Thomson and Thomson (Manitoba Appl. 1993) 50 R.F.L. (3d) 143 [1993]; 107 D.L.R. (4th) 695 (C.A.) ================================================================ IN THE COURT OF APPEAL OF MANITOBA Coram: Huband, Twaddle and Helper, JJ.A. Suit No. AI 93-30-01347 B E T W E E N: AMANDA LOUISE THOMSON ) M. G. Tadman (Petitioner) Appellant, ) for the Appellant ) J. A. King ) for the Respondent - and - ) Appeal heard: ) September 8, 1993 PAUL THOMSON ) Judgment delivered: ) October 18, 1993 (Respondent) Respondent. ) HUBAND J.A. My colleagues have both set forth their written reasons for judgment in this case. There is agreement on what I regard as the major issue. Both would require Mrs. Thomson to endeavour to establish her right to custody of the child in the courts of Scotland. They differ as to whether the Manitoba courts should temporarily stay Mr. Thomson's application for the return of the child to Scotland and whether the child must be returned to Scotland pending an application of Mrs. Thomson for custody. On these secondary issues I prefer the reasoning of Twaddle J.A., and hence I join in dismissing the appeal with costs. TWADDLE. J.A. A plane took off from Glasgow airport. Aboard was a baby boy and his teenaged mother. The mother had recently separated from the boy's father and obtained an order from a Scottish court giving interim custody of the boy to her. She was taking the boy to visit her parents who had emigrated to Canada only twenty months before. The young woman may have thought the recent turmoil in her life was over, but she either did not know about or overlooked an interdict by the Scottish court forbidding the removal of her son from Scotland. Several weeks into the visit with her parents, the young woman thought about her return to Scotland. She saw a future which she thought was bleak. Reconciliatlon with her husband seemed improbable and, in any event, neither she nor her husband had finished school or taken job training. They had been on welfare at the time of the separation. The prospect of being an unemployed, single parent without family support must have been unnerving, especially when such existence was compared with her rosy view of the life she might expect in Canada. A quick phone call to her husband back in Scotland convinced her that she was right about the improbability of reconciliation. The promise of her parents to support her and care for her little boy while she completed her education and sought employment skills convinced her that she could do more for her son, and offer him a better future, if she stayed in Canada. Consequently, having sought legal advice, she applied to the local court for an order confirming her as the custodial parent. In the meantime, the boy's father continued to pursue his goal of custody. As the mother launched her application here in Manitoba, the Scottish proceedings reached a final hearing. The mother did not appear and her lawyer was permitted to withdraw for lack of instructions. The sheriff - a Scottish judge - heard proof and awarded custody to the father. The father now took steps to secure the return of his son to Scotland. The United Kingdom and Canada both being signatories to the Convention on the Civil Aspects of International Child Abduction, the aid of the proper authorities under that Conventiou was sought and an application made to the Manitoba Court of Queen's Bench for an order pursuant to The Child Custody Enforcement Act, R.S.M. 1987, c. C360, requiring the mother to return the child forthwith. As the father proceeded in that way, the mother appealed from the sheriff's order. She did not, as far as we are aware, return to Scotland for the hearing or, assuming that she would have been permitted to do so, offer an explanation for her absence. Not surprisingly, her appeal was refused. The father's application for the return of the child was heard at the same time as the mother's application for custody. The learned motions judge, Davidson, J., determined firstly that the child had been wrongfully removed from Scotland and wrongfully retained in Manitoba and secondly that it was in the best interests of the child that he remain in his mother's care both for the short term and the long. Recognizing that the child's long term interests were a matter for the Scottish courts, Davidson, J. ordered the mother to return the child forthwith, but gave her interim custody for a four-month period to enable her to apply in Scotland for a determination of the child's long term interests before surrendering the child to the father. The mother appealed. It was contended on her behalf that the motions judge erred (i) in not requiring formal proof of the Scottish orders; (ii) in finding the child to have had his habitual residence in, or a real and substantial connection with, Scotland at the time the final order was made; (iii) in finding there to have been a wrongful removal or retention; (iv) in not finding either that the child would suffer rious harm if returned to the custody of the father or that there was a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; (v) in putting the Court's duty under the Convention in priority to the best interests of the child; and (vi) in ordering a return of the child before the Scottish court had made a determination on the merits. Proof of