Grave Risk - Art. 13(1)(b)
Appeal dismissed, return refused
3 12 13(1)(b)
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.
Habitual Residence - Art. 3
Appeal allowed, application dismissed
1 3 Preamble 13(1)(a) 13(1)(b) 13(2) 13(3)
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 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)
Return ordered
1 3 4 Preamble 12 13(1)(a) 13(1)(b)
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.
