Case Law Search

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

Challenge to legality dismissed; the removal was wrongful but Articles 13(1)(b) and 13(2) had been proved to the standard required under the Convention. The return was therefore refused.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful and Article 13(1)(b) had not been proved to the required standard.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal was wrongful and Article 13(1)(b) had not been proved to the standard required under the Convention.

Rights of Access - Art. 21 | Interpretation of the Convention

Appeal dismissed; the Family Law Regulations, which give effect to rights arising under the Hague Convention, do not accord the Australian Central Authority with the power to apply for access rights to be created.

Grave Risk - Art. 13(1)(b) | Undertakings | Role of the Central Authorities - Arts 6 - 10

Return ordered with undertakings offered

Return ordered, subject to undertakings. The court held that the undertakings would provide sufficient protection for the children prior to the substantive custody hearing.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Return ordered

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

European Convention on Human Rights (ECHR) | Issues Relating to Return | Procedural Matters

The European Court of Human Rights held by six votes to one that there had been a violation of Article 8 of the ECHR on account of the Italian courts' order for the child to be returned to Italy; and unanimously that there had been no violation of Article 8 on account of the mother's absence from the hearing of the Rome Youth Court. Damages were awarded to mother and child.

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

Appeal dismissed, ordering execution of the return order.

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the retention was not wrongful as the children were no longer habitually resident in Australia on the relevant date.

European Convention on Human Rights (ECHR)

Unanimous: no breach of Article 8 of the European Convention on Human Rights (ECHR).

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

Return ordered

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) had not been met.

Grave Risk - Art. 13(1)(b) | Undertakings | Role of the Central Authorities - Arts 6 - 10 | Procedural Matters

Voluntary return with undertakings agreed between the parties in the requesting State following direct contact between the English judge seized of the return application and the Californian judges seized of the substantive custody and criminal aspects of the case.

Procedural Matters

Appeal allowed; first instance decision overturned on procedural grounds.

Procedural Matters

"Amparo" granted by the Constitutional Court which mandated the Court of Appeals to decide on the merits of the appeal.

European Convention on Human Rights (ECHR) | Procedural Matters

Unanimous: breach of Article 8 of the European Convention on Human Rights (ECHR). The authorities had failed to deploy adequate efforts to enable the mother to regain contact with her children.

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

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

Appeal allowed, return ordered

Appeal allowed; return ordered. The Appellate Court held that the Article 13(1)(b) exception was not established.

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

Return ordered

Appeal allowed, return ordered. The removal to Panama was considered wrongful and the grave risk exception of Article 13(1)(b) raised by the mother was not established.

Procedural Matters

Return ordered

Wrongful retention of a 1-year-old boy – Costa Rican – unmarried parents – Nicaraguan father – Dominican mother – Joint custody rights – The boy lived in Costa Rica until January 2018 – The return request was filed before a Nicaraguan court in January 2019 – Return ordered – Main issues: procedural matters – The parents agreed that the child would return to Costa Rica in the company of his father once the latter was assured that he would not be criminally sanctioned for child abduction.

Role of the Central Authorities - Arts 6 - 10

Application inadmissible for lack of locus standi.