Case Law Search

Habitual Residence - Art. 3

Appeal dismissed, return refused

Appeal dismissed, return refused. The child was habitually resident in Canada.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a)

Return ordered

Return ordered; the removal was wrongful and consent had not been established.

Habitual Residence - Art. 3

Appeal allowed, return refused

Child (Japanese national) born in 2017 in Japan ― Father and mother are Japanese nationals ― Parents went to the Philippines from Japan with the child in December 2017 ― Parents and child travelled back and forth due to absence of long-term visa in the Philippines ― Parents maintained properties in the Philippines and Japan, and business in Japan ― Mother removed the child from the Philippines to Japan in November 2018 ― Father filed petition in Japanese courts for the child’s return in October 2019 ― Return ordered at first instance ― Appeal allowed and return dismissed by appellate Japanese court ― Main issue: Habitual Residence.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

The ECrtHR fount there had been a violation of Article 8 of the ECHR. The arguments provided to the District Court fell short of the requirements of Article 13(1)(b).

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

Two children wrongfully removed at approximately ages 1 and 2 years old – Nationals of Hungary and Italy – Married parents – Father national of Italy – Mother national of Hungary – Shared parental authority – Children lived in Italy until June 2004 – Application for return filed with the Central Authority of Italy on 3 March 2005 – Return ordered before application to ECtHR on 16 January 2013 – Violation of Art. 8 ECHR – EUR 3,000 awarded in damages to father and EUR 3,000 awarded in damages to children – The failure to enforce the return order without any explanation or justification, which prevented the father and children from being reunited or seeing each other occassionaly for over seven years, amounted to a violation of the father's and children's right to family life

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

Appeal dismissed, return refused

Appeal dismissed.

Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Return ordered

The Court refused to order the return of the child. The child was found to be settled in the United States within the meaning of Article 12(2). Though he and his mother did not have permanent legal status in the US, they did have a legal status and a pending asylum application.

Consent - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Best Interests of the Child

Return refused

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

Appeal dismissed, return ordered

The mother’s complaint appeal was rejected and the father’s application for the return of the child was approved. It was not possible to establish any reason to suggest that the child’s wellbeing would be endangered in the event that she were returned.

Inter-American Convention on the International Return of Children

Return refused

Wrongful removal of three girls when they were 15, 10 and 7 years old - Paraguayan – married parents – Paraguayan father – Paraguayan mother – the girls lived in Paraguay until October 2018 – the return request was filed before the Paraguayan Central Authority – return refused – main issues: grave risk, human rights, procedural matters, best interest of the child – returned exposed the girls to a true risk of suffering psychological and physical harm, since they were victims of their father’s violence, as well as their mother was – return would amount to a violation of their dignity due to the violence exerted by their father – considering that the mother had returned to Paraguay, the maternal grandmother was given provisional care for a 90-day period until the girls returned to Paraguay with their mother

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12

Appeal dismissed, return refused

Return refused; the retention was not wrongful.

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully removed at age 2 – National of Russia – Divorced parents – Mother national of Russia – Finnish court ordered joint custody and child should live with the applicant– Child lived in Finland February 2015  – Application for return filed with the Dzerzhinskiy District Court of St Petersburg, Russia, on 6 August 2015  – Return refused on appeal to St Petersburg City Court on 3 February 2016 before application to ECtHR– Violation of Art. 8 ECHR – 23 050 EUR awarded in damages – the interpretation and application of the provisions of the Hague Convention by the St Petersburg City Court failed to secure the guarantees of Article 8 and Russia failed to comply with its positive obligations under Article 8 of the Convention to secure to the applicant the right to respect for his family life.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

