Case Law Search

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful and the child's objections were rejected as she was not sufficiently mature and had been unduly influenced by her mother.

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

Return ordered

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

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

Appeal dismissed, return refused

Child born in 2014 in Singapore ― Parents married in 2008 ― Nationality of the entire family is unknown ― The family travelled abroad in August 2017 ― On the evening of 30 August 2017 in Japan, father drank and exercised physical violence against the mother ― Father arrested and criminal proceedings instituted ― Parents reached a settlement on 15 September 2017 ― Parents agreed that they would live separately ― The mother would live in Japan with the child as the primary caregiver, whereas the father would pay damages and maintenance and have visitation with the child ― Father filed petition for the child’s return to Singapore in the Tokyo Family Court in December 2017 ― Application dismissed ― Appeal dismissed by the Tokyo High Court in May 2018 ― Main issues: consent and grave risk.

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

Return ordered subject to undertakings

Appeal allowed and return ordered subject to undertakings. The removal was wrongful and any potential harm to the child from a return could be minimized by the father's compliance with the conditions set and the child could otherwise be protected by the English authorities.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Issues Relating to Return |

Return ordered with undertakings offered

One child allegedly wrongfully retained at age 5 and a half – National of Ukraine and the United Kingdom – Father national of the United Kingdom and South Africa – Mother national of Hungary and Ukraine – Child lived in Ukraine in the mother’s custody with regular contact with the father – Following Russian invasion of Ukraine in late February 2022 child and Mother move to England In April 2022 – Mother plans to return to Ukraine in Summer 2022 – Father obtains Prohibited Steps Order from English Court - Application for return issued on 29 July 2022 – Main issues: habitual residence and Art. 13(1)(b) grave risk exception to return – risk of exposure to war – risk of loss of relationship with father due to alleged closure of court system and mothers hostility to father – A child’s retained roots in Ukraine support his habitual residence remains in the Ukraine – The risk faced by the child upon return to Ukraine failed to meet the threshold of ‘grave harm’ – the region was not subject to active hostility and life continued as normal – the court system was functioning – mother promoted contact – undertakings reduced any risk below grave risk threshold. – Return ordered

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

Appeal dismissed, return refused

1 child allegedly wrongfully retained at age 13 – National of Brazil – Divorced parents– Father national of Brazil – Mother national of Brazil – Joint right to determine the residence of the child. Father has custody. – Child lived in Brazil until 31 October 2014 – Application for return filed with the Courts of Switzerland on 28 April 2016 – Return refused – Main issue: Objections of the Child to a Return – Child was mature enough for its opinion to be taken into consideration which constituted a reason to refuse the return based on Article 13(2).

Procedural Matters

Appeal against the provisional stay of execution of the return order dismissed.

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

Appeal dismissed, application dismissed

1 child allegedly wrongfully removed at age 13 – National of Canada – Divorced parents – Parents have joint custody and mother has primary care – Child lived in Arizona, USA until August 2017 – Application for return filed with the courts of Alberta, Canada on May 18, 2018 – Application dismissed – Main issue: Art 13(1)(b) – It would be an intolerable situation to return the child to Arizona as neither parent resides there.

Acquiescence - Art. 13(1)(a)

Appeal dismissed, return refused

One child wrongfully retained at age 3 – National of United Kingdom and Switzerland – Married parents – Father national of United Kingdom and Turkey – Mother national of Switzerland and Turkey – Joint parental responsibility – Child lived in the United Kingdom until 7 August 2020 – Application for return filed with the courts of Switzerland on 12 April 2021 – Return refused – Main issue: Acquiescence/Consent Art.13(1)(a)] –Father’s behaviour deemed acquiescence, namely signing a residence registration, bringing child’s personal effects, transferring money, signing a divorce agreement accepting Switzerland as the place of jurisdiction.

Settlement of the Child - Art. 12(2) |

Return refused

3 children habitually resident in Spain ― Father Spanish national, mother Japanese national ― Parents married in 2009 in Japan ― Upon marriage, father adopted mother’s child born out of wedlock in 2006 ― Two children were born within wedlock in 2011 and 2015 ― Parents first lived together in Japan and later relocated to Spain in May 2011 ― Mother brought three children to Japan in May 2017 and notified Father of her intent to divorce and stay in Japan ― Father filed petition for the return of the children to the Tokyo Family Court in October 2018 ― Petition dismissed ― Main issue: Settlement of the children.

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

Appeal dismissed, return ordered

Appeal dismissed and return refused. The removal was wrongful but the exceptions in Articles 13(1)(a), 13(1)(b) and 13(2) had been made out to the standard required under the Convention. In addition the father's lack of good faith barred him from receiving the court's assistance.

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

Appeal dismissed, return refused

1 child removed to Japan ― National of Algeria and Japan ― Married parents ― Father an Algerian national, Mother a Japanese national ― Parents married in France in 1998 ― Child born in 2004 and lived in France until 2015 ― Mother removed and has retained the child in Japan ― Petition for return of the child filed with the Osaka Family Court ― Petition dismissed ― Appeal to the Osaka High Court dismissed ― Main issues: Father’s Consent or Acquiescence ― Grave Risk for the Child ― Child’s objection

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

Appeal dismissed, return ordered

4 children wrongfully removed to Japan ― Parents married in 2001 and living in the United States ― Father and mother nationals of Japan ― 5 children ― The parents separated and had been living apart since 2011 ― The mother obtained a restraining order against the father for the third time in 2012, along with a provisional custody order over the 5 children ― The father removed 4 of their 5 children via Canada to Japan in 2014 ― The parents obtained a divorce decree in the United States in 2014, which declared the mother as the sole custodian ― The mother filed an application for return with the courts of Japan in 2014 ― The Tokyo Family Court ordered return ― The father filed an appeal ― Main issues: No objections of the children ― No grave risk in ordering return of the child.

Habitual Residence - Art. 3

Return ordered

Return ordered; the removal was wrongful as the child was habitually resident in Ireland on the relevant date.

Aims of the Convention - Preamble, Arts 1 and 2 | Settlement of the Child - Art. 12(2)

Appeal allowed, return refused

Appeal allowed and return refused; the removal was wrongful however it was determined that the child had become settled in her new environment in accordance with Article 12(2).

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

Return ordered

Return ordered; the retention was wrongful as the child retained his habitual residence in Israel on the relevant date.

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

Appeal allowed, return ordered

Appeal allowed and return ordered; the retention was wrongful and neither Article 13(1)(b) nor Article 13(2) had been proven to the standard required.

Habitual Residence - Art. 3

Appeal allowed, following an alternative construction of the concept of habitual residence by the Court of Appeals, the case was remitted to the District Court for it to determine whether the United States had supplanted Israel as the locus of the children's family and social development.

Aims of the Convention - Preamble, Arts 1 and 2 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20 | Procedural Matters

Return ordered

Return ordered; the retention of the children was wrongful and the standard required under the various exceptions raised had not been met.

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

Return ordered

Return ordered; the order of 13 March 1996 had given the father custody rights and thereafter the retention of the child in Ireland was wrongful within the terms of Article 3.