The Supreme Court of British Columbia has, in a judgment issued on 12 January 2015, ruled that the son of Omar Allibhoy, Noah, was wrongfully retained in Canada by his mother and accordingly had to be returned to the UK. Allibhoy is a London chef and restaurateur of some standing; he is a Spanish citizen who has lived in the UK for some years. He and the mother had been married since 2009, although they had known one another for some years before that. Noah’s mother is a Canadian and Indonesian citizen; she moved to Canada in April 2013 and Noah was born in British Columbia on 11 July 2013. Prior to this happening, the parents started looking for more suitable accommodation in the UK; this was purchased in August 2014 but did not become habitable until March 2014. Child and mother returned to the UK, having latterly spent some time in Spain as well as Canada, and moved in with the father. On 30 June 2014, Noah went with his mother to stay with her parents in Vancouver; this was so that his mother could better re-adjust to her return to work in the UK – and because there was a suggestion that the marriage was in difficulty. It was agreed that Noah would return to the UK no later than 8 September 2014. The mother returned to live and work in the UK on or around 14 July 2014. On 22 July 2014 the parents separated; on 25 July 2014 the father requested that the boy return to the UK by the end of the month. A booking was apparently made. On 7 August 2014 the father, on return from a trip, found that the mother had left the UK for Canada and that the boy had not returned; he discovered that Noah’s airline ticket had been cancelled. The father submitted an application for Noah’s return with the Central Authority pursuant to the Hague Convention. The mother subsequently confirmed in terms to the father that she intended to stay in Canada with Noah. An application for return was formally submitted to the Court on 3 September 2014.
The case turned on where Noah’s country of habitual residence was considered to be. The mother accepted before the court that, up until the point of separation in July 2014, the country of habitual residence was the UK. It was argued on her behalf that, from that point, the UK was not Noah’s country of habitual residence and that the removal was not therefore “wrongful”. The Court rejected the argument that the mother’s country of habitual residence was the UK only because of the relationship with the father and depended on that relationship continuing to subsist. The mother had lived in the UK for over 10 years; she remained there during an earlier (pre-marriage) period of separation. A property had been purchased in the UK and, through maternity leave, the mother had maintained her employment. The UK could not therefore be said to be a short-term home, as was suggested on the mother’s behalf. The Court dismissed as irrelevant the mother’s view – it was just that – that her settled intention to reside came to an end with the separation. The parties separated on 22 July 2014. The father first asked that Noah be returned to the UK 3 days’ later. The Hague Convention states that what matters is where the “…child was habitually resident immediately before the removal or retention”. Clearly that would have been the UK on this chronology and so the Court decided. That Noah was living in Canada on 22 July 2014, the date of separation, was not relevant as that wrongly seeks to focus on events that post-date “…both the point in time when the intention of the parties, as Noah’s parents, were shared and when the parties had already separated.” In any event, Noah was only supposed to be in Canada on a temporary basis. The final argument advanced on behalf of the mother was that Noah’s habitual residence was not, from his perspective, the UK as he had become acclimatised to Canada. The Court concluded that Noah was too young to have the capacity or intention to acquire a separate habitual residence, other than the UK. It was also argued that to return Noah to the UK would amount to “a grave risk of harm” to him so that, even if his country of habitual residence was the UK, he should not be returned. There was some suggestion of recreational drug use – but this was said about both parents. The Court noted that the grave harm threshold was a high one and was nowhere near met on the facts of this case.
The Court ordered that Noah be returned to the UK forthwith; it had earlier described the mother’s case as a whole as misconceived. This was another one of those cases that, on any rational reading of the facts, the child’s habitual residence was clearly the country from which he was abducted from. It is unfortunate that parents still try and stave off the inevitable return – but that only begs the question as to why a parent would choose to such as thing as abduct a child in the first place.