The December, 2013, decision of the Alberta Court of Appeal in R.M. v. J.S.[1] suggests that in Hague Convention cases there is the high onus of proof for establishing a defence under Article 13 based on the child’s objections to return, and provides guidance for counsel for children about how evidence about a child’s maturity and objections are to be introduced in Hague cases, and more generally on how evidence of a child’s views and preferences is to be introduced in family cases in Alberta.
The Court of Appeal decision
The mother and father were Arab-Palestinian Muslims living in East Jerusalem.[2] They married and had one child, a son, and then separated. They were subsequently divorced in the Sharia Court of Jerusalem; no provision was made for custody of the son but it was accepted that the mother had de facto custody. The father immigrated to Calgary, while the mother and son continued to reside in Jerusalem, on the understanding that the son would spend his summers with the father. After one summer visit when the boy was nine years old the father failed to return his son to his mother in East Jerusalem; the mother then brought an application under the Hague Convention for the boy’s return.
At the trial, there was affidavit evidence from both parents. The trial court also appointed counsel to represent the interests of the child.[3] Counsel for the child made submissions, reporting that after interviewing the child on two occasions, utilizing a series of questions provided to counsel by a prominent Calgary child psychologist, counsel concluded that the child [then 10 years of age] objected “to being returned [to East Jerusalem] and has attained an age and degree of maturity at which it is appropriate to take account of its views” within the meaning of Article 13 of the Hague Convention.
Child’s counsel concluded that the boy was not subject to undue influence from the father, and was “mature for his age, bright and articulate when it came to describing his concerns about returning to Israel,” noting that as a Arab youth he often felt unsafe and bullied where he resided. His counsel reported that the boy felt “like a minority and is not comfortable with the amount of killings and fighting happening all the time” and that “Jewish citizens in Jerusalem pull out their guns to intimidate non-Jewish people.” At trial, counsel for both the child and the father raised arguments about both “grave risk” and the “child’s objections.” The trial judge accepted that there had been a wrongful retention, and rejected the grave risk argument, but accepted the child’s objection argument, and accordingly refused the application. The mother appealed to the Court of Queen’s Bench[4], which gave deference to the trial judge’s finding and denied the mother’s appeal.
In December 2013 the Alberta Court of Appeal allowed the appeal and directed that the child be returned “forthwith” to the mother in Jerusalem.[5] The Court of Appeal quoted its 2006 decision in Den Ouden v. Laframboise, where the Court considered a case of two children, aged 14 and 10, who did not want to be returned to Holland because they enjoyed their new school and new friends in Alberta, and did not wish to have their lives disrupted by a return order. There the Court of Appeal ordered their return, stating:
These feelings are completely understandable and not unexpected. The mother has continued to devote herself to their care and has provided well for her children. However, to exercise the court's discretion permitted by Article 13, and give effect to feelings of children who find themselves in such situations would undercut the fundamental objective of the Hague Convention. That would lead other parents to believe that they may abduct their children, go to another country, settle there, and then rely on their children's contentment to avoid being returned to the jurisdiction which should properly deal with their custody and residence. We cannot encourage such conduct.[6]
The Court of Appeal in R.M. v. J.S. expressed concern that the trial judge:
seemed to treat the child's objection as controlling. While he found that the child's objection was not coerced, nor otherwise improperly influenced, the evidence and matters he took into account in coming to that conclusion were also missing from his decision. There is also the concern that, in weighing the elements of the child's objection, which spoke to the child's preferences and hopes, the Provincial Court judge fell into forming a conclusion about the child's best interests. The policy of the Convention is that the courts of signatory nations are credited with the ability to address best interests appropriately ... In short, the objects and policy considerations underlying the Hague Convention appear to have been overridden, without a proper evidentiary basis.[7]
While concerned about the judge’s conclusions, the actual Court of Appeal decision in R.M. v. J.S. was based on the fact that the trial judge rested his findings on the submissions of the counsel for the child and did not have “evidence” from a mental health professional. In the view of the appellate court, counsel for the child:
… did not provide a proper evidentiary basis for the court to assess the maturity of the child, nor to assess his views if he was sufficiently mature to have them considered. In saying so, we make no criticism of counsel for the child whose duty it was to represent him ... counsel, though well versed in the law, did not demonstrate that they possessed any specialized expertise in understanding and analyzing the thoughts of young children.”[8]
The Alberta Court of Appeal cited the 1994 Ontario Court of Appeal in Strobridge v. Strobridge[9], which held that counsel for a child cannot “give evidence“ while making submissions. Accordingly, there was no evidentiary foundation for the trial judge’s ruling. The Alberta Court of Appeal went on to rule that evidence about the child’s wishes and views should be put before the court by a social worker, psychologist, or other child care professional who had interviewed the child. Such a clinician can then be cross-examined by all of the parties, ensuring that the evidence is fairly tested. Following Strobridge, the Alberta Court of Appeal stated in the absence of “express consent from the other parties, counsel for a child cannot state the children’s views and preferences, as counsel cannot occupy the dual role of advocate and witness.”
