Case Law Search

Issues Relating to Return

Wrongful retention of a boy – Uruguayuan and Costa Rican – Divorced parents – The child lived in Uruguay until 6 february 2020 – The return request was made before the Costa Rican Central Authority - Habeas corpus disallowed – Main Issues: Non-Convention Issues -  the safeguard in Art. 32 of the Constitution is not unlimited, it must be examined in consideration of the HCCH Convention on Child Abduction and the best interests of the child.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Issues Relating to Return | Best Interests of the Child

Return ordered with undertakings offered

Wrongful removal of a boy when he was 10 years old - Venezuelan – the father had exclusive custody rights  - the child lived in Venezuela until 2018 – the father requested return before the Venezuelan Central Authority in July 2020 – return ordered – main issues: removal and retention, consent, settlement of the child, grave risk, objection of the child to a return, procedural matters, issues relating to return, best interests of the child – removal was wrongful since it breached the father’s custody rights, attributed to him under the law of the State where the child was habitually resident – the father did not consent to the child’s removal – he acted towards the child’s return within a year since the wrongful removal – it was not established that the child would be exposed to a grave risk or an intolerable situation upon return to Venezuela – it was not established that the child’s fundamental rights were impaired – there was not an irreducible objection of the child against returning to the place where he was habitually resident - the Court ordered an interim exit and change of residence ban - the Court ordered the parents to collaborate with enforcement of the return order - the Court ordered to take the necessary steps for the child’s safe return

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

Case remitted to lower court

One child wrongfully removed at age ten – National of Switzerland and Spain – Unmarried parents – Father national of Spain – Mother national of Switzerland – Joint custody according to Spanish law – Child lived in Spain until January/February 2016 – Application for return filed with the Central Authority of Spain on 17 February 2016 – Case remitted to lower court – Main issues: objections of the child to return – According to the mother, the child has expressed that he does not wish to return to Spain. An expert opinion that was ordered by the competent cantonal court has affirmed the child’s ability to independently form such an opinion. The father, however, invokes that the expert’s opinion was biased towards the mother and overlooked multiple factors that put the child’s maturity level as defined in 13 (2) into question.

Grave Risk - Art. 13(1)(b) | Role of the Central Authorities - Arts 6 - 10

Appeal dismissed, return ordered

The Federal Court rejected the appeal and upheld the cantonal court's decision ordering the children's return to Israel. However, it stated that given the current situation in Israel, it would be up to the competent enforcement authority to organise the safe return of the children, accompanied by their mother, as soon as the situation allowed.

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

Appeal allowed and case remitted to a different judge of the Family Division of the High Court for re-hearing; the trial judge had erred in the manner in which she had approached her interview with the child, for she had engaged in evidence gathering and then relied upon that evidence in ordering the return of the child.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2)

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal of the child was wrongful but she was now settled in her new environment and the Court exercised its discretion to refuse her return.

Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Issues Relating to Return | Procedural Matters

European Convention on Human Rights (ECHR)

By a majority, application held to be inadmissible.

Habitual Residence - Art. 3

Appeal dismissed, application dismissed

Appeal dismissed and application dismissed; the removal was not wrongful as the child had never lost her original habitual residence in Texas.

European Convention on Human Rights (ECHR) | Procedural Matters

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the District Court had not erred in deciding the case on the basis of the pleadings as elucidated by the parties' arguments at the preliminary hearing; the removal was wrongful and the Article 13(1)(b) exception had not been established.

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

Appeal allowed and case remitted to the District Court; in a majority ruling it was found that the evidentiary hearing before the District Court had been inadequate, in that the trial judge had failed to make findings of fact on key issues and had failed to allow psychological evidence.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal dismissed, return ordered

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

Appeal allowed, return ordered

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return ordered

Appeal dismissed and non-return order upheld; the retention of the children was wrongful but the applicant father was found to have both consented to and acquiesced in the children remaining in New Zealand.

European Convention on Human Rights (ECHR) |

The ECrtHR held unanimously that the Slovak Republic had breached Article 6(1) of the ECHR taken alone and in conjunction with Article 13, due to the excessive length of the proceedings and the lack of an effective remedy.

Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal dismissed, return ordered

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return refused

Habitual Residence - Art. 3 | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Appeal dismissed and proceedings dismissed; the English courts retained jurisdiction under Article 10 of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003), but it was not in the interests of the children to continue the proceedings further and no order would be made.

Habitual Residence - Art. 3 | Rights of Custody - 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

Retention wrongful and return ordered; none of the exceptions had been established.