Case Law Search

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.

Grave Risk - Art. 13(1)(b) | Non-Convention Issues

Appeal allowed, return refused

Appeal allowed. The Court set aside the order for return and dismissed the father’s application under the 1980 Hague Convention.

Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b)

Return ordered

Return ordered. The child was not settled in the UK, within the meaning of Article 12(2), nor was there a grave risk of harm to the child on return to Portugal within the meaning of Article 13(1)(b).

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

Appeal allowed and Article 15 declaration refused.

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

Return ordered

Return ordered. No grave risk of harm was established and even if there had been one, protective measures were sufficient to ameliorate the risk. Though the child objected, discretion should be exercised so as to override this objection.

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

Case remitted to lower court

Appeal allowed and case remitted for a further hearing.

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

Appeal dismissed, return ordered

Appeal dismissed. There were no grounds for reversing the decision of the District Court.

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.

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

Appeal dismissed and return of older sibling ordered; his removal had been wrongful and the Article 13(1)(b) exception had not been established.

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.

Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Undertakings | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed and return ordered subject to new conditions; the removal was wrongful and none of the exceptions had been established to the standard required under the Convention.

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

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.

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.

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

Return ordered

Return ordered. The father had rights of custody and there was no ‘grave risk’ within the meaning of Article 13(1)(b).

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)

Return refused

Return refused. The Father failed to established that he had rights of custody. Should this finding be wrong the Mother and Guardian established that the children objected to return within the meaning of the Article 13 exception and the Court would exercise their discretion not to order a return. 

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

Return ordered

Return ordered.

Procedural Matters

Application dismissed

Application dismissed; there were concurrent parallel proceedings in the North Carolina State Court and an applicant may only petition before one jurisdiction.