Case Law Search

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.

Consent - Art. 13(1)(a)

Return refused

Return refused; the court found that the father had consented to the children going to and remaining in Scotland.

Habitual Residence - Art. 3

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the Lord Ordinary had incorrectly inferred that the father had consented to the children's relocation to Germany, thereby enabling them to acquire a habitual residence there.

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.

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.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the father had not acquiesced in the removal of the children. The Court of Appeal also found that the trial judge had not erred in the manner in which he had made a determination as to the age and maturity of the eldest child.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Procedural Matters

The Court of Appeal allowed the appeal and held that the father had acquiesced in the removal of the child. The case was then remitted to the High Court to exercise its discretion whether or not to order the return of the child.

Consent - Art. 13(1)(a) | Undertakings | Procedural Matters

Return refused

Return refused; there had been a wrongful removal but there was sufficient evidence to indicate consent on the part of the applicant father.

Consent - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Acquiescence - Art. 13(1)(a)

Appeal dismissed, return ordered

Appeal dismissed, removal wrongful and return ordered; the standard required under Article 12(2) had not been met to show the children were settled in their new environment. The standard required had been met under Article 13(1)(a) to show that the father had acquiesced in the removal, however, the court exercised its discretion to make a return order.

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

Return ordered

Return ordered; the child was habitually resident in the United Kingdom on the relevant date and his removal to Australia, without the father's consent or acquiescence, was wrongful.

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)

Return refused

Retention wrongful but return refused; the child was settled in his new environment in terms of Article 12(2); the mother had acquiesced in the retention in terms of Article 13(1)(a); and the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of his views in terms of Article 13(2).

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered

Removal wrongful and return ordered; the children were habitually resident in the United States at the relevant date, and the standard required under Articles 13(1)(a) and 13(1)(b) had not been met.

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

Application dismissed

Application dismissed; the children were habitually resident in Australia on the relevant date.

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

Return refused

Removal wrongful but return refused; the standard had been met under Article 13(1)(a) to show that the father had acquiesced in the removal and under Article 13(1)(b) to show that the children would face a grave risk of harm if returned.

Consent - Art. 13(1)(a)

Return ordered

Return ordered; the standard had been met under Article 13(1)(a) to show that the mother had consented, however, the court exercised its discretion to order the return of the children.

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.

Consent - Art. 13(1)(a)

Challenge to legality dismissed; the retention was wrongful but the standard required under Article 13(1)(a) had been met to show that the father had consented. The return was therefore refused.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; Article 13(1)(a) had not been proved to the standard required under the Convention.

Rights of Custody - Art. 3

Challenge to legality dismissed; there had been no breach of custody rights. The application was therefore dismissed.