Case Law Search

Habitual Residence - Art. 3 |

Appeal dismissed, return refused

1 child (Australian and Japanese national) resided in Australia and Japan ― Father Australian national, mother Japanese national ― Parents married in 2013 in Australia ― Parents lived together in Japan from November 2013 until June 2014, until the father returned to Australia ― Mother joined Father in Australia from September 2014 until October 2015, with a written agreement to reside there only up to two years ― Mother returned to Japan with the child in October 2015 ― Father visited them in Japan from mid-December 2015 until mid-January 2016 ― Father filed petition for the child’s return to the Osaka Family Court in March 2016 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in 2017 ― Main issue: Habitual residence of the child.

Rights of Custody - Art. 3 | European Convention on Human Rights (ECHR) | Procedural Matters

The European Court of Human Rights held by sixteen votes to one that, in the event of the enforcement of the return order, there would be a violation of the mother and child's right to family life under Article 8 of the European Convention on Human Rights.

Non-Convention Issues | Grave Risk - Art. 13(1)(b)

Appeal allowed, return refused

The Court refused to order the return of the child until the mother's asylum application had been determined.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Article 15 Decision or Determination | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20 | Rights of Access - Art. 21

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the inferior courts had erred in rejecting the determination of the Romanian courts pursuant to Article 15; under Romanian law the father had no rights of custody for Convention purposes therefore the removal of the child was not wrongful.

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

Return refused

Removal wrongful but return refused; Article 13(1)(a) and (b) and Article 13(2) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

Non-Convention Issues

Return ordered

Return ordered. The Court denied the mother’s requests for a stay and/or an adjournment of the return application proceedings on the basis of her applications for refugee protection.

Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters

Appeal allowed, return refused

Appeal allowed and return refused; the removal was wrongful but the standard required under Art 13(1)(b) of the 1980 Hague Convention had been met.

Non-Convention Issues

Appeal dismissed, return ordered

Appeal dismissed, return ordered.

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.

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.

Procedural Matters

Appeal dismissed, return refused

Appeal dismissed; the father had applied for return only in the event that he should be awarded custody of the children.

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

Appeal inadmissible; the appeals did not raise any substantial legal issues.

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.

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

Appeal allowed and case remitted to trial court for exercise of discretion; the retention was wrongful, but the children objected to a return to Poland and were of sufficient age and maturity for their objections to be taken into account.

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.