Applicant parent v Birth Mother and Others [2020] JCA 141A (08 July 2020)

Applicant parent v Birth Mother and Others [2020] JCA 141A (08 July 2020)

The Royal Court erred in law by assessing 'settlement' at the date of hearing rather than the date of commencement of proceedings. As of the commencement date, GG was not settled in Jersey, being in foster care and lacking the necessary physical and emotional stability. The Article 12 settlement exception was not made out, and thus the discretion to refuse return did not arise. The appeal is allowed and the order refusing return is set aside.

Citation
[2020] JCA 141A
Parties
Appellant: Applicant parent; First Respondent: The Birth Mother; Second Respondent: Grandfather; Third Respondent: Grandmother; Fourth Respondent: GG (acting by her children's guardian Sue Clarke); Fifth Respondent: HH (acting by his children's guardian Eleanor Green)
Jurisdiction
Jersey
Judgment Date
08 July 2020
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed
Legal Topics
International Child Abduction, Hague Convention 1980, Child Custody, Habitual Residence, Summary Return, Settlement Exception, Grave Risk Exception
Family Law International Law International Child Abduction Hague Convention 1980 Child Custody Habitual Residence Summary Return Settlement Exception +1 more

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Parties

Applicant parent

Appellant

The Birth Mother

First Respondent

Grandfather

Second Respondent

Grandmother

Third Respondent

GG (acting by her children's guardian Sue Clarke)

Fourth Respondent

HH (acting by his children's guardian Eleanor Green)

Fifth Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Royal Court erred in determining the relevant date for assessing 'settlement' under Article 12 of the Hague Convention as the date of hearing rather than the date of commencement of proceedings
  2. 2 Whether GG was 'settled' in her new environment at the relevant date
  3. 3 Whether the Royal Court properly applied the Article 13(b) 'grave risk' exception

Ratio Decidendi

The Royal Court erred in law by assessing 'settlement' at the date of hearing rather than the date of commencement of proceedings. As of the commencement date, GG was not settled in Jersey, being in foster care and lacking the necessary physical and emotional stability. The Article 12 settlement exception was not made out, and thus the discretion to refuse return did not arise. The appeal is allowed and the order refusing return is set aside.

Court Disposition

Appeal allowed

Orders

  • Order of the Royal Court refusing return of GG to Canada set aside
  • Application for summary return of GG to Canada granted