Case Law Search

Rights of Access - Art. 21

Application dismissed

Application dismissed; there was no cause of action under the Convention to enforce access rights absent the wrongful removal or retention of the child.

One child wrongfully removed at age 3 – National of Slovakia – Unmarried parents– Father national of Slovakia – Mother national of Slovakia – Joint rights of custody – Child lived in Slovakia until September 2010 – Application for return filed with the Central Authority of Hong Kong on 22 August 2011 –Return refused – Main issue(s): Article 13(1)(a) acquiescence - the Father’s words and inaction were inconsistent with the fundamental objective of the Convention to secure a prompt return, and he was held to have acquiesced. Article 13(1)(b) – due to the child’s instable background and now being settled in his new environment, there was a grave risk that he would be placed in an intolerable situation if an order for return was made.

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

Appeal dismissed, return ordered

The complaint appeal was broadly rejected and it was once again ordered that the daughter be returned; the deadline for this was extended. It was not possible to establish any reason to believe 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) | Objections of the Child to a Return - Art. 13(2)

Appeal allowed, return refused

The complaint appeal was approved and the Applicant’s application for the children to be returned was rejected. It was ruled that there was a grave risk of physical or mental harm to both of the children, meaning that the exception set out in Article 13(1)(b) of the Hague Child Abduction Convention applied.

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

Appeal allowed, return refused

The complaint appeal was approved and the father’s application for a return was refused. The court ruled that the child’s wellbeing would be endangered were he to be returned.

Non-Convention Issues | Procedural Matters

Appeal allowed, return ordered

Appeal allowed, return ordered. The removal of the child to Argentina was considered wrongful. The grave risk of harm exception envisaged in Article 11.b of the Inter-American Convention on the International Return of Children was not found to be established.

Issues Relating to Return | Procedural Matters

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

Violation of Article 8, ECHR; the Russian Federation had failed to put in place the necessary legal framework to address the international child abduction case at the time, and had failed to take all reasonable measures to facilitate the enjoyment of the right to family life. The Russian Court's decision to refuse to recognise and enforce the Czech decision of 2 June 2011 did not amount to a violation of Article 8, ECHR.

The Court considered it unnecessary to separately examine the applicant's claim under Article 13, ECHR. 12,500 Euros awarded in damages. 

Grave Risk - Art. 13(1)(b) | Acquiescence - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a)

Appeal dismissed, return ordered

1 child wrongfully retained in Japan ― National of Singapore and Japan ― Married parents ― Father national of Singapore – Mother national of Japan ― Child lived in Singapore until 2016 ― Application for return filed with the Central Authority of Singapore in 2016 ― Petition for return filed with the courts of Japan in 2017 ― Return ordered ― Main issues: acquiescence and Art. 13(1)(b) grave risk exception to return – There is no grave risk in ordering the return of the child in cases involving domestic violence between the parents where a protection order is in place in the requesting State and where there is no evidence that any violence has been committed against the child ― It cannot be said that a parent has not actually exercised rights of custody at the time of removal if he did not know the whereabouts of the child at that time  ― A parent has not approved of or acquiesced in the retention if he filed a return application with the Central Authority of the requesting State about one month after coming to know of the removal, and with the courts of the requested State almost one year after the removal, respectively.

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

Return ordered

Child national of Australia and Germany, wrongfully retained at age two – Unmarried parents – Father national of Australia – Mother national of Guatemala and Germany – Joined custody – Child lived in Australia until November 2017 – Application for return filed with the courts of The Netherlands on 2 January 2018 – Return ordered – Main issue: 13 (1)(b) allegation of domestic violence; no grave risk of harm to the minor. Adequate institutions and facilities for protection from domestic violence in Australia. Decision upheld by the Court of Appeal of the Hague by decision on 11 April 2018.

Habitual Residence - Art. 3

Case remitted to lower court

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

Appeal dismissed, application dismissed

1 child allegedly wrongfully removed at age 13 – National of Canada – Divorced parents – Parents have joint custody and mother has primary care – Child lived in Arizona, USA until August 2017 – Application for return filed with the courts of Alberta, Canada on May 18, 2018 – Application dismissed – Main issue: Art 13(1)(b) – It would be an intolerable situation to return the child to Arizona as neither parent resides there.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at 8 months old – National of Canada – Married parents – Father national of Canada and Poland – Mother national of Poland – Child lived in Canada  – Application for return filed with the courts of Poland on 31 October 2011 – Return refused before application to ECtHR on 23 December 2013 – Violation of Art. 8 ECHR – EUR 9,000 awarded in damages – The reasoning of the domestic courts in applying Art. 13(1)(b) of the 1980 Child Abduction Hague Convention disregarded the relevant elements necessary for assessing the best interests of the child within the strict application of the Article

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

Appeal allowed, return refused

Appeal allowed; return refused.

Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20

Return ordered

2 children wrongfully removed at ages 11 and 13 – Nationals of Portugal –divorced parents  – Father national of Portugal – Mother national of Portugal – Custody rights disputed – Children lived in Portugal until January 2013  – Application for return filed with the Central Authority of Portugal in April 2013 – Return ordered – Main issues: Article 13(1)(b) – Grave risk of harm – even though the children did not seem to have a good relationship with their father there was not found to be a serious risk of harm should they return to Portugal and the exception did not apply; Article 13 – Child’s objections - the children’s opinions primarily had to be regarded as a desire to live with their mother, rather than as resistance to returning to Portugal and so the exception did not apply; Article 20 – Protection of Human Rights and Fundamental Freedoms – the court held that it was consistent with human rights for the children to be returned and that the exception did not apply.

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

Appeal dismissed, return ordered

4 children wrongfully removed to Japan ― Parents married in 2001 and living in the United States ― Father and mother nationals of Japan ― 5 children ― The parents separated and had been living apart since 2011 ― The mother obtained a restraining order against the father for the third time in 2012, along with a provisional custody order over the 5 children ― The father removed 4 of their 5 children via Canada to Japan in 2014 ― The parents obtained a divorce decree in the United States in 2014, which declared the mother as the sole custodian ― The mother filed an application for return with the courts of Japan in 2014 ― The Tokyo Family Court ordered return ― The father filed an appeal ― Main issues: No objections of the children ― No grave risk in ordering return of the child.

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

Appeal dismissed, return refused

1 child removed to Japan ― National of Algeria and Japan ― Married parents ― Father an Algerian national, Mother a Japanese national ― Parents married in France in 1998 ― Child born in 2004 and lived in France until 2015 ― Mother removed and has retained the child in Japan ― Petition for return of the child filed with the Osaka Family Court ― Petition dismissed ― Appeal to the Osaka High Court dismissed ― Main issues: Father’s Consent or Acquiescence ― Grave Risk for the Child ― Child’s objection

Habitual Residence - Art. 3

Appeal allowed, return ordered

1 child wrongfully removed at age 4 – Child lived in France until August 2012 – Return ordered – Main issue: habitual residence – Habitual residence should be determined in the light of all the factual circumstances particular to the case, including the parents’ shared intention and decisions taken with a view to ensure the child’s integration

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

Return ordered

Removal wrongful and return ordered; the children were habitually resident in Scotland on the relevant date and the argument based on Article 13(1)(b) was dismissed.

Habitual Residence - Art. 3 | Procedural Matters

Return ordered

Retention wrongful and return ordered; the child was habitually resident in Canada on the relevant date.