Case Law Search

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

Appeal allowed, return refused

Appeal allowed, return refused. The District Court had erred in finding that Article 13(1)(b) did not apply. 

Issues Relating to Return

Appeal allowed, application dismissed

The parents and the children resided in France ― After the parents’ separation, the father removed two children from France to Japan ― Osaka Family Court ordered the return of the children to France on 11 September 2020, which became final and conclusive on 9 December 2020 ― Divorce decree rendered in France on 23 November 2020 ordered joint custody of the parents and the children to reside with the father in Japan, while only granting visitation right to the mother ― The Osaka Family Court granted the mother’s claim for indirect compulsory execution on 1 February 2021 ― The Osaka High Court reversed the decision and dismissed the mother’s claim to honor the French custody decision on 14 April 2021 ― The Supreme Court upheld the decision on the grounds that the mother’s claim for indirect compulsory execution became unlawful after the children returned to France as a result of compulsory execution by substitute ― Two justices concurred and opined that the lower court decision may conflict with Art. 17 of the 1980 Convention  Main issue: Admissibility of indirect compulsory execution that runs counter to a foreign custody order.

Habitual Residence - Art. 3

Appeal allowed, return refused

Father was an Australian national and mother a Japanese national ― Unmarried parents met online around May 2017 ― In 2019 father briefly visited mother in Japan and she fell pregnant ― Mother moved to Australia in July 2019 to give birth to the child and cohabit with father ― Parents continuously had disagreements ― Father was verbally violent and neglectful of child ― By the time of the child’s birth, mother lost her intent to raise the child in Australia ― With father’s consent, mother took their daughter to Japan 43 days after her birth ― In December 2019, maternal grandfather told father that Mother would return to Australia with the child ― Father petitioned for return of the child to the Osaka Family Court in 2020 ― Return order made by court at first instance was appealed ― In May 2021 Osaka High Court reversed first instance decision on the basis the child’s habitual residence was in Japan not Australia ― Main issue: Habitual residence of the child.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Human Rights - Art. 20

Appeal allowed, return refused

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed, return ordered

Wrongful retention of a 5-year-old boy – Peruvian and American – Married parents –The child lived in Peru until September 2014, then the family changed its place of habitual residence to the United States – The mother filed a return request before the Peruvian courts on 24 August 2016 – Return ordered – Main issues: Habitual Residence; Removal and Retention; Settlement of the Child; Objections of the Child to a Return – The habitual residence of the child prior to the wrongful retention was in the United States – The mother had rights of custody over the child under the custody and visitation agreement approved by the U.S. court – The wrongful retention occurred because the father did not return with the child by the date established in the travel authorisation issued by the mother – The child was gradually detaching from the mother because of the father’s actions.

Grave Risk - Art. 13(1)(b) | Jurisdiction Issues - Art. 16 | Procedural Matters | Best Interests of the Child

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; best interests of the child – 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.

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

Appeal allowed, return ordered

Wrongful removal of a seven-month-old child – U.S. national – Married parents – Father a U.S. citizen – Mother a Brazilian citizen – Shared rights of custody – Child lived in the United States from birth until May 2021 – Return application submitted to the Central Authority in the United States in September 2021 – Appeal allowed, return ordered – Key issues: habitual residence, rights of custody, settlement of the child, grave risk exception – The child’s habitual residence was in the United States – Custody matters must be resolved by the courts of the State of the child’s habitual residence – The father filed the return application within one year of the wrongful retention – The Court held that the allegations of domestic violence were not substantiated, and that neither the child’s separation from the taking parent nor the immigration obstacles faced by the mother were sufficient to establish the grave risk exception.

Removal and Retention - Arts 3 and 12 | Procedural Matters | Settlement of the Child - Art. 12(2)

Appeal dismissed, return refused

First instance judgment affirmed, appeal denied. The wrongful retention began on 4 January 2023. The father did not successfully file a petition until April 2024 and the child was found to be well-settled in the USA. The lower court did not abuse its discretion in refusing to order the child’s return to Greece. 

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.