Evidence of children’s perceptions, wishes and objections
The central ruling of the Alberta Court of Appeal in R.M. v. J.S. is that counsel appointed to represent a child cannot rely on submissions to present evidence of the child’s views. Rather there must be admissible evidence from a mental health professional, preferably an independent professional appointed by the court or retained by child’s counsel, who has interviewed the child and can testify about the child’s wishes, perceptions, recollections and objections to return. Preferably this professional should be qualified to give expert evidence about the child’s maturity and the independence of the child’s views. As the Alberta Court noted, this is consistent with the approach of the Ontario Court of Appeal.[10] In its recent decision in Re L.C.[11], U.K. Supreme Court also emphasized the importance for a Hague application of having an independent mental health professional provide evidence about a child’s views and experiences; in that case the central issue was whether the children’s “state of mind” was such that they had adopted a new habitual residence.
There is much to commend the approach of these courts in requiring evidence from a mental health professional rather than allowing child’s counsel to, in effect, “give evidence from counsel table.” Allowing the court to have a full understanding of the issues and fairness to all of the parties requires that the parties are given an opportunity to cross-examine the person testifying about the child’s interview, perhaps obtaining fuller or qualifying information, and if opinions are expressed, testing the experts’ qualifications and opinions. Indeed, it may be desirable for the professional to provide the parties and court with a video recording of the interview(s) with the child. However, until the decision of the Alberta Court of Appeal in R.M. v. J.S., the widely followed practice of the trial courts in Alberta for any case involving the care or custody of children was for counsel appointed for a child to present evidence of the child’s views and perspectives through submissions. It was unfair to the child involved to have ordered a return rather than an expedited rehearing based on admissible evidence from a qualified mental health professional. Compliance with the Court of Appeal decision in this case will clearly require a revision of practices, and quite probably an increase in funding per case, for counsel appointed for children in that province and for the Legal Representative for Children and Youth, which is responsible for representation in child protection cases. Counsel in other provinces who represent children will also want to carefully consider this decision.
Child’s objections vs. child’s wishes
The Court of Appeal decision wisely points out that in Hague cases there must be careful scrutiny of views expressed by a child. Usually, prior to the case coming to a hearing the child will have spent a significant period of time in the care of one parent and not had much contact with the other parent; often children become aligned with the parent whom they are living with. Further, and significantly, Hague cases are not about the best interests or wishes of a child, but about which court will take jurisdiction over a custody dispute and whether the child has “mature” “objections” to return. In this case, if one accepts his counsel’s reports, the boy did not just state that he preferred to live in Canada, but expressed understandable and reasonable “objections” about growing up as a Palestinian in East Jerusalem.
Children’s role in Hague applications
The Alberta Court of Appeal in R.M. v. J.S.[12] and other recent Hague decisions in the Ontario Court of Appeal[13] and United Kingdom Supreme Court [14] raise the issue of how and when children should be involved in Hague Convention applications. In each of these cases children, aged 9 to 13 years, were made parties or had counsel in the proceedings.
