“If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Hague Convention provides that the court “shall order the return of the child.” However, Articles 12, 13, and 20 also outline five exceptions to this obligation to return the child. These exceptions come into play only after habitual residence is determined: see Balev, at para. 66. In Balev, at para. 29, the Supreme Court summarized these exceptions as follows:
1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
2) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));
3) The child of sufficient age and maturity objects to being returned (Article 13(2));
4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,
5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).
Because the arguments in this case touched on the third and fifth exceptions, namely the child’s objections and the “settled in” exception, I will provide further comment on these two exceptions.
(i) The “Settled In” Exception
First, Article 12 provides the “settled in” exception. As the Supreme Court held in Balev, at para. 66, its function is to provide a “limited exception” to the court’s obligation to return wrongfully removed or retained children to their habitual residences. The court’s discretion to refuse return under the “settled in” exception under Article 12 becomes available if the following two conditions are met:
1) The applicant has commenced return proceedings one year or more following the date of the wrongful removal or retention; and,
2) It is demonstrated that the child is now settled in its new environment.
Under the “settled in” exception, the court must assess the children’s connection to the country they are in at the time of the hearing of the application, not immediately before the date of wrongful removal or retention: Balev, at para. 67. This difference in timing can be significant. The “settled in” exception thus accounts for the possibility that a child will develop closer ties to the jurisdiction in which the child has been wrongfully removed or retained in the period of time that follows the date of the wrongful removal or retention: Balev, at para. 67. As the Supreme Court stated in Balev, at para. 66, “It may be that on the hybrid approach habitual residence favours return of the child, but that the one-year period and settling-in indicate that the child should not be uprooted and returned to his or her place of habitual residence.””