Thomson v. Thomson

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

There is a significant difference, however, in the use that may be made of the legislative history and other preparatory material. Article 32 provides that such material can be used to confirm the meaning found under Article 31, or to resolve an ambiguity or obscurity or avoid a result that is manifestly absurd or unreasonable. It reads:

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

It would be odd if in construing an international treaty to which the legislature has attempted to give effect, the treaty were not interpreted in the manner in which the state parties to the treaty must have intended. Not surprisingly, then, the parties made frequent references to this supplementary means of interpreting the Convention, and I shall also do so. I note that this Court has recently taken this approach to the interpretation of an international treaty in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.

The travaux préparatoires to the Hague Convention are found in the Hague Conference on Private International Law Actes et documents, supra. Also of interest is the article by Anton, chair of the Special Commission, "The Hague Convention on International Child Abduction", supra.

I now turn to a closer examination of the purpose of the Convention. The preamble of the Convention thus states the underlying goal that document is intended to serve: "[T]he interests of children are of paramount importance in matters relating to their custody." In view of Helper J.A.'s remarks on this matter, however, I should immediately point out that this should not be interpreted as giving a court seized with the issue of whether a child should be returned to the jurisdiction to consider the best interests of the child in the manner the court would do at a custody hearing. This part of the preamble speaks of the "interests of children" generally, not the interest of the particular child before the court. This view gains support from Article 16, which states that the courts of the requested state shall not decide on the merits of custody until they have determined that a child is not to be sent back under the Convention. I would also draw attention to the fact that the preamble goes on to indicate the manner in which its goal is to be advanced under the Convention by saying:

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. . . .

The foregoing is entirely consistent with the objects of the Convention as set out in its first Article. Article 1 sets out two objects: (a) securing the return of children wrongfully removed to or retained in any contracting state; and (b) ensuring that the rights of custody and access under the law of one contracting state are effectively respected in other contracting states. Anton, supra, at pp. 542-43, indicates that prompt return was intended to be predominant:

The Special Commission also considered ─ and, until recently, this would have been an equally novel proposition for judges in common law countries ─ that the courts of the State addressed should order the return of the child, subject to certain limited exceptions, despite the possibility that further inquiries might disclose that the child's welfare would be better secured by its remaining in that State. . . . [T]he primary purpose of the Convention [is], namely, as Article 1(a) states, to secure the prompt return of children wrongfully removed to or retained in any Contracting State. The Commission started from the assumption that the abduction of a child will generally be prejudicial to its welfare. It followed that, when a child has been abducted from one country to another, international mechanisms should be available to secure its return either voluntarily or through court proceedings.

It is clear from the wording of the preamble and Article 3 of the Convention, cited supra, and from the travaux préparatoires that the primary object of the Convention is the enforcement of custody rights. Article 3 provides that the removal or retention of a child is to be considered wrongful where "it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention". Such rights of custody are given effect through proceedings for the return of the child under Article 12.

By contrast, the Convention leaves the enforcement of access rights to the administrative channels of Central Authorities designated by the state parties to the Convention. The duties of these central authorities, set forth in Article 21, are, unlike situations involving custody rights, not to return the child forthwith, but rather to cooperate "to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject", including the initiation of or assistance "in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject".

Custody

Custody, as understood by the Convention, is a broad term that covers the many situations where a person lawfully has the care and control of a child. The breach of rights of custody described in Article 3, it will be remembered, are those attributed to a person, an institution or any other body by the law of the state where the child was habitually resident immediately before the removal or retention. Article 3 goes on to say that custody may arise by operation of law. The most obvious case is the situation of parents exercising the ordinary care and control over their child. It does not require any formal order or other legal document, although custody may also arise by reason of a judicial or administrative decision, or by agreement.

From the preparatory work, it seems clear, at least in some cases, that the removal of a child from a country in the face of a court order prohibiting it was intended to be covered by the Convention. Thus in the Preliminary Document No. 1 "Questionnaire and Report on international child abduction by one parent" (the "Dyer Report"), a survey of conference members was conducted in which five types of situations considered to constitute "child abduction" for the purposes of the questionnaire were described. I set them forth here, noting that the fifth is directly relevant:

A The child was removed by a parent from the country of the child's habitual residence to another country without the consent of the other parent, at a time when no custody decision had yet been handed down but serious problems between the parents already existed.

