Case Law Search

European Convention on Human Rights (ECHR) | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

The Hague Convention proceedings in Slovakia were held not to be in compliance with the requirements of Article 8 of the European Convention on Human Rights (ECHR).

Habitual Residence - Art. 3

Return refused

1 child allegedly wrongfully removed at age 4 – National of Poland – Married parents – Father national of Poland – Mother national of Poland – Parents exercised joint rights of custody – Child lived in Norway until June 2012 and then Poland until December 2012 – Application for return filed with the Central Authority of Norway in December 2012 –Return refused – Main issue: Article 3 – habitual residence – the child was habitually resident in Norway and so the return to Norway from Poland did not constitute an unlawful removal.

One child wrongfully removed at age 1 – National of Israel – Married parents  – Mother national of Russia – Joint custody rights – Child lived in Israel until August 1996 – Application for return filed in October 1998 – Return refused – Main issue(s): Article 13(1)(b) – there was a grave risk of psychological harm to the child, severe enough to invoke Article 13(1)(b), even though its cause is mostly related to the threat to the mother.

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

Appeal allowed, return ordered

2 children wrongfully removed at ages 3 and 2 - Nationals of Switzerland and the United Kingdom - Divorced parents - Father national of the United Kingdom - Mother national of Switzerland - Joint rights of custody; the father had supervised access rights while the mother effectively exercised custody - Repeated incidents of domestic violence were known to the social services - Children lived in the United Kingdom (England and Wales) until 25 March 2016 - Application for return filed with the first instance court in Switzerland on 5 September 2016 - Return ordered - Main issues: exceptions to ordering return - The exceptions to return should be interpreted restrictively - The determination whether ordering return would place the child in an intolerable situation, within the meaning of Art. 13(1)(b) of the 1980 Child Abduction Hague Convention, may only be made in respect of the child, and not the taking parent -  Return must be ordered if the actual cause of the risk of placing the child in an intolerable situation upon return is an unfounded refusal of the taking parent to return with the child - The taking parent may stay in an area far from the left-behind parent's place of residence upon return to the requesting State, in order to preserve the stability that was gained by geographic separation from the left-behind parent

Procedural Matters

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

Appeal dismissed, return ordered

The child’s mother’s application for an interlocutory order was rejected. The court ruled that it was not able to find any evidence that there would be grave consequences for the child if the order of the Higher Regional Court were enforced.

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

Leave to appeal refused and non return order therefore confirmed; the trial judge had been entitled to accept the objections of the two older children and to exercise her discretion not to return any of the children.

Habitual Residence - Art. 3 |

CJEU - Preliminary ruling issued, case remitted to national courts

Preliminary ruling given on the interpretation of habitual residence as an autonomous concept within the Brussels IIa Regulation. The Court concluded that the child’s habitual residence was in Greece and therefore the Court considered that there had not been an unlawful retention by the mother

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters

Removal and Retention - Arts 3 and 12

Appeal dismissed; the Court of Appeal had rightly taken into account the High Court judgment to refuse a return order.

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

Order made that the 6 year old child subject of the proceedings be interviewed and assessed.

Rights of Custody - Art. 3 | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Preliminary ruling given, inter alia, on the meaning of habitual residence as a Community concept within Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was wrongful and none of the exceptions applied. 

Acquiescence - Art. 13(1)(a)

Appeal dismissed, return refused

Appeal dismissed, order refusing return upheld. Although the child's retention was wrongful, the father had acquiesced. 

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Appeal dismissed, return refused

Appeal dismissed and return refused. The abduction was wrongful but there was a grave risk that ordering a return would expose the child to harm. It had not been established that the Hungarian authorities could ensure the protection of the child.

Habitual Residence - Art. 3

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the retention was not wrongful as the children had lost their Israeli habitual residence by the relevant date.

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

Application dismissed

Application dismissed; the child was habitually resident in Israel on the relevant date.

Consent - Art. 13(1)(a)

Return refused

Retention wrongful but return refused; the father had consented to the relocation of the children to Israel.

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

Appeal dismissed, return refused