Case Law Search

Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the removal was not wrongful as the father did not possess rights of custody at the time of the removal.

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the retention was not wrongful as the child was habitually resident in Germany at the relevant date.

Rights of Custody - Art. 3

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal breached the mother's rights of custody and was therefore wrongful.

Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed, return ordered

Appeal allowed and return ordered; the Convention was applicable and the retention was wrongful while Article 13(2) had not been proved to the standard required.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters

Return ordered

Return ordered; the removal was wrongful and the standard required under Article 13(1)(b) to indicate that the children would face a grave risk of harm had not been met. The Court also ruled that the Convention did not violate the Canadian Charter of Rights and Freedoms.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the retention was not wrongful as no rights of custody had been breached.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3

Challenge to legality dismissed; while the return proceedings were pending, the authorities in the children's State of habitual residence had granted the mother custody.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return ordered

Appeal dismissed; return ordered; the removal was wrongful as the father's right of custody had been breached, and none of the exceptions raised by the mother had been proved.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal was wrongful and the trial court had not erred in its refusal to apply the fugitive disentitlement doctrine.

Acquiescence - Art. 13(1)(a) | Undertakings

Appeal allowed, return ordered with undertakings offered

Appeal allowed and return ordered with undertakings offered; the father had not acquiesced in terms of Article 13(1)(a).

Aims of the Convention - Preamble, Arts 1 and 2 | Undertakings

No order made; undertakings and the post return situation considered.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Procedural Matters

Appeal allowed, return ordered

Appeal allowed, return ordered; the removal was wrongful and the grave risk of harm envisaged by Art. 13 (1)(b) was not proved.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Return ordered

Return ordered; the children objected to a return, but in exercising its subsequent discretion the court found that there was simply so much in dispute and so much that required resolution that the appropriate forum for the substantive custody proceedings was South Africa.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)

Return ordered

Return ordered: the removal was wrongful, being in breach of actually exercised rights of custody, and none of the exceptions had been proved to the standard required under the Convention.

Interpretation of the Convention

Rights of Custody - Art. 3

Appeal allowed; the decisions on the merits were quashed and the case referred back to the court of first instance for it to rule on the father's application in accordance with the Hague Convention and the principles set down by the Supreme Court in the case at hand. The removal was wrongful under the terms of Article 3.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12

Challenge to legality dismissed; at the time the return application was made the retention of the child was not wrongful.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3

Return ordered

Return ordered; the removal was wrongful, the child being habitually resident in Spain at the relevant date and the mother having custody.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was considered wrongful. The grave risk exception under Article 13(1)(b), raised by the defendant on appeal, had not been established. The children's opinions did not suggest a strong opposition that would be sufficient to constitute the exception to return under Article 13(2).

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12

Appeal dismissed, return refused

Return refused; the retention was not wrongful.