B The child was abducted by a parent from the judicially determined custodian in one country and removed to another, where no conflicting custody decision had been handed down.

C The child was retained by the non-custodial parent or other relatives beyond a legal visitation period, in a country other than that in which the child habitually resided.

D The child was abducted by a parent from the legal custodian in one country and removed to another, where the abductor has been granted custody under a conflicting order in that other country or in a third country.

E The child was removed by a parent from one country to another in violation of a court order which expressly prohibited such removal. [Emphasis added.]

(Actes et documents, supra, at p. 9.)

Preliminary Document No. 5 "Conclusions drawn from the discussions of the Special Commission of March 1979 on legal kidnapping", in referring to the five types of abductions mentioned in the Dyer Report's survey, expresses the view that "the Convention should cover all types" (Actes et documents, supra, at p. 163 (emphasis in original)).

It by no means follows, however, that the Convention applies to every case where a child is removed from one country to another where a court order prohibits it. From the emphasis placed in the Convention and the preparatory work on the enforcement of custody, as distinguished from mere access, the proper view would appear to be that the mandatory return dictated by the Convention is limited to cases where the removal is in violation of the custody rights of a person, institution or other body. That is the view adopted by Anton, supra, at pp. 546 and 554-55, who stated:

It is clear also from the definitions of custody and access in Article 5 that the removal or retention of a child in breach merely of access rights would not be a wrongful removal or retention in the sense of Article 3.

. . .

The Convention contains no mandatory provisions for the support of access rights comparable with those of its provisions which protect breaches of rights of custody. This applies even in the extreme case where a child is taken to another country by the parent with custody rights and is so taken deliberately with a view to render the further enjoyment of access rights impossible.

Anton's view gains support from the fact that the other four types of situations identified in the Dyer Report's survey as constituting "child abduction" are all of a kind where the custodial parent is deprived of her or his right of custody.

In my view, that is the correct approach and, accordingly, I propose to deal with the issue of whether there was a wrongful removal of Matthew on this basis.

Wrongful Removal

Before turning to the issue of whether there was an infringement of custody rights warranting the return of Matthew under the Convention, I would like to dispose briefly of two issues that were raised in the courts below.

The first of these concerns the possibility that the appellant did not know she was violating the Scottish court's order. In my view, this is irrelevant. Nothing in the nature of mens rea is required; the Convention is not aimed at attaching blame to the parties. It is simply intended to prevent the abduction of children from one country to another in the interests of children. If the removal of the child was wrongful in that sense, it does not matter what the appellant's view of the situation was.

The second preliminary issue relates to the dispute regarding whether Matthew's residence was in Scotland or in Manitoba at the relevant time. On the facts of this case, I agree with the courts below that this issue is also without substance.

I turn then to the issue of whether there was a removal of Matthew from Scotland constituting a breach of custody rights there. The appellant argued that Matthew's removal cannot be considered wrongful under the Convention because the appellant had interim custody. For the respondent, reference was made to the letter of the central authority in Scotland that a parent had custody of a child until a court ordered otherwise. The difficulty, however, is that before Matthew's removal from Scotland, there was a court order awarding interim custody to his mother, leaving the respondent father with a mere right of access. Under these circumstances, the Court must determine what the law is as best it can by reference to relevant decisions.

Three approaches have been taken in the case law. Common to all three is that the courts have shown a strong disposition to give effect to the spirit of the Convention. The first is to the effect that a removal in breach of a non-removal clause is contrary to the terms of the Convention because such a removal is in breach of the custodial parent's own right of custody. This is arguably the approach adopted by Davidson J. in the present case. She stated, at p. 76:

. . . the removal was in breach of rights of custody in the November 27, 1992, order because the custody awarded to Ms. Thomson was not unconditional. I see non-removal restrictions generally as a term of custody.

