Case Law Search

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

Return ordered with undertakings offered

2 children wrongfully removed at ages 4 and 7– Nationals of Canada and Norway – Married parents – Father national of Norway – Mother national of Canada – Both parents had rights of custody – Children lived in Hong Kong until 21 September 2018 – Application for return filed with the courts of Ontario (Canada) at the end of January 2019 – Return ordered – Main issue: Article 13(1)(b) Grave Risk – Evidence did not meet the 13(1)(b) threshold. Court considered affidavit and legal opinion from lawyer in Hong Kong – Undertakings – Undertakings necessary to secure safe, prompt and seamless return of children and to provide for transition between return order and when children are placed before the Hong Kong courts.

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

Return ordered

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents – Father national of Croatia and Germany – Mother national of Croatia – Joint costudy according to the German Civil Code – Child lived in Germany until December 2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 – Return ordered – Main issues: Art. 13(1)(b) grave risk exception to return, Undertakings, Objections of the Child to a Return – The Court ordered the return of the child, whose retention in Croatia was found to be unlawful under Art. 3 of the 1980 Hague Child Abduction Convention.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Interpretation of the Convention |

Return refused

Lawful retention of two girls - Uruguayan – Separated parents – The girls lived in Brazil until 19 April 2019, when the mother removed them to Uruguay – The mother filed a return application with the Brazilian Central Authority – Return refused – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, procedural matters, interpretation of the Convention – There was no wrongful retention, as the mother actually removed them voluntarily to Uruguay – The mother had consented that the girls live in Uruguay by removing them to that country and delivering the necessary documents for them to resume their life there to the father – There was a grave risk due to the high emotional disturbance they suffered as a consequence of the physical, psychological and sexual violence they had suffered in Brazil – The proceedings are autonomous and specific for international child abduction cases under Uruguayan Law 18,895 – The children’s best interests in this case had been furthered by preventing them from returning to an environment of sexual, psychological and emotional abuse.

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.