Case Law Search

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered subject to undertakings

The court ordered the return of the child to the USA.

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

Return ordered

Return ordered

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

Appeal dismissed, return refused

4 children wrongfully removed - Nationals of the Netherlands - Married parents - Father and mother nationals of the Netherlands - Order of 22 November 2017 granted a certified authority ("gecertificeerde autoriteit") temporary custody pending the execution of a return order (if any); parents initially had joint custudy  - Children lived in an unidentified State until 14 June 2017 - Return refused - Main issues: objections of the child to return, Art. 13(1)(b) grave risk exception to return - In cases in which the children's objections go farther than expressing a mere preference not to return, and in which the children's testimony is consistent and there is evidence of severe insecurity, instability and uncertainty in the environment to which they are to be returned, return may be refused under Art. 13(2) of the 1980 Hague Child Abduction Convention, provided the children have attained the appropriate age and degree of maturity - Ordering the return of only some of the children will result in separation, which could place the returned children in an intolerable situation - Return may be refused under Art. 13(1)(b) of the Convention for all children where there is a history of repeated domestic violence, intervention of the courts and social workers, and where the children have suffered from frequent changes of residence and school; and where the care provided in the requested State is restoringing continuity to their lives and enabling them to process their trauma, such that it is in their best interests to remain there

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

Appeal dismissed, return ordered

1 child wrongfully removed at 4 years  – National of Spain and the United States of America – Married parents – Father national of Spain – Mother national of United States of America – The mother and father had joint custody – Child lived in Turkey until April 2014 (first removal) and April 2015 (second removal)  – Application for return filed with the courts of the United States of America (federal jurisdiction) – Return ordered – Main issue(s): Art. 13(1)(b) grave risk exception to return – an “intolerable situation” can include circumstances where there is conclusive evidence that courts of the State of habitual residence are practically or legally unable to adjudicate custody

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

Appeal dismissed, return refused

This is the first and so far the only Supreme Court decision which modified a final and binding return order due to a change in circumstances under the Hague Convention Implementation Act. It is seen as a highly exceptional case.

4 children (2 sets of twins) wrongfully retained in Japan ― Children lived in the United States until July 2014, when the elder twins were 11 years and 7 months old and the younger twins 6 years and 5 months old ― Married parents ― Father national of the United States ― Mother national of Japan ― Order for the return of all children became final and binding in January 2016 ― The Supreme Court upheld the Osaka High Court decision modifying the return order due to change in circumstances and dismissed the petition for the return of the children ― Main issues: Grounds for refusal of a return order ― The elder twins’ objection to being returned ― A grave risk of placing the younger twins in an intolerable situation by separating them from their siblings 

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

Return ordered with undertakings offered

2 children wrongfully retained, aged 11 and 13 on the date of the judgment - Nationals of France and Canada - Married parents - Mother national of Canada - Joint custody - Children lived in France until July 2013 - Application for return filed with the Superior Court of Quebec in October 2013 - Direct judicial communications took place - Return ordered - Main issues: consent / acquiescence, Art. 13(1) (b) grave risk exception to return, undertakings, objection of the child to return - Consent or acquiescence to the removal or retention must be clear, positive and unequivocal - The risk of the children suffering psychological harm by returning without the taking parent is mitigated by arranging for appropriate measures to protect the taking parent to be in place upon return, through administrative and judicial co-operation with the authorities of the requesting State - Return may be ordered if the child is mainly concerned about being removed from the taking parent, rather than being opposed to returning to the requested State or fearing the left-behind parent

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

Appeal dismissed, return ordered subject to undertakings

2 children wrongfully removed at ages 7 and 8 - Nationals of Canada - Married parents - Joint custody - Children lived in Spain until September 2014 - Return ordered - Main issues: Art 13(1) (b) grave risk exception to return, procedural matters - A grave risk of placing the child in an intolerable situation upon return can be mitigated or eliminated by ordering return subject to appropriate undertakings

Interpretation of the Convention | Human Rights - Art. 20

Return ordered subject to undertakings

Where a grant of asylum has been made by the Home Secretary it is impossible for the court later to order a return of the subject child under the 1980 Hague Convention. Equally, it is impossible for a return order to be made while an asylum claim is pending (including pending an appeal). Such an order would be in direct breach of the principle of non-refoulement.

The court ordered that the children be returned to Israel, but that this order should not take effect until 15 days after the promulgation by the First-tier Tribunal of its decision on the appeal by the mother and the children against the refusal of the grant of asylum by the Home Secretary. If the First-tier Tribunal allowed the appeal then the return order would be stayed. If the First-tier Tribunal dismissed the appeal, then the return would be implemented, unless the mother wished to appeal on a point of law, in which case the court would appraise the strength or otherwise of the grounds of appeal. 

Appeal dismissed, return ordered

1 child wrongfully retained at age 6 – Married parents – Father national of France, Italy and Lebanon – Mother national of Spain and Uruguay – Joint custody – Child lived in France until July 2018  – Application for return filed with the US District Court in Washington in June 2019 – Return ordered – Main issue(s): Article 3 - wrongful retention before the expected date of return.

