Case Law Search

Habitual Residence - Art. 3 | Undertakings | Settlement of the Child - Art. 12(2)

Appeal allowed, return ordered with undertakings offered

Appeal dismissed and return ordered with undertakings offered; the removal was wrongful as the child was habitually resident in the United States at the relevant date.

Aims of the Convention - Preamble, Arts 1 and 2

The court ordered that the girls be returned to Sweden to enable the original Convention proceedings to be completed.

Interpretation of the Convention

Rights of Custody - Art. 3

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal breached a right of custody actually exercised by the grandmother.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3

Appeal allowed, return refused

The Convention cannot be invoked if by the time of the alleged wrongful act the child is habitually resident in the requested state.

Repudiatory retention exists and involves a subjective intention on the part of the travelling parent not to return, manifested by objectively identifiable act or statement.

Procedural Matters |

Appeal dismissed, return refused

1 child wrongfully removed at age 6 – National of Peru – Father national of Peru – Mother national of Peru – Temporary award of joint custody by Peruvian Court – Child lived in Peru until October 2019 – Application for return filed with the courts of Ontario in March 2020 – Return refused in first instance – Appeal dismissed – Main issue: Procedural matters – Conduct of hearing led to undue delay and contravened obligation for prompt resolution under the Convention. 

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

Appeal dismissed, return ordered

Wrongful removal of a girl when she was 6 years old – American – Divorced parents – American father – shared custody rights; after removal, exclusive custody of the father – the girl lived in the U.S. since birth until mid-2022 – the return request was filed before the Argentine courts in August 2022 – return ordered – main issues: grave risk; jurisdiction issues; procedural matters – the grave risk exception cannot be granted if the violence/sexual abuse reported can be duly addressed by the authorities in the State of habitual residence – the merits of the custody issue must be resolved in the State of habitual residence – the safe return measures must be adequately tailored to the best interests of the child and must not interfere with the merits of the rights of custody issue.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Role of the Central Authorities - Arts 6 - 10

Appeal allowed and case remitted to the District Court to consider remedies that might allow both the return of the children to their habitual residence and their protection from harm pending a custody hearing in France.

Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but on the basis of the children's objections a return order was refused.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; Article 13(1)(b) had been proved to the standard required under the Convention in light of the intervening custody order made by the authorities in the State of the children's habitual residence.

Habitual Residence - Art. 3

Return ordered

Return ordered; the retention was wrongful the child having retained his habitual residence in Germany.

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

Appeal allowed, return refused

Appeal allowed and return refused; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of harm had been met.

Settlement of the Child - Art. 12(2)

Application for leave to appeal dismissed and return ordered. More than one year had elapsed since the wrongful removal but it had not been proved that the child was settled in its new environment.

Procedural Matters

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

Appeal allowed, return ordered

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

European Convention on Human Rights (ECHR) | Procedural Matters

Unanimous: breach of Article 8 of the European Convention on Human Rights (ECHR). The authorities had failed to deploy adequate efforts to enable the mother to regain contact with her children.

European Convention on Human Rights (ECHR) | Procedural Matters

Unanimous: breach of Article 8 of the European Convention on Human Rights (ECHR): the father had waited two years for the judgment ordering the child's return, and the mother's obstructive behaviour had been comforted by a judgment awarding custody to her even though a judgment ordering return had also been delivered.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was wrongful and none of the exceptions applied. 

Jurisdiction Issues - Art. 16

Appeal dismissed, return refused

Appeal dismissed and return refused; the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of his views.

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

Return ordered

Appeal allowed, return ordered. The removal to Panama was considered wrongful and the grave risk exception of Article 13(1)(b) raised by the mother was not established.