Case Law Search

Settlement of the Child - Art. 12(2)

Return ordered

Return ordered. The Court did not find that the father had consented or acquiesced to the removal of the child from the United Kingdom and the mother did not provide enough evidence to make out an exception to return under Article 13(2) (child’s objections), Article 13(1)(b) (grave risk of harm) or Article 12 (settlement of the child).

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 |

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 – 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.

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

Appeal allowed, return ordered

Wrongful removal of two girls when they were 10 and 6 years old – Married parents – The girls lived in Spain until July 2016 – Appeal allowed, return ordered – Main issues: Removal and retention, Art. 13(1)(b) grave risk exception, objections of the child to a return, matters relating to return – There was no concluding evidence that the mother had consented to a change in the girls’ habitual residence to Argentina – There was no grave risk that returning to Spain would cause psychological or physical harm to the girls – The girls did not strongly resist against or oppose returning to Spain, they only stated a mere preference for continuing to live in Argentina – The circumstances of the case had to be taken into account and the COVID-19 health emergency context as well in order to make return immediate and safe.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Consent - Art. 13(1)(a)

Return ordered

Return ordered at the date provided for by the parental agreement.

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

Return ordered

Wrongful retention of a 7-year-old boy - Venezuelan – unmarried parents – Venezuelan father - Venezuelan mother – The rights of custody were jointly exercised – The child lived in Venezuela until November 2012 – The return request was filed before the Panamenian courts in November 2014 – Return ordered – Main Issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was in Venezuela – Removal was wrongful because the travel authorisation used by the mother was false – It was not proved that the father abused the child; the refugee status request was not an impediment against return – Measures were adopted for the child’s safe return to his habitual residence.

European Convention on Human Rights (ECHR)

Unanimous: no breach of Article 8 of the European Convention on Human Rights (ECHR).

Habitual Residence - Art. 3

Appeal declared inadmissible.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but the child objected to going back, was of sufficient age and maturity, and the trial judge had correctly exercised his discretion in upholding the child's objections.

Rights of Custody - Art. 3

Appeal dismissed, granting of Article 15 declaration confirmed

Appeal dismissed and Article 15 declaration granted; the removal had been in breach of the father's actually exercised rights of custody.

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered subject to undertakings

The court ordered the return of the child to the USA.

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, application dismissed

4 children allegedly retained - aged 10, 13, 14 and 16 at the time of the decision – Nationals of Canada and Germany – Father national of Germany – Mother national of Canada – Both parents had rights of custody – Children lived in Germany until August 2017 – Application for return filed with the courts of Ontario in August 2018 – Application dismissed – Main issue(s): Habitual Residence – Art 3 – The children were habitually resident in Canada and therefore there was no wrongful retention 

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

Appeal allowed, application dismissed

1 child allegedly retained at age 3 – National of Canada and United Stated – Unmarried parents – Father national of Brazil – Mother national of Canada – Child lived most of her life in Canada but spent several months in the United States on three separate occasions – Application for return filed with the courts on August 30, 2019 – Application dismissed – Main issue: Art 3 – The child was habitually resident in Canada and therefore there was no wrongful retention

Rights of Custody - Art. 3 | Undertakings

Return ordered with undertakings offered

4 children removed at ages 13, 6, 5 & 2 – Unmarried parents – Court found that both parents had custody rights – The children lived in United States (North Dakota) until September 29, 2016 – Application for return filed with courts of Canada (Saskatchewan) in May 2017 – Return of 3 children ordered in June 2017 – Main issues: Article 3 (custody) – In the absence of proved foreign law, the Court applied Saskatchewan law and found that the father had custody rights with respect to his 3 biological children at the time of the removal – Undertakings – Father provided undertaking not to enforce US chasing order before a certain date to avoid children being forcibly removed from their mother by the police. 

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

Appeal dismissed, return ordered

Appeal dismissed and return refused; the retention was wrongful and notwithstanding the child's objections to a return the Court exercised its discretion to make a return order.

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the retention was not wrongful as the children were no longer habitually resident in Australia on the relevant date.

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

Appeal dismissed, return ordered

One child (Russian national) born in 2014 resided in Russia ― Father and mother Russian nationals ― Parents married in 2014 in Russia ― Parents divorced in 2016 ― Mother took the child to Japan in October 2017 and settled there following her remarriage ― A ne exeat order of the Russian court was partly set aside by confirming the child’s temporary residence in Japan in January 2019 ― Central Authority of Japan assisted the Father with a return application in July 2018 ― Father filed petition for the child’s return to the Tokyo Family Court in October 2018 ― Return ordered ― Appeal dismissed by the Tokyo High Court in February 2019 ― Main issues: rights of custody and grave risk.

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.

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.