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The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention.  The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.

A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.  The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.  This approach has been the dominant one in Canada.  In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case.  A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48].  One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].

The dissent (three of the nine judges) would maintain the parental intention approach [para 110].  One of its central concerns is the flexibility and ambiguity of the hybrid approach [para 111], which the judges worry will lead to less clarity and more litigation.  Wrongful removal cases will become harder to resolve in a timely manner [paras 151-153].

The majority did not apply the law to the facts of the underlying case, it having become moot during the process of the litigation [para 6].  The court rendered its decision to provide guidance going forward.  The dissent would have denied the appeal on the basis that the child’s habitual residence was in Germany (as the lower courts had held).

The court briefly addresses the exception to Article 3 in what is commonly known as “Article 13(2)” (since it is not numbered as such) – a child’s objection to return – setting out its understanding of how to apply it [paras 75-81 and 157-160].

The Supreme Court of Canada has recently adopted the practice of preparing summaries of its decisions (available here for this decision) to make them more accessible to the media and the public.  These are called “Cases in Brief”.

In 2018, the Australian Branch of the International Law Association (ILA) will be hosting the biennial ILA conference. The conference, which is being held in Sydney, Australia, from 19-24 August 2018, is a major international event that will bring together hundreds of judges, academics, practitioners and officials of governments and international organisations from all around the globe. To register please follow this link. Please note that he early bird rate is available until 31 May 2018. The draft conference programme is now available on the ILA website here.

The German branch of the ILA will hold its annual meeting on 22 June, 2018, in Frankfurt (Main). This year’s topic is „International Dispute Resolution in Times of Crisis”. The list of distinguished speakers will include the Vice-President of the European Court of Human Rights, Professor Dr. Angelika Nußberger (Strasbourg/Cologne), Professor Dr. Giesela Rühl (University of Jena), and Professor Dr. Stephan Schill (University of Amsterdam). You may find the full programme and further information here.

The ILA was founded in Brussels in 1873. Its objectives, under its Constitution, are “the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law”. The ILA has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies. For further information and a welcome address from ILA chairman Lord Mance, please click here.

Le juge des référés du Conseil d’État affirme, dans une ordonnance du 11 avril, que la liberté d’aller et venir n’implique pas, pour les étrangers, la possibilité d’entrer sur le territoire sans autorisation.

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La rédaction de Dalloz actualité prend quelques jours de vacances…

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The European Parliament Committee on Legal Affairs will hold a public hearing on «The Hague Judgments Convention» in Brussels, on 24 April 2018, from 15.00-16.30. The hearing is aimed at bringing together Members of the European Parliament, Commission representatives, the Permanent Bureau of the Hague Conference and stakeholders with a view to discussing the ongoing negotiations on a world-wide Convention on the recognition and enforcement of judgments in civil and commercial matters.

Since the recognition and enforcement of judgments is a matter of EU exclusive competence, the Commission represents all Member States (except Denmark) on the basis of the negotiating directives adopted by the Council in 2016. A third Special Commission was held in November 2017, which focused on intellectual property matters and general and final clauses, whereas the fourth and final Special Commission Meeting will take place in May 2018. This hearing will therefore provide the opportunity to get up to speed with the results of the three meetings of the Special Commission as well as with the next steps and future stages of the project.

Announcement: http://www.europarl.europa.eu/committees/en/events-hearings.html?id=20180403CHE03681

Draft Programme: http://www.europarl.europa.eu/cmsdata/141460/juri-committee-hearing-hague-judgments-project.pdf

April 2018 JURI Study: http://www.europarl.europa.eu/RegData/etudes/STUD/2018/604954/IPOL_STU(2018)604954_EN.pdf