the Scottish orders The mother's submission that the Manitoba court lacked jurisdiction in the absence of formal proof of the Scottish orders is devoid of merit. Section 16 of The Child Custody Enforcement Act expressly provides that a court here may take notice, without requiring formal proof, of a decision of an extra-provincial tribunal. At least in the absence of contradictory evidence, the sworn testimony of the father's Scottish lawyer as to the orders pronounced in his presence and the faxed copies of the interlocutor sheets (documents on which the Scottish court's orders are entered) provided ample proof of the orders made in Scotland. Residence and connection The Convention applies to any child who was, immediately before any breach of custody rights, habitually resident in another contracting state. The Act, on the other hand, permits a Manitoba court to disregard a foreign custody order if, at the time of the Manitoba application, the child did not have a real and substantial connection with the foreign state. On the facts of this case, I do not think it matters which test is used. A child does not lose his or her place of habitual residence merely by moving to another place. In deciding whether a change has occurred, a court must ordinarily consider both the duration of the stay in the new place and the intention of the person or persons with the right to decide the child's place of residence. Even if the little boy in the present case was long enough in Canada to make his residence here habitual, a conclusion I would have thought difficult to reach, the mother's decision to remain here was subject to the success of her application to the Manitoba court and was made only days before the father obtained the Scottish order in his favour. And, in any event, the order of the Scottish court forbidding the boy's removal from its jurisdiction qualified whatever custody rights the mother had by removing the right to decide the boy's place of residence. If the question is whether the child had a real and substantial connection with Scotland at the time when the Manitoba application for custody was made, the answer is still the same. The child was born in Scotland of Scottish parents. He resided there for the first eight months of his life and was, at the time of his departure, subject to pending custody proceedings in a Scottish court which had forbidden his removal from Scotland. Compared to this, his connection with Canada was tenuous. Wronqful removal or retention Article 12 of the Convention requires the judicial authority in the contracting state in which the child is present to order the return of the child if satisfied that the child has been wrongfully removed or retained within the meaning of Article 3. Article 3 provides: "Article 3 The removal or the retention of a child is to be considered wrongful where-- (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. The wife contends that the child was not wrongfully removed, within the meaning of the Convention, as she alone was the custodial parent at the time of the child's removal. From a strictly technical viewpoint, she may be right as the father was not actually exercising any right of custody (as distinct from access) at the time of the removal. The point is somewhat academic, however, as clearly the child was wrongfully retained in Manitoba once the custody order in favour of the father was made, he then being a person who would actually have been exercising the right but for the wrongful retention. Serious harm, etcetera Although a court of a requested state is ordinarily required to order the return of a child who has been wrongfully removed or retained, within the meaning of the Convention, there are certain exceptions. The Act provides that a Manitoba court may make a custody order with respect to a child that differs from that made by a requesting state where it is satisfied that the child would suffer serious harm if restored to the custody of the person named in the foreign order of custody. And the Convontion provides that the court need not do so if there is a grave risk that the return of the child would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation. In Lavitch v. Lavitch (1985), 37 Man.R. (2d) 261, this Court noted the difference between the exception expressed in the Act and that expressed in the Convention. Delivering the judgment of the Court on that occasion, I said (at p. 265): "In the case of an application to enforce the order of a jurisdiction bound by the Convention, a court might allow for the differences between the Act and the Convention by construing the act broadly to give effect to the tenor and plain intent of the Conventlon, the provisions of which, as I have already noted, are law in Manitoba." Lavitch was a case in which the foreign jurisdiction was not a signatory to the Convention. Nonetheless, the Court held that the exceptions set out in the Convention were applicable. Otherwise, we would have had the absurd result of there being more exceptions where the foreign order was made in a signatory state than where the foreign order was made in one which is not. In the result, the exceptions in the Act and those in the Convention must be read together. As "serious harm" to the little boy in this case would necessarily be preceded by a grave risk