The application related to two girls, aged 10 and 8 1/2 at the date of the hearing. The parents divorced in Canada in 1991, a little over a year after the birth of the second child. The mother was awarded custody, the father access.
In 1997 the mother took the 2 children, plus a child from a subsequent marriage, from their home in Canada to Scotland.
The purpose of the trip was to visit the maternal grandfather who was ill and was undertaken with the consent of the fathers. However, the mother did not return with the children and after 6 months she terminated telephone contact with the first husband / father.
The fathers then petitioned for the return of the children under the Convention. The second husband / father succeeded in his application, but, the first husband / father failed on the basis that he did not possess any rights of custody.
The first husband / father, who had remained in Canada, then petitioned under the Convention for assistance in exercising his rights of access.
The application was opposed by the mother. The trial judge allowed the application to proceed, but granted the mother leave to appeal his order.