Case Law Search

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the retention was not wrongful as the child had never acquired a habitual residence in Belgium.

Rights of Custody - Art. 3 | Procedural Matters

Return ordered

Return ordered; the removal was in breach of rights of custody and was therefore wrongful.

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

Application dismissed

Application dismissed; the children were not habitually resident in Greece at the date of the removal.

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

Appeal dismissed, application dismissed

Appeal rejected on a majority verdict; application dismissed. The majority found the children to be habitually resident in the US at the date of the retention.

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

Return refused

Removal wrongful and return refused; Article 13(1)(b) had been proved to the standard required under the Convention.

Settlement of the Child - Art. 12(2)

Return refused

Removal wrongful but return refused; the child was found to be settled in her new environment in accordance with the terms of Article 12(2).

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

Return refused

Return refused; retention wrongful, but the objections of the child were upheld.

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

Return ordered

Return ordered; the removal was wrongful and none of the exceptions had been proved to the standard required under the Convention.

One child wrongfully removed at age 3 – National of Slovakia – Unmarried parents– Father national of Slovakia – Mother national of Slovakia – Joint rights of custody – Child lived in Slovakia until September 2010 – Application for return filed with the Central Authority of Hong Kong on 22 August 2011 –Return refused – Main issue(s): Article 13(1)(a) acquiescence - the Father’s words and inaction were inconsistent with the fundamental objective of the Convention to secure a prompt return, and he was held to have acquiesced. Article 13(1)(b) – due to the child’s instable background and now being settled in his new environment, there was a grave risk that he would be placed in an intolerable situation if an order for return was made.

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

Appeal dismissed, return ordered

The complaint appeal was broadly rejected and it was once again ordered that the daughter be returned; the deadline for this was extended. It was not possible to establish any reason to believe that the child’s wellbeing would be endangered in the event that she were returned.

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

Appeal allowed, return refused

The complaint appeal was approved and the Applicant’s application for the children to be returned was rejected. It was ruled that there was a grave risk of physical or mental harm to both of the children, meaning that the exception set out in Article 13(1)(b) of the Hague Child Abduction Convention applied.

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

Appeal allowed, return refused

The complaint appeal was approved and the father’s application for a return was refused. The court ruled that the child’s wellbeing would be endangered were he to be returned.

Issues Relating to Return | Procedural Matters

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

Return ordered

Child national of Australia and Germany, wrongfully retained at age two – Unmarried parents – Father national of Australia – Mother national of Guatemala and Germany – Joined custody – Child lived in Australia until November 2017 – Application for return filed with the courts of The Netherlands on 2 January 2018 – Return ordered – Main issue: 13 (1)(b) allegation of domestic violence; no grave risk of harm to the minor. Adequate institutions and facilities for protection from domestic violence in Australia. Decision upheld by the Court of Appeal of the Hague by decision on 11 April 2018.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at 8 months old – National of Canada – Married parents – Father national of Canada and Poland – Mother national of Poland – Child lived in Canada  – Application for return filed with the courts of Poland on 31 October 2011 – Return refused before application to ECtHR on 23 December 2013 – Violation of Art. 8 ECHR – EUR 9,000 awarded in damages – The reasoning of the domestic courts in applying Art. 13(1)(b) of the 1980 Child Abduction Hague Convention disregarded the relevant elements necessary for assessing the best interests of the child within the strict application of the Article

Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20

Return ordered

2 children wrongfully removed at ages 11 and 13 – Nationals of Portugal –divorced parents  – Father national of Portugal – Mother national of Portugal – Custody rights disputed – Children lived in Portugal until January 2013  – Application for return filed with the Central Authority of Portugal in April 2013 – Return ordered – Main issues: Article 13(1)(b) – Grave risk of harm – even though the children did not seem to have a good relationship with their father there was not found to be a serious risk of harm should they return to Portugal and the exception did not apply; Article 13 – Child’s objections - the children’s opinions primarily had to be regarded as a desire to live with their mother, rather than as resistance to returning to Portugal and so the exception did not apply; Article 20 – Protection of Human Rights and Fundamental Freedoms – the court held that it was consistent with human rights for the children to be returned and that the exception did not apply.

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters

Return ordered

Return ordered. The removal was wrongful and none of the exceptions invoked applied.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Issues Relating to Return | Jurisdiction Issues - Art. 16

Return ordered subject to undertakings

Appeal dismissed and return ordered, subject to undertakings. The retention was wrongful; the grave risk defence under Article 13(1)(b) had not been established. There was no evidence to substantiate the mother's allegations of mistreatment at the hands of the father.

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 7 – Unmarried, separated parents – Joint parental authority, mother primary carer – Child lived in France until 31 December 2018 – Return ordered – Main issue: Article 13(1)(b): a decision of refusal to return a child should be based on the risk of 'exposure' to harm. Where a fellow signatory to the 1980 Convention has found that there was no such grave risk of exposure to harm it would be rare to find the opposite. 

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

Return ordered

The court ordered the return of the children to the State of Connecticut, United States of America, within two weeks of the order becoming final and binding.