of harm to him, it is only necessary to consider the exceptions set out in the Convention. The risk to the little boy, according to his mother, comes both from his removal from his present environment and from being placed with his father. The evidence of the latter was so insubstantial, being relevant only on the issue of best interests, that it need not be further considered here. On the issue of whether the little boy's removal from his present environment would expose him to harm or place him in an intolerable situation, the mother relied not only on the evidence before Davidson, J., but also sought the admission of new evidence. The new evidence which the mother wished to tender was that of a developmental pediatrician who was expected to give a report of his observations of the child and express an opinion as to the psychological effect of returning him to Scotland or, more correctly, of removing him from his present caregivers. The application for the admission of new evidence was refused. For my part, it was refused for the same reason as I have for rejecting the mother's contention that we may have regard to the effect on the child of removing him from his present environment: it is irrelevant. The risk contemplated by the Convention must come, in my opinion, from a cause related to the return of the child to the other parent. This construction is required both by the language of the Convention and by the consequence of construing it otherwise. The language of the Convention requires the person objecting to the child's return to establish a grave risk that the child'a return will expose him to harm or otherwiae place the child in an intolerable situation. It is the return of the child which must expose him to harm or place him in an intolerable situation as distinct from the removal of the child from his present caregivers. I accept that, on a construction of the language alone, the mother's contention is arguable. It ceases to be, however, when the consequence is taken into account. At least in the case of a child of tender years, an extraterritorial order of custody could never be enforced if the risk of harm from the removal of the child from its present caregivers was to be allowed for. It is almost always that the removal of a very young child from its immediate environment, or from those with whom the child has become familiar, will cause some temporary psychological trauma. Those who signed the Convention could not have intended this as a ground for not enforcing an order. Such a result would negate the Convention's purpose. My interpretation of the law is supported by Article 12 of the Convention which permits a court in the state where the child is to refuse an order requiring the child's return if it is satisfied of two conditions. The first is that more than a year has elapsed since the child was wrongfully removed or retained: the second that the child is settled in its new environment. It follows that the child being settled in its new environment is no answer to a request for its return where the request was made within a year. If I had thought the risk to the child of being removed from his immediate environment was a relevant consideration, I would have proposed admitting the new evidence. The fact that it could have been made available for the hearing before Davidson, J. would not have deterred me. Fresh evidence is not ordinarily admitted where it could have been obtained before the original hearing or where it is not practically conclusive on a potentially decisive issue. This rule, predicated on the policy which requires finality to litigation, was considered in Maitland v. Drozda, [l983] 3 W.W.R. 193 (Sask. C.A.) as applicable to civil as well as criminal proceedings. I am not so sure, however, that it applies in every case involving custody of a child. A court's jurisdiction over children is a sacred trust. The lack of due diligence by a party to custody proceedings should not be allowed to prejudice the welfare of a child. For that reason, I think the rule against tho admission of new evidence which, by due diligence, could have been adduced at trial should not be applied as strictly in a custody case as in others. The best interests of the child The guiding principle in all matters dealing with the custody of a child is that the adjudicating court must make the order which is in the best interests of the child. Although not always so articulated, this principle is applicable, as far as I am aware, not only in Manitoba, but also in all other states which are signatories to the Convention. This does not mean, however, that in a case involving the courts of more than one such state the adjudicating court in each must make its own enquiry as to the order which would be in the child's best interests. The parties to the Convention have agreed that the concurrent exercise of custody jurisdiction is not in the best interests of a child. Accordingly, the parties have agreed to leave the decision as to what order would best serve the interests of the child to the court of his or her home jurisdiction. "Home" in this context is the place of the child's habitual residence. It is therefore not the function of a court in a requested state to concern itself with the best interests of the child. The function of such a court is to