Case Law Search

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2)

Return refused

Return refused. The children were at grave risk of harm if they returned to Spain and were settled in the USA. 

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)

Return refused

Application denied and return refused; although the retention was wrongful, Article 13(1)(b) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

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

Return refused

2 children (twins) wrongfully removed at age 3 - Nationals of Canada and the United States of America - Married parents - Father national of the United States of America - Mother national of Canada - Joint custody - Children lived in the United States of America until October 2013 - Application for return filed with the Central Authority of Manitoba on February 2014 - Return refused - Main issues: consent to removal, Art 13(1) (b) grave risk exception to return, undertakings - Consent and acquiescence, within the meaning of Art. 13(1)(a), must be given “their plain, ordinary meaning”, and evidence to establish consent or acquiescence must be “clear and cogent” - The provision by one parent of time-limited travel consent is insufficient to prove that the parent consented to the removal or retention - Exceptionally, return may be refused under Art. 13(1)(b) if there is compelling evidence of severe long-standing and escalating physical and psychological harm inflicted on the taking parent and the children

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

Appeal dismissed, return refused

Appeal dismissed and return refused; removal was wrongful but the mother had proved Article 13(1)(b) to the standard required under the Convention. No undertakings had been proposed which could mitigate the harm of returning the child.

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

Appeal dismissed, return refused

Appeal dismissed, return refused. The retention was wrongful but several exceptions applicable.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was wrongful and the exceptions raised inapplicable.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Interpretation of the Convention |

Return refused

Lawful retention of two girls - Uruguayan – Separated parents – The girls lived in Brazil until 19 April 2019, when the mother removed them to Uruguay – The mother filed a return application with the Brazilian Central Authority – Return refused – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, procedural matters, interpretation of the Convention – There was no wrongful retention, as the mother actually removed them voluntarily to Uruguay – The mother had consented that the girls live in Uruguay by removing them to that country and delivering the necessary documents for them to resume their life there to the father – There was a grave risk due to the high emotional disturbance they suffered as a consequence of the physical, psychological and sexual violence they had suffered in Brazil – The proceedings are autonomous and specific for international child abduction cases under Uruguayan Law 18,895 – The children’s best interests in this case had been furthered by preventing them from returning to an environment of sexual, psychological and emotional abuse.

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Case remitted to lower court

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 custody according to the German Civil Code and under Croatian law – Child lived in Germany until December2015 – 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 - The Court granted the appeal, set aside the first instance judgment and remitted the case for a new trial to the court of first instance – Main issues: Rights of Custody, Brussels IIa Regulation –The first instance court should have applied the Brussels II a Regulation, including its requirement for return to be ordered in Art. 13(1)(b) cases in which it has been established that adequate arrangements have been made to secure the protection of the child upon his return.

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

Appeal dismissed, return ordered

On appeal, the lower instance decision of the Osaka Family Court was upheld and the Osaka High Court ordered the return of the children, C and D, from Japan to France. The Court rejected the father’s argument that the return of the children should be refused because the mother had not exercised her custody rights and because of the children’s views.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Issues Relating to Return

Appeal allowed, return ordered subject to undertakings

1 child wrongfully removed at age 6 – Unmarried parents – The mother had day-to-day care of the child and the father had supervised contact – Child lived in New Zealand until May 2016 – Application for return heard at first instance in December 2016 – First appeal: application dismissed – Second appeal: return ordered – Main issues: rights of custody, Art. 13(1)(b) grave risk exception, undertakings / conditions for return – The finding that there is no ”grave risk” within the meaning of Article 13(1)(b) “while at the same time foreshadowing a preparedness to impose conditions on the order for return” can be consistent - fulfilment of conditions prior to the child’s return should be feasible and cannot place the taking parent in a better situation than she was before the removal

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

Appeal allowed, return refused

Appeal allowed, return refused. The first instance judge did not properly apply the approach as set out in Re E. The mother established that Article 13(1)(b) applies and there is no justification for exercising the court’s discretion by making a return order.

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Rights of Access - Art. 21 | Procedural Matters

Appeal allowed, return refused

Appeal allowed and return refused; on the basis that the father was prepared to contemplate the children remaining in New Zealand if he could have satisfactory access in the United States.

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

Return ordered; the removal was wrongful and the standard required under Article 13(1)(b) to show that the child would face a grave risk of physical harm had not been met.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of harm if returned had not been met.

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

Return ordered

Return ordered; the retention was wrongful and the standard required under Article 13(1)(a) had not been met to show that the father had consented.

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

Return ordered

Return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of an intolerable situation had not been met.

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

Return ordered with undertakings offered

Return ordered, subject to undertakings; the removal was wrongful and neither Article 13(1)(b) nor Article 13(2) had been proved to the standard required under the Convention.

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

Return ordered

Return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of physical harm or an intolerable situation had not been met.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20

Appeal dismissed, return ordered

Appeal dismissed, retention wrongful and return ordered; the child was habitually resident in the United States at the relevant date and the standard had not been met under Article 13(1)(a) to show that the father had acquiesced.

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

Return ordered subject to undertakings

Return ordered, subject to undertakings; the child was habitually resident in Canada on the relevant date.