Case Law Search

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

Appeal dismissed, return ordered

Child (US and Japanese national) born in 2016 in the US ― Father a US national, mother a Japanese national ― Unmarried parents ― The father has been using cannabis and exercised violence against the mother ― Parenting arrangement between the parents based on joint custody and alternate stay of the child every week ― Approved by the US court in October 2018 ― Mother took the child to Japan with the father’s consent for three weeks in December 2018 ― Mother never returned and started to retain the child in Japan early January 2019 ― Father filed petition for the child’s return to the Tokyo Family Court in July 2019 ― The mother attempted suicide ― Return application dismissed ― Appeal allowed and return ordered by the Tokyo High Court in January 2020 ― Main issue: Grave risk for the child to be returned.

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

Return ordered

Father was a US national and mother was a Japanese national ― Parents married in 2014 in Japan ― Their sons were born in 2016 and 2017 in Japan respectively ― The entire family moved to California, the United States in 2018 ― In 2022 mother started to seek divorce but father refused ― Mother took the children to Japan in December 2022 ― Mother declared consensual divorce in February 2023 in Japan following their alleged divorce agreement entered in November 2022 ― Father denied to have signed a divorce form or divorce agreement ― Upon father’s petition, the Osaka Family Court ordered the return of the children to the United States ― Appeal dismissed and return ordered ― Main issue: Consent and Grave Risk.

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.

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.

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.

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

Leave to appeal refused and return order confirmed; the removal was wrongful and the objections of the children to a return did not satisfy the standards of Article 13(2).

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

Appeal dismissed, return ordered

Challenge rejected and return order confirmed. The removal was wrongful and the court of appeal had correctly found the Article 13(1)(b) exception to be inapplicable.

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.

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

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

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

Appeal allowed, return refused

Appeal allowed, return refused: the removal of the children was not wrongful.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Appeal allowed, return ordered

Appeal allowed and return ordered; acquiescence had not been proved to the standard required under the Convention.

Habitual Residence - Art. 3

Application dismissed

Appeal dismissed and application dismissed, by a majority the Court of Appeal ruled that the child had no habitual residence on the relevant date.

Procedural Matters

Appeal inadmissible. The issue of the child's best interests could only be evoked to oppose the enforcement if a change in circumstances had occurred between the issuance of the return order and its enforcement. It was for the judge seized with an application for modification to decide on this point.

Issues Relating to Return | Procedural Matters

Appeal allowed and partially founded. The child's return to Germany was ordered.

Consent - Art. 13(1)(a)

Appeal declared inadmissible. The existence of a valid consent does not generally raise any important question of law which may be referred to the Supreme Court (Oberster Gerichtshof). Nor had the Court of Appeal, in the case at hand, made any key misinterpretations requiring correction by the Supreme Court.

Grave Risk - Art. 13(1)(b) | Procedural Matters

Procedural Matters

Appeal dismissed. The condition had indeed been met (though in a different form), but this was due to a US decision which was a new fact that the Federal Tribunal might not consider.