determine whether the Convention applies and, if it does, whether the case is nonetheless one which falls within an exception. Then, if the Convention is fully applicable, the court in the requested state must accept the other court's order as having been made in accord with the guiding principle. That court must also accept that the child's future welfare will be safeguarded by the court in its home jurisdiction. Davidson, J. was therefore quite correct in saying that she could not take into account what she thought were the long-term best interests of the child. Having found that the child had been wrongfully retained contrary to the Scottish custody order and that no exception applied, she had but one alternative to ordering the child's return, an alternative which will be considered under the final ground of appeal. The return of the child before a determination on the merits The one alternative course the learned motions judge had was that prescribed by section 6 of the Act which enabled her, instead of ordering the child's return, to stay the father's application on condition that the mother proceed in Scotland for a resolution of the custody issue on its merits. The relevant part of section 6 is as follows: "6. Upon application, a court, (a) that is satisfied that a child has been wrongfully removed to or is being wrongfully detained in Manitoba ... may do any one or more of the following: (c) Make such interim custody order as the court considers is in the best interests of the child. (d) Stay the application subject to, (i) the condition that a party to the application promptly commence or proceed with a similar proceeding before an extra-provincial tribunal, or (ii) such other conditions as the court considers appropriate." This section of the Manitoba legislation is not easily reconcilable with Article 12 of the Convention which requires the judicial authority of the contracting state where the child is, if no exception applies, to order the return of the child forthwith. As any apparent conflict cannot be resolved by holding that the Manitoba law prevails, the Convention having been adopted as law here, it follows that the section must be construed as permitting a deferral of a child's return only where such deferral is consistent with the Convention's objects. I have already expressed my view that the Convention is premised on the theory that the interests of a child are best determined by the court in the jurisdiction of its habitual residence. The object of the Convention is to ensure that courts in other contracting states respect such a determination and, where appropriate, order the return of a child who has been wrongfully removed from the jurisdiction of its habitual residence or wrongfully retained outside of it. It would not, however, be disrespectful of the foreign order to delay its implementation where that order was only an interim one or one which, though purporting to be final, was not made after a full hearing on the merits. Such orders are subject to variation and, until a truly final determination has been made, the return of the child might be both unnecessary and unduly harmful to the child. The potential harm to the child arises from its removal first from one caregiver to another and then back again if the foreign order is varied. If there is some uncertainty as to what the final order will be, consideration should be given to a stay which will preserve the status quo. The preservation of the status quo can only be justified, however, if there is a real prospect of the foreign court varying its custody order. It would be futile to delay the return of the child where its eventual return is inevitable. There is thus an onus, in my opinion, on the person who proposes the delay to establish that there is a genuine issue outstanding, that the foreign court retains jurisdiction to decide it and that the foreign court will be disposed to do so without the return of the child. In the present case, the award of custody to the father was made after a hearing at which the mother was neither present nor represented. The Scottish court heard proof, most probably of the father's suitability as a custodian, but the mother's wrongful departure from the country must also have been a factor. I say this because the court-ordered report had been favourable to the mother and interim custody awarded to her. The appeal, if on the record, must have been groundless. In these circumstances, the issue of custody not having been decided on its merits, it is likely that the nother's application for a variation would be heard and that it would have some chance of success. That is not, however, the end of the matter. This is a case in which the mother removed the child out of Scotland in contravention of an order forbidding it. The mother says she did not know of that order, but that is an issue which only the Scottish court can decide. The question now is whether the Scottish court will be diaposed to hear an application by the mother to vary the custody order if the child is not returned to Scotland first. I think that unlikely. In any event, the mother's onus to convince us otherwise has not been met, an onus which might have been met by the opinion of Scottish counsel confirming, if it is so, the willingness of the Scottish court to consider a