 |
| Kristy Maurina |
Whether you’re on Team Sansa (The North remembers) or team Jonas, one thing you may find yourself asking is what is the Hague Convention that is suddenly in the celebrity spotlight, and how is it relevant to their separation?
While I practise all areas of family law exclusively, I have a particular interest and specialization in Hague Convention and jurisdictional matters, so my interest in this dispute has now been piqued.
The Convention on the Civil Aspects of International Child Abduction, more commonly referred to as the “Hague Convention” is an international treaty meant to secure the “prompt return” of children wrongfully removed to, or retained in, any Contracting State, and to ensure that rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States (Article 1). In other words, it is a treaty that is meant to ensure that abducted children are returned home promptly, so that their home state can make the necessary custody and access (decision-making and parenting time) decisions.
Turner’s position is that she and Jonas agreed to make England their “forever home” in December 2022 and relocated there in April 2023. She says that the couple agreed that the girls would stay with Jonas in the U.S. while he was on tour and she was filming, after which she would travel to New York and bring the girls home to England on Sept. 20, 2023, and that he has now refused to return the girls’ passports as agreed, so she can travel home with them.
Turner’s lawsuit gives a detailed chronology and outlines the steps she says the couple took to make England the girls “habitual residence,” and how the girls are both fully integrated and involved in all aspects of life in England, according to her. These details will be extremely important, because in order for Turner to succeed in her Hague Convention application she will have to show that England was the girls’ “habitual residence” at the time of the alleged wrongful removal or retention.
There are limited defences that Jonas can raise to resist the children’s return to England if the court in the U.S. finds that he has wrongfully removed or retained the children there, which include Turner’s consent or acquiescence, or the “grave risk of harm” defence. However, the bars to meet the various defences are set extremely high. They are set high by design because successfully meeting a defence means the children are not returned to their home state, despite a wrongful removal or retention being found. It would dilute the clear and important objectives of the Hague Convention if the defences were “easy” to meet.
One of the most important things to understand about a Hague Convention ruling is that it is not a decision-making and parenting time determination. A court that makes a return order under the Hague Convention is not deciding the merits of any decision-making or parenting time claims. It is an order meant to return the children to the jurisdiction that is the appropriate place for the parenting determinations to be made. That means that even if Turner is unsuccessful in her Hague application and the matter remains in the U.S., she will still be able to ask the court in the U.S. to allow her to relocate to England with the children. The same holds true for Jonas if Turner is successful; he can still ask the court in England to allow him to relocate to the U.S. with the children.
I am going to continue to follow this closely, with the most recent development being the couple apparently consenting to an interim court order that neither of them will remove the children from New York. This type of interim “non-removal” order is very common in Hague cases. It is not an admission that the children are habitually resident in New York, but is rather made to ensure the children are not moved further while the Hague matter is being dealt with, and is without prejudice to the parties’ claims.
Hopefully the couple can work this dispute out, for themselves and their girls.
Kristy Maurina is a partner with MacDonald & Partners LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Photo credit / prahprah ISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437-828-6772.