Case Law Search

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

Return refused

Return refused; the eldest child objected to being returned and the court exercised its discretion not to return her. The other children were not returned as to separate them from their sister would place them in an intolerable situation.

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

Appeal allowed, return ordered

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

Settlement of the Child - Art. 12(2)

Return refused

Removal wrongful but return refused; the child was found to be settled in her new environment in accordance with the terms of Article 12(2).

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

Return refused

Return refused; retention wrongful, but the objections of the child were upheld.

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

Appeal allowed, return refused

The complaint appeal was approved and the Applicant’s application for the children to be returned was rejected. It was ruled that there was a grave risk of physical or mental harm to both of the children, meaning that the exception set out in Article 13(1)(b) of the Hague Child Abduction Convention applied.

Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20

Return ordered

2 children wrongfully removed at ages 11 and 13 – Nationals of Portugal –divorced parents  – Father national of Portugal – Mother national of Portugal – Custody rights disputed – Children lived in Portugal until January 2013  – Application for return filed with the Central Authority of Portugal in April 2013 – Return ordered – Main issues: Article 13(1)(b) – Grave risk of harm – even though the children did not seem to have a good relationship with their father there was not found to be a serious risk of harm should they return to Portugal and the exception did not apply; Article 13 – Child’s objections - the children’s opinions primarily had to be regarded as a desire to live with their mother, rather than as resistance to returning to Portugal and so the exception did not apply; Article 20 – Protection of Human Rights and Fundamental Freedoms – the court held that it was consistent with human rights for the children to be returned and that the exception did not apply.

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

Appeal dismissed, return ordered

4 children wrongfully removed to Japan ― Parents married in 2001 and living in the United States ― Father and mother nationals of Japan ― 5 children ― The parents separated and had been living apart since 2011 ― The mother obtained a restraining order against the father for the third time in 2012, along with a provisional custody order over the 5 children ― The father removed 4 of their 5 children via Canada to Japan in 2014 ― The parents obtained a divorce decree in the United States in 2014, which declared the mother as the sole custodian ― The mother filed an application for return with the courts of Japan in 2014 ― The Tokyo Family Court ordered return ― The father filed an appeal ― Main issues: No objections of the children ― No grave risk in ordering return of the child.

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

Appeal dismissed, return refused

1 child removed to Japan ― National of Algeria and Japan ― Married parents ― Father an Algerian national, Mother a Japanese national ― Parents married in France in 1998 ― Child born in 2004 and lived in France until 2015 ― Mother removed and has retained the child in Japan ― Petition for return of the child filed with the Osaka Family Court ― Petition dismissed ― Appeal to the Osaka High Court dismissed ― Main issues: Father’s Consent or Acquiescence ― Grave Risk for the Child ― Child’s objection

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

Appeal dismissed; the pleas raised were not grounds for quashing.

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Human Rights - Art. 20 | Procedural Matters

Appeal allowed and case remitted to trial court; the trial court had failed to give due consideration to the child's status as a refugee when determining the return application. Furthermore, there had been procedural failings in the conduct of the trial and the exceptions to return had not been investigated properly.

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

Return ordered

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

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

Appeal allowed, return refused

Appeal allowed and return refused; the applicant had failed to comply with the conditions placed on the initial return order.

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

Appeal dismissed, return ordered

Appeal dismissed and return refused. The removal was wrongful but the exceptions in Articles 13(1)(a), 13(1)(b) and 13(2) had been made out to the standard required under the Convention. In addition the father's lack of good faith barred him from receiving the court's assistance.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but the standard of harm required under Article 13(1)(b) had been proved.

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

Appeal allowed, return ordered

Appeal allowed and return ordered; the Court of Appeal ruled that the objections of the two older children should not have led to an order for their non-return. A majority found that the trial judge had erred in the manner in which he exercised his discretion once he had found the Article 13(2) exception to have been made out.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful and the child's objections were rejected as she was not sufficiently mature and had been unduly influenced by her mother.

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

Appeal allowed, return ordered

Return ordered; the "grave risk of harm" exception had not been established.

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

Return refused

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

Appeal allowed, return refused

Appeal allowed and return refused; the objections of the child were of sufficient strength to activate the Article 13(2) exception.

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

Return ordered

Return ordered; the retention was wrongful and none of the exceptions had been proved to the standard required under the Convention.