Further, rights of custody are specifically defined in article 5 as including "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence". Ms. Thomson was clearly given rights of custody which restricted her right to determine the child's place of residence and she is clearly in breach of that restricted right of custody.

A similar approach was adopted by Ewbank J. of the English High Court (Family Division) in Re K.H. (A Minor) (Abduction), [1990] F.C.R. 990. In that case, the parents of an infant daughter, residing in Ontario, separated, and the mother gained interim custody of the child but with the condition that the child was not to be removed from Ontario without leave of the court. In violation of this clause, the mother brought the child to England. On the request of the English court under Article 15, the office of the Attorney General in Ontario sent a certificate and an affidavit, stating its opinion of the effect of the non-removal clause under Canadian law. Accepting this submission, Ewbank J. summarized the Attorney General of Ontario's view as follows, at p. 992:

. . . it is the opinion of the Crown Law Officer that the mother's conduct in removing the child from the Province of Ontario constituted a wrongful removal within the meaning of Article 3 of the Convention in that it was a breach of the rights of custody attributed to her under the law of the Province by reason of a judicial decision. Her rights of custody under the order of September 19, 1989 were rights of custody within the Province of Ontario which specifically provided by the order of the court that the child was not to be removed from Ontario, and in removing the child the mother was in breach of the rights of custody which she had been granted. [Emphasis added.]

I confess to having some discomfort with this approach. By providing that "at the time of removal or retention those rights [of custody] were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention", Article 3 would seem to imply that the rights breached must have belonged to someone other than the breaching party. That reading is confirmed by the structure of the Convention as well as by the comments of those engaged in the drafting of the Convention, from which it appears that primary protection to custody rather than access was intended.

It must, however, be remembered that the request for return in this case appears to have been based on the approach set forth in the cases just cited. Mrs. Thomson, the request reads, was the person whose custody rights were breached. The validity of this approach, I noted, was contested on a substantive basis, but it was never argued that it vitiated the request for the return of the child as such. For my part, I do not think one should insist on technical precision in matters of form, given the difficulty institutions in various countries may have in knowing precisely what the courts in another country may require. Here the request adequately informed the courts of the situation, whatever its form or whatever the theory under which the requesting state was acting, and I think the request was properly acted upon. This is all the more compelling because on the basis of the statement of law given by the Canadian authorities in Re K.H., supra, there was reason for the authorities in Scotland to think they were acting in accordance with Canadian law.

The second and third approaches mentioned hold that "the right to determine the child's place of residence" is a custody right divisible from the right to care for the person of the child, and by virtue of a non-removal clause, this right vests in either the access parent (the second approach), or the court (the third approach). These approaches gain support from the open-ended wording of Article 5: ""rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence" (emphasis added).

In C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2 All E.R. 465 (C.A.), the court accepted the second approach, that the access parent (the father) gained a right of custody within the meaning of the Convention. There, the parties had married in England in 1978 and moved to Australia in 1979. In 1982 they became the parents of a son. They separated in 1986. A consent order made by the Australian Family Court directed that the father and the mother were to remain joint guardians of the child, the mother to have day-to-day custody; neither parent was to remove the child from Australia without the consent of the other. In 1988 the mother removed the child to England without the father's consent. The English Court of Appeal, while not presented with any evidence of Australian law, noted that, under Article 3 of the Convention, custody rights are specifically recognized as being held either jointly or alone. Neill L.J. thus put the matter, at p. 472:

I am satisfied that this right to give or withhold consent to any removal of the child from Australia, coupled with the implicit right to impose conditions, is a right to determine the child's place of residence, and thus a right of custody within the meaning of arts 3 and 5 of the convention. I am further satisfied that this conclusion is in accordance with the objects of the convention and of the 1985 Act. Until last August this child was habitually resident in Australia. In 1986 the Family Court of Australia made orders relating to his custody, which included an agreed provision that he should not be removed from Australia without the father's consent. In my judgment, the enforcement of that provision falls plainly within the objects which the convention and the 1985 Act are seeking to achieve.