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, application dismissed

4 children allegedly retained - aged 10, 13, 14 and 16 at the time of the decision – Nationals of Canada and Germany – Father national of Germany – Mother national of Canada – Both parents had rights of custody – Children lived in Germany until August 2017 – Application for return filed with the courts of Ontario in August 2018 – Application dismissed – Main issue(s): Habitual Residence – Art 3 – The children were habitually resident in Canada and therefore there was no wrongful retention 

Rights of Custody - Art. 3 | Undertakings

Return ordered with undertakings offered

4 children removed at ages 13, 6, 5 & 2 – Unmarried parents – Court found that both parents had custody rights – The children lived in United States (North Dakota) until September 29, 2016 – Application for return filed with courts of Canada (Saskatchewan) in May 2017 – Return of 3 children ordered in June 2017 – Main issues: Article 3 (custody) – In the absence of proved foreign law, the Court applied Saskatchewan law and found that the father had custody rights with respect to his 3 biological children at the time of the removal – Undertakings – Father provided undertaking not to enforce US chasing order before a certain date to avoid children being forcibly removed from their mother by the police. 

Habitual Residence - Art. 3 | Rights of Custody - Art. 3

Appeal allowed, application dismissed

1 child allegedly retained at age 3 – National of Canada and United Stated – Unmarried parents – Father national of Brazil – Mother national of Canada – Child lived most of her life in Canada but spent several months in the United States on three separate occasions – Application for return filed with the courts on August 30, 2019 – Application dismissed – Main issue: Art 3 – The child was habitually resident in Canada and therefore there was no wrongful retention

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a)

Appeal dismissed, return ordered

The Supreme Court rejected the mother’s appeal.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at age 2 – Married parents – Father national of Argentina – Mother national of Romania and Argentina – Joint custody – Child lived in Argentina until September 2006 and in Cyprus (for a UN mission) until March 2007 – Application for return filed with the Central Authority of Argentina on 4 December 2007 – Return ordered, subsequently quashed at extraordinary appeal before application to ECtHR on 21 December 2009 – Violation of Art. 8 ECHR – EUR 7,500 awarded in damages – The lack of expeditious enforcement of the final return order and the subsequent decision to quash this order in the extraordinary appeal, on the basis of irrelevant, unjustified and insufficient reasons, formed a violation of Article 8 

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

Appeal dismissed, return ordered

2 children wrongfully removed (aged 5 and 8 at the time of the decision) – Nationals of Brazil and Argentina – Divorced parents – Father national of Argentina, Venezuela, and Brazil – Mother national of Argentina – By a homologated conciliation agreement of 5 June 2014, the father had custody for a period of four months and thereafter the parents were to have joint custody – Children lived in Brazil until July 2014 – Application for return filed with the Central Authority of Brazil in October 2014 – A decision or determination under Art. 15 of the 1980 Hague Child Abduction Convention was obtained - Application dismissed – Main issues: custody rights and acquiescence – “Rights of custody” has an autonomous meaning under the Convention, which crucially includes the right to determine the child’s place of residence – This right may be attributed to a parent by the law of the State in which the child was habitually resident immediately before the removal, as well as by the context, structure and content of an agreement on custody homologated in that State – “Acquiescence is a question of the actual subjective intention of the wronged parent, and not of the outside world’s perception of her intentions”

Habitual Residence - Art. 3 | Rights of Custody - Art. 3

Appeal allowed, return refused

The Convention cannot be invoked if by the time of the alleged wrongful act the child is habitually resident in the requested state.

Repudiatory retention exists and involves a subjective intention on the part of the travelling parent not to return, manifested by objectively identifiable act or statement.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at age 2 – Married parents – Father national of Poland – Mother national of Poland – Parental responsibility was exercised jointly by both parents – Child lived in the United Kingdom  – Application for return filed with the Central Authority of the United Kingdom on 21 September 2012 – Return refused before application to ECtHR on 12 April 2014 – Violation of Art. 8 ECHR – EUR 9,000 awarded in damages – The reasoning of the domestic courts regarding the Art. 13(1)(b) of the 1980 Child Abduction Hague Convention exception in light of Article 8 ECHR was misguided; none of the arguments objectively ruled out the possibility of the mother's return with the child

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

Return refused

One child wrongfully retained at age 4 – National of Germany - Married parents – Father national of Germany – Mother national of Georgia – Both parents have joint custody under Section 1626 of the German Civil Code – Child lived in Germany until August 2009 – Application for return was filed at the Central Authority of Georgia on 29 December 2009 – Return refused  – Main issue: Article 13(1)(b): The court considered that in case of return the child would not live in a psychologically stable environment – The applicant did not appeal the decision and it became final.

Habitual Residence - Art. 3

Appeal allowed, return ordered

Two children wrongfully removed at age 1 – nationals of the Netherlands – married parents – father national of the Netherlands – mother national of the Netherlands – joint custody – children lived in Spain until 15 September 2018 - application for return filed with the court of the Hague on 16 November 2018 - return ordered – main issue: habitual residence, at any given time, a child can only have one place of habitual residence

Habitual Residence - Art. 3 | Rights of Custody - Art. 3

Appeal dismissed, return ordered

1 child wrongfully retained at age 2 – Unmarried parents – Father national of Italy – Mother national of France – Italian court granted joint custody rights and decided that the child should live with the mother – Child lived in Italy until December 2015 – Application for return filed with the Central Authority of Italy in September 2016 - Application dismissed – Main issues: Rights of custody, habitual residence – It is up to the taking parent to prove that the left-behind parent was not exercising his rights of custody at the time of the removal or retention – It is for the authorities of the requesting State to determine the arrangements for the reception of the child upon her return