Case Law Search

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

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

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

Appeal dismissed, return refused

1 child wrongfully removed at age 2 - National of the United Kingdom and the Russian Federation - Married parents - Father national of United Kingdom - Mother national of Russia - Both parents had rights of custody - Child lived in Spain with both parents until April 2016 - Application for return filed with the Dzerzhinskiy District Court of St Petersburg on 18 August 2016 - Return refused - Main issue: Art. 13(1)(b) grave risk exception to return - A child aged 3 has a physchological and physiological need for her mother and since the mother had decided to stay in Russia, return to Spain would expose the child to a grave risk of harm

This case forms the subject of an application to the European Court of Human Rights (Thompson v. Russia, Application no. 36048/17), lodged on 15 May 2017 and communicated on 23 October 2017. 

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.

Habitual Residence - Art. 3

Leave to appeal refused and dismissal of the return application therefore confirmed; the removal was not wrongful since the child still retained his habitual residence in England at that time.

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

Case remitted to lower court

1 child wrongfully removed at age 13 - Divorced parents - Shared custody - Child lived in the United States until June 2012 - Return application filed with the Central Authority of the United States - Case remitted to a lower court for substantive determination - Main issues: objections of the child to return, Art 13(1) (b) grave risk exception to return - The child’s objection to return should be assessed independently of other exceptions to return, and may constitute sufficient grounds for a refusal to order return of the child

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

Return refused

Return refused based on the elder child's objections, the fact that the children were now settled in the USA and the grave risk of harm should they be returned to Mexico.

Non-Convention Issues

Application dismissed

Motion to Strike granted, equitable estoppel argument is stricken. The 1980 Hague Convention provides for limited exceptions to return and estoppel is not among them.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Jurisdiction Issues - Art. 16 | Procedural Matters | Best Interests of the Child

Appeal allowed, return ordered

Wrongful retention of a 1-year-old girl – separated parents – Spanish father – Venezuelan mother – the custody rights were jointly exercised – the girl lived in Spain until July 2011 – the return request was filed before the Spanish courts on 12 July 2011 – Appeal allowed, return ordered – Main issues: removal and retention, rights of custody, grave risk, human rights, jurisdiction issues, procedural matters, best interests of the child - removal was not wrongful, but retention was, since the father did not authorise the girl’s permanent stay in Venezuela – both parents had custody rights under Spanish law – the mother did not establish the grave risk circumstances claimed – the girl’s return did not violate any Venezuelan fundamental principle on human rights protection – who is the right parent to have custody should not be discussed within return proceedings; on the contrary, this type of proceeding is concerned with whether there was a wrongful removal or retention – measures were taken to secure the safe return  of the child to Spain and the parents were encouraged to resort to mediation.