Case Law Search

Issues Relating to Return | Procedural Matters

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

Appeal dismissed, return ordered

1 child wrongfully retained in Japan ― National of Singapore and Japan ― Married parents ― Father national of Singapore – Mother national of Japan ― Child lived in Singapore until 2016 ― Application for return filed with the Central Authority of Singapore in 2016 ― Petition for return filed with the courts of Japan in 2017 ― Return ordered ― Main issues: acquiescence and Art. 13(1)(b) grave risk exception to return – There is no grave risk in ordering the return of the child in cases involving domestic violence between the parents where a protection order is in place in the requesting State and where there is no evidence that any violence has been committed against the child ― It cannot be said that a parent has not actually exercised rights of custody at the time of removal if he did not know the whereabouts of the child at that time  ― A parent has not approved of or acquiesced in the retention if he filed a return application with the Central Authority of the requesting State about one month after coming to know of the removal, and with the courts of the requested State almost one year after the removal, respectively.

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

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

Appeal allowed, return refused

Appeal allowed; return refused.

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.

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) | Human Rights - Art. 20 | Procedural Matters

Appeal allowed and case remitted to trial court; the trial court had failed to give due consideration to the child's status as a refugee when determining the return application. Furthermore, there had been procedural failings in the conduct of the trial and the exceptions to return had not been investigated properly.

Grave Risk - Art. 13(1)(b) | Undertakings | Issues Relating to Return

Return ordered subject to undertakings

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

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.

Aims of the Convention - Preamble, Arts 1 and 2 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Issues Relating to Return

Return refused

Removal wrongful but return refused; Article 13(1)(a) and Article 13(1)(b) had both been proved to the standard required under the 1980 Hague Child Abduction Convention.

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.

Interpretation of the Convention | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20

Return refused

The application for return was dismissed. There was enough evidence to show that there was a grave risk of harm if to the children if they returned to Israel. The judge refused to order the return based on Article 13(1)(b) and Article 20.

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

Appeal allowed, return refused

Two children allegedly wrongfully removed at ages 2 and 3 – Father national of New Zealand – Mother national of Australia – Mother the primary carer of the children – Children lived in New Zealand until May 2019 – Appeal allowed and return refused – Main issues: Article 13(1)(b) - Though New Zealand has sophisticated systems in place to protect victims of family violence, it was established that the children’s parents had persistently thwarted attempts by similar agencies in Australia to keep the mother and children safe. There was no evidence which suggests that any conditions would be effective ; COVID-19 – despite the fact travel bans were in place between Australia and New Zealand, as the case was based on a request by New Zealand to return the children, the court proceeded on the basis that the children and the mother were still able to leave Australia and enter New Zealand. If the court had decided to order a return to New Zealand they would have required further submissions concerning the effect on the children and the mother in the present crisis.

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

Appeal dismissed, return ordered

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

Challenge against the legality of the appellate judgment dismissed and return order confirmed; the retention was wrongful and Article 13(1)(b) had not been made out to the standard required under the Convention.

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

Appeal dismissed, return ordered

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

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but the standard of harm required under Article 13(1)(b) had been proved.

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

Return refused

Appeal dismissed and return refused; this was an exceptional case where the standard of harm envisaged within Article 13(1)(b) had been reached.