Case Law Search

Grave Risk - Art. 13(1)(b) | Jurisdiction Issues - Art. 16 | Procedural Matters

Appeal dismissed, return ordered

Wrongful removal of a girl when she was 6 years old – American – Divorced parents – American father – shared custody rights; after removal, exclusive custody of the father – the girl lived in the U.S. since birth until mid-2022 – the return request was filed before the Argentine courts in August 2022 – return ordered – main issues: grave risk; jurisdiction issues; procedural matters – the grave risk exception cannot be granted if the violence/sexual abuse reported can be duly addressed by the authorities in the State of habitual residence – the merits of the custody issue must be resolved in the State of habitual residence – the safe return measures must be adequately tailored to the best interests of the child and must not interfere with the merits of the rights of custody issue.

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

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.

Rights of Access - Art. 21

Application to enforce foreign access order refused; Article 21 confers no jurisdiction on a court to determine matters relating to access.

Aims of the Convention - Preamble, Arts 1 and 2

Return refused

In the absence of any possibility of there being a substantive hearing in France the return of the girls was refused.

Removal and Retention - Arts 3 and 12

Appeal dismissed, application dismissed

Appeal dismissed and application dismissed; there had been no wrongful removal as the Convention had not entered into effect between the United Kingdom and Ontario at the relevant date.

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

Return ordered

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) had not been met.

Habitual Residence - Art. 3

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful and the court upheld the trial court's view that the girls were still habitually resident in Germany at the relevant date.

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

Appeal allowed; the court held that the children were habitually resident in France when retained by the mother in the United Kingdom.

Rights of Custody - Art. 3

Return refused

Return refused; the father had no rights amounting to custody rights for the purposes of the Convention. Consequently there could be no wrongful removal.

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

Return ordered with undertakings offered

Return ordered; the standard required under Articles 13(1)(b) and 13(2) had not been met.

Rights of Custody - Art. 3

Appeal dismissed, application dismissed

Appeal dismissed and application dissmissed; the Supreme Judicial Court of Massachusetts agreed that no custody rights of the father had been breached and refused to return the boys to Hungary.

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

Appeal dismissed, return ordered subject to undertakings

Appeal dismissed and return ordered subject to undertakings; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of psychological harm had not been met.

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

Return ordered subject to undertakings

Return ordered subject to undertakings; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of psychological harm had not been met.

Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2)

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the standard required under Articles 12(2) and 13(1)(a) had not been reached.

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

Return ordered

Return ordered; while the boy's objections to a return were valid and should be taken into account, the girl's were not and it was held that they should not be separated.

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

Appeal allowed, return ordered

Appeal dismissed and return of the children to the United States ordered; the evidence did not support a finding of a grave risk of harm pursuant to Article 13(1)(b).

Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed on the basis that there had been a breach of custody rights and case remitted to the District Court for the making of a return order and any appropriate incidental orders.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Return refused

Return refused; the removal was wrongful but the standard required under Article 13(2) had been made out with respect to the two older children, while the standard required under Article 13(1)(b) had been made out with respect to the youngest child.