Case Law Search

Non-Convention Issues

The court held that it would be detrimental to the child’s best interests for the return order to be enforced before the appeal before the SCA was decided. 

Interpretation of the Convention | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20

Return refused

The application for return was dismissed. There was enough evidence to show that there was a grave risk of harm if to the children if they returned to Israel. The judge refused to order the return based on Article 13(1)(b) and Article 20.

Habitual Residence - Art. 3

Return refused

The court held that the child’s habitual residence remained in Hong Kong. In light of this decision, the retention of the child in Hong Kong could not be considered wrongful. 

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Human Rights - Art. 20 | Procedural Matters

Appeal dismissed, return ordered

Appeal rejected. Return ordered.

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

Appeal allowed, return refused

Two children allegedly wrongfully removed at ages 2 and 3 – Father national of New Zealand – Mother national of Australia – Mother the primary carer of the children – Children lived in New Zealand until May 2019 – Appeal allowed and return refused – Main issues: Article 13(1)(b) - Though New Zealand has sophisticated systems in place to protect victims of family violence, it was established that the children’s parents had persistently thwarted attempts by similar agencies in Australia to keep the mother and children safe. There was no evidence which suggests that any conditions would be effective ; COVID-19 – despite the fact travel bans were in place between Australia and New Zealand, as the case was based on a request by New Zealand to return the children, the court proceeded on the basis that the children and the mother were still able to leave Australia and enter New Zealand. If the court had decided to order a return to New Zealand they would have required further submissions concerning the effect on the children and the mother in the present crisis.

Two children allegedly wrongfully removed – Children lived in Nigeria until October 2019 – Main issue: COVID-19 determination of urgency - The present application for return was not an ‘urgent’ matter that should be dealt with during the suspension of regular court operation. 

Removal and Retention - Arts 3 and 12 | Habitual Residence - Art. 3 | Procedural Matters |

Appeal dismissed, return refused

Lawful removal of a 2-year-old girl – Argentine national – Married parents – American father – Argentine mother – The girl lived in Argentina until April 2017, when her family travelled to the United States. She stayed there and then returned to Argentina in September that same year – The father requested her return before the Argentine courts – Appeal dismissed, return refused – Main Issues: habitual residence, removal and retention – The habitual residence of the girl was in Argentina because she had created no stable or permanent bonds in the United States that allowed for a determination that her place of living was there – The removal was lawful since it had been authorised by court in accordance with Argentine law.

Settlement of the Child - Art. 12(2)

Return refused

Return refused; the removal was wrongful but the children were now settled in their new environment.

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

Appeal allowed, return refused

Appeal allowed and return refused; the applicant had failed to comply with the conditions placed on the initial return order.

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

Return ordered subject to undertakings

Appeal allowed and return ordered subject to undertakings. The removal was wrongful and any potential harm to the child from a return could be minimized by the father's compliance with the conditions set and the child could otherwise be protected by the English authorities.

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

Appeal dismissed, return ordered

Appeal dismissed and return refused. The removal was wrongful but the exceptions in Articles 13(1)(a), 13(1)(b) and 13(2) had been made out to the standard required under the Convention. In addition the father's lack of good faith barred him from receiving the court's assistance.

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

Appeal dismissed, return ordered

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

Challenge against the legality of the appellate judgment dismissed and return order confirmed; the retention was wrongful and Article 13(1)(b) had not been made out to the standard required under the Convention.

Role of the Central Authorities - Arts 6 - 10

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

Appeal dismissed, return ordered

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

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but the standard of harm required under Article 13(1)(b) had been proved.

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

Appeal allowed, return ordered

Appeal allowed and return ordered; the Court of Appeal ruled that the objections of the two older children should not have led to an order for their non-return. A majority found that the trial judge had erred in the manner in which he exercised his discretion once he had found the Article 13(2) exception to have been made out.

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

Return refused

Appeal dismissed and return refused; this was an exceptional case where the standard of harm envisaged within Article 13(1)(b) had been reached.

Issues Relating to Return | Procedural Matters

In a unanimous ruling the Court held that Croatia had breached Article 8 of the ECHR in failing to make adequate and effective efforts to reunite the applicant with her son. The Court also made an award of compensation to the mother under Article 41 of the ECHR.

Return refused