Case Law Search

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

Return ordered

1 child wrongfully removed at 3 years – National of Spain and United States of America – Married parents – Father national of Spain – Mother national of United States of America – The mother and father had joint custody – Child lived in Turkey until 6 April 2014  – Application for return filed with the courts of the United States of America (federal jurisdiction) – Return ordered – Main issue(s): habitual residence and Art. 13(1)(b) grave risk exception to return – The retention was deemed unlawful and the “grave risk” exception to ordering return had not been established

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

Return refused

1 child wrongfully retained at age 10 - National of El Salvador and Canada - Married parents - Father national of El Salvador - Mother national of Canada - Father exercised rights of custody for about 10 years, mother obtained custody in May 2012 - Child lived in El Salvador until November 2011 - Application for return filed with the Provincial Court in July 2012 - Return refused under Article 13(2) - Main issues: Art 13(1) (b) grave risk exception to return, objection of the child to return - Abuse of one parent by another can only be a relevant consideration for the Art. 13(1)(b) exception if the child is “placed in the midst of an abusive relationship” - An assessment of whether a child was placed in an intolerable situation due to the administration of corporal punishment should account for the range of generally accepted disciplining practices in the relevant social context - The factors to be taken into consideration when assessing whether a child has attained an age and degree of maturity at which it is appropriate to take account of her views include: level of cognitive functioning, capacity for logical and rational reasoning and nuanced evaluation of different circumstances - Decisions not to order return under Article 13(2) should account for the policy considerations underlying the 1980 Hague Child Abduction Convention 

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

Appeal dismissed, return ordered

2 children wrongfully removed at ages 4 and 2 – Unmarried parents – Father national of Canada – Mother national of Canada and Columbia – Shared custody (parenting arrangement) – Children lived with both parents at times in the United States of America and at times in Canada – Children last lived in the United States of America from August 2010 until their removal in April 2013 - Application for return filed with the Supreme Court of British Columbia in April 2013  – Return ordered – Main issues: habitual residence, Art. 13(1) (b) grave risk exception – A settled intention of the parents, for the purposes of establishing habitual residence, requires a “sufficient degree of continuity to be properly described as settled” – Mere speculation that one of the parents might be deported on grounds of immigration status and might choose to move to a State that would allegedly endanger the children is insufficient evidence to establish that the Art. 13(1) (b) grave risk exception applies

Objections of the Child to a Return - Art. 13(2)

Case remitted to lower court

1 child wrongfully removed at age 13 - Divorced parents - Shared custody - Child lived in the United States until June 2012 - Return application filed with the Central Authority of the United States - Case remitted to a lower court for substantive determination - Main issues: objections of the child to return, Art 13(1) (b) grave risk exception to return - The child’s objection to return should be assessed independently of other exceptions to return, and may constitute sufficient grounds for a refusal to order return of the child

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

Appeal allowed, return refused

The court allowed the appeal and refused to order the return of the child.

Removal and Retention - Arts 3 and 12 | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed, return ordered. 

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at age 6 – National of Ukraine – Unmarried parents – Father national of Georgia and Ukraine – Mother national of Ukraine – Child lived in Ukraine until July 2010 – Application for return filed with the Central Authority of Ukraine in October 2010 – Return refused before application to ECtHR on 28 December 2012 – Violation of Art. 8 ECHR – EUR 8,300 awarded in damages – The reasoning of the Georgian Supreme Court regarding Art. 13(1)(b) of the 1980 Child Abduction Hague Convention was insufficient and misconceived - The child's best interests in view of the specific circumstances of the case were not properly determined

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

Appeal dismissed, return ordered

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

Return ordered

One child wrongfully removed at age 6 – National of Spain – Father national of Bolivia – Mother national of Colombia and Spain – Mother primary carer and father exercising rights of contact, including staying contact – Child lived in Spain until September 2018  – Return ordered – Main issue: COVID-19 – due to travel restrictions between the UK and Spain it was acknowledged that a safe return may take more time to organise than usual, but that it should take place as soon as reasonably practicable.

