Case Law Search

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful, the child being habitually resident in Canada at the relevant date.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

European Court of Human Rights held, by 5 votes to 2, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

In 1980 Hague Convention proceedings national authorities were required to examine whether it would be appropriate to hear the child as part of their decision making.

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

Case remitted to lower court

Decision set aside and matter remitted for rehearing. 

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

Appeal allowed, return refused

The High Court allowed the appeal in both cases. The cases were remitted to the Full Court of the Family Court for further consideration consistent with the reasons for judgment of the High Court.

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

Appeal dismissed, return refused

Appeal dismissed, removal wrongful but return refused; the standard of harm required under Article 13(1)(b) had been made out.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters

Appeal dismissed, return ordered subject to undertakings

Appeal dismissed and return upheld, subject to undertakings; neither Art. 3(1) UNCRC nor Art. 8 ECHR, as interpreted by the Grand Chamber in Neulinger, required a re-appraisal of the interpretation of the Hague Convention in England & Wales. It was accepted that Art. 13(1)(b) should be interpreted without any additional gloss being applied to its terms, but this did not impact upon the outcome of the appeal.

Issues Relating to Return | Procedural Matters

Appeal dismissed; the application for the child's independent representation was manifestly groundless and the mother failed to assert any genuinely new circumstance.

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

Appeal dismissed, return ordered

Appeal dismissed insofar as it was admissible. In particular, the mother had failed to prove the existence of acquiescence or a grave risk of danger.

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.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was considered wrongful. The appeal was considered unfounded and lacking any legal basis since the mother had not demonstrated the existence of substantive or procedural errors which would have served as a basis to overturn the decision that ordered the return.

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

Appeal allowed, return ordered

Appeal allowed; return ordered.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20

Appeal dismissed, return ordered

1 child wrongfully removed at age 6 - Divorced parents - Mother a national of France and Israel - Mother had custody, father extensive access rights - Child lived in Israel until summer 2015 - Return proceedings initiated in March 2016 - Return ordered - Main issues: rights of custody, Art. 13(1)(b) grave risk exception to return, human rights - A parent has "rights of custody" under the 1980 Hague Child Abduction Convention if he has extensive access rights and the right to consent to change of the child's residence - The Art. 13(1)(b) grave risk exception of the Convention does not apply where the child would have access to satisfcatory treatment for an illness in the State of habitual residence

Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters

Appeal allowed, return refused

Appeal was allowed and the decisions of the first instance and the Appellate Court were annulled. Although the removal was considered wrongful, the Court held that the return should be refused under the terms of Articles 13 (1)(b) and 20 of the Hague Child Abduction Convention.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The mother's allegation of grave risk was not found to be proved.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed and return ordered.  

Acquiescence - Art. 13(1)(a) | Procedural Matters

Return refused

The court found that the father acquiesced in the children remaining in Canada, and refused to order the return of the children under the the Article 13(a) exception.

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.

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.

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.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed and return ordered forthwith subject to undertakings. The child had been wrongfully removed and none of the exceptions applied.