Case Law Search

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Jurisdiction Issues - Art. 16

Appeal allowed, return refused

Appeal allowed and return refused; regard had to be paid to the terms of the provisional order of the Czech District Court permitting the children to live with the mother in Sweden.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Human Rights - Art. 20

Appeal allowed, return refused

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3

Appeal inadmissible: the issue whether the 1980 Hague Child Abduction Convention is applicable when the applicant resides neither in the State of habitual residence nor in the State of refuge but in a third State was not determining.

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

Legal challenge dismissed; the Athens Appellate Court had not violated any of the points of law asserted by the father; the children would be exposed to a grave risk of psychological harm if returned to the United States of America.

Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Legal challenge dismissed; the retention was wrongful but decision to refuse to return the child on the basis of the Art. 13 exceptions upheld.

Habitual Residence - Art. 3 | Objections of the Child to a Return - Art. 13(2)

Return refused

Abduction of a 13-year-old girl – the child had lived in Nicaragua for ten years under the care of her maternal family – the return request was filed before Nicaraguan courts in April 2019 – return denied – key issues: habitual residence; Article 13(2) – the child’s habitual residence was found to be in Nicaragua as it was where she had developed her center of life, personal and cultural identity, and sense of belonging, stability, and security – the court determined that the child’s statements during the hearing constituted an objection to return according to Art. 13(2) of the Convention.

Habitual Residence - Art. 3

Appeal allowed, application dismissed

Appeal allowed and application dismissed by a majority ruling; the child was not habitually resident in the United States at the time of the removal.

Consent - Art. 13(1)(a) | 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.

Rights of Custody - Art. 3 | Article 15 Decision or Determination | Rights of Access - Art. 21

Appeal dismissed, application dismissed

Appeal dismissed and application dismissed; the removal was not wrongful for it had not led to the breach of any rights of custody.

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

Appeal dismissed, return ordered

Wrongful retention of two girls when they were 8 and 11 years old – Uruguayan & Swedish – Unmarried parents – Uruguayan father – Uruguayan mother – Joint custody – The girls lived in the Kingdom of Norway until January 2019 – Return proceedings were commenced before Uruguayan courts on 27 May 2019 – Return ordered – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, objections of the child to a return, procedural matters, best interests of the child – Retention was wrongful because it violated the father’s actually-exercised right of custody when it took place – There was not sufficient evidence on record proving the father’s consent or acquiescence to the change in the girls’ habitual residence – None of the circumstances alleged by the mother implied a grave risk for the girls if they returned to Norway – The girls’ statements evidenced that their opinions were influenced by their mother – The child support payments fixed in the first instance court judgment were overturned because this issue is outside the scope of application of the HCCH 1996 Child Protection Convention.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed and return order upheld; the retention was in breach of actually exercised rights of custody, the children having retained their Canadian habitual residence, and none of the exceptions was applicable.

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

Appeal dismissed, return ordered

1 child born in 2015 in Japan ― Father and child Brazilian nationals, mother unknown ― Unmarried parents ― Mother and child lived in Japan for one year and moved to Brazil in March 2016 ― Mother removed the child to Japan in November 2018 ― Drinking alcohol, use of drugs and verbal violence of the father ― Father filed a petition for the child’s return to the Tokyo Family Court in October 2018 ― Return ordered ― Appeal dismissed by the Tokyo High Court in March 2019 ― Main issues: habitual residence, consent or acquiescence, and grave risk.

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

Return ordered

Wrongful removal of a 7-year old girl – Chilean – unmarried parents – Chilean father – Argentine mother – custody rights belong with the father – the girl lived in Chile until late 2019 – return application submitted before the Family Court in Formosa, Argentina, in September 2020 – return ordered – main issues: removal and retention, settlement of the child, art. 13(1)(b) grave risk, objections of the child to the return, procedural matters, interpretation of the Convention, best interests of the child – retention was wrongful because the custody rights of the father, effectively exercised by him at the time, were infringed – the time required by the Convention to refuse the return on grounds of settlement of the child in her new environment did not elapse – no evidence that the child would be exposed to grave risk upon her return – there were no objections by the child showing an irreducible objection against returning to the place of habitual residence – due to effects of the COVID-19 pandemic, the parents were invited to cooperate in the implementation of the return order and to avoid unnecessary delays – there are no incompatibilities between the Convention and the Convention on the Rights of The Child; both are meant to protect the best interests of the child.

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

Appeal dismissed, return ordered

2 children wrongfully removed (aged 5 and 8 at the time of the decision) – Nationals of Brazil and Argentina – Divorced parents – Father national of Argentina, Venezuela, and Brazil – Mother national of Argentina – By a homologated conciliation agreement of 5 June 2014, the father had custody for a period of four months and thereafter the parents were to have joint custody – Children lived in Brazil until July 2014 – Application for return filed with the Central Authority of Brazil in October 2014 – A decision or determination under Art. 15 of the 1980 Hague Child Abduction Convention was obtained - Application dismissed – Main issues: custody rights and acquiescence – “Rights of custody” has an autonomous meaning under the Convention, which crucially includes the right to determine the child’s place of residence – This right may be attributed to a parent by the law of the State in which the child was habitually resident immediately before the removal, as well as by the context, structure and content of an agreement on custody homologated in that State – “Acquiescence is a question of the actual subjective intention of the wronged parent, and not of the outside world’s perception of her intentions”

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at age 2 – Married parents – Father national of Argentina – Mother national of Romania and Argentina – Joint custody – Child lived in Argentina until September 2006 and in Cyprus (for a UN mission) until March 2007 – Application for return filed with the Central Authority of Argentina on 4 December 2007 – Return ordered, subsequently quashed at extraordinary appeal before application to ECtHR on 21 December 2009 – Violation of Art. 8 ECHR – EUR 7,500 awarded in damages – The lack of expeditious enforcement of the final return order and the subsequent decision to quash this order in the extraordinary appeal, on the basis of irrelevant, unjustified and insufficient reasons, formed a violation of Article 8 

Appeal dismissed, return ordered

1 child wrongfully retained at age 6 – Married parents – Father national of France, Italy and Lebanon – Mother national of Spain and Uruguay – Joint custody – Child lived in France until July 2018  – Application for return filed with the US District Court in Washington in June 2019 – Return ordered – Main issue(s): Article 3 - wrongful retention before the expected date of return.

Habitual Residence - Art. 3

Appeal allowed, return ordered

Two children wrongfully removed at age 1 – nationals of the Netherlands – married parents – father national of the Netherlands – mother national of the Netherlands – joint custody – children lived in Spain until 15 September 2018 - application for return filed with the court of the Hague on 16 November 2018 - return ordered – main issue: habitual residence, at any given time, a child can only have one place of habitual residence

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

Return ordered

Return ordered.

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

Return refused

Return refused; the removal was wrongful but the children validly objected to their return.

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

Appeal allowed and case remitted to a different judge of the Ontario Court of Justice to re-determine the Article 13(1)(b) issues.