Case Law Search

Role of the Central Authorities - Arts 6 - 10

Parties urged to resort to mediation in order to solve the dispute involving visitation rights within the context of Article 21 of the 1980 Hague Child Abduction Convention.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters

Appeal dismissed, return ordered

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

Return ordered

One child wrongfully removed at age 6 – National of Spain – Father national of Bolivia – Mother national of Colombia and Spain – Mother primary carer and father exercising rights of contact, including staying contact – Child lived in Spain until September 2018  – Return ordered – Main issue: COVID-19 – due to travel restrictions between the UK and Spain it was acknowledged that a safe return may take more time to organise than usual, but that it should take place as soon as reasonably practicable.

One child wrongfully removed at age 11 – Married parents – Father national of Greece – Mother national of Greece – Joint custody rights – Child lived in Greece until 2018 and then in the United Kingdom until 2020, he was habitually resident in the United Kingdom – Application for return filed with the Central Authority of England and Wales in March 2020 – Decision on inward return order deferred – Main issues: Inward return orders : the court should wait until the conclusion of the Greek proceedings under the 1980 Hague Convention before deciding on whether to make an inward return order; COVID-19 - Mother removed the child to Greece as she considered it to be a safer environment with regards to the COVID-19 pandemic.

Case remitted to lower court

Children wrongfully retained – Mother the primary carer of the children, Father exercising custody rights at time of removal – Children lived in  Colombia until December 2018 – Application for return filed with the Central Authority of Colombia –Return refused at first instance, appeal allowed and case remitted to lower court – Main issues: Article 13(1)(b) -  whether the return to Colombia would pose a grave risk of harm to the children; COVID-19 - the court asked for submissions about travel to Colombia in the event a return order were to be made; Father had right to appeal despite the fact that in the first instance he was not a party but represented by the Central Authority. The father was substantially, if not technically, a party and a person who might properly have been one.

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

Appeal dismissed, return refused

The Court of Appeal dismissed the appeal and refused to order the return of the child. 

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

Appeal allowed, return ordered

The immediate complaint appeal was approved and the father’s application for a return was successful.

The accusations made against the father, which led to a rejection of the return application in accordance with Article 13(1)(b) of the Hague Child Abduction Convention by the court of first instance, were not held to have been proven.

However, the court refrained from ordering the immediate surrender of the three children to the father, and has instead opted for a “graduated return order”. The “graduated return order”, granted the mother the opportunity to effect the return of the children herself. The Hague Child Abduction Convention does not contain any explicit rules on how exactly the courts are to order returns. Determining the operative provisions of the return order is a matter of domestic procedural law.

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

Appeal dismissed, return ordered

1 child (national of Japan and the United States) removed from the United States to Japan ― Father a United States national, mother a Japanese national ― Parents married in Japan in 2012 and lived together with the mother’s son from her previous marriage ― The family moved to the United States in 2014 ― Upon becoming pregnant, the mother went back to Japan with her son in 2015 ― Mother returned to the United States with the new-born child in 2016 ― Father petitioned for divorce and obtained a provisional ne exeat order ― Mother moved to a shelter with the child within the United States ― Father had frequent access to the child, but contact broke up after an argument between the parents ― Mother removed the child to Japan in 2016 ― Obtaining assistance of the Central Authority of Japan in 2016, Father petitioned to the Osaka Family Court for return of the child in 2017 ― Return ordered ― Appeal to the Osaka High Court dismissed and return ordered in 2017 ― Main issues: Habitual Residence of the child ― Actual exercise of rights of custody ― Grave Risk for the child.

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

Appeal dismissed, return ordered

The City Court (first instance) determined that the child was living in Poland before the removal and that a return to Poland would not harm the child. Therefore, the removal/retention was wrongful and that the child should go back to the mother in Poland.

The Eastern High Court (second instance) upheld the decision.

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

Appeal dismissed, return refused

Appeal dismissed and return not ordered; the District Court had not erred in its finding that the appellant had sexually abused his daughter. Therefore, it had been established that the child would face a grave risk of harm if returned. 

Grave Risk - Art. 13(1)(b) | Undertakings | Jurisdiction Issues - Art. 16

Return refused

Removal wrongful but return refused; Article 13(1)(b) had been proved to the standard required under the Convention.

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

Return ordered

Removal wrongful and return ordered, subject to undertakings; Article 13(1)(b) had not been proved to the standard required under the Convention.

Habitual Residence - Art. 3 | Jurisdiction Issues - Art. 16

Appeal allowed; the Luxembourg courts had no jurisdiction.

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

Appeal dismissed, return ordered

Appeal refused; return allowed. It was settled that the retention was wrongful.

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

Return ordered

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

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

Unanimous: infringement of Article 8 of the European Convention on Human Rights (ECHR); award of damages on the basis of Article 41 of the ECHR.

European Convention on Human Rights (ECHR)

By six votes to one, the European Court of Human Rights held that Portugal had infringed Article 8 of the European Convention on Human Rights (ECHR), but did not award damages as the father had made no claim for just satisfaction.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters

Appeal allowed, return ordered

Appeal allowed, return ordered. The removal was wrongful and none of the exceptions raised was applicable.

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

Return ordered with undertakings offered

Removal wrongful and return ordered; the objection of one child to return was not sufficiently strong to override the policy of the Convention.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and no exception asserted was applicable.