Case Law Search

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

Grave Risk - Art. 13(1)(b) | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Case remitted to lower court

1 child wrongfully removed at age 3 – National of Croatia– Married parents– Father national of Croatia– Mother national of Croatia – Joint parental responsibility according to German Civil Code – Child lived in Germany until 6 April 2016 – Application for return filed with the Central Authority of Croatia on 10 June 2016 – Application for return filed with the Central court of Croatia on 29 August 2016 - Main issue(s): Art. 13(1)(b) grave risk exception to return; Procedural matters, Brussels IIa Regulation – the courts are obliged to give a fully-founded factual basis for the application of Articles 12 and 13 of the Hague Convention.

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

Appeal dismissed, return ordered

The complaint (Beschwerde) appeal lodged by the mother was refused, the child should be returned to the USA.

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

Appeal dismissed, return ordered

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

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

Appeal dismissed, return ordered

Appeal dismissed; none of the exceptions raised by the mother was applicable.

Return ordered

Two children wrongfully removed and retained – Children lived in the United States of America until November 2019 – Return ordered – Main issue: COVID-19 determination of urgency – Hague Convention abduction applications are urgent matters that should be dealt with, even during the suspension of regular court operation.

Human Rights - Art. 20

Application for retrial inadmissible: a remedy was available through another ordinary channel.

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Jurisdiction Issues - Art. 16

Appeal allowed, return refused

Appeal allowed and return refused; regard had to be paid to the terms of the provisional order of the Czech District Court permitting the children to live with the mother in Sweden.

Rights of Custody - Art. 3 | Rights of Access - Art. 21

Appeal inadmissible as it did not raise a sufficiently significant issue of law.

Procedural Matters |

Appeal dismissed, return refused

1 child wrongfully removed at age 6 – National of Peru – Father national of Peru – Mother national of Peru – Temporary award of joint custody by Peruvian Court – Child lived in Peru until October 2019 – Application for return filed with the courts of Ontario in March 2020 – Return refused in first instance – Appeal dismissed – Main issue: Procedural matters – Conduct of hearing led to undue delay and contravened obligation for prompt resolution under the Convention.