ASM v DPM
[2016] NZHC 137
•12 February 2016
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANT, RESPONDENT AND CHILD
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-002687 [2016] NZHC 137
UNDER the Care of Children Act 2004 and the
ratification by that Act of the Hague Convention on the Civil Aspects of International Child Abduction 1980
IN THE MATTER OF
an appeal against a decision of Judge Maude made in the North Shore Family Court on 3 November 2015
BETWEEN
ASM Appellant
AND
DPM Respondent
Hearing: 9 February 2016 Appearances:
D J Ryken and S G Dalley for Appellant
I M Blackford on instructions for Respondent from NZ CentralAuthority with D A Manning
Judgment:
12 February 2016
JUDGMENT OF VENNING J
This judgment was delivered by me on 12 February 2016 at 9.30am, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Ryken and Associates, Auckland
I Blackford, Auckland
ASM v DPM [2016] NZHC 137 [12 February 2016]
Introduction
[1] ASM (the father) appeals against the decision of Judge Maude in the Family
Court at North Shore directing that the parties’ child (A) be returned to Bulgaria.1
Background
[2] A is the second child of the father and DPM (the mother). She was born on
23 October 2012. She is three years and four months old.
[3] The father brought A to New Zealand in July 2015. The parties have one other child, an older daughter (B). The mother and B remain in Bulgaria. On 1
October 2015 the mother applied to invoke the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 as incorporated into New Zealand domestic law by ss 94-124 of the Care of Children Act 2004 (COCA).2
[4] In his decision of 3 November 2015 Judge Maude accepted that the fundamental jurisdictional requirements of s 105(1) COCA were satisfied. A was in New Zealand and had been removed from Bulgaria, a contracting state, in breach of the mother’s custody rights in respect of her. Further, the mother was, at the time of removal, exercising those rights or would have been but for the removal. Finally, A was habitually resident in Bulgaria.
[5] Accordingly, unless the father could establish one (or more) of the grounds for refusal of the order as set out in s 106(1) COCA, the order to return the child to the mother in Bulgaria had to be made.3
[6] The father relied on the grounds in s 106(1)(c)(i) and (ii) COCA, namely that there was a grave risk that A’s return to Bulgaria would expose her to physical or psychological harm or would otherwise place her in an intolerable situation, because, he alleged, DPM had been abusive toward both children and he had suffered due to
her connections with powerful people in Bulgaria.
1 DPM v ASM [2015] NZFC 9437.
2 Care of Children Act 2004, part 2, subpart 4.
3 Section 105(2).
[7] Judge Maude considered that the behaviour of the mother as described by the father could be dealt with by the Bulgarian legal system. He was satisfied that the Bulgarian justice system and support agencies provided for the welfare and best interests of children post-separation where allegations of ill-treatment or domestic violence were made. The Judge considered that the father’s assertions as to the gravity of risk were undermined by the reality the father had left B with the mother. He directed the return of A to Bulgaria.
The appeal
[8] On appeal, the father repeats his submission that there is a grave risk that A’s return to Bulgaria would expose A to physical or psychological harm or would otherwise place her in an intolerable situation.4 The father also seeks to raise a new ground, namely that the Court should refuse the order because the father, his partner and A, (on the father’s application) have applied for refugee status in New Zealand. He submits that s 106(1)(e) COCA is engaged and the Court should refuse to make
an order for the return of the child. He submits that for the Court to direct the return of the child pending the outcome of the application for refugee status would amount to refoulement and so breach the Convention Relating to the Status of Refugees.5 He seeks an order staying the current appeal pending the outcome of the applications for refugee status.
The Court’s approach
[9] It was conceded before the Family Court (and confirmed by Mr Ryken on this appeal) that the grounds under s 105(1) COCA were established. The onus is on the father to establish one of the grounds in s 106(1) is made out. If one of the grounds is made out the Court may refuse to make an order for A’s return to Bulgaria. The Court must exercise that discretion within the context of the
Convention’s objectives.6
4 Section 106(1)(c).
5 Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July
1951, entered into force 22 April 2954), art 33(1).
6 HJ v Secretary for Justice (2006) 26 FRNZ 168 (CA).
Preliminary matters
[10] The father did not tell the Family Court that he, his partner and A had applied for refugee status. He seeks leave to adduce further evidence to confirm the application. He also seeks leave to adduce further evidence relating to the status of a temporary protection order, now lapsed, that he had obtained against the mother in Bulgaria.
