Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)
Appeal dismissed, return ordered
3 4 5 12 13(1)(b)
Appeal dismissed, return ordered. The removal was wrongful and none of the exceptions raised applied.
Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)
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.
Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b)
Return ordered
1 2 3 4 5 12 13(1)(a)
Child wrongfully retained at age 12 – Citizen of Georgia – Divorced parents – Father national of Georgia – Mother national of Greece – Parents had joint custody – Child lived in Cyprus from 2008 until August 2012 – Application for return was filed with the Central Authority on 18 December 2012 – Main issue: Article 3 – the child’s State of habitual residence was Cyprus and there was no evidence to support the use of one of the exceptions to return under the 1980 Convention.
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.
Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)
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.
