Case Law Search

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 7 – National of France – Married parents – Father national of France – Mother national of France – Child lived in Morocco until February 2011 – Application for return filed with the Central Authority of Morocco in March 2011 – Application dismissed – Main issues: Art. 13(1)(b) grave risk exception, costs – It is up to the parent who alleges an exception to return under Art. 13 of the 1980 Hague Child Abduction Convention to prove that the conditions for non-return have been met – In accordance with Art. 26 of the Convention, the parent who wrongfully removed the child can be ordered to pay for the costs of the return proceedings

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

Return ordered

Return ordered.

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

Appeal allowed in part; the removal was wrongful but the return of the girls would be refused for the father by his actions had acquiesced in their remaining in Israel.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2)

Return ordered

Removal wrongful and return ordered; none of the Article 13 exceptions had been proved to the standard required under the Convention.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Return ordered

Return ordered, the retention was wrongful and none of the exceptions were applicable.

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

Appeal dismissed, return refused

2 children wrongfully removed at ages 9 and 7 – Nationals of Korea – Married parents – Father national of The Republic of Korea– Mother national of The Republic of Korea– Parents had joint custody – Children lived in Japan until 28 June 2016 – Application for return filed with the court of The Republic of Korea on 21 April 2017 – Return refused – Main issue: Article 13(1)(b) – a “grave risk” includes cases where the child is at risk of psychological harm due to frequent violence committed against the other parent.

Non-Convention Issues

Return refused

The return of the child was barred as a consequence of his pending asylum appeal.

Habitual Residence - Art. 3

Appeal allowed, application dismissed

1 child allegedly retained at age 6 months – National of the US Father national of US – Mother national of Canada – Father gave open-ended consent to mother to travel with the child to Canada – Child lived in United States for first 42 days of life – Application for return filed with the courts of Canada in December 2017 – The return decision of the Nova Scotia Supreme Court was appealed to the Nova Scotia Court of Appeal where the application was dismissed – Main issues: habitual residence – the Court of Appeal applied the “hybrid approach” to determine the habitual residence of the child and found the child to be habitually resident in Nova Scotia.

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

Appeal allowed, return refused

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

Appeal allowed, return refused

2 children allegedly wrongfully removed at ages 4 and 7 – Nationals of the United States of America – Parents pending divorce – Father national of USA – Mother national of USA, UK and Ireland – Parents were still married at the time of mother’s wrongful retention – Children lived in Illinois, USA (until 8 June 2022) – Application for return filed with the courts of Illinois, USA on 2 September 2022 – Return ordered 28 February 2023 – Main issues: Where there is a grave risk of harm to the children under Article 13(1)(b) the analysis of protective measures should not be limited to the measures available but should also consider whether these measures would be effective in the specific circumstances.

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

Return ordered

2 children wrongfully retained at ages 1 and 2 – Married parents – Father national of the United States – Mother national of Canada – Both parents had rights of custody under the laws of Iowa – Children lived in the United State until 16 June 2018 – Application for return filed with the Central Authority of the United States on 18 August 2018 – Return ordered – Main issues: Article 3 -  children habitually resident in the United States, father had rights of custody and had only agreed to a one month stay in Canada, retention was therefore wrongful - Article 13(1)(a) Consent & Acquiescence – Exception not established, there is no “clear and cogent evidence of unequivocal consent or acquiescence” - Article 13(1)(b) Grave Risk – Exception not established, measures of protection are available in Iowa.

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Appeal allowed and case remitted to trial court; determination to be made as to what undertakings, if any, would be sufficient to ensure the safety of the children upon their return to Mexico pending the outcome of custody proceedings.

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

Appeal dismissed, return ordered

Two children wrongfully removed at ages nine and seven – Married parents – Shared parental custody – Children lived in Spain until 5 February 2016 – Application for return filed with the courts of Switzerland on 17 February 2016 –Application dismissed – Main issue(s): Habitual residence - is understood to mean the actual centre of the child's life, which is determined by the factual circumstances; Consent - the departure of the spouse does not require any approval by the other; the only thing requiring approval is the change of the children's place of residence abroad; Grave risk - must be interpreted restrictively: meaning a serious danger, initial language and reintegration difficulties typically do not constitute a serious danger.

Removal and Retention - Arts 3 and 12 |

Appeal dismissed, return ordered

one child wrongfully retained between age 4 and 5– National of unknown –unmarried parents – Father national of unknown – Mother national of unknown – Shared parental responsibility – Child lived in Portugal until 10 March 2017 – Application for return filed with the courts of Switzerland on 23 April 2018 – Return ordered – Main issue: Removal and Retention – The father could not prove that the mother had given her consent for the child to remain in Switzerland and the mother filed an appeal within the one year period set out in Article 12.

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

Appeal allowed, return refused

Appeal allowed and return refused; the child objected to a return and the standard required by Article 13(2) had been reached.

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

Appeal allowed and case remitted to the trial judge to enable the child's views to be ascertained.

European Convention on Human Rights (ECHR)

The Court unanimously ruled that Hungary had breached Article 8 of the ECHR where domestic courts failed to act expeditiously in the proceedings to return the child and the national authorities had failed to take adequate and effective measures for the enforcement of the return order. It also awarded the father compensation under Article 41 of the ECHR.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Jurisdiction Issues - Art. 16 | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Return refused

Removal wrongful but return refused; the child was settled in his new environment and the Court exercised its discretion not to order his return.

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

Return refused

There had been a fundamental change of circumstances as the mother was no longer willing to return to Poland. The judge set aside the initial ruling and refused the application for return based on the Article 13(1)(b) exception.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return ordered