Case Law Search

Rights of Custody - Art. 3 | Article 15 Decision or Determination

Article 15 declaration granted

Appeal allowed; article 15 declaration granted.  The applicant father was considered to hold rights of custody under New Zealand law.

Habitual Residence - Art. 3

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful, the children having retained their Italian habitual residence during their extended stays in the United States.

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

Return ordered

Return ordered.

Aims of the Convention - Preamble, Arts 1 and 2 | Settlement of the Child - Art. 12(2) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Case remitted to lower court

Wrongful retention of a child when she was 5 years old - US national - parents married - father US national - mother Colombian national - both parents had custody rights under the Convention - child lived in the US until 19 December 2015 - return application was filed before the US Central Authority on 13 June 2016 - lower court was ordered to make a new judgment in the international return proceedings, taking into account the child's views - main issues: aims of the Convention - Preamble, settlement of the child, acquiescense, art. 13(1)(b) grave risk exception, child's objections to return – the best interests of the child is to be returned to his or her center of life without delay, unless one of the grounds of exception is proven - assessment of the child's settlement is appropriate only if one year has elapsed between the wrongful conduct and the date of filing of the international return application - the grave risk must be greater than the natural hardship that may result from a change of his or her residence or the dislocation of the current living group - the decision on the application of the exception of Art. 13(2) requires consideration of the voice of the child who is of sufficient age and maturity.

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

Appeal dismissed, return refused

Habitual Residence - Art. 3

Application inadmissible, there had been no manifest error in analysis of the child's habitual residence.

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

Appeal dismissed, return refused

Appeal dismissed and non-return order upheld; the retention was wrongful but the child would face a grave risk of harm if returned.

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

Appeal allowed, return refused

Appeal allowed and return refused; the removal was wrongful but the children had valid objections to a return and in the light of fresh evidence considered on appeal, a non-return order was made.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and none of the exceptions raised applied.

Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a)

Appeal allowed, return refused

Appeal allowed and return refused; by a 2:1 majority the Court found that Article 13(1)(a) of the 1980 Hague Child Abduction Convention had been activated, one judge found that this was on the basis of consent, the other as a result of acquiescence.

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

Return ordered subject to undertakings

Removal wrongful and return ordered; Article 13(1)(b) had not been proved to the standard required under the Convention.

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

Appeal dismissed, return refused

Wrongful removal of a child when he was 7 years old - Argentine - Unmarried parents - Paraguayan mother - The child lived in Paraguay from December 2016 to October 2017 – Return to Paraguay refused – Main issues: habitual residence, objections of the child to a return – The Supreme Court of Buenos Aires held that the child’s habitual residence was in Paraguay, and found that the removal to Argentina was  wrongful since it breached the mother’s rights of custody under the Paraguayan law – The court considered that the child´s objection to return was established since the child expressed at all stages of the proceedings his complete refusal to return to Paraguay, alleging mistreatment by classmates and relatives.

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

Appeal allowed, return ordered

Wrongful retention of two children, a boy aged 4 and a girl aged 6 – Nationals of the United States, Costa Rica and El Salvador – The children resided in Lourdes de San Vito de Coto Crus, Puntarenas, Costa Rica at the moment of the removal to El Salvador – The return application was submitted before the Central Authority of the Republic of El Salvador – Appeal allowed, return ordered – Main issues: removal and retention, rights of custody, objections of the child to a return, procedural issues – The habitual residence of the children before the removal was in Costa Rica – The children were wrongfully retained by their mother in El Salvador because they did not return to Costa Rica after a month of vacation as agreed– Both parents had rights of custody – The hearing process of the children and the taking of their opinions into consideration were not carried out properly – The debate over the merits of the rights of custody unnecessarily delayed the return proceeding, in contravention of the nature and purpose of the Convention.

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

Return refused

Return refused.

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

Proceedings dismissed and costs awarded against the children's litigation guardian.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Human Rights - Art. 20

Appeal dismissed, application dismissed

Appeal dismissed and imprisonment of parent upheld; under the law of New Jersey the removal of the child had been wrongful and the mother in not returning the child was in contempt of court.

European Convention on Human Rights (ECHR)

Application inadmissible; all elements of the complaints were found to be manifestly ill-founded.

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Role of the Central Authorities - Arts 6 - 10 | Procedural Matters

Return ordered with undertakings offered

Retention wrongful and return ordered; none of the exceptions was upheld.

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

Case remitted to lower court

A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm.

Case remanded to District Court to determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to the child, bearing in mind that the Convention sets as a primary goal the safety of the child.

Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Return ordered with undertakings offered

Removal wrongful and return ordered; Article 13(1)(b) had not been proved to the standard required under the Convention.