Lord Donaldson M.R. concurred, stating at p. 473:

`Custody', as a matter of non-technical English, means `Safe keeping, protection; charge, care, guardianship' (I take that from the Shorter Oxford English Dictionary); but `rights of custody' as defined in the convention includes a much more precise meaning, which will, I apprehend, usually be decisive of most applications under the convention. This is `the right to determine the child's place of residence'. This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right, in so far as the child is to reside in Australia, the right being that of the mother but, in so far as any question arises as to the child residing outside Australia, it being a joint right subject always, of course, to the overriding rights of the court. If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the convention. I add for completeness that a `right to determine the child's place of residence' (using the phrase in the convention) may be specific, the right to decide that it shall live at a particular address, or it may be general, eg. `within the Commonwealth of Australia'.

That case presented more compelling facts than the present case. There, it will be observed, the parents were joint guardians under an agreed provision that the child should not be removed from the country. Here the father under the court order appears to have had only a right of access, which the Convention does not equate with custody.

The third approach, that the effect of the insertion of a non-removal clause in an interim custody order is to retain a right of custody in the court, was adopted by the English Court of Appeal in B. v. B. (Abduction: Custody Rights), [1993] 2 All E.R. 144. There, the mother and father married in England in 1977 and moved to Ontario in 1981, where they became Canadian citizens. Their son was born in 1985. The parties separated in 1990. In January 1991 a consent order granted interim custody to the mother with liberal access to the father, and included an order preventing the child's removal from Ontario. In May 1991 the mother sought final custody and leave of the court to remove the child to England. That motion was returnable on June 27, 1991. In her affidavit, the mother stated: "I have no intention of leaving this jurisdiction without an appropriate order of this honourable court." On June 27 the motions judge adjourned the hearing of the substantive issues but ordered that the child "shall not be removed from the jurisdiction in the interim". The hearing was to resume July 2, 1992. On that day, the judge gave directions for the substantive hearing to continue at a later date in a new venue. His order continued the interim custody of the wife and specified the access times of the husband. It did not, however, include a non-removal clause. The next day, the wife left for England with the child.

Sir Stephen Brown P. of the English Court of Appeal held, at p. 149:

In my view this was the plainest example of an unlawful removal. The mother herself appears to have thought so, for she later stated that she regretted having taken that step at that time. It is suggested that she did not appreciate the legal position, although she was in receipt of legal advice at the time. It seems to me that the court itself had a right of custody at this time in the sense that it had the right to determine the child's place of residence, and it was in breach of that right that the mother removed the child from its place of habitual residence.

I am fully in agreement with this statement. It seems to me that when a court has before it the issue of who shall be accorded custody of a child, and awards interim custody to one of the parents in the course of dealing with that issue, it has rights relating to the care and control of the child and, in particular, the right to determine the child's place of residence. It has long been established that a court may be a body or institution capable of caring for the person of a child. As I explained in E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, the Court of Chancery has long exercised wardship over children in need of protection in the exercise of its parens patriae jurisdiction. But I see no need to rely on jurisdiction emanating from this doctrine, which has understandably "puzzled and concerned" other Contracting Parties; wardship, as we know it, does not apparently exist in Scotland; see Nigel Lowe and Michael Nicholls, "Child Abduction: The Wardship Jurisdiction and the Hague Convention", [1994] Fam. Law 191, at p. 191.

This Court heard no evidence on the legal effect under Scottish law of the insertion of the non-removal clause in the interim custody order granted to Mrs. Thomson on November 27, 1992. Therefore we must interpret the clause without aid, from general principles and by analogy to Canadian law. Under Canadian law, a non-removal clause may be placed in an interim order of custody to preserve the court's jurisdiction to make a final determination of custody. It seems to me that when a court is vested with jurisdiction to determine who shall have custody of a child, it is while in the course of exercising that jurisdiction, exercising rights of custody within the broad meaning of the term contemplated by the Convention. In the words of Article 3(b), "at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention". As noted earlier, the travaux préparatoires envision this situation.