In the English House of Lords decision Re D (A Child) (Abduction: Rights of Custody) Lady Hale suggested that: “children should be heard far more frequently in... Convention cases than has been the practice hitherto … whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.”[15]
In most Hague cases “the intrusion, the expense and the delay” that would result from the appointment of counsel for a child should cause a court to not make the child a party or appoint counsel for the child. However, there are cases where “child-centric” issues arise. There may, for example, be a claim that a child is mature and objects to return or is raising concerns about a grave risk to his or her safety if returned. In such cases, a child’s perspective may be important and representation should be provided for the child.[16] In deciding whether to appoint counsel or make a child a party, the court should take into account concerns about not wanting to exacerbate hostility between a child and one parent, usually the left-behind parent. However, the Ontario Court of Appeal has suggested that in cases where a child’s “liberty or security of the person” may be affected by a return, for example because there is a claim of potential harm due to alleged violence or abuse, section 7 of Charter requires that a child be given notice of the proceedings and an opportunity to participate through counsel.[17] Concerns about protection for a child’s “liberty and security of the person” should “predominate,” which requires affording the child an opportunity to participate and have his or her views heard.
Some of the factors to be consider in deciding whether to grant party status or legal representation to a child include: [18]
- Where the child is older and there is a reasonable prospect that the child has the capacity to instruct counsel and have an independent position;
- Where the child’s position may not be adequately represented by the adult parties, for example because of their lack of legal representation;
- Where an expert or therapist involved with the child recommends such involvement;
- Where the child has expressed concerns that return might affect his or her life, liberty or security of the person.
A court making an order appointing counsel may provide some direction or restrictions on the role of counsel for the child. In the absence of such restrictions, counsel for the child should take account of such factors as the age, capacity of the child to instruct counsel, views of the child and any provincial law society guidelines about the role that counsel is to play, but counsel should normally be taking instructions from a child who is expressing clear and consistent views.[19] Counsel should ensure that the child understands the limited scope of Hague proceedings. A grant of party status to a child usually does not mean that the child will attend court to testify. Some of the steps that counsel for a child in a Hague case may take include:
- Unless inappropriate, facilitating contact and visits with the left behind parent;
- Retaining a mental health professional to interview the child and testify in court about the child’s views, perspectives, concerns and capacities;
- Adducing other evidence and cross-examining witnesses to advance the child’s position;
- Discussing with the child and court whether it is appropriate for the child to meet the judge;[20] and
- Making submissions on behalf of the child.
About the Author
Nicholas Bala is a professor at the Faculty of Law at Queen’s University, specializing in family and children’s law. Max Blitt Q.C. , of Spier Harben in Calgary, was counsel for the child in R.M. v. J.S.
End Notes
[1] 2013 ABCA 441
[2] An interesting issue of international law arose at the trial, but was not addressed in the appellate decisions. East Jerusalem where the mother and child resided is not recognized by Canada and a part of Israel, though Israel claims that is now part of that country and clearly has de facto jurisdiction over it. The trial judge appeared to accept that since Israel is a signatory to the Hague Convention, the Convention applied to this case; that issue was not pursued on appeal.
[3] J.S. v. R.M., 2012 ABPC 184
[4] 2012 ABQB 669
[5] 2013 ABCA 441
[6] Den Ouden v. Laframboise, 2006 ABCA 403, 417 AR 179, at para 16. Quoted in R.M. v. J.S., 2013 ABCA 441, at para 18.
[7] 2013 ABCA 441, at para 32 & 34
[8] 2013 ABCA 441, at para 24 & 28
[9] Strobridge v. Strobridge (1994), 115 DLR (4th) 489, 18 OR (3d) 753 (ONCA).
[10] Strobridge v. Strobridge (1994), 115 DLR (4th) 489, 18 OR (3d) 753 (ONCA).
[11] [2014] UKSC 1
[12] 2013 ABCA 441
[13] A.M.R.I. v. K.E.R., 2011 ONCA 417
[14] Re L.C. 2014 UKSC 1
[15] [2006] UKHL 51, [2007] 1 AC 619, at para 59
[16] In Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288
[17] A.M.R.I. v. K.E.R., 2011 ONCA 417
[18] Re L.C., [2014] UKSC 1, at para 53., per Wilson L.J.
[19] Bala “Child Representation in Alberta: Role and Responsibilities of Counsel for the Child” (2006), 43 Alberta Law Review 845-870.
[20] While judicial meetings with older children are often appropriate where the “best interests of the child” are at issue, there is less scope for such meetings in Hague cases, which typically involve neither a child’s best interests nor wishes: see Bala, Birnbaum, Cyr & McColley, “Children’s Voices in Family Court: Guidelines for Judges Meeting Children” (2013) 47:3 Family Law Quarterly 381-410.