Removal and Retention – Arts 3 and 12
After applying an objective test the court found that an agreement was made between the parties to return the child to New Zealand in July 2020.
The Court came to no firm conclusion as to whether the father’s consent was invalidated as it was based on false assurances as to the return date.
However, the Court found the retention to be wrongful and held that wrongful retention can occur before an agreed-upon return date. Therefore, that anticipatory retention can constitute a wrongful retention. Whether this has occurred wass a question of fact. To decide otherwise and require the left-behind parent to wait until the “plane lands without the child”, would be obviously inconsistent with the purpose and objects of the Hague Convention. In this case the filling of the NFC represented the mother’s intent to remain in Canada with the child.
Consent – Art. 13(1)(a)
The Court did not find that the father had consented to the removal or retention. The fact that he remained in Canada to be with the child (rather than returning to New Zealand without her), did not amount to subsequent acquiescence. Furthermore, his approval of the child’s registration at kindergarten was motivated by his wish to alleviate suffering and not prove his tactic consent that she would remain in Canada.
Author: Matheus Ferreira Gois Fontes and Victoria Stephens