All of this seems particularly appropriate in the case at bar. The non-removal clause here reads simply: "Of new Grants interim interdict quoad crave 2 ad interim against the Defender from removing the said Matthew Paul Thomson furth of Scotland" (emphasis in original). Given the underscoring twice of the word `interim', it seems clear that the non-removal clause was inserted into the custody order of November 27, 1992 to preserve jurisdiction in the Scottish court to decide the issue of custody on its merits in a full hearing at a later date. Thus the Scottish court became "an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention" having custody rights within the meaning of Article 3. The preservation of the access rights of the respondent would be merely a corollary effect of the clause. The appellant's removal of Matthew therefore constituted a breach of the custody right of the Scottish court within the meaning of Article 3 of the Convention. Article 12 of the Convention, therefore, charges this Court to order his return "forthwith".

It will be observed that I have underlined the purely interim nature of the mother's custody in the present case. I would not wish to be understood as saying the approach should be the same in a situation where a court inserts a non-removal clause in a permanent order of custody. Such a clause raises quite different issues. It is usually intended to ensure permanent access to the non-custodial parent. The right of access is, of course, important but, as we have seen, it was not intended to be given the same level of protection by the Convention as custody. The return of a child in the care of a person having permanent custody will ordinarily be far more disruptive to the child since the child may be removed from its habitual place of residence long after the custody order was made. The situation also has serious implications for the mobility rights of the custodian.

Wrongful Retention

In light of my determination that the removal of Matthew was wrongful, it is not in strictness necessary to deal with wrongful retention. However, in view of the argument concerning the effect of the February 3, 1993 order of the Scottish court in favour of the father, I think it is important to discuss this issue.

The respondent argued that the appellant's retention of Matthew after the Scottish court's order of February 3, 1993 was wrongful within the meaning of Article 3 because it was in breach of rights the respondent would have exercised if not for the retention. Neither side placed any evidence before this Court as to the reasons of the Scottish court in granting the order of February 3 which flies in the face of the Solicitor's report indicating that the appellant is the more suitable parent. The lower courts assumed, and the appellant argued, that this custody decision was made solely for the purpose of bolstering the respondent's application under the Hague Convention. This type of order is known internationally as a "chasing order".

Since the Hague Convention's reference to "wrongful retention" is somewhat ambiguous, it must be read in light of the background to the Convention. The drafters of the Convention did not wish to follow the approach of the Council of Europe's Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, Eur. T.S. No. 105, which bases the return of children on the recognition of custody decisions or orders of the requesting state, thus necessitating the requesting state to issue a "chasing order". Anton, supra, explains (at pp. 541-42):

. . . in many abduction cases there will have been no anterior custody decision: the right breached may have been a right conferred by law. The Council of Europe Convention comes into operation only where there is a custody decision to recognise and enforce, and meets the problem presented by the possible absence of an anterior decision by providing for the recognition and enforcement under the Convention of a retrospective decision (the so-called "chasing order") relating to the custody of the child and declaring his removal to have been unlawful. The Special Commission at The Hague, however, considered that it would be wrong to require a person seeking the return of an abducted child to go first to the courts of the State of the habitual residence of the child to obtain a "chasing order". . . . Although, therefore, under Article 15 of the Hague Convention, the courts of a State to which applications for the return of a child have been made may call for a "chasing order", this is merely an option. They are likely to avail themselves of it only when they have substantial doubts which cannot otherwise be resolved.

Article 15, allowing for the requested state to seek a "chasing order" from the requesting state, is as follows:

Article 15

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

The provision, it will be observed, contemplates that the initiative for obtaining a chasing order is with the requested state, and that the order is intended to determine whether the removal or retention was wrongful. In short, for the purposes of the Convention, a "chasing order" serves to clarify for the requested state the opinion of the requesting state that indeed the continuing retention was wrongful.

There is nothing in the Convention requiring the recognition of an ex post facto custody order of foreign jurisdictions. And there are several statements in the supplementary material to support the view that "wrongful retention" under the Hague Convention does not contemplate a retention becoming wrongful only after the issuance of a "chasing order". According to the report of Professor Pérez-Vera on the Preliminary draft Convention (Preliminary Document No. 6 "Report of the Special Commission") the situations to which "wrongful retention" under the Hague Convention was intended to refer are quite straightforward and conform to common sense. She states:

As a result, an analytical approach seems to be the most appropriate for getting into the gist of the matter in an area where legal terminology could become either too complex or too simple. As a basis for this approach, we shall consider just two elements which coexist in all the situations we have to face and which, in such a way, may be deemed to constitute the unalterable nucleus of the problem.