variation application in circumstances like the present. I recognize, of course, that the past sins of the mother should not be heaped on the little boy. They are relevant only to the extent that they have a bearing on the mother's suitability as his guardian. The little boy's best interests alone will govern the decision. Nonetheless, I do not think the Scottish court will be inclined to hear the mother's application to vary the existing order until she returns the child to Scotland. This is particularly true when regard is had to the options open to the court. Instead of awarding custody to the father in Scotland or to the mother in Canada, the court may decide that, having regard to the boy's Scottish heritage and the advantage to him of being within the reach of his father, custody be awarded to the mother provided she remains in Scotland. In the circumstances, I am not convinced that there is sufficient likelihood of the Scottish court making a final decision without the boy's return as would justify a deferral of it. In my view, the learned motions judge was right in ordering his return forthwith. Interim custody Although not the subject of an appeal by the father, I think something should be said about the order of interim custody made by the learned motions judge. Where such an order accompanies another for the child's immediate return, it should not extend beyond the time reasonably required to arrange the return. Nor should it be worded in such a way as to suggest that it is intended to have continued effect after the child's return to the foreign jurisdiction. The order made by Davidson, J. was in truth an order designed to permit the mother to return on her own to Scotland to take proceedings there. In other words, it contradicted the order that the child be returned forthwith. The proper course, if otherwise justified, would have been to stay the father's application until the mother's application in Scotland had been heard. For the reasons already given, I do not think a stay of the father's application was justified. An order giving interim custody to the mother for a four-month period had the same effect as a stay. Such an order was no more justified than a stay of the father's application. Conclusion It so happens that the order for the child's return was stayed pending this appeal. The time left in the order of interim custody is now no longer than that reasonably necessary to arrange for the return. In the circumstances, there is no need to change the orders made. I would dismiss the appeal with costs. HELPER, J.A. The principles which govern applications under The Child Custody Enforcement Act, R.S.M. 1987, c. C360 (the Act) and accompanying Convention on tho Civil Aspects of International Child Abduction (the Convention) are: 1. the recognition and enforcement of extra-provincial custody orders, and 2. the protection of the interests of children. On occasion, the application of these principles to the facts presented may result in conflict. Should that be the case, the Court is called upon to apply the provisions of both the Act and the Convention in such a way as to minimize that conflict. The order under appeal exemplifies a case where greater attention to the recognition and enforcement of an extra-provincial custody order results in the apparent neglect of the interests of the child. THE FACTS The parties were married in Whithorn, Scotland on February 15, 1991. Their child, Matthew Paul Thomson, was born on March 22, 1992. Between July, 1992, and September 30, 1992, a pattern had developed whereby Matthew resided at the home of his paternal grandparents from Thursday to Sunday of each week and with his parents from Sunday to Thursday. Mr. and Mrs. Thomson became embroiled in an argument which led to their separation following Mr. Thomson's refusal to return the child to the marital home on September 30, 1992. Each applied for custody of Matthew in Scotland. At the first custody hearing on October 9, 1992, the presiding officlal appointed Mr. Peter Matthews to prepare a report respecting the circumstances of the child. The matter was adjourned to November 27, 1992 on two conditions: 1. the child was to remain in Scotland, and 2. Mr. Thomson was to make Matthew available to Mrs. Thomson for visitation. Despite the terms of the adjournment and the fact that Matthew had not seen his mother since September 24th, Mr. Thomson did not allow his wife access to the child until October 15, 1992. Sheriff Noble granted interim custody of Matthew to Mrs. Thomson on November 27, 1992. He granted interim access to Mr. Thomson and ordered that Matthew remain in Scotland pending a further court order. Shortly thereafter, on December 2, 1992, Mrs. Thomson departed Scotland with Matthew to visit her parents who had emigrated to Manitoba. Although there is some evidence to the contrary, Mrs. Thomson disputes knowledge of the prohibition against removing Matthew from Scotland at the time she left for Canada. She applied for custody of Matthew in Manitoba on February 3, 1993. Whether Mrs. Thomson's selection of February 3, 1993 occurred by coincidence or by planning is unknown, but it was also the day that the custody hearing resumed in Scotland. At that hearing, Mr. Thomson was granted a final order of custody. Mrs. Thomson did not attend the hearing nor