Case Law Search

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

Appeal dismissed, return ordered

Wrongful retention of a child when she was 4 years old - Trinidadian - Trinidadian parents – Joint custody but primary and residential custody with the mother - Child lived in the United States for 2 years and 4 months until she was removed and wrongfully retained in Trinidad as from 15 July 2017 – The return application was filed before a Trinidadian Family Court on 28 November 2017 – Appeal dismissed, return ordered - Main issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was found to be in the U.S. because that was the mother’s place of residence and the girl had lived there for a considerable time - Removal had not been wrongful since the father had a temporary timesharing order but retention was since it breached the mother’s right of custody – The exception in Article 13(1)(b) was not granted as mere financial discomfort was not grave enough 

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Jurisdiction Issues - Art. 16

Return ordered

Wrongful removal of a 12-year old child – Custody rights were exercised by the child’s aunt and her husband – The child lived in Costa Rica since he was 2 years old until February 2019 – Return ordered – Main Issues: habitual residence; rights of custody; jurisdiction issues – The habitual residence of the child is where his centre of life is, irrespective of the child’s nationality – Even though the mother had parental authority over the child, the rights of custody were exercised by the child’s aunt and her husband, and thus removal was wrongful – Return proceedings are not aimed at determining the parent’s ability to take care of and raise the child.

Acquiescence - Art. 13(1)(a) | Procedural Matters

Return refused

Return refused; the father had acquiesced in terms of Article 13(1)(a).

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Rights of Access - Art. 21 | Procedural Matters

Appeal allowed, return refused

Appeal allowed and return refused; on the basis that the father was prepared to contemplate the children remaining in New Zealand if he could have satisfactory access in the United States.

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

Return ordered; the removal was wrongful and the standard required under Article 13(1)(b) to show that the child would face a grave risk of physical harm had not been met.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered

Return ordered; the retention was wrongful and the standard required under Article 13(1)(a) had not been met to show that the father had consented.

Aims of the Convention - Preamble, Arts 1 and 2

Return order struck out given it had not been enforced for three and a half years.

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

Reclaiming motion (appeal) allowed; case remitted to the Outer House of the Court of Session to determine the issues of wrongful retention and habitual residence.

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

Return ordered

Return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of an intolerable situation had not been met.

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

Return ordered

Return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of physical harm or an intolerable situation had not been met.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2)

Return refused in respect of the older child; the standard required under Article 13(2) had been met. Return ordered in respect of the younger child; the standard required under Article 13(2) had not been met.

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

Appeal dismissed, return ordered

Appeal dismissed, retention wrongful and return ordered; the child was habitually resident in the United States at the relevant date and the standard had not been met under Article 13(1)(a) to show that the father had acquiesced.

Objections of the Child to a Return - Art. 13(2) | Role of the Central Authorities - Arts 6 - 10

Appeal allowed, return ordered

Appeal allowed; there had been a fundamental change in the circumstances since the original decision and it was now appropriate to take the girl's objections into account. The case was remitted to the trial judge.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a)

Return ordered

Return ordered; the children were habitually resident in Germany at the relevant date.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3

The Court of Appeal upheld the finding that there had not been a wrongful retention under the Convention. However, the court allowed the appeal in that it stayed the substantive family law proceedings and held that the child's future should be determined in Texas.

Human Rights - Art. 20

Application dismissed and return ordered; the Convention does not violate the Irish Constitution.

Procedural Matters

Appeal allowed; the child was habitually resident in Sweden at the relevant date. The case was remitted to the High Court for a hearing to determine if an Article 13 exception applied.

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

Return ordered with undertakings offered

Return ordered and undertakings offered; the removal was wrongful and the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of physical harm had not been met.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed and return ordered forthwith subject to undertakings. The child had been wrongfully removed and none of the exceptions applied.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Procedural Matters | Interpretation of the Convention

Appeal dismissed, return ordered

The court found that the Convention was not applicable to the case but dismissed the appeal on the basis that the child's interests were best served by a return to the United States.