Case Law Search

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

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

Appeal allowed, return ordered

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

Removal and Retention - Arts 3 and 12

Return ordered

The father's appeal was dismissed and the daughter's return ordered. The mother's appeal was dismissed and the son's return refused at this time.

Habitual Residence - Art. 3

Appeal dismissed, application dismissed

2 children allegedly wrongfully retained at ages 3 and less than 1 - Unmarried parents - Father national of France - Mother national of the United Kingdom and Canada - Children lived in France until July 2013 - Return proceedings initiated soon after 20 November 2013 - Application dismissed - Main issue: habitual residence - Parents' joint decision for children to temporarily move to another State does not preclude the children from becoming habitually resident in that State

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

2 children wrongfully retained at ages 6 and 10 – Married parents – Father national of Poland – Mother national of Poland – Joint custody excercised in Switzerland – Children lived in Switzerland – Application for return filed with the Central Authority of Switzerland on 24 October 2008 – Application dismissed before application to ECtHR on 1 December 2009 – Violation of Art. 8 ECHR – EUR 11,800 awarded in damages – The Polish courts had not taken into account the legitimate interests of the applicant in an adequate or fair manner in the judicial proceedings; i.a. improperly relying on a Polish interim custody order to consider the retention lawful

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

Appeal allowed, return ordered

Appeal allowed and return ordered. The removal and retention of the child in Uruguay was considered wrongful.

European Convention on Human Rights (ECHR) | Procedural Matters

Application dismissed

Application dismissed; in an unanimous ruling, the Chamber ruled that there had not been a breach of the father and children's right to family life under Article 8 of the ECHR.

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

Return refused

1 child wrongfully retained at age 10 - National of El Salvador and Canada - Married parents - Father national of El Salvador - Mother national of Canada - Father exercised rights of custody for about 10 years, mother obtained custody in May 2012 - Child lived in El Salvador until November 2011 - Application for return filed with the Provincial Court in July 2012 - Return refused under Article 13(2) - Main issues: Art 13(1) (b) grave risk exception to return, objection of the child to return - Abuse of one parent by another can only be a relevant consideration for the Art. 13(1)(b) exception if the child is “placed in the midst of an abusive relationship” - An assessment of whether a child was placed in an intolerable situation due to the administration of corporal punishment should account for the range of generally accepted disciplining practices in the relevant social context - The factors to be taken into consideration when assessing whether a child has attained an age and degree of maturity at which it is appropriate to take account of her views include: level of cognitive functioning, capacity for logical and rational reasoning and nuanced evaluation of different circumstances - Decisions not to order return under Article 13(2) should account for the policy considerations underlying the 1980 Hague Child Abduction Convention 

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

Appeal dismissed, return ordered

2 children wrongfully removed at ages 4 and 2 – Unmarried parents – Father national of Canada – Mother national of Canada and Columbia – Shared custody (parenting arrangement) – Children lived with both parents at times in the United States of America and at times in Canada – Children last lived in the United States of America from August 2010 until their removal in April 2013 - Application for return filed with the Supreme Court of British Columbia in April 2013  – Return ordered – Main issues: habitual residence, Art. 13(1) (b) grave risk exception – A settled intention of the parents, for the purposes of establishing habitual residence, requires a “sufficient degree of continuity to be properly described as settled” – Mere speculation that one of the parents might be deported on grounds of immigration status and might choose to move to a State that would allegedly endanger the children is insufficient evidence to establish that the Art. 13(1) (b) grave risk exception applies

Habitual Residence - Art. 3

Case remitted to lower court

Removal and Retention - Arts 3 and 12 | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed, return ordered. 

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The retention was wrongful and the exceptions raised inapplicable.

Removal and Retention - Arts 3 and 12

Appeal allowed and decision of the Appeal Court annulled and case remitted so that a new ruling be rendered on the issue of return in light of the decision of the Cour de Cassation.

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

Appeal allowed, return ordered

The immediate complaint appeal was approved and the father’s application for a return was successful.

The accusations made against the father, which led to a rejection of the return application in accordance with Article 13(1)(b) of the Hague Child Abduction Convention by the court of first instance, were not held to have been proven.

However, the court refrained from ordering the immediate surrender of the three children to the father, and has instead opted for a “graduated return order”. The “graduated return order”, granted the mother the opportunity to effect the return of the children herself. The Hague Child Abduction Convention does not contain any explicit rules on how exactly the courts are to order returns. Determining the operative provisions of the return order is a matter of domestic procedural law.