did she provide instructions to her counsel who had represented her previously. Her counsel was allowed to withdraw at the hearing. The record discloses only that Mr. Thomson and his mother presented evidence. No reasons for the decision appear on the record. However, I have no difficulty in concluding that Mrs. Thomson's actions in departing Scotland with Matthew, contrary to the terms of the interim custody order, played a part in that decision. In March, 1993, Mr. Thomson replied to his wife's application for custody in Manitoba with an application under the Act and the Convention seeking Matthew's return to Scotland. In April, Mrs. Thomson unsuccessfully appealed the custody order in Scotland. The reasons for the dismissal of the appeal are not part of the record. I am unable to determine whether the appeal proceeded on the available record, whether fresh evidence was allowed at the appeal hearing or whether Mrs. Thomson had asked for and was denied a trial on the merits. The competing applications came on for hearing in Manitoba on May 27, 1993. As I earlier noted, Mr. Thomson did not seek to have the custody issue decided on its merits in the Manitoba courts. He simply sought the return of the child to Scotland on the basis of his order of custody. On June 28, 1993, Davidson J. pronounced the order from which the appeal is taken. She ordered Matthew's return to Scotland forthwith, granted interim custody to Mrs. Thomson until October 28, 1993, and dismissed her application for an order directing the trial of an issue to determine whether Matthew would suffer "serious harm" (s. 5 of the Act) or be placed "in an intolerable situation" (Art. 13(b) of the Convention) should the Scottish order be enforced. I digress for a moment in my recitation of the chronology of events to point out that should a Manitoba court find the evidence does establish the "child would suffer serious harm" or be placed in "an intolerable situation" upon being restored to the custody of the person named in a custody order, the legislation permits the court to pronounce a contrary custody order or to refuse the request to return the child to the original jurisdiction. At the commencement of the hearing of this appeal, Mrs. Thomson sought to introduce the evidence of Dr. Kenneth McRae, a medical doctor specializing in developmental pediatrics, in support of her submission that the order to return the child to Scotland would result in a qrave risk to Matthew or place him in an intolerable situation in accordance with Art. 13(b) of the Convention. That motion was denied as the evidence in support of the motion did not meet the test established in Maltland v. Drozda, [1983] 3 W.W.R. 193 (Sask.C.A.) for the admission of fresh evidence. The material submitted in support of the motion does not indicate that the evidence which Mrs. Thomson sought to introduce would have been determinative of the issues before this Court. The material also failed to explain why the evidence could not have been adduced at trial. Although the Court is entitled to exercise some flexibility in determining the admissibility of fresh evidence when the interests of young children are at issue, in this case I was not persuaded that the evidence Mrs. Thomson wished to place before the Court was sufficiently relevant or determinative of the issues as to warrant its admission absent any extenuating circumstances. THE LEGISLATION Section 2 of the Act states: Purposes. 2. The purposes of this Act are, (a) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided; (b) to discourage the abduction of children as an alternative to the determination of custody rights by due process; (c) to provide for the more effective enforcement of custody orders; and, (d) to provide for the recognition and enforcement of custody and access orders made outside Manitoba. Despite the clear wording of s. 2, the court is entitled to consider the best interests of a child and is empowered to made an interim order of custody in the face of a finding that a child has been wrongfully removed to or retained in Manitoba. Section 6 reads as follows: Interim powers of court. 6 Upon application, a court, (a) that is satisfied that a child had been wrongfully removed to or is being wrongfully retained in Manitoba; or (b) that may not exercise jurisdiction under section 4, may do any one or more of the following: (c) Make such interim custody order as the court considers is in the best interests of the child. (d) Stay the application subject to, (i) the condition that a party to the application promptly commence or proceed expeditiously with a similar proceeding before an extra-provincial tribunal, or (ii) such other conditions as the court considers appropriate. (e) Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. Article 1 of the Convention sets out the objects as: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access ... are effectively respected.... The preamble, however, states that "the interests of children are of paramount importance in matters relating to their custody," and the signatory States wish "to protect children internationally from the harmful effects of their wrongful removal or retention.... " Once an applicant has established the right to proceed under the Act or the Convontion or both, the court must give effect