Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)
Return ordered
1 3 4 Preamble 12 13(1)(a) 13(1)(b)
2 children wrongfully retained at ages 1 and 2 – Married parents – Father national of the United States – Mother national of Canada – Both parents had rights of custody under the laws of Iowa – Children lived in the United State until 16 June 2018 – Application for return filed with the Central Authority of the United States on 18 August 2018 – Return ordered – Main issues: Article 3 - children habitually resident in the United States, father had rights of custody and had only agreed to a one month stay in Canada, retention was therefore wrongful - Article 13(1)(a) Consent & Acquiescence – Exception not established, there is no “clear and cogent evidence of unequivocal consent or acquiescence” - Article 13(1)(b) Grave Risk – Exception not established, measures of protection are available in Iowa.
Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)
Appeal dismissed, return ordered
1 3 4 5 13(1)(a) 13(1)(b)
Two children wrongfully removed at ages nine and seven – Married parents – Shared parental custody – Children lived in Spain until 5 February 2016 – Application for return filed with the courts of Switzerland on 17 February 2016 –Application dismissed – Main issue(s): Habitual residence - is understood to mean the actual centre of the child's life, which is determined by the factual circumstances; Consent - the departure of the spouse does not require any approval by the other; the only thing requiring approval is the change of the children's place of residence abroad; Grave risk - must be interpreted restrictively: meaning a serious danger, initial language and reintegration difficulties typically do not constitute a serious danger.
Rights of Custody - Art. 3 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Undertakings
Return ordered with undertakings offered
3 4 5 12 13(1)(a) 13(1)(b) 16
3 children wrongfully removed at age 7 – Father national of the United Kingdom and Canada – Mother national of the United Kingdom and Canada – Both parents had rights of custody under the law of Scotland – Children lived in the United Kingdom until August 2009 – Application for return filed with the Central Authority of the Scotland on 20 October 2009 – Return ordered – Main issue(s): Rights of custody – Art. 3 – Father had rights of custody under the law of Scotland; there was no court order restricting his rights as a parent – Removal & Retention – Arts 3 and 12 – Children wrongfully removed, in breach of the father’s custody rights and without his consent. The father was exercising his rights despite the child protection investigation – Grave Risk – Art. 13(1)(b) –There is no grave risk. Social service agencies and court in Scotland will protect the children upon their return – Undertakings – Undertakings imposed to assist the return and to protect the children in the transitional period before the court in Scotland takes over.
Issues Relating to Return | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
3 4 6 7 11 12 13(1)(b) 20
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.
Acquiescence - Art. 13(1)(a) | Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b)
3 4 13(1)(a) 13(1)(b) 31
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
