Were such undertakings improperly provided it would merely offer assistance to the appellant in the event she engaged with proceedings pertaining to the welfare of the minors now pending before the Courts of British Columbia.

84. I am satisfied that the High Court was correct in its application of the relevant legal principles in regard to Art. 13(b). The lack of financial resources and the non-availability of legal representation appears – to some extent at least – to have been overstated. Even if demonstrated to be correct, and even had they reached the threshold of giving rise to a grave risk, which they demonstrably did not, it would have merely opened the door for the trial judge to exercise a discretion as to whether to make an order for summary return or not. In such circumstances, any grave risks identified would likely have been the subject of undertakings to alleviate same in the short term pending the courts in Canada determining the issues between the parties.'

 

Key Cases Cited:

AS v PS [1998] 2 IR 244

Airey v Ireland (1979) 2 EHRR 305

CDG v JB [2018] IECA 323

CK v CK [1994] 1 IR 250

Carlson v Switzerland (App. No. 49492/2006)

GN v Poland (App. No. 2171/2014)

ML v JC [2013] IEHC 641

Magee v Farrell [2009] 4 IR 703

Neulinger and Shuruk v Switzerland [2011] 1 FLR 122

Nottinghamshire County Council v BK [2013] 4 IR 662

P v B (No. 2) (Child Abduction: Delay) [1999] 4 IR 185

PL v EC (Child Abduction) [2009] 1 IR 1

P v B [1994] 3 IR 507

YY v The Minister for Justice [2017] IESC 61

 


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