to the extra-provincial custody order absent evidence that enforcement may have an adverse effect upon the well-being of the child or children in question. Parents cannot and will not be rewarded for acting in contravention of existing custody orders. On the other hand, children must not be made to suffer twice over as a result of their parents' wrongdoing. In giving effect to extra-provincial custody orders, courts must recognize that a possible by-product of the black letter application of the Act and the Convention is undue stress and, in some cases, actual trauma suffered by young children who have no voice in the courtroom. The corollary to the direction in the Convention that the signatories wish to protect children from the harmful effects of their wrongful removal or retention is the reality that children must also be protected from harmful changes that are incomprehensible to them. The court is entitled to take judicial notice of the fact that very young children have a concept of time and place only to the extent of their immediate surroundings and circumstances. Abrupt and repeated changes in the person or persons who serve as a young child's caregivers or in his or her surroundings, or in both, without some constancy, are to be avoided. Article 12 of the Convention recognizes that not all extra-provincial custody orders should be enforced. That provision implicitly acknowledges the harm that can be inflicted upon children who are uprooted from an established home. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. THE SUBMISSIONS Mrs. Thomson initiated her submission with an attack upon Mr. Thomson's status to bring an application seeking Matthew's return to Scotland under either the Act or the Convention. The essence of her submission on this issue was: 1. her bringing Matthew to Manitoba from Scotland was not in breach of the interim order of November 27, 1992; and 2. the interim order preserved no custody rights in Mr. Thomson, merely his right of access which she is prepared to grant in Canada. Therefore, he had no right to bring an application under the Convention seeking Matthew's return to Scotland. The provision granting interim custody and the prohibition against Matthew's removal from Scotland are inextricably tied together in the same order. The scottish court imposed, as a condition of interim custody, the prohibition against Matthew's removal. It preserved its jurisdiction to determine the custody issue. Mrs. Thomson travelled to Manitoba in contravention of that custody order. Whether she did so knowingly, if that question remains an issue, will have to be determined at trial. Whether her actions reflect on her ability to parent effectively may also be a question for determination at trial. However, the terms of the November, 1992 order are not determinative of Mr. Thomson's status to proceed under the Convention. I need not concern myself with the parties status or conduct in December, 1992. Article 3 of the Convention deals with both wrongful removal and wrongful retention. Even if there were merit in Mrs. Thomson's submission dealing with Mr. Thomson's status pursuant to the interim custody order, the fact remains that she continued to retain Matthew in Canada contrary to a final custody order granted to Mr. Thomson in February, 1993. Mr. Thomson filed his application seeking Matthew's return to Scotland after he had secured that order. In February, 1993, he had acquired status to bring his application in Manitoba. No court to date has had the opportunity to conduct a full custody hearing in this case. The scottish order of November 27, 1992 appears to have been pronounced following the presentation of documentary evidence. Mrs. Thomson had no representation and presented no evidence to the Scottish court at the February 3, 1993 hearing. I can only assume that custody was granted to Mr. Thomson following Mrs. Thomson's wrongful removal of the child from the jurisdiction. Davidson J. reached conclusions regardinq Matthew's best interests based on conflicting and inconclusive documentary evidence, evidence that was not specifically directed to the custody issue. Davidson J. was entitled to consider Matthew's best interests in limited circumstances. Once she had determined that Mr. Thomson was entitled to seek Matthew's return under the legislation, she could consider the effect of the enforcement of the Scottish order upon Matthew's best interests. The Scottish courts have the jurisdiction to determine the custody issue both on the short and on the long term. The Scottish courts have the authority to conduct a full hearing at which both parties are represented and are able to bring before the court all of the evidence relevant to Matthew's past and current conditions, his present and future needs and the present and future ability of each of his parents to meet those needs. It is my view that Davidson J. made no error in holding that Mrs. Thomson's evidence did not establish a "grave risk" that Matthew's return to Scotland would expose him to "physical or psychological harm" or "an intolerable situation." Her evidence is relevant to the custody issue which will determine Matthew's best interests on the long term, an issue which has never been fully canvassed. However, I do agree with Mrs. Thomson's submission that a narrow