Case Law Search

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. 

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

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.

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

Appeal allowed, return ordered

2 children wrongfully 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 Superior Court of Justice (Family Court Branch) in June 2014 - Return ordered - Main issues: habitual residence, rights of custody, objections of the child to return - A parent cannot unilaterally change the habitual residence of a child during a time-limited period of consensual stay in another State agreed to by the other parent - Contemplation of an extension of such a period of consensual stay does not defeat its time-limited nature - Evidence of the child settling in his new environment is irrelevant if the application for return is brought within one year of the removal or retention - Where rights of custody have been transferred by one parent to another for the sole purpose of enrolling children in school in a given State, the parent who transferred those rights exercises them when the taking parent refuses to return the child, or would have exercised them but for the removal or retention - A child’s objection to return that is unsubstantial or merely expresses a preference for one place over another is insufficient grounds for refusing to order return under Art. 13(2) of the 1980 Hague Child Abduction Convention

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)

ECrtHR - Violation of Article 8 ECHR, award of damages

The court found that there had been a violation of the Article 8 Right to Respect for Private and Family Life and awarded damages to the mother and the children.

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. 

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

Case remitted to lower court

1 child allegedly wrongfully retained at age 10 - National of United States of America and Italy - Divorced parents - Joint custody - Child lived in the United States until the second half of 2015 - Application for return filed on 21 October 2015 - Return refused - Main issues: Objection of the child to return - Due weight should be given to the child’s opinion where the child is considered to have attained an appropriate age and degree of maturity, even if certain aspects of the child’s opinion are considered to be imprecise

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

Return refused

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents– Father national of Croatia and Germany – Mother national of Croatia – Joint parental responsibility  according to the German Civil Code – Child lived in Germany until December 2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 – Return refused – Main issues: Art. 13(1)(b) grave risk exception to return, Objections of the Child to a Return, Procedural matters  – The Court refused the request for return of the child under Art. 13(1)(b) of the 1980 Hague Child Abduction Convention.

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

Appeal dismissed, return ordered

The court dismissed the appeal and ordered the return of the children.

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

Return ordered subject to undertakings

The judge ordered the return of the child but stated that the order would not take effect until protective measures had been put in place in the Netherlands.

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

Return ordered

The judge ordered that the children should be returned to Quebec within 14 days.

Habitual Residence - Art. 3

Appeal dismissed, return refused

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

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).

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Procedural Matters |

Appeal dismissed, return ordered

Wrongful retention of the child – Separated parents – Custody rights were jointly exercised – The child lived in Spain until 11 August 2014 – The request for return was filed before the Central Authority in Spain in September 2014 – Return ordered – Main issues: habitual residence, removal and retention, settlement of the child, art. 13(1)(b) grave risk exception, procedural matters – The habitual residence of the child prior to the wrongful removal was in Spain – There was wrongful retention in breach of the custody rights, which were exercised jointly pursuant to the agreement signed by the mother and father – The settlement of the child was not considered because the one-year period required by the Convention had not elapsed – The evidence did not contribute to determining whether there had been sexual abuse; on the contrary, a true demonstration of the risk was necessary to justify the application of article 13(1)(b) - The Central Authority of Spain was urged to take measures to protect the child and to do a follow-up on the case to provide the father with the necessary legal support.

Rights of Custody - Art. 3

Appeal allowed, quashing and annulment of the ruling dismissing the application for the children's return and referral of the case to the Paris Court of Appeal to act upon the return application in the light of the Supreme Court's ruling.