Case Law Search

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the child was habitually resident in England at the time of the removal.

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

Appeal dismissed, return refused

Appeal dismissed in part and application dismissed; the children were habitually resident in Israel at the date of the alleged wrongful retention. The trial court had though erred in its interpretation of the concept of acquiescence.

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

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.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Procedural Matters |

Appeal dismissed, return ordered

Wrongful retention of the child – Separated parents – Custody rights were jointly exercised – The child lived in Spain until 11 August 2014 – The request for return was filed before the Central Authority in Spain in September 2014 – Return ordered – Main issues: habitual residence, removal and retention, settlement of the child, art. 13(1)(b) grave risk exception, procedural matters – The habitual residence of the child prior to the wrongful removal was in Spain – There was wrongful retention in breach of the custody rights, which were exercised jointly pursuant to the agreement signed by the mother and father – The settlement of the child was not considered because the one-year period required by the Convention had not elapsed – The evidence did not contribute to determining whether there had been sexual abuse; on the contrary, a true demonstration of the risk was necessary to justify the application of article 13(1)(b) - The Central Authority of Spain was urged to take measures to protect the child and to do a follow-up on the case to provide the father with the necessary legal support.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Jurisdiction Issues - Art. 16 | European Convention on Human Rights (ECHR)

Return ordered

1 child wrongfully retained at age 6 months - National of United Kingdom and Ukraine - Married parents- Father national of the United Kingdom - Mother national of Ukraine – Applicant father had joint custody with respondent mother under British legislation – Child lived in the United Kingdom until 11 April 2012 -Application for return filed with the courts of Ukraine on 19 December 2012 - Return ordered on 29 August 2018 - Main issues: Articles 5 and 12 of the 1980 Hague Child Abduction Convention (a parent cannot independently decide to change the child’s place of habitual residence; the place of habitual residence is of major importance to restoring of the status quo for the child; first instance court and appeal court incorrectly interpreted exceptions for non-return of a child as a settlement in new environment, acquiescence in the retention and grave risk to return).

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Article 15 Decision or Determination | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20 | Rights of Access - Art. 21

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the inferior courts had erred in rejecting the determination of the Romanian courts pursuant to Article 15; under Romanian law the father had no rights of custody for Convention purposes therefore the removal of the child was not wrongful.

Non-Convention Issues

Appeal dismissed, return ordered

Appeal dismissed, return ordered.

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.