Case Law Search

Interpretation of the Convention | Habitual Residence - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Guidance on the application of the Convention issued

2 children retained at ages 11 and 8 – Nationals of Canada – Married parents – Father national of Canada – Mother national of Canada – Father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a Canadian school – Children lived in Germany until April 2013 – Application for return filed with the Central Authority of Germany on 11 April 2014 – Return decision of the Court of Appeal of Ontario of 13 September 2016 was appealed to the Supreme Court, but the children were returned to Germany before the Court rendered its judgment; despite the appeal being moot, the Court considered the issues raised to be important and in need of clarification – Main issues: interpretation of the Convention, habitual residence, objections of the child to a return, procedural matters – To ensure uniformity of State practice, courts should generally adopt the interpretation of the Convention that has gained the most support in other foreign domestic courts – The “hybrid approach” to determining habitual residence (which considers all relevant factual links and circumstances in their entirety, instead of focusing either on parental intention or the child’s acclimatisation) should be followed – Courts should adopt a non-technical and straightforward approach to considering the child’s objections to return – It is up to the judicial authorities to ensure that the State lives up to its obligations to act expeditiously under the 1980 Hague Child Abduction Convention – Convention proceedings should be judge-led, not party-driven, and judges should not hesitate to use their authority to expedite proceedings

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

Case remitted to lower court

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents– Father national of Croatia and Germany – Mother national of Croatia – Joint custody according to the German Civil Code and under Croatian law – Child lived in Germany until December2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 - The Court granted the appeal, set aside the first instance judgment and remitted the case for a new trial to the court of first instance – Main issues: Rights of Custody, Brussels IIa Regulation –The first instance court should have applied the Brussels II a Regulation, including its requirement for return to be ordered in Art. 13(1)(b) cases in which it has been established that adequate arrangements have been made to secure the protection of the child upon his return.

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

Return ordered

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents – Father national of Croatia and Germany – Mother national of Croatia – Joint costudy according to the German Civil Code – Child lived in Germany until December 2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 – Return ordered – Main issues: Art. 13(1)(b) grave risk exception to return, Undertakings, Objections of the Child to a Return – The Court ordered the return of the child, whose retention in Croatia was found to be unlawful under Art. 3 of the 1980 Hague Child Abduction Convention.

Rights of Custody - Art. 3 | Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters |

Return refused

Alleged wrongful retention of the child when he was 9 years old – National of Argentina – Unmarried parents –Argentine father – Argentine mother – The child lived in Argentina until November 2014 – The return request was filed before the Chilean court on 22 April 2016 – Return refused – Main issues: habitual residence, rights of custody, settlement of the child, art. 13(1)(b) exception of grave risk, objections of the child to a return, procedural matters - the habitual residence of the child before the removal was in Argentina – the mother had rights of custody under the Convention, and thus retention was not wrongful and the father had no standing to request the international return – over two years elapsed between the arrival of the boy in Chile and the filing of the request, and the child was already settled in – return would certainly put the child at risk of endangering his physical and psychological integrity, due to his mother and him experiencing family violence – the child openly stated his wish not to return to Argentina.

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

Appeal dismissed, return ordered

The court rejected the Beschwerde appeal against the decision and ordered the return of the children.

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

Appeal dismissed, return ordered

The mother’s complaint appeal was rejected and the order to return the children remained in place.

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

Appeal dismissed, return refused

Application dismissed. Return refused as there would be a grave risk of harm to the child if he was returned to Germany.

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

Return ordered

The court ordered the return of the child to the USA.

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

Appeal allowed, return ordered subject to undertakings

Appeal allowed, return ordered subject to undertakings.

Habitual Residence - Art. 3

Appeal allowed, return refused

The Supreme Court (third instance) determined that the children’s habitual residence had changed from the United States to Denmark during the period in which the father consented to them being in Denmark (December 2010 - February 2013). By the time that the father had opposed the children's continued residence in Denmark they were habitually resident there therefore not unlawfully retained. Therefore, the Supreme Court ruled that the retention was not wrongful and that the children should not be returned to their father in the United States.

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

Appeal dismissed, return refused

1 child (UK national) removed from Singapore to Japan ― Parents married in 2010, living together mostly in Singapore and briefly in Japan ― Father Singaporean national, mother Indian national ― Divorce in 2014 ― Father provided with access right, Mother with right to primarily care for the child and freely relocate with the child to Japan ― Mother went to Japan with the child and returned to Singapore in 2014 ― Failed access, Father sought a modification of the relocation clause and the modality of access ― Mother definitively removed the child to Japan in 2015 ― Assistance of the Central Authority of Japan revoked in 2016 ― The father filed a petition for the child’s return to the Osaka Family Court in 2016 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in 2016 ― Main issues: Habitual residence of the child ― Rights of custody of the father or the Singaporean court.

