NEW BC CHILD CUSTODY AND HAGUE CASE FROM THE BC COURT OF APPEAL
The BC Court of Appeal recently released the decision BC child custody and guardianship decision of Kubera v. Kubera 2010 BCCA 118 wherein the Court considered the meaning of the phrase “settled in” pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction. Article 12 allows exceptions to the “return rule” of the Hague Convention where a Court can determine that a child, although wrongfully removed from his or her home can be permitted to stay in their new country of residence. The purpose of the “settled in” exception is to prevent further disruption to a child’s life in the new home environment. The Court held that each consideration would be very fact specific to the child in question, taking a “child-centric” approach. Both the “physical element” of a child’s established community and the “emotional element” of a child’s security and stability has to be considered.
The main concern this case raises is the Court’s comments with respect to the timing of the consideration as to when the child can be considered “settled in” to the new environment and whether the Court should consider the circumstances when the child was wrongfully removed or at the date of the hearing. The Court held that all of the circumstances had to be considered but that the current situation of the child was very important. This statement leads to the concern that abductor parents will try to delay the expeditious hearing of a return application in order to create a more settled in situation for the child. The more delay there is the better the chances they will be permitted to stay. Given the Court’s decision, parents seeking the return of their children have to be even more vigilant about pursuing their rights under the Hague Convention as quickly as possible.
If your child has been abducted or you have questions about international child custody, contact Shawna Specht of our office and book your appointment today.