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

Appeal allowed, return ordered

2 children wrongfully retained at ages 11 and 8 - Nationals of Canada - Married parents - Father national of Canada - Mother national of Canada - Father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a  Canadian school - Children lived in Germany until April 2013 - Application for return filed with the Superior Court of Justice (Family Court Branch) in June 2014 - Return ordered - Main issues: habitual residence, rights of custody, objections of the child to return - A parent cannot unilaterally change the habitual residence of a child during a time-limited period of consensual stay in another State agreed to by the other parent - Contemplation of an extension of such a period of consensual stay does not defeat its time-limited nature - Evidence of the child settling in his new environment is irrelevant if the application for return is brought within one year of the removal or retention - Where rights of custody have been transferred by one parent to another for the sole purpose of enrolling children in school in a given State, the parent who transferred those rights exercises them when the taking parent refuses to return the child, or would have exercised them but for the removal or retention - A child’s objection to return that is unsubstantial or merely expresses a preference for one place over another is insufficient grounds for refusing to order return under Art. 13(2) of the 1980 Hague Child Abduction Convention

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

Appeal dismissed, return ordered

1 child (national of Japan and the United States) removed from the United States to Japan ― Father a United States national, mother a Japanese national ― Parents married in Japan in 2012 and lived together with the mother’s son from her previous marriage ― The family moved to the United States in 2014 ― Upon becoming pregnant, the mother went back to Japan with her son in 2015 ― Mother returned to the United States with the new-born child in 2016 ― Father petitioned for divorce and obtained a provisional ne exeat order ― Mother moved to a shelter with the child within the United States ― Father had frequent access to the child, but contact broke up after an argument between the parents ― Mother removed the child to Japan in 2016 ― Obtaining assistance of the Central Authority of Japan in 2016, Father petitioned to the Osaka Family Court for return of the child in 2017 ― Return ordered ― Appeal to the Osaka High Court dismissed and return ordered in 2017 ― Main issues: Habitual Residence of the child ― Actual exercise of rights of custody ― Grave Risk for the child.

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

Appeal dismissed, return ordered

The City Court (first instance) determined that the child was living in Poland before the removal and that a return to Poland would not harm the child. Therefore, the removal/retention was wrongful and that the child should go back to the mother in Poland.

The Eastern High Court (second instance) upheld the decision.

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

Case remitted to lower court

1 child allegedly wrongfully retained at age 10 - National of United States of America and Italy - Divorced parents - Joint custody - Child lived in the United States until the second half of 2015 - Application for return filed on 21 October 2015 - Return refused - Main issues: Objection of the child to return - Due weight should be given to the child’s opinion where the child is considered to have attained an appropriate age and degree of maturity, even if certain aspects of the child’s opinion are considered to be imprecise

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Jurisdiction Issues - Art. 16 | Procedural Matters

Appeal allowed, return ordered

Wrongful retention of a 1-year-old girl – separated parents – Spanish father – Venezuelan mother – the custody rights were jointly exercised – the girl lived in Spain until July 2011 – the return request was filed before the Spanish courts on 12 July 2011 – Appeal allowed, return ordered – Main issues: removal and retention, rights of custody, grave risk, human rights, jurisdiction issues, procedural matters - removal was not wrongful, but retention was, since the father did not authorise the girl’s permanent stay in Venezuela – both parents had custody rights under Spanish law – the mother did not establish the grave risk circumstances claimed – the girl’s return did not violate any Venezuelan fundamental principle on human rights protection – who is the right parent to have custody should not be discussed within return proceedings; on the contrary, this type of proceeding is concerned with whether there was a wrongful removal or retention – measures were taken to secure the safe return  of the child to Spain and the parents were encouraged to resort to mediation.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Issues Relating to Return

Return ordered with undertakings offered

Wrongful removal of a boy when he was 10 years old - Venezuelan – the father had exclusive custody rights  - the child lived in Venezuela until 2018 – the father requested return before the Venezuelan Central Authority in July 2020 – return ordered – main issues: removal and retention, consent, settlement of the child, grave risk, objection of the child to a return, procedural matters, issues relating to return – removal was wrongful since it breached the father’s custody rights, attributed to him under the law of the State where the child was habitually resident – the father did not consent to the child’s removal – he acted towards the child’s return within a year since the wrongful removal – it was not established that the child would be exposed to a grave risk or an intolerable situation upon return to Venezuela – it was not established that the child’s fundamental rights were impaired – there was not an irreducible objection of the child against returning to the place where he was habitually resident - the Court ordered an interim exit and change of residence ban - the Court ordered the parents to collaborate with enforcement of the return order - the Court ordered to take the necessary steps for the child’s safe return