Case Law Search

Rights of Custody - Art. 3 | Human Rights - Art. 20 | Procedural Matters

Article 15 declaration refused

Article 15 declaration: the removal of the child was not wrongful within the meaning of Article 3 as the father did not have rights of custody on the relevant date.

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Procedural Matters

Appeal allowed, return ordered

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

Interpretation of the Convention | Habitual Residence - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Guidance on the application of the Convention issued

2 children 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 Central Authority of Germany on 11 April 2014 – Return decision of the Court of Appeal of Ontario of 13 September 2016 was appealed to the Supreme Court, but the children were returned to Germany before the Court rendered its judgment; despite the appeal being moot, the Court considered the issues raised to be important and in need of clarification – Main issues: interpretation of the Convention, habitual residence, objections of the child to a return, procedural matters – To ensure uniformity of State practice, courts should generally adopt the interpretation of the Convention that has gained the most support in other foreign domestic courts – The “hybrid approach” to determining habitual residence (which considers all relevant factual links and circumstances in their entirety, instead of focusing either on parental intention or the child’s acclimatisation) should be followed – Courts should adopt a non-technical and straightforward approach to considering the child’s objections to return – It is up to the judicial authorities to ensure that the State lives up to its obligations to act expeditiously under the 1980 Hague Child Abduction Convention – Convention proceedings should be judge-led, not party-driven, and judges should not hesitate to use their authority to expedite proceedings

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

Appeal allowed, return ordered subject to undertakings

1 child wrongfully removed at age 6 – Unmarried parents – The mother had day-to-day care of the child and the father had supervised contact – Child lived in New Zealand until May 2016 – Application for return heard at first instance in December 2016 – First appeal: application dismissed – Second appeal: return ordered – Main issues: rights of custody, Art. 13(1)(b) grave risk exception, undertakings / conditions for return – The finding that there is no ”grave risk” within the meaning of Article 13(1)(b) “while at the same time foreshadowing a preparedness to impose conditions on the order for return” can be consistent - fulfilment of conditions prior to the child’s return should be feasible and cannot place the taking parent in a better situation than she was before the removal

Acquiescence - Art. 13(1)(a) | Procedural Matters

Return refused

Return refused; the father had acquiesced in terms of Article 13(1)(a).

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed, refusal of Article 15 declaration overturned

Appeal allowed and a declaration was made that the removal was wrongful; while the father had no standing to make an Article 15 application, that could be made on the application of the Central Authority as an intervenor.

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

Return ordered subject to undertakings

Return ordered, subject to undertakings; the child was habitually resident in Canada on the relevant date.

Rights of Custody - Art. 3

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the removal of the child did not breach any rights of custody and was not therefore wrongful.

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

Return ordered

Return ordered; the child was habitually resident in the United Kingdom on the relevant date and his removal to Australia, without the father's consent or acquiescence, was wrongful.

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

Return refused

Removal wrongful but return refused; the standard had been met under Article 13(1)(a) to show that the father had acquiesced in the removal and under Article 13(1)(b) to show that the children would face a grave risk of harm if returned.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed and return ordered forthwith subject to undertakings. The child had been wrongfully removed and none of the exceptions applied.

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

Appeal dismissed, return ordered

The court found that the Convention was not applicable to the case but dismissed the appeal on the basis that the child's interests were best served by a return to the United States.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal was wrongful as it was in breach of the father's rights of custody and the child was habitually resident in Greece at the relevant date.

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

Return ordered

Return ordered; the removal was wrongful and Article 13(1)(b) was not proved to the standard required under the Convention.

Rights of Custody - Art. 3 | Procedural Matters

Application dismissed

Application dismissed; the removal was wrongful as it breached the rights of custody vested in the Ontario Court seized of the proceedings.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal was wrongful as the father held custody rights which were breached by the removal and none of the exceptions had been proved to the standard required under the Convention.

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

Return ordered

Returned ordered; neither Article 13(1)(a) nor Article 13(1)(a) had been proved to the standard required under the Convention.

Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Procedural Matters

Return ordered

Return ordered; there had been a wrongful removal and there was insufficient evidence to indicate consent on the part of the applicant mother.

Rights of Custody - Art. 3

The Court of Appeal upheld the High Court finding that no custody rights had been breached and that consequently there had not been a wrongful removal.

Rights of Custody - Art. 3

Article 15 declaration refused

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