[Describing "removal"] In the first place, and in all cases, we have the removal of a child away from the normal social environment in which he lived in the care of a custodian (or institution) who exercised over him a legal right of custody. [Describing "retention"] Naturally, we must assimilate to this situation the case of a refusal to return the child after a sojourn abroad, where the sojourn has been made with the consent of the rightful custodian of the child's person. In both cases, the outcome is the same: the child has been removed from the social and family background which shaped his life.

Secondly, the person who removed the child . . . hopes to obtain the right of custody from the authorities of the country where the child has been taken . . . [in order to] legalize the factual situation he has created . . . [Emphasis added.]

(Actes et documents, supra, at p. 172.)

To paraphrase, a wrongful retention begins from the moment of the expiration of the period of access, where the original removal was with the consent of the rightful custodian of the child. This interpretation is repeated in the "Commentary on the Draft" in the Report of the Special Commission, which states:

In the first place, the reference to wrongfully `retained' children tends to cover the case of a child who is in a different place from that of his habitual residence, with the consent of the rightful custodian, and who has not been returned by the non-custodial parent.

(Actes et documents, supra, at p. 187.)

Similarly, the Explanatory Report on the Convention states:

The fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of its habitual residence.

(Actes et documents, supra, at pp. 458-59.)

At page 429, it adds: "The Convention . . . places at the head of its objectives the restoration of the status quo".

Accordingly, I conclude that the order granted by the Scottish court in favour of the father on February 3, 1993, standing alone, would not have been sufficient to ground an application under the Hague Convention, as it could not, in itself, make the retention wrongful.

As noted earlier, I am aware of a number of cases, like the present, where the British authorities appear to have assumed that a "chasing order" issued after the child has been taken out of the jurisdiction can by itself make unlawful what was otherwise not contrary to the Convention; see C. v. S. (Minor: Abduction: Illegitimate Child), [1990] 2 All E.R. 449 (C.A.), aff'd [1990] 2 All E.R. 961 (H.L.); Re B.-M. (Wardship: Jurisdiction), [1993] 1 F.L.R. 979 (H.C. (Fam. Div.)); and Re N. (Child Abduction: Habitual Residence), [1993] 2 F.L.R. 124 (C.A.). In particular, since this case was argued, a number of British and Australian cases have come to my attention where wardship proceedings in England have been used as "chasing orders" after the removal of a child to establish wrongful retention whether by or against the person having the right of custody at the time of the removal; see, for example, Re B.-M., supra; and In the Marriage of W. M. and G. R. Barraclough (1987), 11 Fam. L.R. 773 (Fam. Ct. Aust.). I refrain from commenting further about these cases, but I simply observe that such an approach taken against a custodial parent (other than one acting on an interim basis, as here) appears at first blush to be directed to protecting interests other than custody rights, to which the remedy of return of the child is confined under the Convention. Should such a situation arise here, it would have to be very carefully scrutinized to see if this conformed to the letter and spirit of the Convention. I observe that in a recent United States case, the court there refused to honour a request for return under such circumstances; see Meredith v. Meredith, 759 F.Supp. 1432 (D. Ariz. 1991).

Exceptions to the Return of a Wrongfully Removed Child

Having determined that Matthew was wrongfully removed under the terms of the Convention, Article 12 of the Convention mandates this Court to order his return "forthwith" unless his case fits into one of the exceptions set forth in Articles 12, 13 and 20. These are (see John M. Eekelaar, "International Child Abduction by Parents" (1982), 32 U.T.L.J. 281, at p. 311):

1. More than a year has elapsed between the removal and the commencement of judicial proceedings and it can be demonstrated that the child is now settled into his new environment: Article 12;

2. The person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention: Article 13(a);

The person, institution or other body having the care of the person of the child had acquiesced in the removal or retention: Article 13(a);

There is a grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation: Article 13(b);

The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account its views: Article 13;

The return of the child would "not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms": Article 20.