Case Law Search

Aims of the Convention - Preamble, Arts 1 and 2 | Settlement of the Child - Art. 12(2) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Case remitted to lower court

Wrongful retention of a child when she was 5 years old - US national - parents married - father US national - mother Colombian national - both parents had custody rights under the Convention - child lived in the US until 19 December 2015 - return application was filed before the US Central Authority on 13 June 2016 - lower court was ordered to make a new judgment in the international return proceedings, taking into account the child's views - main issues: aims of the Convention - Preamble, settlement of the child, acquiescense, art. 13(1)(b) grave risk exception, child's objections to return – the best interests of the child is to be returned to his or her center of life without delay, unless one of the grounds of exception is proven - assessment of the child's settlement is appropriate only if one year has elapsed between the wrongful conduct and the date of filing of the international return application - the grave risk must be greater than the natural hardship that may result from a change of his or her residence or the dislocation of the current living group - the decision on the application of the exception of Art. 13(2) requires consideration of the voice of the child who is of sufficient age and maturity.

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

Appeal dismissed, return refused

Appeal dismissed and non-return order upheld; the retention was wrongful but the child would face a grave risk of harm if returned.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and none of the exceptions raised applied.

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

Appeal allowed, return refused

Appeal allowed and return refused; by a 2:1 majority the Court found that Article 13(1)(a) of the 1980 Hague Child Abduction Convention had been activated, one judge found that this was on the basis of consent, the other as a result of acquiescence.

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

Return ordered subject to undertakings

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

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

Return refused

Return refused.

European Convention on Human Rights (ECHR)

Application inadmissible; all elements of the complaints were found to be manifestly ill-founded.

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Role of the Central Authorities - Arts 6 - 10 | Procedural Matters

Return ordered with undertakings offered

Retention wrongful and return ordered; none of the exceptions was upheld.

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

Case remitted to lower court

A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm.

Case remanded to District Court to determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to the child, bearing in mind that the Convention sets as a primary goal the safety of the child.

Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Return ordered with undertakings offered

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

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

Appeal allowed, return ordered

Appeal allowed and return ordered; the removal was wrongful and the standard required under Art 13(1)(b) had not been met.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and the exceptions inapplicable.

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

Return ordered

The court held that the exceptions under Article 13 of the 1980 Convention did not apply in this case and ordered the return of the children to Israel. 

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

Return ordered with undertakings offered

3 children wrongfully removed at age 7 – Father national of the United Kingdom and Canada – Mother national of the United Kingdom and Canada – Both parents had rights of custody under the law of Scotland – Children lived in the United Kingdom until August 2009 – Application for return filed with the Central Authority of the Scotland on 20 October 2009 – Return ordered – Main issue(s): Rights of custody – Art. 3 – Father had rights of custody under the law of Scotland; there was no court order restricting his rights as a parent – Removal & Retention – Arts 3 and 12 – Children wrongfully removed, in breach of the father’s custody rights and without his consent. The father was exercising his rights despite the child protection investigation – Grave Risk – Art. 13(1)(b) –There is no grave risk. Social service agencies and court in Scotland will protect the children upon their return – Undertakings – Undertakings imposed to assist the return and to protect the children in the transitional period before the court in Scotland takes over. 

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

Return ordered subject to undertakings

Removal wrongful and return ordered; the Article 13(1)(b) defence had not been proved to the standard required under the Convention.

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

Appeal dismissed, return ordered

Appeal dismissed; return ordered. The removal was wrongful and none of the exceptions raised was applicable.

Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | European Convention on Human Rights (ECHR)

Return refused

One child wrongfully retained at age 5 – National of Germany - Divorced parents – Father national of Germany – Mother national of Russia – Parents had joint custody – Child lived in Germany until 13 July 2017  – Application for return was filed with the Court on 30 August 2018 – Return refused – Main issue(s): Article 13(1)(b), grave risk due to violence from the father; Article 12, child settled in new environment.

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 6 - National of Canada - Divorced parents - Father national of Mexico - Mother national of Canada - Joint custody: the mother had primary care, the father periods of care - Child lived in the United States of America until March 2013 - Application for return filed with the Court of Queen’s Bench of Manitoba on 28 March 2013 - Return ordered - Main issues: Art 13(1) (b) grave risk exception to return, objection of the child to return, procedural matters - Motion for staying the enforcement of the first instance return order dismissed - A child aged 8 years (at the time of the proceedings) does not face a grave risk of being exposed to physical or psychological harm or being placed in an intolerable situation if return is ordered while the primary caregiver cannot (immediately) accompany her, pending the outcome of a visa application - Bar an extraordinary level of maturity,  a child aged 8  years has not attained the necessary age and degree of maturity at which her wishes ought to be considered under Art. 13(2) of the 1980 Hague Child Abduction Convention

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

Appeal dismissed, return ordered

1 child wrongfully retained at age 2 - Married parents - Father national of the United States of America - Mother national of Canada - Child lived in the United States of America until 2013 - Application for return filed in 2013 - Return ordered - Main issue: Habitual residence, acquiescence and the Art.13(1)(b) grave risk exception to return - The application of the Art. 13(1)(b) exception requires the child’s exposure to a high degree, intensity and frequency of physical or psychological abuse - A return order that does not deliver the child and parent directly to the left-behind parent upon return diminishes the risk of incidents of domestic abuse occurring, while ensuring that the appropriate forum adjudicates the merits of custody and access issues

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

Return ordered

Return ordered with undertakings and protective measures.