Case Law Search

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the child was habitually resident in Sweden at the time of the retention and the standard required under Art. 13(1)(b) of the 1980 Hague Child Abduction Convention to establish a grave risk of harm had not been met.

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

Legal challenge dismissed and decision refusing to return the child to Germany confirmed. The removal had been wrongful but Article 13(1)(b) had been proved to the standard required under the Convention.

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

Appeal dismissed and return of older sibling ordered; his removal had been wrongful and the Article 13(1)(b) exception had not been established.

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

Return refused

Return refused. 

Undertakings

Appeal dismissed, return ordered subject to undertakings

Appeal dismissed and return ordered, subject to undertakings.

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.

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.

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

Return ordered

Wrongful retention of an adolescent in Uruguay – Custody right exercised solely by the mother – The adolescent lived in Spain with his mother for 4 years – The return application was filed before the Spanish Central Authority – Return ordered – Main issues: Art. 13(1)(b) grave risk exception, objections of the child to a return, best interests of the child – The father did not prove any situation in which there was a grave risk actually making return intolerable and exposing the adolescent gravely – The adolescent voiced a preference but there was no true objection in the sense of an unwavering repudiation towards return.

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

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, best interests of the child – 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.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Procedural Matters | Best Interests of the Child

Appeal allowed, return ordered subject to undertakings

Appeal allowed, return ordered subject to undertakings.

Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Objections of the Child to a Return - Art. 13(2) | Non-Convention Issues

Appeal allowed, return ordered

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 refused

Wrongful retention of a child approximately 12 years old at the time of judgment – national of Argentina and Uruguay – separated parents – father of Argentine nationality – mother of Uruguayan nationality – child born in Argentina and lived there until around age 4, then moved to Uruguay with his mother – application for international return initiated on August 19, 2020, before the Uruguayan Central Authority – appeal dismissed, return denied – key issues: Art. 13(1)(b) grave risk exception, child’s objection to return; procedural matters; best interests of the child – returning the child would have entailed a grave risk of further psychological harm – the child's opposition to returning to Uruguay, considering his age and maturity, was decisive in denying the return – the Court indicated that mediation could be reopened to address the child's re-establishment of ties with his mother.