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Report No. 263

4. Judgements of Supreme Courts of Canada, United Kingdom and United States of America

4.1 In Thomson v. Thomson, (1994) 3 SCR 551, the Supreme Court of Canada while dealing with the issue as what should be the magnitude of physical, moral or cultural harm, which may justify refusal of the order of return of the child to his or her 'habitual residence', explained that harm must be "to a degree that also amounts to intolerable situation". It must be a "weighty" risk of "substantial" psychological harm. "Something greater than that would normally be expected on taking a child away from one parent and passing him to another."

4.2 In the matter of S (a Child), (2012) UKSC 10, the UK Supreme Court referred to its own judgment in Re E (Children) (Abduction: Custody Appeal),(2011) UKSC 27, and observed that a defence under Article 13 (b) of the Hague Convention, 1980 could be founded upon the anxieties of a parent about a return with the child to the state of 'habitual residence', which were not based upon objective risk to her, but nevertheless of such intensity as to be likely to destabilise the parenting of that child to the point at which the child's situation would become intolerable.

4.3 The United States Supreme Court in Lozano v. Montoya Alvarez, 34 S.Ct. 1224 (2014), a Hague Convention, 1980, case in US, relating to domestic violence, recognized the impact of domestic violence on the child, observing:

"the return of the child may be refused if doing so would contravene fundamental principles relating to the protection of human rights and fundamental freedom."

Protection of Children (Inter-Country Removal and Retention) Bill, 2016 Back

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