Case Law Search

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered.  The removal was wrongful; the children were habitually resident in Spain on the relevant date and consent had not been established.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return refused

2 children allegedly wrongfully retained (aged 10 and 14 at the time of the decision) – Married parents – Father national of the United-States – Mother national of China Hong Kong SAR and the United-States – Children lived in the United States until July 2013 – Application for return filed in February 2015 – Application dismissed – Main issues: habitual residence, wrongful retention, and children’s objections to return – A change of habitual residence occurs when a move from one State to another has a sufficient degree of stability – The absence of a joint parental intention to reside in a given State is not decisive in precluding the possibility of the children having established habitual residence there – Retention is considered wrongful from the moment the parent knows (s)he will not return to the previous country – When taking into account children’s views, a preference may be sufficient to meet the standard of the child’s objection exception under Art. 13(2), provided it is substantial

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

Appeal dismissed, return ordered

1 child wrongfully retained at age 2 - Married parents - Father national of the United States of America - Mother national of Canada - Child lived in the United States of America until 2013 - Application for return filed in 2013 - Return ordered - Main issue: Habitual residence, acquiescence and the Art.13(1)(b) grave risk exception to return - The application of the Art. 13(1)(b) exception requires the child’s exposure to a high degree, intensity and frequency of physical or psychological abuse - A return order that does not deliver the child and parent directly to the left-behind parent upon return diminishes the risk of incidents of domestic abuse occurring, while ensuring that the appropriate forum adjudicates the merits of custody and access issues

Rights of Custody - Art. 3

Appeal allowed, return refused

1 child allegedly wrongfully removed at age 13 - Divorced parents - Father had been granted custody - Child lived in Germany until March 2010 - Application for return filed with the Central Authority of Germany on 7 June 2010 - Return refused - Main issues: Rights of custody - The parent who issued the return request had not been exercising his custody rights at the time of removal, and therefore the removal could not be considered wrongful within the meaning of the 1980 Child Abduction Hague Convention

Habitual Residence - Art. 3

Return refused

1 child allegedly wrongfully retained at age 2 – National of Norway and USA – Married parents– Father national of USA – Mother national of Norway – Parents exercised joint rights of custody – Child lived in USA until 2010 – Application for return filed with the Central Authority of Norway in December 2011 –Return refused – Main issue: Article 3 – The father had consented to the change of habitual residence of the child

Rights of Custody - Art. 3

Appeal dismissed, return ordered

2 children wrongfully removed at ages 5 and 6 – Unmarried parents – After separation the mother obtained an ex parte interim order granting her sole custody – Children lived in Canada until July 2011 – Application for return filed with the Central Authority of Germany on 15 June 2012  - British Columbia Supreme Court issued a decision / declaration under Art. 15 of the 1980 Hague Child Abduction Convention that the removal was wrongful on 9 July 2012 - Return ordered by the German Court of Schleswig on 23 July 2012 – Main issue: rights of custody – While a final determination of custody has yet to be made but custody has been awarded on an interim basis, the court retains rights of custody within the meaning of the Convention – This principle is not affected by the absence of a non-removal clause in an interim order  

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

Return ordered subject to undertakings

2 children wrongfully removed (born in 2005 and 2007) - Separated parents - The Purvian courts had effectively granted temporary custody to the mother on 21 November 2013, and then to the father on 1 October 2014 (following the removal)  - Children lived in Peru until 20 February 2014 - Application for return filed with the District Court on 17 February 2015 - Return ordered subject to undertakings - Main issues: rights of custody, Art.13(1)(b) "grave risk" exception to return, undertakings - A very severe degree of psychological abuse is sufficient to conclude that the Art. 13(1)(b) "grave risk" exception to return under the 1980 Hague Child Abduction Convention applies, even in cases in which there is very little or no evidence of physical abuse

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was considered wrongful. The appeal was considered unfounded and lacking any legal basis since the mother had not demonstrated the existence of substantive or procedural errors which would have served as a basis to overturn the decision that ordered the return.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed, return ordered

Appeal allowed; return ordered.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The mother's allegation of grave risk was not found to be proved.

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 6 - Divorced parents - Mother a national of France and Israel - Mother had custody, father extensive access rights - Child lived in Israel until summer 2015 - Return proceedings initiated in March 2016 - Return ordered - Main issues: rights of custody, Art. 13(1)(b) grave risk exception to return, human rights - A parent has "rights of custody" under the 1980 Hague Child Abduction Convention if he has extensive access rights and the right to consent to change of the child's residence - The Art. 13(1)(b) grave risk exception of the Convention does not apply where the child would have access to satisfcatory treatment for an illness in the State of habitual residence

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

Return ordered

1 child wrongfully removed at age 3 – National of Croatia – Married parents– Father national of Croatia – Mother national of Croatia – Joint parental responsibility under the  German Civil Code – Child lived in Germany until 6 April 2016 – Application for return filed with the Central Authority of Croatia on 10 June 2016 – Application for return filed with the courts of Croatia on 29 August 2016 – Return ordered – Main issues:  Rights of Custody, Art. 13(1)(b) “grave risk” exception to return, Objections of the Child to a Return – The child’s removal from Germany to Croatia was held to be unlawful under the Hague Convention, and none of the exceptions to ordering return were deemed applicable.

Issues Relating to Return | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

The Court unanimously ruled that Romania had breached Article 8 of the ECHR in failing to thoroughly assess the best interests of the child and to give the father the opportunity to present his case. It also awarded the father compensation under Article 41 of the ECHR.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful, the child being habitually resident in Canada at the relevant date.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The trial judge had rightly found that the exception of consent was not applicable.

Procedural Matters

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

Appeal dismissed, return ordered

Appeal dismissed insofar as it was admissible. In particular, the mother had failed to prove the existence of acquiescence or a grave risk of danger.

Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and none of the exceptions invoked was applicable.

Habitual Residence - Art. 3 | Procedural Matters

Appeal dismissed, application dismissed

Appeal dismissed and thereby application dismissed; the child was not habitually resident in Italy on the date the removal took place.

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)

Return ordered