[11] Ms Blackford confirmed that the application to adduce further evidence (of the fact of the application for refugee status) was not opposed, and nor was the further evidence relating to the temporary protection order. The Central Authority has filed further evidence on that point as well.
[12] This Court may grant leave to adduce further evidence on a question of fact if there are special reasons to hear it.7
[13] The further evidence, (at least insofar as it confirms the application for refugee status) is a matter of undisputed fact. While it raises an issue of law, the Central Authority has had the opportunity to respond to it fully. I grant leave for the father to raise the issue of the effect of the application for refugee status and 106(2)
on appeal and to admit the evidence relating to it.8
[14] The further evidence as to the status of the protection order the father obtained against the mother is in the nature of updating evidence, as is the most recent affidavit of the father of 9 February confirming that the Refugee Status Branch declined the applications for refugee status. The father has instructed counsel to appeal. I grant leave to admit the evidence in respect of both matters.9
[15] The father had previously filed an affidavit in support of the appeal referring in some more detail to the refugee application. Mr Ryken confirmed the father no
longer seeks to rely on the material contained in that affidavit for the purposes of this
7 High Court Rules, r 20.16(3).
8 Father’s affidavit of 25 January 2016.
9 Affidavits of Tania Sheehan dated 3 (resworn on 5th) and 4 February 2016. Affidavit of father dated 9 February 2016.
appeal. He does however seek that the affidavit be sealed and not read. I order accordingly.
Decision
[16] As it is properly conceded s 105 COCA is engaged, the father must make out one of the grounds under either s 106(1)(c) or s 106(1)(e) to engage the discretion of the Court. Unless he is able to satisfy the Court one or other of those grounds applies, the Court must order A be returned promptly to the mother.10
The s 106(1)(c) argument
[17] Section 106(1)(c) requires the father to satisfy the Court that there is a grave risk that return to Bulgaria would (i) expose A to physical or psychological harm; or (ii) otherwise place A in an intolerable situation.
[18] The s 106(1)(c) defence is not easy to invoke successfully partly because of the requirement for a “grave risk” and partly because of the judicial expectations that in the normal course of events the legal systems of other countries will protect children from harm.11
[19] In considering the gravity of the risk the Court is entitled to consider the overseas legal system and whether it might have the necessary principles and resources to protect the interests of the child: TB v JB (Abduction: grave risk of harm).12
[20] There are two aspects to the father’s argument under s 106(1)(c): first that A will be harmed by the mother, and second that the Court in Bulgaria will not protect the proper interests and welfare of A.
[21] Judge Maude summarised the father’s allegations of the mother’s violence as:
10 Section 105(3).
11 HJ v Secretary of Justice, above n 6, at [31]–[33].
12 TB v JB (Abduction: grave risk of harm) [2000] EWCA Civ J1219-11, (2001) 2 FLR 515 (EWCA).
·an incident (with no details) which necessitated the father picking up of B to comfort and settle her. The father described B as settling and not having been harmed;
· the mother shaking both A and B on many occasions;
·the mother smacking both A and B on their bottoms when babies. He described sometimes seeing bruises on their bottoms;
·once when A sucked her thumb the mother forced the thumb into her mouth;
·when B was six to seven months of age the mother threw her onto a sofa;
· when A was six months old the mother threw her onto a sofa;
·the father claimed the mother systematically “slammed” the girls when he was not present and shouted at the children when angry or, when happy with them, held them tight and pressed them;
·in addition the father asserted that their mother failed to give B prescribed antibiotics and B was burnt by in the mother’s care without being afforded proper treatment.
[22] The father also says the mother was violent towards him as evidenced by the temporary protection order he obtained against her. He related in his evidence statement to the Family Court the following incidents:
· the threat of an acid attack on his mother and new partner;
·the threat to shoot his new partner saying she would be murdered if she told the police;
· threatening him with violence and assault;
· threatening to kill him;
·punching him in the face in February 2015 resulting in a not insignificant injury which was described in a medical report as “a contusion with oedema and suffusion and bleeding from the nostrils caused by a blunt instrument”;
· flourishing a knife against him in front of the children.
[23] The mother disputed the father’s allegations. She says she was subjected to mental harassment by the father and his new partner.
[24] While the evidence discloses the existence of an interim (temporary) protection order made on 23 February 2015 (which has since been set aside), there is no evidence of violence by the mother towards the father after he obtained the interim protection order. The allegations of violence towards the children are limited in scope. It is also relevant that the mother retains custody of the older child B. The father’s concerns do not seem to apply to that child.