Case remitted to lower court

Children wrongfully retained – Mother the primary carer of the children, Father exercising custody rights at time of removal – Children lived in  Colombia until December 2018 – Application for return filed with the Central Authority of Colombia –Return refused at first instance, appeal allowed and case remitted to lower court – Main issues: Article 13(1)(b) -  whether the return to Colombia would pose a grave risk of harm to the children; COVID-19 - the court asked for submissions about travel to Colombia in the event a return order were to be made; Father had right to appeal despite the fact that in the first instance he was not a party but represented by the Central Authority. The father was substantially, if not technically, a party and a person who might properly have been one.

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

Appeal allowed, return ordered

The immediate complaint appeal was approved and the father’s application for a return was successful.

The accusations made against the father, which led to a rejection of the return application in accordance with Article 13(1)(b) of the Hague Child Abduction Convention by the court of first instance, were not held to have been proven.

However, the court refrained from ordering the immediate surrender of the three children to the father, and has instead opted for a “graduated return order”. The “graduated return order”, granted the mother the opportunity to effect the return of the children herself. The Hague Child Abduction Convention does not contain any explicit rules on how exactly the courts are to order returns. Determining the operative provisions of the return order is a matter of domestic procedural law.

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

Appeal dismissed, return ordered

The City Court (first instance) determined that the child was living in Poland before the removal and that a return to Poland would not harm the child. Therefore, the removal/retention was wrongful and that the child should go back to the mother in Poland.

The Eastern High Court (second instance) upheld the decision.

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

Appeal dismissed, return refused

Appeal dismissed and return not ordered; the District Court had not erred in its finding that the appellant had sexually abused his daughter. Therefore, it had been established that the child would face a grave risk of harm if returned. 

Objections of the Child to a Return - Art. 13(2)

Case remitted to lower court

1 child allegedly wrongfully retained at age 10 - National of United States of America and Italy - Divorced parents - Joint custody - Child lived in the United States until the second half of 2015 - Application for return filed on 21 October 2015 - Return refused - Main issues: Objection of the child to return - Due weight should be given to the child’s opinion where the child is considered to have attained an appropriate age and degree of maturity, even if certain aspects of the child’s opinion are considered to be imprecise

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Issues Relating to Return | Procedural Matters

Return refused

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 parental responsibility  according to the German Civil Code – Child lived in Germany until December 2015 – 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 – Return refused – Main issues: Art. 13(1)(b) grave risk exception to return, Objections of the Child to a Return, Procedural matters  – The Court refused the request for return of the child under Art. 13(1)(b) of the 1980 Hague Child Abduction Convention.

Grave Risk - Art. 13(1)(b) | Undertakings | Jurisdiction Issues - Art. 16

Return refused

Removal wrongful but return refused; Article 13(1)(b) had been proved to the standard required under the Convention.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Jurisdiction Issues - Art. 16 | Procedural Matters

Appeal allowed, return ordered

Wrongful retention of a 1-year-old girl – separated parents – Spanish father – Venezuelan mother – the custody rights were jointly exercised – the girl lived in Spain until July 2011 – the return request was filed before the Spanish courts on 12 July 2011 – Appeal allowed, return ordered – Main issues: removal and retention, rights of custody, grave risk, human rights, jurisdiction issues, procedural matters - removal was not wrongful, but retention was, since the father did not authorise the girl’s permanent stay in Venezuela – both parents had custody rights under Spanish law – the mother did not establish the grave risk circumstances claimed – the girl’s return did not violate any Venezuelan fundamental principle on human rights protection – who is the right parent to have custody should not be discussed within return proceedings; on the contrary, this type of proceeding is concerned with whether there was a wrongful removal or retention – measures were taken to secure the safe return  of the child to Spain and the parents were encouraged to resort to mediation.

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

Return ordered

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

Grave Risk - Art. 13(1)(b) | Role of the Central Authorities - Arts 6 - 10

Appeal dismissed, return ordered

The Federal Court rejected the appeal and upheld the cantonal court's decision ordering the children's return to Israel. However, it stated that given the current situation in Israel, it would be up to the competent enforcement authority to organise the safe return of the children, accompanied by their mother, as soon as the situation allowed.