|December 8, 2009|
Previously published on Fall 2009
In this case, two children were returned to their father in Austria after their mother fled with them to Canada. The main issues in this case were whether the children were habitually resident in Austria and whether there was a grave risk of harm in returning the children to their father’s care.
Justice Baltman decided that the children were habitually resident in Austria. Despite their living in Canada, England, and Cameroon for significant periods of time, the children were habitually resident in Austria because Austria is where the children attended school, where they saw their doctor, and where they lived with their separated parents for eight months before their mother took them to Canada. Justice Baltman upheld Cornaz v. Cornaz-Nikyuluw, which states that where the children last lived with both parents includes the place where both parents lived in the same state, not just where both parents lived in the same home.
Justice Baltman also decided that there was no grave risk of harm in returning the children to their father’s care. Despite an old assault charge that was eventually dropped and the mother’s claim that the father is physically and verbally abusive, no grave risk of harm was found in returning the children to Austria because (a) the children’s doctor and a social worker stated that the children were well taken care of in the father’s care, (b) the mother left the children in the father’s care for two months, and (c) there was no evidence that the children were aware of the father’s alleged abuse of the mother.
This case upholds the main purpose of the Hague Convention, namely that children should be returned from where they were wrongfully removed. This case is also a reminder that Hague cases are not about who should have custody of the children, but about which country has the jurisdiction to make this decision.