September 25, 2023

A BC Point of View: Sophie Turner's request for children to return to England

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Article courtesy of the BBC News:

We don’t normally comment on celebrity divorces but when we do it’s going to be in the area that we know best: “the Hague Convention on the Civil Aspects of International Child Abduction”.

It has come to media attention that Sophie Turner has filed a court action for the return of hers and Joe Jonas’ two young children to England. In the same court action, Sophie has asked the court to declare that their children have “habitual residence” in England. So, what happens now? Though we can’t specifically say what will happen in this case as we are not American legal experts. However, the Kitsilano Family Law Group are the experts in this are in British Columbia, and we can say what could happen if this had taken place in British Columbia.

Let’s start with two important phrases that the BBC article mentions and define what these terms are:

1.) Wrongful Retention: is when one parent takes their child from one country to another for a specific period of time, agreed upon by both parties. If, after that agreed upon time comes and goes, the parent and child stay in the visiting country, they have now wrongfully retained the child in that country.

2.) Habitual Residence: is a country, province, state or region where a child (or family unit) lived in for a specific period of time. In BC the test is quite complicated about when you are, or become, habitually resident, and it is necessary to assess a number of factors.

The two terms are commonly used in a Hague Convention case.

So again, what happens now? In BC, typically (the summary version), the party who is claiming “wrongful retention” will apply to the Central Authority of the country where the child is habitually resident(the "home country"). The Central Authority of the home country will then contact the Central Authority in the country where the child actually is. This will then lead to an application for a return of the child under the Hague Convention of Civil Aspects in International Child Abduction.

If the child is in BC, the parties then attend something called a Judicial Case Management Conference, where they will explain “their sides of their story” and explain why the children are staying in BC or why the children need to be sent back to the country that where they are habitually resident (the parties' arguments or position). They then need to file court documents to go into more detail about their position on why the court should either let the children stay in BC or be sent back to the home country. The parties then attend a hearing which can sometimes last a few days.

Then what? If a judge lets the children stay in BC, the case goes from a “wrongful retention” case to a regular family law case. If the judge says they need to be returned to the country they were taken from, this will usually happen very quickly. Then the parties need to deal with matters in the home country.

Sounds easy right? If not, and you find yourself in this situation, please contact us today to understand more about “wrongful retentions".

Blog by: Clea Amundsen

Edited by: Jennifer Buckley


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