Case Law Search

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

Appeal allowed, return ordered

Two children wrongfully removed at ages nine and four – Nationals of Macedonia – Married parents – Father national of Macedonia – Mother national of Macedonia – Joint parental custody – Children lived in Austria until 28 July 2018 – Application for return filed with the Central Authority of Austria 5 September 2018 – Return ordered – Main issues: Effective exercise of custody and grave risk – Article 3(1)(b) must be read in the light with the Convention's concern that the original condition should be established; there is a presumption that the holder of custody has fulfilled his obligations; the grounds for exclusion are to be interpreted narrowly and only real dangers are to be taken into account in the case of Article 13(1)(b).

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) | Jurisdiction Issues - Art. 16 | Procedural Matters

Appeal allowed, return ordered

Appeal allowed, return ordered. The removal was wrongful and no exception raised was applicable.

Non-Convention Issues

Appeal allowed, return ordered

Appeal allowed, return ordered.

Non-Convention Issues | Grave Risk - Art. 13(1)(b) | European Convention on Human Rights (ECHR)

Application dismissed

The constitutional complaint of the child was not lodged in a permissible way (need to be presented by a guardian-ad-litem). 

The complaint brought by the mother in her own name was inadmissible as she returned with the child to Ukraine for around 3 weeks. Additionally she did not demonstrate sufficiently a possible violation of basic rights.

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

Appeal dismissed, return refused

One child wrongfully removed at age 1 – National of Ukraine – Married parents – Father national of Ukraine – Mother national of Ukraine – Mother and father have joint custody –Child lived in Ukraine until 02.03.2022 –Application for return filed with the Central Authority/courts (choose!) of [State] on [date] –Return refused – Main issue(s): Art. 13(1)(b) grave risk exception to return  – [Summary of the outcome of the main contentious issue(s) The return of a child to a war zone where it could be exposed to a real threat entails a serious risk of physical or psychological harm being caused to the child.

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

Return ordered

Removal wrongful and return ordered; the father was to have sole possession of the children's travel documentation.

Rights of Access - Art. 21

Application dismissed; imposing the right of access was not in the children's interest.

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.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a)

Return ordered

The court held that the child had been wrongfully retained in Canada and ordered her return to New Zealand.

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

Return refused

Return refused.

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

Return refused

Return Refused.

Non-Convention Issues | 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

Return ordered.

Rights of Custody - Art. 3 | Removal and Retention - Arts 3 and 12

Appeal dismissed, return ordered

Appeal dismissed, return ordered despite a pending asylum application.

Habitual Residence - Art. 3 | Procedural Matters

Return ordered

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

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

Appeal dismissed, return ordered

Challenge rejected and return order confirmed. The removal was wrongful and the court of appeal had correctly found the Article 13 exceptions to be inapplicable.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Return refused

Removal wrongful but return refused; Article 13(2) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

European Convention on Human Rights (ECHR) | Procedural Matters

By five votes to two: infringement of Article 8 of the European Convention on Human Rights (ECHR); award of damages on the basis of Article 41 of the ECHR.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20

Return refused

Removal wrongful but return refused; Article 13(1)(b) had been proved to the standard required under the Convention.

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal was wrongful and none of the exceptions had been established to the standard required under the Convention.

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

Appeal dismissed, return ordered

Appeal dismissed; the retention was wrongful and the grounds for exception under the Convention were not applicable.