[25] In his decision Judge Maude considered that the gravity of the mother’s behaviour as described by the father was not dissimilar to behaviour observed by the Family Court between New Zealanders struggling to cope post separation. He considered that at its most severe the mother’s behaviour could engage the protective interests of the relevant Child, Youth and Family Service. The Judge noted:
[42] The behaviour described by [the father] of [the mother] is certainly that that a state resourced with a Court structure that recognises the paramountcy of the welfare and best interest of a child would deal successfully with whether by adjudication between parents, provision of supportive services, or alternatively placement of the children with other family members or state caregivers while the relationship between children and parents are maintained.
[26] Turning to the issue of whether the Bulgarian Courts would protect the proper interests and welfare of A, I agree the evidence supports the Judge’s findings referred to above at [7].
[27] The Judge properly considered the information before him as to the operation of the Bulgarian Court system. He had social work reports prepared for the Bulgarian Court and the Central Authority of Bulgaria and observed that the investigations made by those agencies appeared thorough. The social worker report records the admonishment and instruction of both parents.
[28] Of particular relevance are two reports from the Social Assistance Agency on
16 July 2015 and 12 October 2015. The report of 12 October 2015 concluded that:13
(i) A dramatic interruption of the relationship of [A] and her mother and sister had occurred for the past five months it not being in the best interests of her and posing a risk to her psycho-emotional development.
(ii) That there existed a risk of manipulation on the part of the father in order to change the attitudes of [A], deliberate alienation from the mother and replacement of the mother with another person performing this role, such behaviour demonstrating [the father’s] reduced parental capacity and responsibility to the children.
(iii) That the basic needs of [B] for appropriate living conditions, food, maintenance, corresponding to her age, education and treatment/if necessary are met;
(iv) Violence by the mother was not established.
[29] The information in the report and the report itself supported the Judge’s
finding the Bulgarian Court system provided for the interests of the child.
[30] As the Court of Appeal said in A v Central Authority for New Zealand:14
In cases where a grave risk to the child is alleged under art 13, our s 13(1)(c), the Court of the country to which the child has been abducted will only be the appropriate Court if it is established the child's return to the country of habitual residence will give rise to a grave risk and the Court exercises its discretion in favour of retaining the child in the country to which the child has been abducted. Where the system of law of the country of habitual residence makes the best interests of the child paramount and provides mechanisms by which the best interests of the child can be protected and properly dealt with, it is for the Courts of that country and not the country to which the child has been abducted to determine the best interests of the child.
13 DPM v ASM, above n 1, at [43]-[44].
14 A v Central Authority for New Zealand [1996] 2 NZLR 517, at 522-523.
[31] There may be circumstances where, even though the laws of the home country may emphasise the best interests of the child, s 106(1)(c) may still be engaged because of a lack of mechanisms by which that may be achieved. The courts of the home country may construe such provisions in a limiting way. But there is no evidence of that before the Court.
[32] The Court must presume, in the absence of evidence to the contrary (of which there is none) that Bulgaria as a contracting state to the Hague Convention will have a family law system capable of protecting the children. As Ms Blackford submitted, Bulgaria is part of the European Union and subject to the jurisdiction of the European Court of Human Rights, and a signatory to Brussels II which makes the welfare and best interests of children paramount concern for European courts.
[33] The evidence that is available does not support a finding there is a grave risk of physical, psychological harm or intolerable situation for A if returned. The evidence of the risk of physical harm to A does not support a finding of a grave risk. As for psychological harm the reports from the Bulgarian Social Assistance Agency suggest that the father is himself an alienating and manipulative parent in his relationship with the child and likely to cause psychological harm. On the evidence it cannot be said that to return A to Bulgaria would be to return her to an intolerable situation.
[34] The father’s allegations concerning corruption and the mother’s connection with it are general and non-specific. His submission that he cannot receive assistance from the authorities because of it does not accord with the evidence that he was able to obtain a temporary protection order from the relevant Court.
[35] Mr Ryken conceded that, subject to what the Court made of the further evidence concerning the temporary protection order, he was not in a position to challenge the findings of the Family Court Judge on his assessment under s 106(1)(c). For the above reasons I agree with the Judge’s finding.
[36] There is nothing in the further evidence submitted to the Court relating to the
temporary protection order which in any way affects the Judge’s finding under
s 106(1)(c). It appears that the emergency protection order obtained by the father was the equivalent of an interim temporary protection order. It was based on the incident of violence by the mother towards the father in February 2015. In the substantive decision issued on 27 October 2015 (the hearing having taken place on
12 August in the father’s absence) the order was not renewed nor was it formalised
as a final order.