interpretation of those terms as they are used in Article 13 of the Convention should be rejected. I also agree that the legislation does not oblige the Manitoba court to order the return of the child simply because a party has not established an exception to enforcement under the Convention. The Convention and the Act must be read together. Each case must be decided on its own facts. The courts are charged with the grave responsibility of protecting young children when determining the appropriate remedy for applicants under the Act and the Convention. The real risk to Matthew is the effect upon him of repeated changes in his caregivers. The evidence shows that both parents have been able to provide nurturing, loving homes for Matthew. Mr. Thomson is residing with his parents who have cared for Matthew on a part-time basis and who have provided a home in which he had thrived. Mrs. Thomson was deemed by both the Scottish and Manitoba courts to be the parent best able to meet Matthew's needs on an interim basis. The real harm that Matthew may suffer in this case is the effect upon him of being removed from his mother's care upon her return to Scotland, of being placed back into his paternal grandparents' home in the guise of his father's care until the Scottish courts have had an opportunity to conduct a full custody hearing and of being returned to his mother's care once again upon her being found the better parent on the long term. I identify that scenario as harmful to Matthew in light of his history to date. However, such a result involves pure speculation on my part. Such speculation does not establish the "grave risk" of "physical or psychological harm" as set out in Art. 13(b) of the Convention, but it does raise my concerns for this child. Having identified the real harm that Matthew may suffer, I am of the view that the motions judge overlooked Matthew's short-term interests in ordering his immediate return to Scotland. It is also my view that the terms of the order are inconsistent with each other. Davidson J. ordered interim custody to Mrs. Thomson for a period of four months contrary to the Scottish order and concurrently ordered the child to be returned to Scotland. I have no doubt the Scottish custody order will override the Manitoba interim order upon Matthew's return to Scotland. The effect of the June 28, 1993 order will be Matthew's removal from his mother's care immediately upon his return to Scotland. He will be placed with his father whom he has not seen since November, 1992 and will be cared for by his paternal grandparents, now strangers to him. Two different courts have determined that Mrs. Thomson can best meet Matthew's needs. The very real possibility exists that following a full custody hearing, the Scottish court will again return Hatthew to his mother's care, this time on the long term. He will again be forced to experience change. I am strongly of the view that the possibility of such a result ought to be avoided. Surely, it is the obligation of both this Court and the Scottish court to protect Matthew from repeated changes in the persons charged with his well-being and in his home environment until a final determination is made. While the courts must respect and enforce extraprovincial orders, the courts must also protect vulnerable children at the same time. I assume, without having any evidence to the contrary, that the test in Scotland for the determination of custody is similar to the test used in Manitoba, that is, the best interests of the child. For that reason, Matthew should be protected against a further physical change pending a final determination on the merits by a Scottish court. The matter ought to proceed in Scotland at Mrs. Thomson's initiation as soon as possible. The Court is empowered to stay Mr. Thomson's application to return Matthew to Scotland on condition that Mrs. Thomson proceed forthwith in Scotland with a custody application. On an interim basis, it is in Matthew's best interest that the status quo as it existed prior to Mrs. Thomson's departure from Scotland be restored and that Matthew remain in the custody of his mother until the Scottish court has finally disposed of the custody issue. There is no information before us to advise whether the custody application in Scotland may proceed by affidavit evidence or whether the presence of the parties is required. If, in fact, Mrs. Thomson is required to return to Scotland to proceed with her custody application and if it is shown to this Court that Mr. Thomson is prepared to consent to Matthew's remaining in his mother's care on an interim basis in Scotland, his application in this Court may be brought on for early disposition. In the result, I would allow the appeal. I would set aside the order of June 28, 1993, and make the following order: 1. interim custody of the child Matthew is granted to Mr. Thomson; 2. Mr. Thomson's application to return Matthew to Scotland is stayed on the understanding that his application may be brought forward upon evidence that he consents to an order in Scotland allowing Mrs. Thomson interim custody; and 3. Mrs. Thomson is directed to commence her application for custody in Scotland within two months of this order and to proceed as expeditiously as possible. In the circumstances of this case, there will be no costs.