Case Law Search

Rights of Custody - Art. 3 | Undertakings

Return ordered with undertakings offered

4 children removed at ages 13, 6, 5 & 2 – Unmarried parents – Court found that both parents had custody rights – The children lived in United States (North Dakota) until September 29, 2016 – Application for return filed with courts of Canada (Saskatchewan) in May 2017 – Return of 3 children ordered in June 2017 – Main issues: Article 3 (custody) – In the absence of proved foreign law, the Court applied Saskatchewan law and found that the father had custody rights with respect to his 3 biological children at the time of the removal – Undertakings – Father provided undertaking not to enforce US chasing order before a certain date to avoid children being forcibly removed from their mother by the police. 

Grave Risk - Art. 13(1)(b) | Non-Convention Issues

Appeal allowed, return refused

One child wrongfully retained at age 3 - Dual British-American national - Parents married in 2018 but separated in 2023 -  Father American national - Mother British national - Family lived in Texas, USA until mother wrongfully retained child in UK in February 2023 - Father applied for return in England on 22 June 2023 - Return ordered by consent - Mother appealed this based on a lack of consent and absence of protective measures in light of alleged abuse - Main issues: grave risk (Article 13(1)(b) and protective measures; Lack of proper consent - Court found the protective measures were ineffective and not enforceable in Texas, and absence of agreement - Appeal allowed, return refused, and case remitted to lower court.

Grave Risk - Art. 13(1)(b)

Appeal allowed, return ordered

Appeal dismissed and return of the children to the United States ordered; the evidence did not support a finding of a grave risk of harm pursuant to Article 13(1)(b).

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Role of the Central Authorities - Arts 6 - 10

Appeal allowed and case remitted to the District Court to consider remedies that might allow both the return of the children to their habitual residence and their protection from harm pending a custody hearing in France.

Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but on the basis of the children's objections a return order was refused.

Grave Risk - Art. 13(1)(b)

Settlement of the Child - Art. 12(2)

Return refused

Return refused; the removal was wrongful but Article 12(2) was successfully invoked, the child now being settled in her new environment.

Rights of Custody - Art. 3 | Procedural Matters

Appeal allowed, return ordered

Appeal against return order dismissed; the removal was in breach of the father's rights of custody and therefore wrongful.

Unanimous: no infringement of the German Basic Law (Grundgesetz).

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

Appeal allowed, return ordered

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

Appeal allowed, return ordered

Appeal allowed and return ordered; the retention was wrongful and none of the exceptions had been established to the standard required under the Convention.

European Convention on Human Rights (ECHR) | Procedural Matters

Unanimous: breach of Article 8 of the European Convention on Human Rights (ECHR). The authorities had failed to deploy adequate efforts to enable the mother to regain contact with her children.

European Convention on Human Rights (ECHR) | Procedural Matters

Unanimous: breach of Article 8 of the European Convention on Human Rights (ECHR): the father had waited two years for the judgment ordering the child's return, and the mother's obstructive behaviour had been comforted by a judgment awarding custody to her even though a judgment ordering return had also been delivered.

Rights of Custody - Art. 3 | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

European Convention on Human Rights (ECHR)

By a 4:3 majority: No infringement of Article 8 of the European Convention on Human Rights.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters

Appeal dismissed; the Court of Appeal had rightly found the children's retention to be wrongful and the exceptions inapplicable.

Issues Relating to Return | Procedural Matters

Appeal inadmissible; the appeal did not raise a substantial legal issue.

Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters

Appeal allowed, case referred to the lower court. If the court in the State of refuge contemplates denying return of the child (or its enforcement) owing to a grave risk of danger, it is a prior requirement to ascertain sua sponte that the necessary protective measures to make the return possible could not be taken.

Issues Relating to Return | Procedural Matters

Appeal inadmissible: the issue whether the Austrian courts may deliver a return order and take execution measures in a single ruling is not sufficiently substantial to justify an appeal. While admittedly there are no Supreme Court precedents on this point, the issue does not raise a substantial difficulty since it is clearly resolved by legislation.

Interpretation of the Convention | Habitual Residence - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Guidance on the application of the Convention issued

2 children retained at ages 11 and 8 – Nationals of Canada – Married parents – Father national of Canada – Mother national of Canada – Father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a Canadian school – Children lived in Germany until April 2013 – Application for return filed with the Central Authority of Germany on 11 April 2014 – Return decision of the Court of Appeal of Ontario of 13 September 2016 was appealed to the Supreme Court, but the children were returned to Germany before the Court rendered its judgment; despite the appeal being moot, the Court considered the issues raised to be important and in need of clarification – Main issues: interpretation of the Convention, habitual residence, objections of the child to a return, procedural matters – To ensure uniformity of State practice, courts should generally adopt the interpretation of the Convention that has gained the most support in other foreign domestic courts – The “hybrid approach” to determining habitual residence (which considers all relevant factual links and circumstances in their entirety, instead of focusing either on parental intention or the child’s acclimatisation) should be followed – Courts should adopt a non-technical and straightforward approach to considering the child’s objections to return – It is up to the judicial authorities to ensure that the State lives up to its obligations to act expeditiously under the 1980 Hague Child Abduction Convention – Convention proceedings should be judge-led, not party-driven, and judges should not hesitate to use their authority to expedite proceedings