Cross Border Issues: The Hague Convention and Child Custody

A Canadian passport used in cross-border custody issues with children

In the case of Medina v. Pallett (2010) B.C.S.C. 259, the petitioner father Medina was Honduran and the respondent mother Pallett was Canadian.  Together they had one child who was born in Honduras in 2005.  The child was left in Honduras with the child’s grandparents while Medina and Pallett attempted to settle in Canada.  By the Spring of 2008 Medina’s ability to remain in Canada remained uncertain.  He therefore no longer wanted to bring the child to Canada.  Pallett argued that Medina signed the child’s Canadian passport application and Medina denied doing so.  Without giving notice to Medina, Pallett went to Honduras and removed the child and brought the child to Canada.  Pallett then commenced divorce proceedings in Canada and sought custody of the child and child maintenance.  Medina brought an application to have the child returned to Honduras.

The presiding Judge, Mr. Justice Cole, granted the father’s application to have the child returned to Honduras.  Mr. Justice Cole relied on the Hague Convention on the Civil Aspects of International Child Abduction (1980) in ordering the child returned to Honduras.  Both Canada and Honduras are signatories to the Hague Convention. The Hague Convention is a statute under international law. Countries which have signed on to the Convention will allow for the enforcement of Orders requiring the return of a child to another country. Article 3 of the Convention states that removal is wrongful when it is in breach of the rights of custody held either jointly by the parents or alone by one parent under the law of the state where the child is habitually resident at the time of removal.  Mr. Justice Cole found that the child was habitually resident in Honduras at the time of removal. The focus was therefore on Honduran law. The Judge found that both parents had joint custody under Honduran law, the mother Pallett did not have authority to remove the child from Honduras without authenticated written authorization from the father Medina The mother attempted to argue that the father’s signature on the child’s passport was evidence of his consent.

However, Mr. Justice Cole held that Medina’s alleged signature on the passport did not come close to clear and cogent evidence of consent as required under Honduran law.  The proceedings were commenced within one year of the removal of the child from Honduras and therefore an Order for the return of the child to Honduras was mandatory under Article 12 of the Convention.  It was not open for the Court to consider whether the child was settled in Canada.  The Court found that it was required to order the return of the child to Honduras forthwith.

This case demonstrates that the removal of a child from one country to another without complying with the requirements for parental consent of the country in which the child is habitually resident will be treated strictly under the Hague Convention.  This case also demonstrates that the Hague Convention provides an effective means for enforcing the return of children across international borders where the countries involved are signatories to the Convention.