Case Law Search

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Return refused

Appeal dismissed, return ordered

Return ordered

One child allegedly wrongfully retained at age 1 –Married parents – Father national of Israel – Mother national of Israel – Child lived in USA until 2019 – Application for return filed with the Tel Aviv Family Court of Israel on 20 February 2020 – Return ordered – Main issue: Article 13(1)(b) – COVID-19 did not amount to a grave risk of harm to the child, in fact the medical care for the child may be better in the USA than in Israel as they had medical coverage there.

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

Appeal dismissed, return ordered

The court rejected the mother’s application to have the use of direct force in enforcement suspended.

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

Appeal dismissed, return ordered

1 child wrongfully removed at 4 years  – National of Spain and the United States of America – Married parents – Father national of Spain – Mother national of United States of America – The mother and father had joint custody – Child lived in Turkey until April 2014 (first removal) and April 2015 (second removal)  – Application for return filed with the courts of the United States of America (federal jurisdiction) – Return ordered – Main issue(s): Art. 13(1)(b) grave risk exception to return – an “intolerable situation” can include circumstances where there is conclusive evidence that courts of the State of habitual residence are practically or legally unable to adjudicate custody

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at age 2 – Married parents – Father national of Poland – Mother national of Poland – Parental responsibility was exercised jointly by both parents – Child lived in the United Kingdom  – Application for return filed with the Central Authority of the United Kingdom on 21 September 2012 – Return refused before application to ECtHR on 12 April 2014 – Violation of Art. 8 ECHR – EUR 9,000 awarded in damages – The reasoning of the domestic courts regarding the Art. 13(1)(b) of the 1980 Child Abduction Hague Convention exception in light of Article 8 ECHR was misguided; none of the arguments objectively ruled out the possibility of the mother's return with the child

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

Appeal dismissed, return ordered

Two children wrongfully retained at ages 14 and 12 – Nationals of Switzerland and Slovakia –Divorced parents – Father national of Switzerland and Slovakia – Mother national of Czech Republic – The children are under joint custody of the parents. The mother has sole care. – Children lived in Spain (until June 2021) – Application for return filed with the Courts of Switzerland on 16 September 2021 – Return ordered

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

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

Appeal dismissed, return ordered

Wrongful retention of two girls when they were 8 and 11 years old – Uruguayan & Swedish – Unmarried parents – Uruguayan father – Uruguayan mother – Joint custody – The girls lived in the Kingdom of Norway until January 2019 – Return proceedings were commenced before Uruguayan courts on 27 May 2019 – Return ordered – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, objections of the child to a return, procedural matters, best interests of the child – Retention was wrongful because it violated the father’s actually-exercised right of custody when it took place – There was not sufficient evidence on record proving the father’s consent or acquiescence to the change in the girls’ habitual residence – None of the circumstances alleged by the mother implied a grave risk for the girls if they returned to Norway – The girls’ statements evidenced that their opinions were influenced by their mother – The child support payments fixed in the first instance court judgment were overturned because this issue is outside the scope of application of the HCCH 1996 Child Protection Convention.

Grave Risk - Art. 13(1)(b) | Procedural Matters

Appeal dismissed, ordering execution of the return order.

Grave Risk - Art. 13(1)(b) | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Case remitted to lower court

1 child wrongfully removed at age 3 – National of Croatia– Married parents– Father national of Croatia– Mother national of Croatia – Joint parental responsibility according to German Civil Code – Child lived in Germany until 6 April 2016 – Application for return filed with the Central Authority of Croatia on 10 June 2016 – Application for return filed with the Central court of Croatia on 29 August 2016 - Main issue(s): Art. 13(1)(b) grave risk exception to return; Procedural matters, Brussels IIa Regulation – the courts are obliged to give a fully-founded factual basis for the application of Articles 12 and 13 of the Hague Convention.

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

Appeal allowed; the retention was wrongful but return was refused on the basis of grave risk.

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

Appeal dismissed, return ordered

1 child born in 2015 in Japan ― Father and child Brazilian nationals, mother unknown ― Unmarried parents ― Mother and child lived in Japan for one year and moved to Brazil in March 2016 ― Mother removed the child to Japan in November 2018 ― Drinking alcohol, use of drugs and verbal violence of the father ― Father filed a petition for the child’s return to the Tokyo Family Court in October 2018 ― Return ordered ― Appeal dismissed by the Tokyo High Court in March 2019 ― Main issues: habitual residence, consent or acquiescence, and grave risk.

Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Interpretation of the Convention | Best Interests of the Child

Return ordered

Wrongful removal of a 7-year old girl – Chilean – unmarried parents – Chilean father – Argentine mother – custody rights belong with the father – the girl lived in Chile until late 2019 – return application submitted before the Family Court in Formosa, Argentina, in September 2020 – return ordered – main issues: removal and retention, settlement of the child, art. 13(1)(b) grave risk, objections of the child to the return, procedural matters, interpretation of the Convention, best interests of the child – retention was wrongful because the custody rights of the father, effectively exercised by him at the time, were infringed – the time required by the Convention to refuse the return on grounds of settlement of the child in her new environment did not elapse – no evidence that the child would be exposed to grave risk upon her return – there were no objections by the child showing an irreducible objection against returning to the place of habitual residence – due to effects of the COVID-19 pandemic, the parents were invited to cooperate in the implementation of the return order and to avoid unnecessary delays – there are no incompatibilities between the Convention and the Convention on the Rights of The Child; both are meant to protect the best interests of the child.

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

Appeal dismissed, return ordered

2 children wrongfully removed (aged 5 and 8 at the time of the decision) – Nationals of Brazil and Argentina – Divorced parents – Father national of Argentina, Venezuela, and Brazil – Mother national of Argentina – By a homologated conciliation agreement of 5 June 2014, the father had custody for a period of four months and thereafter the parents were to have joint custody – Children lived in Brazil until July 2014 – Application for return filed with the Central Authority of Brazil in October 2014 – A decision or determination under Art. 15 of the 1980 Hague Child Abduction Convention was obtained - Application dismissed – Main issues: custody rights and acquiescence – “Rights of custody” has an autonomous meaning under the Convention, which crucially includes the right to determine the child’s place of residence – This right may be attributed to a parent by the law of the State in which the child was habitually resident immediately before the removal, as well as by the context, structure and content of an agreement on custody homologated in that State – “Acquiescence is a question of the actual subjective intention of the wronged parent, and not of the outside world’s perception of her intentions”

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

Appeal dismissed, return refused

This is the first and so far the only Supreme Court decision which modified a final and binding return order due to a change in circumstances under the Hague Convention Implementation Act. It is seen as a highly exceptional case.

4 children (2 sets of twins) wrongfully retained in Japan ― Children lived in the United States until July 2014, when the elder twins were 11 years and 7 months old and the younger twins 6 years and 5 months old ― Married parents ― Father national of the United States ― Mother national of Japan ― Order for the return of all children became final and binding in January 2016 ― The Supreme Court upheld the Osaka High Court decision modifying the return order due to change in circumstances and dismissed the petition for the return of the children ― Main issues: Grounds for refusal of a return order ― The elder twins’ objection to being returned ― A grave risk of placing the younger twins in an intolerable situation by separating them from their siblings 

Habitual Residence - Art. 3

Appeal allowed, return ordered

Two children wrongfully removed at age 1 – nationals of the Netherlands – married parents – father national of the Netherlands – mother national of the Netherlands – joint custody – children lived in Spain until 15 September 2018 - application for return filed with the court of the Hague on 16 November 2018 - return ordered – main issue: habitual residence, at any given time, a child can only have one place of habitual residence

Grave Risk - Art. 13(1)(b) | Non-Convention Issues

Appeal allowed, return refused

One child wrongfully retained at age 3 - Dual British-American national - Parents married in 2018 but separated in 2023 -  Father American national - Mother British national - Family lived in Texas, USA until mother wrongfully retained child in UK in February 2023 - Father applied for return in England on 22 June 2023 - Return ordered by consent - Mother appealed this based on a lack of consent and absence of protective measures in light of alleged abuse - Main issues: grave risk (Article 13(1)(b) and protective measures; Lack of proper consent - Court found the protective measures were ineffective and not enforceable in Texas, and absence of agreement - Appeal allowed, return refused, and case remitted to lower court.

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

Appeal allowed and return ordered; Article 13(1)(b) had not been proved to the standard required under the 1980 Hague Child Abduction Convention.

Grave Risk - Art. 13(1)(b) | Non-Convention Issues

Return ordered

Return ordered.