Case Law Search

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.

Issues Relating to Return

Case remitted to lower court

Child born in 2006 in Russia ― Father a Russian national, mother a Japanese national ― Married parents living in Moscow from 2007 and later divorced ― Mother retained the child aged nine years in Japan in August 2016 ― Father filed petition for the child’s return in Japanese courts in November 2016 ― Parents agreed on the child’s return, child support and access etc. in conciliation ― Child refused to return ― Father further sought a habeas corpus order ― Parents concluded a judicial settlement ― Mother petitioned for annulment of the return clause reached in conciliation ― Main issue: procedural issues, modification of a return clause made in conciliation.

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 | 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 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Jurisdiction Issues - Art. 16 | Best Interests of the Child

Appeal dismissed, return ordered

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2)

Return refused

Return refused, the child was now well-settled in the US. 

Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Best Interests of the Child | Settlement of the Child - Art. 12(2)

Appeal allowed, return ordered

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

Return ordered

Return ordered. The Judge did not accept that it was likely that the mother would not return with the child and therefore did not find any grave risk of harm or intolerability caused by separation from the mother. 

Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered

Return ordered. The Court dismissed the exceptions based upon consent, acquiescence and Article 13(1)(b). In the circumstances it was for the Dutch courts to determine the child’s long term welfare.

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.

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.