Case Law Search

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

Appeal allowed, return ordered

Wrongful removal of two girls when they were 10 and 6 years old – Married parents – The girls lived in Spain until July 2016 – Appeal allowed, return ordered – Main issues: Removal and retention, Art. 13(1)(b) grave risk exception, objections of the child to a return, matters relating to return – There was no concluding evidence that the mother had consented to a change in the girls’ habitual residence to Argentina – There was no grave risk that returning to Spain would cause psychological or physical harm to the girls – The girls did not strongly resist against or oppose returning to Spain, they only stated a mere preference for continuing to live in Argentina – The circumstances of the case had to be taken into account and the COVID-19 health emergency context as well in order to make return immediate and safe.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Consent - Art. 13(1)(a)

Return ordered

Return ordered at the date provided for by the parental agreement.

Non-Convention Issues

Appeal dismissed, return ordered

Appeal dismissed, return ordered.

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

Return ordered

Wrongful retention of a 7-year-old boy - Venezuelan – unmarried parents – Venezuelan father - Venezuelan mother – The rights of custody were jointly exercised – The child lived in Venezuela until November 2012 – The return request was filed before the Panamenian courts in November 2014 – Return ordered – Main Issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was in Venezuela – Removal was wrongful because the travel authorisation used by the mother was false – It was not proved that the father abused the child; the refugee status request was not an impediment against return – Measures were adopted for the child’s safe return to his habitual residence.

European Convention on Human Rights (ECHR)

Unanimous: no breach of Article 8 of the European Convention on Human Rights (ECHR).

European Convention on Human Rights (ECHR)

The ECrtHR held unanimously that Portugal had breached Article 8 of the ECHR but did not award damages to the mother because she had not made her application for just satisfaction within the time allowed to her.

Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2)

Appeal allowed, return refused

Appeal allowed and return refused; Article 12(2) had been proved to the standard required by the 1980 Hague Child Abduction Convention and discretion exercised not to make a return order.

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

Return ordered

Return ordered.

Habitual Residence - Art. 3

Appeal declared inadmissible.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but the child objected to going back, was of sufficient age and maturity, and the trial judge had correctly exercised his discretion in upholding the child's objections.

Rights of Custody - Art. 3

Appeal dismissed, granting of Article 15 declaration confirmed

Appeal dismissed and Article 15 declaration granted; the removal had been in breach of the father's actually exercised rights of custody.

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.

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 

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

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

Appeal dismissed, return ordered

Appeal dismissed and return refused; the retention was wrongful and notwithstanding the child's objections to a return the Court exercised its discretion to make a return order.

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the retention was not wrongful as the children were no longer habitually resident in Australia on the relevant date.

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

Appeal dismissed, return ordered

One child (Russian national) born in 2014 resided in Russia ― Father and mother Russian nationals ― Parents married in 2014 in Russia ― Parents divorced in 2016 ― Mother took the child to Japan in October 2017 and settled there following her remarriage ― A ne exeat order of the Russian court was partly set aside by confirming the child’s temporary residence in Japan in January 2019 ― Central Authority of Japan assisted the Father with a return application in July 2018 ― Father filed petition for the child’s return to the Tokyo Family Court in October 2018 ― Return ordered ― Appeal dismissed by the Tokyo High Court in February 2019 ― Main issues: rights of custody and grave risk.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3

Application dismissed

Application dismissed; the removal was not wrongful as the child had never lost her original habitual residence in Texas.

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