[37] The evidence is somewhat confused as to whether the father has sought to appeal that decision. The father has produced a document (which has not yet been translated) which he says confirms he has been granted leave to appeal from the decision of 27 October 2015 and the appeal has a hearing date on 17 March 2016. The respondent has filed an affidavit annexing an email from the Court Registry suggesting no appeal was lodged. But on any view of it and even accepting the evidence of the father it would appear that he has the right to appeal the decision. That supports a finding that the Bulgarian legal system, particularly that related to family law, is operative.
The s 106(1)(e) and 106(2) argument
[38] Mr Ryken submitted that as A was a claimant for refugee status (on the application made on her behalf by the father) there was a prohibition against her deportation under s 164(1) of the Immigration Act 2009 (IA). He argued the Court should allow the appeal and defer determination of the application under s 105
COCA until the application for refugee status had been determined. Mr Ryken noted that s 128 of the IA confirms that an application for refugee status is not finally determined until the expiry of any appeal period or when an appeal is determined.
[39] Even with urgency, the final determination of the application for refugee status could take several months. An application for refugee status has been determined by a refugee and protection officer under s 136. It has been declined. The father intends to exercise his right of appeal on A’s behalf to the Immigration and Protection Tribunal. If that is declined there are rights of appeal to the High Court on a point of law and to judicial review under ss 247 and 249(3) IA, both by
leave. In this context, it is relevant that s 107 COCA provides that the Court must give priority to applications under s 105 and deal with them speedily.
[40] Mr Ryken also submitted that the authorities referred to by Ms Blackford concerning how other jurisdictions had dealt with the tension between an application under the Hague Convention and claims to refugee status or asylum were of limited assistance given the specific statutory provisions, particularly s 164 of the IA and s 106(2) COCA. He made the point that New Zealand was different to some other jurisdictions in that it had incorporated the articles of the Convention in the domestic legislation of the COCA itself and had, in addition, enacted s 106(2) which was not found in any other relevant jurisdictions.
[41] Despite Mr Ryken’s submissions I do not accept that there is such a significant difference between New Zealand and other jurisdictions that have adopted the Hague Convention. Nor should there be, given the nature of the Convention.
[42] Mr Ryken is correct that, unlike some other countries, New Zealand has not scheduled the relevant articles of the Convention but rather has imported them into the Act.15 Mr Ryken referred to Re M (Children) (Abduction: Rights of Custody) where Baroness Hale observed that:16
In New Zealand, the Convention has been given effect, not by scheduling the relevant articles to an implementing Act, but by translating its provisions into domestic legislation.
There is nothing particularly distinctive about that approach by the New Zealand Parliament. It merely reflects a different approach to legislative drafting rather than a difference in principle. The difference in approach was discussed by Parliament when the provisions were first enacted by the Guardianship Amendment Act 1991. Professor Angelo in particular had submitted at the Select Committee there should be no restatement of the terms of the Convention. He suggested it was unnecessary to restate so many of the provisions and it might create inconsistency when the
provisions of the Convention were applied. However, the committee was satisfied
15 The Convention is attached as Schedule (1) for information purposes.
16 Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 at [26].
that the cases that came before the courts would be dealt with more expeditiously if the familiar New Zealand drafting conventions were used and if the provisions in the articles were put into an order that assisted people to understand them.17
[43] Importantly, for present purposes, s 106(1)(e) applies the relevant operative wording of art 20 of the Convention. Section 106(1)(e) provides:
(1) If an application under section 105(1) is made to a court in relation to the removal of a child from a Contracting State to New Zealand, the court may refuse to make an order under section 105(2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the court—
…
(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.
Article 20 provides:
The return of the child … may be refused if this would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms.
[44] For practical purposes there is no difference in the test to be applied by s 106(1)(e) and art 20.
[45] The principal argument for the father was that to require the child to be returned in compliance with the Hague Convention while the application for refugee status remained unresolved would be in breach of the refoulement principle (confirmed by s 164 IA). Section 164(1) of the IA provides:
(1) No person who is recognised as a refugee or a protected person in
New Zealand, or who is a claimant, may be deported under this Act.
[46] For present purposes A is a claimant for refugee status. Even though her application has been declined, as it is within the appeal period she is entitled to the protection under the IA, and may not be deported under that Act. But the application
to remove her is under the COCA, not the IA. An order for removal under s 105
COCA does not infringe s 164 IA.
