Case Law Search

Non-Convention Issues

Case remitted to lower court

One child aged 12 - National of Ukraine - Unmarried parents - Father national of Ukraine - Mother national of Ukraine - Mother married British national and gained spousal visa in 2017 - Child lived in Ukraine until 2018 when mother took child to UK - Mother wrongfully retained child - Father gained return order - Mother and child returned to Ukraine in May 2019 - Mother wrongfully removed child in October 2019 and returned to UK - Father granted second return order in July 2020 - Mother made asylum application for child on 20 October 2020 and applied to stay 1980 Hague Convention proceedings on 26 October 2020 - Child granted asylum on 28 May 2021 - Court overturned return order because of the child's asylum status - Father appealed this - Main issues: art.13(1)(b), art.13(2), and asylum claim - The grant of asylum did not automatically nullify Hague proceedings - Appeal allowed and case remitted for urgent case management hearing.

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

Appeal dismissed, return ordered

The mother’s complaint appeal was rejected and the order to return the children remained in place.

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

Appeal dismissed, return ordered

Wrongful retention of a child when she was 4 years old - Trinidadian - Trinidadian parents – Joint custody but primary and residential custody with the mother - Child lived in the United States for 2 years and 4 months until she was removed and wrongfully retained in Trinidad as from 15 July 2017 – The return application was filed before a Trinidadian Family Court on 28 November 2017 – Appeal dismissed, return ordered - Main issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was found to be in the U.S. because that was the mother’s place of residence and the girl had lived there for a considerable time - Removal had not been wrongful since the father had a temporary timesharing order but retention was since it breached the mother’s right of custody – The exception in Article 13(1)(b) was not granted as mere financial discomfort was not grave enough 

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Non-Convention Issues

Retention of the elder child wrongful and return ordered; none of the exceptions proved to the standard required under the Convention. Retention of the younger child not wrongful as she had only ever been habitually resident in England. Return ordered under common law rules.

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

Return ordered with undertakings offered

2 children wrongfully removed at ages 4 and 7– Nationals of Canada and Norway – Married parents – Father national of Norway – Mother national of Canada – Both parents had rights of custody – Children lived in Hong Kong until 21 September 2018 – Application for return filed with the courts of Ontario (Canada) at the end of January 2019 – Return ordered – Main issue: Article 13(1)(b) Grave Risk – Evidence did not meet the 13(1)(b) threshold. Court considered affidavit and legal opinion from lawyer in Hong Kong – Undertakings – Undertakings necessary to secure safe, prompt and seamless return of children and to provide for transition between return order and when children are placed before the Hong Kong courts.

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

Return ordered

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents – Father national of Croatia and Germany – Mother national of Croatia – Joint costudy according to the German Civil Code – Child lived in Germany until December 2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 – Return ordered – Main issues: Art. 13(1)(b) grave risk exception to return, Undertakings, Objections of the Child to a Return – The Court ordered the return of the child, whose retention in Croatia was found to be unlawful under Art. 3 of the 1980 Hague Child Abduction Convention.

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

Appeal dismissed, return ordered

The complaint appeal was rejected and it was once again ordered that the child be returned. No evidence was found that the child’s wellbeing was in danger due to the fact, that the father lost custody of his other daughter because of sexual abuse and his alleged paedophilic tendencies.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | European Convention on Human Rights (ECHR)

Appeal dismissed, return ordered

The mother’s complaint appeal was rejected and the father’s application for the return of the child was approved. It was not possible to establish any reason why the child’s wellbeing would be endangered in the event that he were returned.

Rights of Custody - Art. 3 | Article 15 Decision or Determination | Grave Risk - Art. 13(1)(b)

Appeal dismissed, 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.

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

Appeal dismissed, return ordered

Japanese child born in 2014 ― Father and mother previously foreign nationals and naturalized in Japan ― Parents married in 2001 in Japan ― Parents and child moved to the US in July 2017 ― Child obtained health insurance and enrolled in kindergarten in the US ― Parents established a company and started a business in December 2017 in the US ― Marital relationship deteriorated, and father removed child to Japan in April 2019 ― Neither father nor mother had a long-term visa for the US ― Mother filed petition for the child’s return to the Tokyo Family Court in December 2019 ― Return ordered ― Appeal dismissed and return ordered by the Tokyo High Court in June 2020 ― Main issue: Habitual residence of the child and grave risk defence.

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

Appeal allowed, return refused

1 child (nationality unknown) removed from Turkey to Japan ― Father a Turkish national - Mother a Japanese national ― Parents married in Turkey in 2012 ― The child was born in the same year ― Father allegedly sexually abused the child and exercised violence against the mother ― Mother allegedly incurred injury including a bone fracture due to the father’s violence ― Mother removed the child to Japan in 2014 ― Mother obtained a domestic violence restraining order by the Family Court in Turkey ― Father petitioned to the Tokyo Family Court for return of the child ― Return ordered ― The Tokyo High Court overruled and dismissed the petition for return of the child in 2015 ― Main issues: Article 13(1)(b) Grave Risk for the child

Grave Risk - Art. 13(1)(b) | Undertakings | Human Rights - Art. 20 | Procedural Matters

Appeal dismissed, return ordered

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

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered subject to new conditions; the removal was 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)

Return ordered

Return ordered.

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

Appeal allowed, the exception of grave risk was inapplicable; case returned to the Superior Court of the canton of Lucerne for a ruling on the terms of the return to Burkina Faso.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful and Art 13(1)(b) had not been proved to the standard required under the 1980 Hague Child Abduction Convention.

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

Return ordered

Appeal allowed, return ordered. The removal to Panama was considered wrongful and the grave risk exception of Article 13(1)(b) raised by the mother was not established.

Rights of Custody - Art. 3 | 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 removal was wrongful and Article 13(1)(b) had not been proved to the standard required under the Convention.

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

Appeal dismissed, return refused

Application dismissed. Return refused as there would be a grave risk of harm to the child if he was returned to Germany.

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

Appeal dismissed, return ordered

Appeal dismissed. The removal was wrongful and the exceptions of the Convention inapplicable.