Case Law Search

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.

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

Appeal dismissed, return refused

4 children wrongfully removed - Nationals of the Netherlands - Married parents - Father and mother nationals of the Netherlands - Order of 22 November 2017 granted a certified authority ("gecertificeerde autoriteit") temporary custody pending the execution of a return order (if any); parents initially had joint custudy  - Children lived in an unidentified State until 14 June 2017 - Return refused - Main issues: objections of the child to return, Art. 13(1)(b) grave risk exception to return - In cases in which the children's objections go farther than expressing a mere preference not to return, and in which the children's testimony is consistent and there is evidence of severe insecurity, instability and uncertainty in the environment to which they are to be returned, return may be refused under Art. 13(2) of the 1980 Hague Child Abduction Convention, provided the children have attained the appropriate age and degree of maturity - Ordering the return of only some of the children will result in separation, which could place the returned children in an intolerable situation - Return may be refused under Art. 13(1)(b) of the Convention for all children where there is a history of repeated domestic violence, intervention of the courts and social workers, and where the children have suffered from frequent changes of residence and school; and where the care provided in the requested State is restoringing continuity to their lives and enabling them to process their trauma, such that it is in their best interests to remain there

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

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 

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”

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

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.

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

Case remitted to lower court

Three children wrongfully removed aged 4, nearly 3, and 19 months - All children born in Spain - Unmarried parents - Father national of Morocco - Mother national of UK - Children placed in foster care by Spanish authorities in September 2020 - Children returned to their parents in April 2021 - Children lived in Spain until the mother wrongfully removed them to England on 23 August 2021 - Application for return filed with the Central Authority of England and Wales on 25 February 2022 by the father - Return ordered - Mother appealed under art.13(1)(a) and (b) - Appeal allowed, case remitted - Main issues: first instance judge should have heard oral evidence on the issue of consent and should have considered allegations under art.13(1)(b) collectively, not independently

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

Appeal allowed and case remitted to a different judge of the Ontario Court of Justice to re-determine the Article 13(1)(b) issues.

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

Appeal dismissed, return ordered

The complaint (Beschwerde) appeal lodged by the mother was refused, the child should be returned to the USA.

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; removal wrongful and none of the exceptions had been established to the standard required under the Convention.

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

Appeal dismissed, return ordered

Appeal dismissed; none of the exceptions raised by the mother was applicable.

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Jurisdiction Issues - Art. 16

Appeal allowed, return refused

Appeal allowed and return refused; regard had to be paid to the terms of the provisional order of the Czech District Court permitting the children to live with the mother in Sweden.

Procedural Matters |

Appeal dismissed, return refused

1 child wrongfully removed at age 6 – National of Peru – Father national of Peru – Mother national of Peru – Temporary award of joint custody by Peruvian Court – Child lived in Peru until October 2019 – Application for return filed with the courts of Ontario in March 2020 – Return refused in first instance – Appeal dismissed – Main issue: Procedural matters – Conduct of hearing led to undue delay and contravened obligation for prompt resolution under the Convention. 

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

Application allowed and partially founded. The child's return to Spain was ordered as the retention was wrongful and the grave risk exception invoked was not applicable.

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

Appeal dismissed, return refused

Appeal dismissed and return refused. The removal was wrongful but a grave risk of harm, in accordance with Article 13(1)(b), had been established to the standard required under the Convention.

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

Appeal allowed, return refused

Appeal allowed and return refused. The removal was wrongful but more than 12 months had elapsed prior to the issue of proceedings and further to Article 12(2) the children were now settled in their new environment.