Case Law Search

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return refused

2 children allegedly wrongfully retained (aged 10 and 14 at the time of the decision) – Married parents – Father national of the United-States – Mother national of China Hong Kong SAR and the United-States – Children lived in the United States until July 2013 – Application for return filed in February 2015 – Application dismissed – Main issues: habitual residence, wrongful retention, and children’s objections to return – A change of habitual residence occurs when a move from one State to another has a sufficient degree of stability – The absence of a joint parental intention to reside in a given State is not decisive in precluding the possibility of the children having established habitual residence there – Retention is considered wrongful from the moment the parent knows (s)he will not return to the previous country – When taking into account children’s views, a preference may be sufficient to meet the standard of the child’s objection exception under Art. 13(2), provided it is substantial

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 6 - National of Canada - Divorced parents - Father national of Mexico - Mother national of Canada - Joint custody: the mother had primary care, the father periods of care - Child lived in the United States of America until March 2013 - Application for return filed with the Court of Queen’s Bench of Manitoba on 28 March 2013 - Return ordered - Main issues: Art 13(1) (b) grave risk exception to return, objection of the child to return, procedural matters - Motion for staying the enforcement of the first instance return order dismissed - A child aged 8 years (at the time of the proceedings) does not face a grave risk of being exposed to physical or psychological harm or being placed in an intolerable situation if return is ordered while the primary caregiver cannot (immediately) accompany her, pending the outcome of a visa application - Bar an extraordinary level of maturity,  a child aged 8  years has not attained the necessary age and degree of maturity at which her wishes ought to be considered under Art. 13(2) of the 1980 Hague Child Abduction Convention

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

Appeal dismissed, return ordered

1 child wrongfully retained at age 2 - Married parents - Father national of the United States of America - Mother national of Canada - Child lived in the United States of America until 2013 - Application for return filed in 2013 - Return ordered - Main issue: Habitual residence, acquiescence and the Art.13(1)(b) grave risk exception to return - The application of the Art. 13(1)(b) exception requires the child’s exposure to a high degree, intensity and frequency of physical or psychological abuse - A return order that does not deliver the child and parent directly to the left-behind parent upon return diminishes the risk of incidents of domestic abuse occurring, while ensuring that the appropriate forum adjudicates the merits of custody and access issues

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

Return ordered

Return ordered with undertakings and protective measures.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Interpretation of the Convention

Appeal dismissed, return ordered

Wrongful retention of a girl when she was 4 years old – Guatemalan and American – separated parents – the girl was born in the United States, as proved by her birth certificate – the Central Authority of Guatemala filed the return request before court in Quetzaltenango, Guatemala – appeal dismissed, return ordered – main issues: habitual residence; removal and retention; settlement of the child; interpretation of the Convention – the habitual residence of the child before the wrongful retention was in the United States, as evidenced by her birth certificate and medical records – the wrongful retention took place when the father did not return her to the United States on the agreed date after her holiday with the grandparents, to which the mother had consented – the immediate return ought to be ordered since the child had spent less than a year in the requested State – the HCCH Convention on Child Abduction does not require the conduction of socioeconomical or psychological studies on the parents in order to make a decision on return

Rights of Custody - Art. 3

Appeal allowed, return refused

1 child allegedly wrongfully removed at age 13 - Divorced parents - Father had been granted custody - Child lived in Germany until March 2010 - Application for return filed with the Central Authority of Germany on 7 June 2010 - Return refused - Main issues: Rights of custody - The parent who issued the return request had not been exercising his custody rights at the time of removal, and therefore the removal could not be considered wrongful within the meaning of the 1980 Child Abduction Hague Convention

Rights of Custody - Art. 3

Appeal allowed, return refused

1 child allegedly wrongfully removed at age 11 – Divorced parents – Father national of France and Morocco – Mother national of France – Full custody rights automatically awarded to the mother after the divorce under Moroccan law – Child lived in Morocco until October 2014 – Application for return filed with the Juge aux affaires familiales of France in December 2014 – Return refused – Main issue: Rights of custody – Rights of custody, including in particular the right to determine the child’s place of residence, has to be determined in accordance with the law of the State where the child had his habitual residence immediately before the removal

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 7 – National of France – Married parents – Father national of France – Mother national of France – Child lived in Morocco until February 2011 – Application for return filed with the Central Authority of Morocco in March 2011 – Application dismissed – Main issues: Art. 13(1)(b) grave risk exception, costs – It is up to the parent who alleges an exception to return under Art. 13 of the 1980 Hague Child Abduction Convention to prove that the conditions for non-return have been met – In accordance with Art. 26 of the Convention, the parent who wrongfully removed the child can be ordered to pay for the costs of the return proceedings

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

Return ordered

Return ordered.

Habitual Residence - Art. 3

Appeal dismissed, return refused

Application dismissed. The children were habitually resident in Canada.

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.

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

Appeal allowed in part; the removal was wrongful but the return of the girls would be refused for the father by his actions had acquiesced in their remaining in Israel.

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.

Issues Relating to Return | Procedural Matters

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

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2)

Return ordered

Removal wrongful and return ordered; none of the Article 13 exceptions had been proved to the standard required under the Convention.

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

Return ordered

The retention was wrongful and Article 13(2) was not proved to the standard required under the Convention.

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

Return ordered

Return ordered, the retention was wrongful and none of the exceptions were applicable.

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

Appeal dismissed, return refused

2 children wrongfully removed at ages 9 and 7 – Nationals of Korea – Married parents – Father national of The Republic of Korea– Mother national of The Republic of Korea– Parents had joint custody – Children lived in Japan until 28 June 2016 – Application for return filed with the court of The Republic of Korea on 21 April 2017 – Return refused – Main issue: Article 13(1)(b) – a “grave risk” includes cases where the child is at risk of psychological harm due to frequent violence committed against the other parent.

Non-Convention Issues

Return refused

The return of the child was barred as a consequence of his pending asylum appeal.

Habitual Residence - Art. 3

Appeal allowed, application dismissed

1 child allegedly retained at age 6 months – National of the US Father national of US – Mother national of Canada – Father gave open-ended consent to mother to travel with the child to Canada – Child lived in United States for first 42 days of life – Application for return filed with the courts of Canada in December 2017 – The return decision of the Nova Scotia Supreme Court was appealed to the Nova Scotia Court of Appeal where the application was dismissed – Main issues: habitual residence – the Court of Appeal applied the “hybrid approach” to determine the habitual residence of the child and found the child to be habitually resident in Nova Scotia.