3 children wrongfully removed at ages 6, 8 and 11 – Nationals of Slovakia, one child also national of Peru and two children also nationals of the United States Of America – Married parents – Father national of Peru – Mother national of Slovakia – Agreement on alternating custody – Children lived in the United States until 25 August 2010 – Application for return filed with the Central Authority of Slovakia on 14 October 2010 – Proceedings terminated before application to ECtHR on 27 December 2012 – Violation of Art. 8 ECHR – EUR 19,500 awarded in damages – Violation of Art. 8 ECHR due to the lack of procedural protection for the applicant before the Slovakian Constitutional Court and the lack of an effective possibility to react to its decision, which suspended the enforceability of the return order and then quashed it - This was held to be exacerbated by the resulting protracted period of time in which the status of the children had not been determined

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

Return ordered

1 child wrongfully removed at 3 years – National of Spain and United States of America – Married parents – Father national of Spain – Mother national of United States of America – The mother and father had joint custody – Child lived in Turkey until 6 April 2014  – Application for return filed with the courts of the United States of America (federal jurisdiction) – Return ordered – Main issue(s): habitual residence and Art. 13(1)(b) grave risk exception to return – The retention was deemed unlawful and the “grave risk” exception to ordering return had not been established

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

Return refused

1 child wrongfully retained at age 10 - National of El Salvador and Canada - Married parents - Father national of El Salvador - Mother national of Canada - Father exercised rights of custody for about 10 years, mother obtained custody in May 2012 - Child lived in El Salvador until November 2011 - Application for return filed with the Provincial Court in July 2012 - Return refused under Article 13(2) - Main issues: Art 13(1) (b) grave risk exception to return, objection of the child to return - Abuse of one parent by another can only be a relevant consideration for the Art. 13(1)(b) exception if the child is “placed in the midst of an abusive relationship” - An assessment of whether a child was placed in an intolerable situation due to the administration of corporal punishment should account for the range of generally accepted disciplining practices in the relevant social context - The factors to be taken into consideration when assessing whether a child has attained an age and degree of maturity at which it is appropriate to take account of her views include: level of cognitive functioning, capacity for logical and rational reasoning and nuanced evaluation of different circumstances - Decisions not to order return under Article 13(2) should account for the policy considerations underlying the 1980 Hague Child Abduction Convention 

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

Appeal dismissed, return ordered

2 children wrongfully removed at ages 4 and 2 – Unmarried parents – Father national of Canada – Mother national of Canada and Columbia – Shared custody (parenting arrangement) – Children lived with both parents at times in the United States of America and at times in Canada – Children last lived in the United States of America from August 2010 until their removal in April 2013 - Application for return filed with the Supreme Court of British Columbia in April 2013  – Return ordered – Main issues: habitual residence, Art. 13(1) (b) grave risk exception – A settled intention of the parents, for the purposes of establishing habitual residence, requires a “sufficient degree of continuity to be properly described as settled” – Mere speculation that one of the parents might be deported on grounds of immigration status and might choose to move to a State that would allegedly endanger the children is insufficient evidence to establish that the Art. 13(1) (b) grave risk exception applies

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

CJEU - Preliminary ruling issued, case remitted to national courts

In the case of abduction to a third party (non-EU Member) State, the jurisdiction of the court of an EU Member State that is seised of an action relating to parental responsibility cannot be based on Article 10 of the Brussels II bis Regulation.

Where a finding is made that the child now has his or her habitual residence in a third State, the jurisdiction of the court will have to be determined in accordance with the applicable international conventions or, in their absence, in accordance with Article 14 of the Brussels II bis Regulation.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

There had been a violation of Article 8 of the ECHR in respect of both the father and the child.

Grave Risk - Art. 13(1)(b)

Appeal allowed, return refused

The court allowed the appeal and refused to order the return of the child.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at age 6 – National of Ukraine – Unmarried parents – Father national of Georgia and Ukraine – Mother national of Ukraine – Child lived in Ukraine until July 2010 – Application for return filed with the Central Authority of Ukraine in October 2010 – Return refused before application to ECtHR on 28 December 2012 – Violation of Art. 8 ECHR – EUR 8,300 awarded in damages – The reasoning of the Georgian Supreme Court regarding Art. 13(1)(b) of the 1980 Child Abduction Hague Convention was insufficient and misconceived - The child's best interests in view of the specific circumstances of the case were not properly determined