[47] A similar argument was made in the United Kingdom case of Re S (Children).18 The mother had taken the children from India to the United Kingdom and made a claim for asylum there, listing her two children as dependents. Her claim was refused and she appealed. In the meantime the father sought return of the children under the wardship jurisdiction of the High Court (India not being a party to the Convention). The mother argued that the children could not be removed while
the asylum claim was pending. She relied on a provision of the Immigration and Asylum Act 1999, which provides that a claimant may not be removed from or required to leave the United Kingdom. The Court dismissed the argument concluding that:
[21] … that the language of “remove” and “required to leave” are terms of art in the law of immigration. … Section 15(2) in particular tends to show, I think, that these terms are being used in what may be called an immigration sense. These materials seem to me powerfully to demonstrate that the prohibition in section 15 is directed to the immigration authorities – who are of course part of the executive – and imposes upon them a most important negative duty in the context of their administration of immigration law and practice in the United Kingdom. This section is not intended to occupy any wider canvas. It cannot I think sensibly be read as creating a substantial exception or any exception to the obligations arising under Article 12 of the Hague Convention or be intended to circumscribe the duty and discretion of a judge exercising the wardship jurisdiction.
The appeal against the order for return of the children was dismissed.
[48] The wording of s 164 IA is even more clear. The effect of the section is confined to deportation under the IA.
[49] Mr Ryken is correct in his submission that the Convention has no provisions similar to s 106(2). But s 106(2) does not create an additional ground to s 106(1)(e), rather it explains that an application for refugee status comes within the “fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms” protected by s 106(1)(e), and must be considered in the context of that section.
[50] Where, as here, the respondent and/or child are claimants for refugee status the process involves a three-stage consideration. First, the Court must make an assessment of the merits of the application for refugee status as best it can. Second, it must determine whether it can be said, in light of that assessment, that the requirements of art 20 or, in this case, s 106(1)(e), are made out. If so, the Court must then determine in the exercise of its ultimate discretion whether the application for return should be refused. In this context the comments of the Court of Appeal in HK v Secretary of Justice as to the exercise of the discretion where a ground under
s 106(1) is made out would be relevant.19
[51] While the Court should consider the possibility the application for refugee status might succeed, it must deal with the application on the basis of the evidence before it.
[52] To be approved as a refugee the father and A must satisfy the test that:20
“owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [they] are unable or owing to such fear, unwilling to avail themselves of the protection of that country”.
[53] The allegations that the father makes of violence towards him and the children have been dealt with above. Also, it is relevant that the applications have been considered and rejected at this stage by a competent Court.
[54] There is very limited evidence before the Court to enable it to place much weight on the application for refugee status. In his affidavit the father says:
16.It should be borne in mind that Bulgaria was a member of the Soviet Block [sic] until 1989. It only joined the European Union in 2007. Although it is making progress towards becoming a fully functioning democratic country, there is still a number of the “old guard” in positions of power who have been reluctant to embrace democracy. Some are high up in the police. There is also a significant amount of corruption and the Bulgarian version of the Mafia has a great deal of
19 HK v Secretary of Justice [2006] NZFLR 1005, (2006) 26 FRNZ 168.
20 Convention Relating to the Status of Refugees, above n 5, art 1; Protocol Relating to the Status of Refugees 606 UNTS 267 (opened for signature 13 January 1967, effective 4 October 1967); Immigration Act 2009, s 129.
significant power and influence. This too is a legacy of the old communist regime in which corruption was rampant.
17.[The mother] has important connections with the old order. She attended university with Kalin Kamenov, former director of the State Agency of Child Protection. He retains considerable influence.
18.Before I was successful in obtaining an emergency protection order, I brought a number of petitions to the prosecution office of Bulgaria. The petitions were all rejected. I suspect [the mother] used her political influence and that is the reason I have had such difficulty getting my petitions auctioned. She has other connections but I am afraid to name them in case they seek retribution as they surely would if I were to return home.
[55] He then refers to a specific complaint he made to the prosecution about threatening and abusive phone calls. A junior prosecutor, while accepting the threats were made, found there were no procedural grounds to take action. The father says that as a result he “realised” the Bulgarian judicial system could not “protect my children, myself, my mother or my partner” and the only option he had was to leave Bulgaria with A. He says he has lost all confidence in the Bulgarian judicial system.
[56] But as noted, on the father’s evidence he obtained the benefit of a temporary protection order and apparently has been granted leave to appeal against the subsequent refusal of a continuation of the order.
