Case Law Search

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.

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

Return ordered with undertakings offered

Removal wrongful and return ordered; the objection of one child to return was not sufficiently strong to override the policy of the Convention.

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

Appeal allowed and case remitted to trial court for exercise of discretion; the retention was wrongful, but the children objected to a return to Poland and were of sufficient age and maturity for their objections to be taken into account.

Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Human Rights - Art. 20

Appeal dismissed, return ordered

Appeal dismissed and return ordered; removal wrongful and none of the exceptions had been proved to the standard required under the Convention.

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

Appeal allowed, return ordered

Appeal allowed and return ordered; the trial judge had erred in exercising his discretion after having found the Article 13(2) exception to have been made out.

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

Appeal dismissed; the Court of Appeal had duly applied the provisions of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).

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

Appeal allowed, return ordered

Appeal allowed and return ordered; the Convention was applicable and the retention was wrongful while Article 13(2) had not been proved to the standard required.

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

Legal challenge upheld and new order issued for the child to be returned; the removal was wrongful and the conditions necessary for the application of Article 13(1)(b) of the 1980 Hague Child Abduction Convention had not been met.

Human Rights - Art. 20

Legal challenge rejected; the removal was wrongful and Article 20 was inapplicable.

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

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

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

Appeal dismissed, return refused

One child wrongfully removed at age ten – National of Switzerland and Spain – Unmarried parents – Father national of Spain – Mother national of Switzerland – Joint custody according to Spanish law – Child lived in Spain until January/February 2016 – Application for return filed with the Central Authority of Spain on 17 February 2016 – Return refused – Main issues: substantially changed circumstances; objection of the child to a return – If the circumstances have changed substantially, it must be possible, to reassess a return decision; the child's opposition within the meaning of Article 13(2) must be expressed with a certain emphasis and with comprehensible reasons.

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.

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

Appeal allowed, return refused

Appeal allowed and return refused; the retention was wrongful, but the Supreme Court found that the level of harm required by Article 13(1)(b) had been established.

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

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

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a)

Appeal dismissed, return refused

Appeal dismissed and return refused; the retention was wrongful, but acquiescence had been established to the standard required under the Convention.

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.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Issues Relating to Return | Best Interests of the Child

Return ordered with undertakings offered

Wrongful removal of a boy when he was 10 years old - Venezuelan – the father had exclusive custody rights  - the child lived in Venezuela until 2018 – the father requested return before the Venezuelan Central Authority in July 2020 – return ordered – main issues: removal and retention, consent, settlement of the child, grave risk, objection of the child to a return, procedural matters, issues relating to return, best interests of the child – removal was wrongful since it breached the father’s custody rights, attributed to him under the law of the State where the child was habitually resident – the father did not consent to the child’s removal – he acted towards the child’s return within a year since the wrongful removal – it was not established that the child would be exposed to a grave risk or an intolerable situation upon return to Venezuela – it was not established that the child’s fundamental rights were impaired – there was not an irreducible objection of the child against returning to the place where he was habitually resident - the Court ordered an interim exit and change of residence ban - the Court ordered the parents to collaborate with enforcement of the return order - the Court ordered to take the necessary steps for the child’s safe return

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

Case remitted to lower court

One child wrongfully removed at age ten – National of Switzerland and Spain – Unmarried parents – Father national of Spain – Mother national of Switzerland – Joint custody according to Spanish law – Child lived in Spain until January/February 2016 – Application for return filed with the Central Authority of Spain on 17 February 2016 – Case remitted to lower court – Main issues: objections of the child to return – According to the mother, the child has expressed that he does not wish to return to Spain. An expert opinion that was ordered by the competent cantonal court has affirmed the child’s ability to independently form such an opinion. The father, however, invokes that the expert’s opinion was biased towards the mother and overlooked multiple factors that put the child’s maturity level as defined in 13 (2) into question.