Case Law Search

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

Appeal allowed, return refused

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Inter-American Convention on the International Return of Children | Issues Relating to Return

Appeal allowed, return ordered

Wrongful retention of a girl when she was four years old - Mexican – Argentine mother – Mexican father – Married parents – The girl lived in Puerto Aventuras, Estado de Quintana Roo, Mexico, until February 2020 – The return request was filed before the Argentine Central Authority – Appeal allowed, return ordered -  Main Issues: habitual residence, removal and retention, grave risk exception, procedural matters, commitments – the girl’s habitual residence was in Mexico – the girl was wrongfully retained in Argentina by the mother because she did not return to Mexico upon expiration of the term in the father’s travel authorisation – The mother did not show that the family violence situation reported posed a grave risk to the girl; neither did she prove the lack of protection measures in Mexico – the interpretation standards of the 1980 HCCH Convention apply to the cases governed by the Inter-American Convention – Measures were taken to guarantee the safe return of the child to her State of habitual residence.

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

Appeal allowed, return refused

2 children allegedly wrongfully removed at ages 4 and 7 – Nationals of the United States of America – Parents pending divorce – Father national of USA – Mother national of USA, UK and Ireland – Parents were still married at the time of mother’s wrongful retention – Children lived in Illinois, USA (until 8 June 2022) – Application for return filed with the courts of Illinois, USA on 2 September 2022 – Return ordered 28 February 2023 – Main issues: Where there is a grave risk of harm to the children under Article 13(1)(b) the analysis of protective measures should not be limited to the measures available but should also consider whether these measures would be effective in the specific circumstances.

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

Return ordered

Child wrongfully retained at age 12 – Citizen of Georgia – Divorced parents – Father national of Georgia – Mother national of Greece – Parents had joint custody – Child lived in Cyprus from 2008 until August 2012 – Application for return was filed with the Central Authority on 18 December 2012 – Main issue: Article 3 – the child’s State of habitual residence was Cyprus and there was no evidence to support the use of one of the exceptions to return under the 1980 Convention.

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

Return ordered

2 children wrongfully retained at ages 1 and 2 – Married parents – Father national of the United States – Mother national of Canada – Both parents had rights of custody under the laws of Iowa – Children lived in the United State until 16 June 2018 – Application for return filed with the Central Authority of the United States on 18 August 2018 – Return ordered – Main issues: Article 3 -  children habitually resident in the United States, father had rights of custody and had only agreed to a one month stay in Canada, retention was therefore wrongful - Article 13(1)(a) Consent & Acquiescence – Exception not established, there is no “clear and cogent evidence of unequivocal consent or acquiescence” - Article 13(1)(b) Grave Risk – Exception not established, measures of protection are available in Iowa.

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a)

Appeal allowed, return refused

Two children wrongfully removed at ages 6 and 3 - Nationals of Romania - Divorced parents - Father national of Romania - Mother national of Romania - Parents share caring responsibilities for the children and frequently moved between England and Romania throughout marriage - Father consented to children living in England with mother post-divorce - Children lived with father in Romania between September 2019 and February 2020 - Children returned to England with mother - Father sought to renege on his earlier consent - Application for return filed in England on 17 July 2020 by the father - Return ordered notwithstanding a finding of consent - Mother appealed this decision - Main issues: habitual residence and consent - Court agreed that children were habitually resident in Romania, however, allowed the appeal in relation to consent

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

Appeal allowed and case remitted to trial court; determination to be made as to what undertakings, if any, would be sufficient to ensure the safety of the children upon their return to Mexico pending the outcome of custody proceedings.

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

Appeal dismissed, return ordered

Two children wrongfully removed at ages nine and seven – Married parents – Shared parental custody – Children lived in Spain until 5 February 2016 – Application for return filed with the courts of Switzerland on 17 February 2016 –Application dismissed – Main issue(s): Habitual residence - is understood to mean the actual centre of the child's life, which is determined by the factual circumstances; Consent - the departure of the spouse does not require any approval by the other; the only thing requiring approval is the change of the children's place of residence abroad; Grave risk - must be interpreted restrictively: meaning a serious danger, initial language and reintegration difficulties typically do not constitute a serious danger.

