Case Law Search

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.

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

Return ordered

Return ordered. The protective measures were sufficient to ensure that a return to Italy would pose no grave risk to the child, within the meaning of Article 13(1)(b). 

Aims of the Convention - Preamble, Arts 1 and 2 | Objections of the Child to a Return - Art. 13(2) | Grave Risk - Art. 13(1)(b)

Return refused

Return refused based on the objections of the older child and a grave risk of harm to the younger children should they be returned.

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

Appeal dismissed, return refused

Wrongful retention of a child approximately 12 years old at the time of judgment – national of Argentina and Uruguay – separated parents – father of Argentine nationality – mother of Uruguayan nationality – child born in Argentina and lived there until around age 4, then moved to Uruguay with his mother – application for international return initiated on August 19, 2020, before the Uruguayan Central Authority – appeal dismissed, return denied – key issues: Art. 13(1)(b) grave risk exception, child’s objection to return; procedural matters; best interests of the child – returning the child would have entailed a grave risk of further psychological harm – the child's opposition to returning to Uruguay, considering his age and maturity, was decisive in denying the return – the Court indicated that mediation could be reopened to address the child's re-establishment of ties with his mother.

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.

Acquiescence - Art. 13(1)(a) | Procedural Matters

Return refused

Return refused; the father had acquiesced in terms of Article 13(1)(a).

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Rights of Access - Art. 21 | Procedural Matters

Appeal allowed, return refused

Appeal allowed and return refused; on the basis that the father was prepared to contemplate the children remaining in New Zealand if he could have satisfactory access in the United States.

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

Return ordered; the removal was wrongful and the standard required under Article 13(1)(b) to show that the child would face a grave risk of physical harm had not been met.

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

Return ordered

Removal wrongful and return ordered; the child was habitually resident in Australia at the relevant date.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12

Return ordered

Return ordered; the retention was wrongful as only the father had the requisite intention to stay in Australia and acquire a habitual residence there.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of harm if returned had not been met.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed, refusal of Article 15 declaration overturned

Appeal allowed and a declaration was made that the removal was wrongful; while the father had no standing to make an Article 15 application, that could be made on the application of the Central Authority as an intervenor.

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

Return ordered

Return ordered; the retention was wrongful and the standard required under Article 13(1)(a) had not been met to show that the father had consented.

Aims of the Convention - Preamble, Arts 1 and 2

Return order struck out given it had not been enforced for three and a half years.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12

Reclaiming motion (appeal) allowed; case remitted to the Outer House of the Court of Session to determine the issues of wrongful retention and habitual residence.

Consent - Art. 13(1)(a)

Return refused

Return refused; the court found that the father had consented to the children going to and remaining in Scotland.

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

Return ordered

Return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of an intolerable situation had not been met.