Case Law Search

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.

European Convention on Human Rights (ECHR)

The Court unanimously ruled that Hungary had breached Article 8 of the ECHR where domestic courts failed to act expeditiously in the proceedings to return the child and the national authorities had failed to take adequate and effective measures for the enforcement of the return order. It also awarded the father compensation under Article 41 of the ECHR.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Jurisdiction Issues - Art. 16 | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Return refused

Removal wrongful but return refused; the child was settled in his new environment and the Court exercised its discretion not to order his return.

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

Return refused

There had been a fundamental change of circumstances as the mother was no longer willing to return to Poland. The judge set aside the initial ruling and refused the application for return based on the Article 13(1)(b) exception.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return ordered

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Application dismissed

Application dismissed; the child was held not to be habitually resident in California at the time of the retention.

Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and none of the exceptions invoked was applicable.

Rights of Access - Art. 21 | Non-Convention Issues

Agreement as to contact between mother and the children in the United Kingdom and Pakistan made by consent.

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.

Non-Convention Issues | Best Interests of the Child

Appeal dismissed, return ordered

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful, the child being habitually resident in Canada at the relevant date.

Issues Relating to Return | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

The Court unanimously ruled that Romania had breached Article 8 of the ECHR in failing to thoroughly assess the best interests of the child and to give the father the opportunity to present his case. It also awarded the father compensation under Article 41 of the ECHR.

Habitual Residence - Art. 3

Appeal allowed, return ordered

3 children wrongfully retained at age 8, 10 and 12 - Married parents - Father national of Australia - Mother national of Finland and Australia - Family moved to Finland from Australia in June 2014 - Family returned to Australia for a temporary visit in March 2015 - Application for return filed with the first instance court in May 2015 - Return ordered - Main issues: Habitual residence - Where the parents have a common intention to settle in a given State for a year without any agreement as to where they would live thereafter, the children may be considered habitually resident there, depending on the facts of the case (including attendance and progression at school, engagement in extra-curricular activities, connections with friends and family, receipt of government benefits, the parents’ (search for) employment, participation in local health schemes) - The finding that a child has acquired habitual residence in a given State may more readily be made where the child has already lost habitual residence in the State in which he or she previously lived

Settlement of the Child - Art. 12(2)

Case remitted to lower court

1 child wrongfully removed at age 4 - National of Switzerland - Unmarried parents - Father national of Switzerland - Mother national of Spain - The lower courts had determined that the removal was in breach of the father’s custody rights - Child lived in Switzerland until August 2013 - Application for return filed with the courts of Spain on 7 November 2013 - Return refused at first instance, then return ordered on appeal - Main issue: settlement of the child - “Amparo” claim successful: the Constitutional Court found that the mother’s constitutional right to effective legal protection had been violated (no ruling on return / non-return) - A proper analysis of whether the child has become settled in its new environment should be conducted where a year has passed since the abduction occurred, in order for a decision to be rendered that is in the best interests of the child - It is immaterial that the delay is not attributable to the conduct of the parents; regardless of the cause, it may not affect the best interests of the child

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

Return ordered subject to undertakings

2 children wrongfully removed (born in 2005 and 2007) - Separated parents - The Purvian courts had effectively granted temporary custody to the mother on 21 November 2013, and then to the father on 1 October 2014 (following the removal)  - Children lived in Peru until 20 February 2014 - Application for return filed with the District Court on 17 February 2015 - Return ordered subject to undertakings - Main issues: rights of custody, Art.13(1)(b) "grave risk" exception to return, undertakings - A very severe degree of psychological abuse is sufficient to conclude that the Art. 13(1)(b) "grave risk" exception to return under the 1980 Hague Child Abduction Convention applies, even in cases in which there is very little or no evidence of physical abuse

Rights of Custody - Art. 3

Appeal dismissed, return ordered

2 children wrongfully removed at ages 5 and 6 – Unmarried parents – After separation the mother obtained an ex parte interim order granting her sole custody – Children lived in Canada until July 2011 – Application for return filed with the Central Authority of Germany on 15 June 2012  - British Columbia Supreme Court issued a decision / declaration under Art. 15 of the 1980 Hague Child Abduction Convention that the removal was wrongful on 9 July 2012 - Return ordered by the German Court of Schleswig on 23 July 2012 – Main issue: rights of custody – While a final determination of custody has yet to be made but custody has been awarded on an interim basis, the court retains rights of custody within the meaning of the Convention – This principle is not affected by the absence of a non-removal clause in an interim order  

Appeal dismissed, return refused

One child wrongfully removed – National of Venezuela – Unmarried parents– Father national of Venezuela – Mother national of Venezuela – Father awarded primary custody which was revoked when he left for the USA. Mother granted supervised visits – Child lived in Venezuela until February 2014 – Application for return filed with the court of the USA on 15 December 2014 – Return refused – Main issue(s): Article 13(1)(b) – sufficiently serious threats and violence directed against a child’s parent can pose a grave risk of harm to the child as well.

Habitual Residence - Art. 3

Appeal allowed and case remitted to the trial court; the trial court had erred by failing to determine whether the parents had intended to abandon their habitual residence in the United States of America or whether they had intended to retain it while residing abroad temporarily.