Case Law Search

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

Return ordered

The judge ordered that the children should be returned to Quebec within 14 days.

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.

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.

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 4 – 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.

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

ECrtHR - Violation of Article 8 ECHR, award of damages

The court found that there had been a violation of the Article 8 Right to Respect for Private and Family Life and awarded damages to the mother and the children.

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

Appeal dismissed, return ordered with undertakings offered

Unlawful retention of a one-year-old child – Argentine national – Married parents – Father was an Argentine national – Mother was a Uruguayan national – Both parents held custodial rights – The child lived in Argentina until July 2015 – The restitution request was submitted to the Argentine Central Authority – Appeal granted, return ordered – Key issues: Article 3 (habitual residence), Articles 3 and 12 (removal and retention), Article 13(1)(b) (grave risk exception) – The child's habitual residence was Argentina – The retention was deemed unlawful as the mother lacked the other parent’s consent – No grave risk was established, as Argentina had judicial mechanisms to protect the mother and child.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. 

Aims of the Convention - Preamble, Arts 1 and 2 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Procedural Matters

Appeal allowed, return ordered

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

Appeal dismissed, return ordered

Appeal allowed, return ordered. The removal was wrongful and no exception raised was applicable.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The Court held that the district court had the authority to order the return of the children, regardless of their asylum status, as the evidentiary burdens for the Convention differ from asylum proceedings.