Case Law Search

Human Rights - Art. 20

Legal challenge rejected; the removal was wrongful and Article 20 was inapplicable.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a)

Application dismissed

Application dismissed; the children were habitually resident in Israel at the date of the alleged wrongful retention.

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

Legal challenge upheld and new order issued for the child to be returned; the removal was wrongful and the conditions necessary for the application of Article 13(1)(b) of the 1980 Hague Child Abduction Convention had not been met.

Habitual Residence - Art. 3

Appeal dismissed, application dismissed

2 children allegedly wrongfully retained at ages 3 and less than 1 - Unmarried parents - Father national of France - Mother national of the United Kingdom and Canada - Children lived in France until July 2013 - Return proceedings initiated soon after 20 November 2013 - Application dismissed - Main issue: habitual residence - Parents' joint decision for children to temporarily move to another State does not preclude the children from becoming habitually resident in that State

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

Return refused

1 child wrongfully retained at age 10 - National of El Salvador and Canada - Married parents - Father national of El Salvador - Mother national of Canada - Father exercised rights of custody for about 10 years, mother obtained custody in May 2012 - Child lived in El Salvador until November 2011 - Application for return filed with the Provincial Court in July 2012 - Return refused under Article 13(2) - Main issues: Art 13(1) (b) grave risk exception to return, objection of the child to return - Abuse of one parent by another can only be a relevant consideration for the Art. 13(1)(b) exception if the child is “placed in the midst of an abusive relationship” - An assessment of whether a child was placed in an intolerable situation due to the administration of corporal punishment should account for the range of generally accepted disciplining practices in the relevant social context - The factors to be taken into consideration when assessing whether a child has attained an age and degree of maturity at which it is appropriate to take account of her views include: level of cognitive functioning, capacity for logical and rational reasoning and nuanced evaluation of different circumstances - Decisions not to order return under Article 13(2) should account for the policy considerations underlying the 1980 Hague Child Abduction Convention 

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return ordered

2 children wrongfully removed at ages 4 and 2 – Unmarried parents – Father national of Canada – Mother national of Canada and Columbia – Shared custody (parenting arrangement) – Children lived with both parents at times in the United States of America and at times in Canada – Children last lived in the United States of America from August 2010 until their removal in April 2013 - Application for return filed with the Supreme Court of British Columbia in April 2013  – Return ordered – Main issues: habitual residence, Art. 13(1) (b) grave risk exception – A settled intention of the parents, for the purposes of establishing habitual residence, requires a “sufficient degree of continuity to be properly described as settled” – Mere speculation that one of the parents might be deported on grounds of immigration status and might choose to move to a State that would allegedly endanger the children is insufficient evidence to establish that the Art. 13(1) (b) grave risk exception applies

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

Appeal allowed, return refused

The court allowed the appeal and refused to order the return of the child.

Removal and Retention - Arts 3 and 12 | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed, return ordered. 

Removal and Retention - Arts 3 and 12

Appeal allowed and decision of the Appeal Court annulled and case remitted so that a new ruling be rendered on the issue of return in light of the decision of the Cour de Cassation.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2)

Appeal allowed, return ordered

2 children wrongfully 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 Superior Court of Justice (Family Court Branch) in June 2014 - Return ordered - Main issues: habitual residence, rights of custody, objections of the child to return - A parent cannot unilaterally change the habitual residence of a child during a time-limited period of consensual stay in another State agreed to by the other parent - Contemplation of an extension of such a period of consensual stay does not defeat its time-limited nature - Evidence of the child settling in his new environment is irrelevant if the application for return is brought within one year of the removal or retention - Where rights of custody have been transferred by one parent to another for the sole purpose of enrolling children in school in a given State, the parent who transferred those rights exercises them when the taking parent refuses to return the child, or would have exercised them but for the removal or retention - A child’s objection to return that is unsubstantial or merely expresses a preference for one place over another is insufficient grounds for refusing to order return under Art. 13(2) of the 1980 Hague Child Abduction Convention

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

The City Court (first instance) determined that the child was living in Poland before the removal and that a return to Poland would not harm the child. Therefore, the removal/retention was wrongful and that the child should go back to the mother in Poland.

The Eastern High Court (second instance) upheld the decision.

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

Return refused

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 parental responsibility  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 refused – Main issues: Art. 13(1)(b) grave risk exception to return, Objections of the Child to a Return, Procedural matters  – The Court refused the request for return of the child under Art. 13(1)(b) of the 1980 Hague Child Abduction Convention.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Jurisdiction Issues - Art. 16 | Procedural Matters

Appeal allowed, return ordered

Wrongful retention of a 1-year-old girl – separated parents – Spanish father – Venezuelan mother – the custody rights were jointly exercised – the girl lived in Spain until July 2011 – the return request was filed before the Spanish courts on 12 July 2011 – Appeal allowed, return ordered – Main issues: removal and retention, rights of custody, grave risk, human rights, jurisdiction issues, procedural matters - removal was not wrongful, but retention was, since the father did not authorise the girl’s permanent stay in Venezuela – both parents had custody rights under Spanish law – the mother did not establish the grave risk circumstances claimed – the girl’s return did not violate any Venezuelan fundamental principle on human rights protection – who is the right parent to have custody should not be discussed within return proceedings; on the contrary, this type of proceeding is concerned with whether there was a wrongful removal or retention – measures were taken to secure the safe return  of the child to Spain and the parents were encouraged to resort to mediation.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Issues Relating to Return

Return ordered with undertakings offered

Wrongful removal of a boy when he was 10 years old - Venezuelan – the father had exclusive custody rights  - the child lived in Venezuela until 2018 – the father requested return before the Venezuelan Central Authority in July 2020 – return ordered – main issues: removal and retention, consent, settlement of the child, grave risk, objection of the child to a return, procedural matters, issues relating to return – removal was wrongful since it breached the father’s custody rights, attributed to him under the law of the State where the child was habitually resident – the father did not consent to the child’s removal – he acted towards the child’s return within a year since the wrongful removal – it was not established that the child would be exposed to a grave risk or an intolerable situation upon return to Venezuela – it was not established that the child’s fundamental rights were impaired – there was not an irreducible objection of the child against returning to the place where he was habitually resident - the Court ordered an interim exit and change of residence ban - the Court ordered the parents to collaborate with enforcement of the return order - the Court ordered to take the necessary steps for the child’s safe return

Habitual Residence - Art. 3 | Jurisdiction Issues - Art. 16

Appeal allowed; the Luxembourg courts had no jurisdiction.

Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Procedural Matters

Appeal dismissed, return ordered

Appeal refused; return allowed. It was settled that the retention was wrongful.

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

Return ordered

Retention wrongful and return ordered; Article 13(1)(b) had not been proved to the standard required under the Convention.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

Unanimous: infringement of Article 8 of the European Convention on Human Rights (ECHR); award of damages on the basis of Article 41 of the ECHR.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters

Appeal allowed, return ordered

Appeal allowed, return ordered. The removal was wrongful and none of the exceptions raised was applicable.

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

Return ordered with undertakings offered

Removal wrongful and return ordered; the objection of one child to return was not sufficiently strong to override the policy of the Convention.