woman's hand holding a child's hand

M.H.S. v S.M.G.T. 2015 CarswellBC 2351

In this case, the father of twins wrongfully removed them from Mexico to British Columbia. One twin has autism. When the mother brought an application under the Hague Convention for the return of the children, the father argued that they should not be returned to Mexico because the child with autism could not receive appropriate treatment there for his condition.

He relied on section 13(b) of the Convention to support his argument. This section, usually relied on in cases of family violence, states that there is no requirement to return a child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position.”

The mother argued that the fact that one country has superior facilities for treating autism does not establish a finding that the child would experience a grave risk of harm if returned to the originating country. She takes the position that, were this the case, parents would wrongfully remove children from one country to another to deal with all manner of medical and other issues.

The father’s position was that the child with autism would face a grace risk of psychological harm if he were to be returned to Mexico. He also said that because the twins were closely bonded, separating them from one another would cause significant harm to both of them so if the child with autism is not returned to Mexico, the other twin should also remain in British Columbia.

Justice Butler refers to an American case in reaching his decision. In Friedrich v Friedrich, 78 F 3d 1060 (6th Cir 1996), the court noted that section 13(b) of the Hague Convention was not intended to be used “as a vehicle to litigate (or relitigate) the children’s best interests.” That decision goes on to state that:

A review of deliberations on the Convention reveals that “intolerable situation” was not intended to encompass return to a home where money is in short supply or where educational or other opportunities are more limited than in the requested state. As “intolerable situation” is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child’s return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an “intolerable situation” and subjected to a grave risk of psychological harm.”

In coming to his decision that the children were to be returned to Mexico, Justice Butler acknowledged that the specialized treatment available in British Columbia was not available in Mexico and that lack of this treatment presented a serious risk of future harm to the child. But, he also found that returning the child to Mexico would not place him in an intolerable situation. He stated:

The argument that D. [the child with autism] faces a grave risk of harm is available to the respondent because of the existence of three principal circumstances. 1) a lack of family money and government funding available to the family in Colima; 2) the lack of an opportunity to access ABA therapy because it is not widely available in Mexico; and 3) the fact that D. is now in British Columbia receiving ABA therapy. It is apparent that the first two are the sort of circumstances the court in Friedrich cautioned the concept of “intolerable situation” was not intended to encompass. They depend on the financial resources of the family in Mexico and the opportunities available in British Columbia because of its better medical facilities. The third circumstance only exists because D. was wrongfully retained in British Columbia. The potential implications of that fact are more properly considered under the third issue: whether I should exercise my discretion to return the twins to Colima.

These circumstances were not intended to be encompassed by Article 13(b).To do so would transform the determination as to whether a risk is sufficiently grave into a “beauty contest” between the facilities or opportunities available in the countries of the two parents. The arguments in this case have focused on the differences between the health care systems and the treatment of autism in the two jurisdictions. If these kinds of differences are allowed to form the basis for the establishment of an Article 13(b) exception, one can imagine numerous similar arguments that could be advanced based on the opportunities available in an abducting parent’s home country. There are considerable differences between medical facilities, and the cost of those facilities, which could form the basis for a “grave risk” argument. A case could be made for educational opportunities at both ends of the spectrum: for gifted students or for those with severe learning disabilities. Similar arguments could be made where the opportunity to access facilities which would further a gifted child’s athletic or musical development is only available in the abducting parent’s country.