Case Law Search

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.

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.

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 | 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.

Non-Convention Issues

Appeal dismissed, return ordered

Appeal dismissed, return ordered.

Rights of Access - Art. 21

Application dismissed

Application dismissed; the court did not have jurisdiction to consider a request for access rights as a remedy to a wrongful retention.

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 | Best Interests of the Child

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, best interests of the child – 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 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return ordered with undertakings offered

Unlawful retention of a one-year-old child – Argentine national – Married parents – Father was an Argentine national – Mother was a Uruguayan national – Both parents held custodial rights – The child lived in Argentina until July 2015 – The restitution request was submitted to the Argentine Central Authority – Appeal granted, return ordered – Key issues: Article 3 (habitual residence), Articles 3 and 12 (removal and retention), Article 13(1)(b) (grave risk exception) – The child's habitual residence was Argentina – The retention was deemed unlawful as the mother lacked the other parent’s consent – No grave risk was established, as Argentina had judicial mechanisms to protect the mother and child.

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

European Convention on Human Rights (ECHR) | Procedural Matters

Aims of the Convention - Preamble, Arts 1 and 2 | Procedural Matters

Judgment vacated and case remanded to the United States Court of Appeals for the Eleventh Circuit for further proceedings; the return of the child to Scotland did not render the case moot; there was a live dispute between the parties over where the child should be raised, and a possibility of effectual relief for the prevailing parent.

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

Appeal dismissed, return ordered

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

Appeal dismissed, return ordered

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

Return refused

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

Appeal allowed, return refused

Appeal allowed and return refused; the standard required under Article 13(2) had been met.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Undertakings | Human Rights - Art. 20

Appeal dismissed, return ordered with undertakings offered

Appeal dismissed and return ordered with undertakings offered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of harm had not been met.

Aims of the Convention - Preamble, Arts 1 and 2 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Interpretation of the Convention

Return ordered

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) had not been made out.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Procedural Matters | Interpretation of the Convention

Appeal allowed, return refused

Appeal allowed and return refused; the Court of Appeal found that there had been a wrongful removal but exercised its discretion under Article 13(1)(b) not to order the return of the child.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; the standard required under Article 13(2) to indicate that the objections of a child should be taken into account had been met.

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

Appeal dismissed, return ordered

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