Removal and Retention - Arts 3 and 12 |

Appeal dismissed, return ordered

one child wrongfully retained between age 4 and 5– National of unknown –unmarried parents – Father national of unknown – Mother national of unknown – Shared parental responsibility – Child lived in Portugal until 10 March 2017 – Application for return filed with the courts of Switzerland on 23 April 2018 – Return ordered – Main issue: Removal and Retention – The father could not prove that the mother had given her consent for the child to remain in Switzerland and the mother filed an appeal within the one year period set out in Article 12.

Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)

Return ordered

Removal wrongful ad return ordered; the children had not settled in their new environment and the objectives of the older children were not of the requisite standard to justify a non-return order being made.

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

Appeal allowed, return refused

Appeal allowed and return refused; the child objected to a return and the standard required by Article 13(2) had been reached.

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

Appeal dismissed, return ordered

Challenge dismissed and return order confirmed. The court of appeal had not breached Article 13(2) by refusing to hear the children.

Acquiescence - Art. 13(1)(a) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed and case remitted to the trial judge to enable the child's views to be ascertained.

Habitual Residence - Art. 3 |

Appeal dismissed, return refused

Daughter born in 2007 and son in 2012 ― Father, mother and both children previously Sri Lankan nationals and naturalized in Japan in 2017 ― Father living in Japan since 1999 and mother since 2002 ― Parents married in 2002 ― Father principally moved to Sri Lanka with two children in July 2017, but maintained his job, home and residence registration in Japan ― Mother also travelled back and forth ― Children enrolled at school in Sri Lanka in September 2017, but went back to their elementary school in Japan during long school breaks ― Parents separated since August 2018, followed by petitions for a custody order and divorce to the Osaka Family Court ― Mother retains son since April 2019 in Japan ― Father returned to Sri Lanka with daughter in May 2019 ― Father filed petition for the son’s return to the Osaka Family Court in June 2019 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in October 2019 ― Main issue: Habitual residence of the child.

Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | European Convention on Human Rights (ECHR)

Return refused

One child wrongfully retained at age 5 – National of Germany - Divorced parents – Father national of Germany – Mother national of Russia – Parents had joint custody – Child lived in Germany until 13 July 2017  – Application for return was filed with the Court on 30 August 2018 – Return refused – Main issue(s): Article 13(1)(b), grave risk due to violence from the father; Article 12, child settled in new environment.

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

Return ordered with undertakings offered

3 children wrongfully removed at age 7 – Father national of the United Kingdom and Canada – Mother national of the United Kingdom and Canada – Both parents had rights of custody under the law of Scotland – Children lived in the United Kingdom until August 2009 – Application for return filed with the Central Authority of the Scotland on 20 October 2009 – Return ordered – Main issue(s): Rights of custody – Art. 3 – Father had rights of custody under the law of Scotland; there was no court order restricting his rights as a parent – Removal & Retention – Arts 3 and 12 – Children wrongfully removed, in breach of the father’s custody rights and without his consent. The father was exercising his rights despite the child protection investigation – Grave Risk – Art. 13(1)(b) –There is no grave risk. Social service agencies and court in Scotland will protect the children upon their return – Undertakings – Undertakings imposed to assist the return and to protect the children in the transitional period before the court in Scotland takes over. 

Rights of Custody - Art. 3

Leave to appeal refused and return application dismissed; there had been no wrongful removal because the father did not have rights of custody at the moment of the removal.

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

Appeal allowed, return refused

Appeal allowed and return refused; the retention was wrongful but the child was now settled in her new environment.

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

Return ordered

The court held that the exceptions under Article 13 of the 1980 Convention did not apply in this case and ordered the return of the children to Israel.