Case Law Search

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3

Appeal inadmissible: the issue whether the 1980 Hague Child Abduction Convention is applicable when the applicant resides neither in the State of habitual residence nor in the State of refuge but in a third State was not determining.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered

Removal wrongful and return ordered; none of the exceptions under the 1980 Hague Child Abduction Convention had been proved to the standards required.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered

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

Appeal dismissed, return ordered

Removal and Retention - Arts 3 and 12 | Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Procedural Matters |

Return ordered

Return ordered

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. 

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

Appeal dismissed, return ordered

2 children wrongfully removed (aged 5 and 8 at the time of the decision) – Nationals of Brazil and Argentina – Divorced parents – Father national of Argentina, Venezuela, and Brazil – Mother national of Argentina – By a homologated conciliation agreement of 5 June 2014, the father had custody for a period of four months and thereafter the parents were to have joint custody – Children lived in Brazil until July 2014 – Application for return filed with the Central Authority of Brazil in October 2014 – A decision or determination under Art. 15 of the 1980 Hague Child Abduction Convention was obtained - Application dismissed – Main issues: custody rights and acquiescence – “Rights of custody” has an autonomous meaning under the Convention, which crucially includes the right to determine the child’s place of residence – This right may be attributed to a parent by the law of the State in which the child was habitually resident immediately before the removal, as well as by the context, structure and content of an agreement on custody homologated in that State – “Acquiescence is a question of the actual subjective intention of the wronged parent, and not of the outside world’s perception of her intentions”

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

Appeal allowed, return refused

The Convention cannot be invoked if by the time of the alleged wrongful act the child is habitually resident in the requested state.

Repudiatory retention exists and involves a subjective intention on the part of the travelling parent not to return, manifested by objectively identifiable act or statement.

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Jurisdiction Issues - Art. 16

Appeal allowed, return refused

Appeal allowed and return refused; regard had to be paid to the terms of the provisional order of the Czech District Court permitting the children to live with the mother in Sweden.

Rights of Custody - Art. 3 | Rights of Access - Art. 21

Appeal inadmissible as it did not raise a sufficiently significant issue of law.

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.

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.

Rights of Custody - Art. 3

Return refused

Return refused; the father had no rights amounting to custody rights for the purposes of the Convention. Consequently there could be no wrongful removal.

Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed on the basis that there had been a breach of custody rights and case remitted to the District Court for the making of a return order and any appropriate incidental orders.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Interpretation of the Convention

Article 15 declaration refused

Article 15 declaration refused; the removal of the child was not wrongful as no rights of custody had been breached.

Rights of Custody - Art. 3

Return ordered

Return ordered; the removal of the child had breached the father's actually exercised rights of custody.

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

Return ordered subject to undertakings

Return ordered subject to undertakings; the removal of the child breached the father's rights of custody and the standard of harm required under Article 13(1)(b) had not been established.

Rights of Custody - Art. 3

Challenge to legality dismissed; the mother's removal was wrongful but she had subsequently been awarded custody.

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

Return ordered

Return ordered; the removal was wrongful having been in breach of actually exercised rights of custody and none of the exceptions had been proved to the standard required under the Convention.

Grave Risk - Art. 13(1)(b) | Procedural Matters

Appeal dismissed, return refused

Appeal dismissed and return refused; Article 13(1)(b) had been proved to the standard required under the Convention in light of the intervening custody order made by the authorities in the State of the children's habitual residence.