Case Law Search

Rights of Custody - Art. 3 | Procedural Matters

Article 15 declaration granted

Article 15 declaration made that the removal of the child was wrongful within the meaning of Article 3 of the Convention. The father was deemed to hold and to be actually exercising rights of custody.

Rights of Custody - Art. 3

Application inadmissible; There was an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights.

Habitual Residence - Art. 3

Return ordered

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

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

Return ordered

Return ordered; the removal was wrongful and none of the exceptions had been proved to the standard required under the Convention.

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

Return ordered

Return ordered; the removal was wrongful being in breach of the father's rights of custody.

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

Return ordered

Return ordered. The removal was wrongful being in breach of the mother's right of custody.

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