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

Appeal allowed, return refused

1 child (nationality unknown) removed from Turkey to Japan ― Father a Turkish national - Mother a Japanese national ― Parents married in Turkey in 2012 ― The child was born in the same year ― Father allegedly sexually abused the child and exercised violence against the mother ― Mother allegedly incurred injury including a bone fracture due to the father’s violence ― Mother removed the child to Japan in 2014 ― Mother obtained a domestic violence restraining order by the Family Court in Turkey ― Father petitioned to the Tokyo Family Court for return of the child ― Return ordered ― The Tokyo High Court overruled and dismissed the petition for return of the child in 2015 ― Main issues: Article 13(1)(b) Grave Risk for the child

Rights of Custody - Art. 3

Appeal dismissed, return ordered

One child wrongfully removed at age ten – National of Switzerland and Spain – Unmarried parents – Father national of Spain – Mother national of Switzerland – Joint custody according to Spanish law – Child lived in Spain until January/February 2016 – Application for return filed with the Central Authority of Spain on 17 February 2016 – Return refused – Main issues: parental custody – The father received parental joint custody when the child's place of residence was transferred to Spain, since in Spain both parents have parental custody by law.

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

Return refused

Removal wrongful, but return refused; the oldest child had valid objections to a return to Australia and it was accepted that the siblings should not be split up; for separate reasons, linked to the father's past employment, all the children would face a grave risk of harm if returned.

Return ordered

One child wrongfully removed at age 12 – Joint parental responsibility, mother the primary carer of the child and the father had access rights – Child lived in Spain until February 2020  – Return ordered – Main issue: Article 13(1)(b), COVID-19 – the risk of physical harm presented by the pandemic – the risk of contracting COVID-19 during the return travel from the UK to Spain was not sufficient to amount to the “grave risk” of physical harm required by Art. 13(b).

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

Return ordered

Appeal allowed, return ordered. The removal to Panama was considered wrongful and the grave risk exception of Article 13(1)(b) raised by the mother was not established.

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

Appeal dismissed, return ordered

Japanese child born in 2014 ― Father and mother previously foreign nationals and naturalized in Japan ― Parents married in 2001 in Japan ― Parents and child moved to the US in July 2017 ― Child obtained health insurance and enrolled in kindergarten in the US ― Parents established a company and started a business in December 2017 in the US ― Marital relationship deteriorated, and father removed child to Japan in April 2019 ― Neither father nor mother had a long-term visa for the US ― Mother filed petition for the child’s return to the Tokyo Family Court in December 2019 ― Return ordered ― Appeal dismissed and return ordered by the Tokyo High Court in June 2020 ― Main issue: Habitual residence of the child and grave risk defence.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Interpretation of the Convention |

Return refused

Lawful retention of two girls - Uruguayan – Separated parents – The girls lived in Brazil until 19 April 2019, when the mother removed them to Uruguay – The mother filed a return application with the Brazilian Central Authority – Return refused – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, procedural matters, interpretation of the Convention – There was no wrongful retention, as the mother actually removed them voluntarily to Uruguay – The mother had consented that the girls live in Uruguay by removing them to that country and delivering the necessary documents for them to resume their life there to the father – There was a grave risk due to the high emotional disturbance they suffered as a consequence of the physical, psychological and sexual violence they had suffered in Brazil – The proceedings are autonomous and specific for international child abduction cases under Uruguayan Law 18,895 – The children’s best interests in this case had been furthered by preventing them from returning to an environment of sexual, psychological and emotional abuse.

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

Return ordered

Wrongful retention of an adolescent in Uruguay – Custody right exercised solely by the mother – The adolescent lived in Spain with his mother for 4 years – The return application was filed before the Spanish Central Authority – Return ordered – Main issues: Art. 13(1)(b) grave risk exception, objections of the child to a return – The father did not prove any situation in which there was a grave risk actually making return intolerable and exposing the adolescent gravely – The adolescent voiced a preference but there was no true objection in the sense of an unwavering repudiation towards return.

Rights of Custody - Art. 3 | Human Rights - Art. 20 | Procedural Matters

Article 15 declaration refused

Article 15 declaration: the removal of the child was not wrongful within the meaning of Article 3 as the father did not have rights of custody on the relevant date.