Habitual Residence – Art. 3
Habitual residence is a question of fact to be decided by reference to all the circumstances of the case. A habitual residence is established by residing in a place for an appreciable period of time with a settled intention. A child’s habitual residence is tied to the habitual residence of his or her custodian. The parties’ residence in Hong Kong for 9 months satisfied the requirement of an appreciable period of time. That the mother and father were employed in Hong Kong and the child went to school in Hong Kong indicates that the parties had a settled intention to make Hong Kong their home. Therefore the child was habitually resident in Hong Kong at the time of her removal.
Rights of Custody – Art. 3
The mother had rights of custody pursuant to the order for joint custody that had been granted in Canada. Rights of custody may be based on any judicial or administrative decision, not just a judicial or administrative decision from the state where the abduction occurred. The mother also had rights of custody by operation of law.
Grave Risk – Art. 13(1)(b)
Returning the child to Hong Kong would create a grave risk of harm. The mother and child did not have immigration status in Hong Kong. If the child were returned to Hong Kong, she would have been forced to move again within a few months and this would have given rise to an intolerable situation. The mother had had a very unstable life, and if the child were returned to Hong Kong there would be a grave risk the mother will prevent the child from seeing the father. In addition, the father could not travel outside of Canada for 2 years because of a criminal conviction and he therefore could not participate in custody proceedings in Hong Kong during that period.
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