[57] In addition there are also certain features of concern regarding the father’s action in applying for refugee status on behalf of the child in this case. The father brought A to New Zealand in July 2015. After the mother alerted the authorities to the abduction on 22 July 2015, the father and A were put on the list for international search. The father was located in New Zealand. When spoken to by authorities he is reported to have said that:
“they were on holiday until 30.9.15 and would be staying at [address] and
afterwards they would return to Bulgaria”.
The Bulgarian police report to the mother about the matter is dated 19 August
2014(15).
[58] The father did not return on 30 September 2015. Instead, shortly after the
contact, when he would have known the mother would be advised of his and A’s
location, he made the application for refugee status on or about 21 September 2015. The mother moved promptly to bring the Convention application on 1 October 2015 after the father and A failed to return on 30 September. The comments of the Court of Appeal for Ontario in AMRI v KER as to the potential for abuse of the refugee determination process by an abducting parent to gain a tactical advantage in a
looming or pending custody battle are relevant in this case.21
[59] Review of authorities from overseas jurisdictions confirms that where the respondent raises as a ground of opposition that either the parent or child is a refugee or has applied for refugee status, the application is not determinative but is a relevant consideration.
[60] In the Canadian case of Kovacs v Kovacs22 the Minister of Citizenship and Immigration had argued that the application of the Convention ought to be stayed pending the final determination of a claim for refugee status. Ferrier J rejected the argument.
[61] In Toiber v Toiber the Court of Appeal for Ontario considered a similar argument where the application for refugee status was yet to be determined.23 The Court of Appeal upheld at first instance the Judge’s rejection of a similar request on the basis that “a spirit of urgency infuses the Convention”.
[62] In B(G) v M(V), a decision of the Ontario Court of Justice, the issue was again addressed.24 In that case the parties and child were all Hungarian citizens. The respondent was of Roma heritage and the child was of Roma ethnicity. The Court posed the question of the significance of the fact that a refugee claim was pending. The Court answered it in the following way:
[69] While it might be attractive to delay a decision on this application until E’s refugee application has been determined, caselaw has established that a court hearing a Hague application is not required to and in fact should not delay dealing with the application until determination of a related refugee claim. The purpose of the Hague Convention would be defeated if applications for return of abducted children were not dealt with
21 AMRI v KER 2011 ONCA 417 at [73].
22 Kovacs v Kovacs (2002) 59 OR (3d) 671 (Sup Ct).
23 Toiber v Toiber (2006) 208 OAC 391 (ONCA).
24 B(G) v M(V) 2012 ONCJ 745.
expeditiously. There are several cases in which an abducting parent has had a refugee claim pending, in which a court has decided a Hague application and a related (13)(b) claim.
The Court then considered the possibility of the application succeeding.
[63] In Re M (Children)25 the Family Division in the High Court in the United Kingdom ordered the return of the children despite the fact their mother continued to contest a refusal to grant her refugee status. As Ms Blackford properly noted the decision was taken on appeal to the House of Lords where the return order was ultimately overturned.26 However the asylum/refugee issues were not mentioned in the appeal decision. The order was overturned on an entirely different basis, namely that the children were completely settled in the new location.
[64] Finally in the United States in the case of Lopez v Alcala the mother sought asylum in the United States on behalf of herself and her child.27 The asylum application was pending at the time the Court was asked to order the child’s return under the Hague Convention. The Court briefly noted the asylum applications had not been approved and did not appear meritorious. A similar approach was taken in Re Hague Child Abduction application (Arguelles v Vasquez).28
[65] Having reviewed those authorities and in light of the evidence before the Court in this case, I am satisfied that the fact there is a pending application (now under appeal to the Immigration and Protection Tribunal) for refugee status for both the father and the child is not of sufficient force in the circumstances of this case to satisfy the Court that the return of A to her mother in Bulgaria would be inconsistent with her or her father’s rights as claimants for refugee status. Importantly, it will not breach the protection of her human rights and fundamental freedom.
Result
[66] The appeal is dismissed.
25 Re M (Children) [2007] EWHC 1820 (Fam).
26 Re M (Children) (Abduction: Rights of Custody), above n 16.
27 Lopez v Alcala 547 F Supp 2d 1255 (MD Fla 2008).
28 Re Hague Child Abduction application (Arguelles v Vasquez) United States District Court for the
District of Kansas, Civil Action No 08-2030-CM, 17 March 2008.
[67] The proceeding is remitted to the Family Court to implement the order for removal.
[68] Costs reserved.
Venning J
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