Case Law Search

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

Appeal allowed in part; the retention was wrongful but the trial judge should have exercised his discretion to refuse the return of the eldest child in the light of her objections. As a consequence, the case was remitted to the Family Division of the High Court to determine the outcome for the three younger siblings.

Habitual Residence - Art. 3 | Non-Convention Issues

Appeal allowed, return ordered subject to undertakings

Appeal allowed and return ordered, subject to undertakings; the 1980 Hague Child Abduction Convention was not applicable, the child being habitually resident in England and Wales on the relevant date, but the Court exercising its power under the inherent jurisdiction found that it was in the child's best interests to return to Texas so a court there could adjudicate on his future.

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

Appeal dismissed and grant of interim custody to the mother upheld.

Issues Relating to Return | Procedural Matters

Appeal inadmissible; the appeal did not raise a substantial legal issue.

Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters

Appeal allowed, case referred to the lower court. If the court in the State of refuge contemplates denying return of the child (or its enforcement) owing to a grave risk of danger, it is a prior requirement to ascertain sua sponte that the necessary protective measures to make the return possible could not be taken.

Non-Convention Issues

Legal challenge upheld. The Audiencia Provincial order was set aside and the Supreme Court ordered a new decision to be made on the child's relocation, which would assess the appropriateness of her removal to the United States of America and the attribution of contact rights in a way which was fair and equal for both the child and her parents.

European Convention on Human Rights (ECHR) | Procedural Matters

In a unanimous ruling, the Court declared the application to be admissible, and found that the national authorities had not taken all the steps which could be reasonably required to enforce the father's access rights, leading to a violation of Article 8 of the ECHR.

Removal and Retention - Arts 3 and 12 | Article 15 Decision or Determination

Appeal allowed and Article 15 declaration refused.

Habitual Residence - Art. 3 | Procedural Matters

Application dismissed

Application dismissed; the removal was not wrongful as the child had retained his habitual residence in Northern Ireland during the course of his stay in Poland.

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

Appeal allowed and order made that the child should be returned to Greece.

Issues Relating to Return | Procedural Matters

Appeal inadmissible: the issue whether the Austrian courts may deliver a return order and take execution measures in a single ruling is not sufficiently substantial to justify an appeal. While admittedly there are no Supreme Court precedents on this point, the issue does not raise a substantial difficulty since it is clearly resolved by legislation.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Jurisdiction Issues - Art. 16

Return ordered

Wrongful removal of a 12-year old child – Custody rights were exercised by the child’s aunt and her husband – The child lived in Costa Rica since he was 2 years old until February 2019 – Return ordered – Main Issues: habitual residence; rights of custody; jurisdiction issues – The habitual residence of the child is where his centre of life is, irrespective of the child’s nationality – Even though the mother had parental authority over the child, the rights of custody were exercised by the child’s aunt and her husband, and thus removal was wrongful – Return proceedings are not aimed at determining the parent’s ability to take care of and raise the child.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return ordered

Appeal dismissed and return order upheld; the retention was wrongful the child being habitually resident in France at the relevant date, and none of the exceptions had been established to the standard required under the Hague Convention.

Non-Convention Issues

Case remitted to lower court

One child aged 12 - National of Ukraine - Unmarried parents - Father national of Ukraine - Mother national of Ukraine - Mother married British national and gained spousal visa in 2017 - Child lived in Ukraine until 2018 when mother took child to UK - Mother wrongfully retained child - Father gained return order - Mother and child returned to Ukraine in May 2019 - Mother wrongfully removed child in October 2019 and returned to UK - Father granted second return order in July 2020 - Mother made asylum application for child on 20 October 2020 and applied to stay 1980 Hague Convention proceedings on 26 October 2020 - Child granted asylum on 28 May 2021 - Court overturned return order because of the child's asylum status - Father appealed this - Main issues: art.13(1)(b), art.13(2), and asylum claim - The grant of asylum did not automatically nullify Hague proceedings - Appeal allowed and case remitted for urgent case management hearing.

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

Appeal dismissed, return ordered

Appeal dismissed and return order confirmed; whilst the children objected to a return the standard required under Article 13(2) had not been reached.

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

Application dismissed

Application dismissed and return refused; the removal was not wrongful and the child was in any event settled in his new environment.

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 – Appeal dismissed, return ordered– 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.

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.

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

Return refused

Return refused; the removal was wrongful but the child was found to have become settled in his new environment.

Role of the Central Authorities - Arts 6 - 10

Application inadmissible for lack of locus standi.