The issue in the case focuses on the Defendant's determination of whether the Claimant is a child, as the effect of such a finding has an impact on a number of aspects of how he will be treated within the United Kingdom. The precise terms of the issue are themselves disputed:
(1) The Claimant submits that his case is a challenge to the lawfulness of the decision of the Defendant, on 11 June 2021 ["the June determination"], that he was not a child.
(2) The Defendant argues that these proceedings are, in fact, about their refusal to reassess the 11 June determination at some later date.
I have concluded that the evidence establishes that the children would, on a balance of probabilities, suffer serious harm if returned to their habitual residence of Kuwait. Ontario therefore may and should exercise jurisdiction to determine custody and access. I have also concluded that it was an error to order the return of the children pending the determination of their refugee claim.
On 2 October 2018, the Supreme Court of Ukraine issued a decision allowing the payment of benefits upon birth after the delay for application to such benefits expired. Referring to the Convention of the Rights of the Child, the Court highlighted that this assistance is granted for the benefit of the child per se in order to ensure that he/she has access to proper material support. Therefore, the parent(s) [objective] impossibility of timely application for such benefits leads to a violation of the rights of the child.