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European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

The ECrtHR fount there had been a violation of Article 8 of the ECHR. The arguments provided to the District Court fell short of the requirements of Article 13(1)(b).

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Procedural Matters |

Appeal dismissed, return ordered

Wrongful retention of the child – Separated parents – Custody rights were jointly exercised – The child lived in Spain until 11 August 2014 – The request for return was filed before the Central Authority in Spain in September 2014 – Return ordered – Main issues: habitual residence, removal and retention, settlement of the child, art. 13(1)(b) grave risk exception, procedural matters – The habitual residence of the child prior to the wrongful removal was in Spain – There was wrongful retention in breach of the custody rights, which were exercised jointly pursuant to the agreement signed by the mother and father – The settlement of the child was not considered because the one-year period required by the Convention had not elapsed – The evidence did not contribute to determining whether there had been sexual abuse; on the contrary, a true demonstration of the risk was necessary to justify the application of article 13(1)(b) - The Central Authority of Spain was urged to take measures to protect the child and to do a follow-up on the case to provide the father with the necessary legal support.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Jurisdiction Issues - Art. 16 | European Convention on Human Rights (ECHR)

Return ordered

1 child wrongfully retained at age 6 months - National of United Kingdom and Ukraine - Married parents- Father national of the United Kingdom - Mother national of Ukraine – Applicant father had joint custody with respondent mother under British legislation – Child lived in the United Kingdom until 11 April 2012 -Application for return filed with the courts of Ukraine on 19 December 2012 - Return ordered on 29 August 2018 - Main issues: Articles 5 and 12 of the 1980 Hague Child Abduction Convention (a parent cannot independently decide to change the child’s place of habitual residence; the place of habitual residence is of major importance to restoring of the status quo for the child; first instance court and appeal court incorrectly interpreted exceptions for non-return of a child as a settlement in new environment, acquiescence in the retention and grave risk to return).

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)

Appeal allowed, return ordered

1 child wrongfully removed at age 7 – National of Poland –unmarried parents– Father national of Poland – Mother national of Poland – Disputed custody rights– Child lived in Poland until August 2014 – Application for return filed with the Central Authority of Poland in September 2014 – Return ordered – Main issues: Article 3 – Rights of custody –  the father had limited custody rights but these extended to the right to decide the child’s habitual residence and therefore the father had rights of custody within the meaning of the Convention; Article 13(1)(b) – Grave risk of harm - there were no grounds for concluding that return would be “clearly unfavourable to the child” or that he would most likely suffer harm if returned. Therefore the exception did not apply; Article 13 – Child’s objections - the fact that the child  said he wanted to live with his mother  was not a ground for concluding that the child was opposed to returning to Poland, therefore the exception did not apply.

Appeal dismissed, return ordered

Two children wrongfully retained at age 3 – Nationals of Canada and Mexico –divorced parents – Father national of Canada – Mother national of Mexico – Mother was primary carer and father had rights of access – Children lived in Mexico until 2014 – Return ordered and appeal dismissed – Main issue(s): Article 13(1)(b) – The argued risk of psychological harm to one of the children if returned to Mexico due to the lack of autism therapies was not sufficient to invoke the Article 13(1)(b) exception.

Removal and Retention - Arts 3 and 12 | Procedural Matters |

Appeal dismissed, return ordered

1 child wrongfully removed at age 3 – National of Poland - Married parents (ongoing divorce proceedings) – Mother national of Poland – Father national of Poland - Parents had joint custody. Divorce court gave mother the right to have the child during the abduction until the end of the divorce proceedings. Decision that was annulled after return was ordered. – Child lived in Poland (until 4 December 2015)  – Application for return filed with the Central Authority of Switzerland on 6 June 2016 – Return ordered – Main issue: Grave Risk – The fact that the mother considers her own return to Poland to be intolerable, both financially and professionally, is not relevant to the examination of the exception to return.

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

Appeal declared inadmissible.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Jurisdiction Issues - Art. 16

Appeal dismissed; the arguments put forward by the mother were rejected.

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

Appeal dismissed. The Court of Appeal had decided with good reason that the retention was wrongful and suitably noted that it had not been established that the Article 13 grounds for exception were applicable.

Rights of Custody - Art. 3 | European Convention on Human Rights (ECHR) | Procedural Matters

The European Court of Human Rights held by sixteen votes to one that, in the event of the enforcement of the return order, there would be a violation of the mother and child's right to family life under Article 8 of the European Convention on Human Rights.

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

Appeal allowed, return refused

The Court refused to order the return of the child until the mother's asylum application had been determined.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Article 15 Decision or Determination | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20 | Rights of Access - Art. 21

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the inferior courts had erred in rejecting the determination of the Romanian courts pursuant to Article 15; under Romanian law the father had no rights of custody for Convention purposes therefore the removal of the child was not wrongful.

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

Return refused

Removal wrongful but return refused; Article 13(1)(a) and (b) and Article 13(2) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

Non-Convention Issues

Return ordered

Return ordered. The Court denied the mother’s requests for a stay and/or an adjournment of the return application proceedings on the basis of her applications for refugee protection.

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

Appeal allowed, return refused

Appeal allowed and return refused; the removal was wrongful but the standard required under Art 13(1)(b) of the 1980 Hague Convention had been met.

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully removed at age 2 – National of Russia – Divorced parents – Mother national of Russia – Finnish court ordered joint custody and child should live with the applicant– Child lived in Finland February 2015  – Application for return filed with the Dzerzhinskiy District Court of St Petersburg, Russia, on 6 August 2015  – Return refused on appeal to St Petersburg City Court on 3 February 2016 before application to ECtHR– Violation of Art. 8 ECHR – 23 050 EUR awarded in damages – the interpretation and application of the provisions of the Hague Convention by the St Petersburg City Court failed to secure the guarantees of Article 8 and Russia failed to comply with its positive obligations under Article 8 of the Convention to secure to the applicant the right to respect for his family life.

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

Return ordered

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

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

Unanimous: infringement of Article 8 of the European Convention on Human Rights (ECHR); award of damages on the basis of Article 41 of the ECHR.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The removal was wrongful and none of the exceptions raised was applicable.

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

Appeal inadmissible; the appeals did not raise any substantial legal issues.