Case Law Search

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal was wrongful and none of the exceptions had been proved to the standard required by the Convention.

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.

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

Rights of Custody - Art. 3 | Undertakings | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Return ordered

1 child wrongfully removed at age 3 – National of Croatia – Married parents– Father national of Croatia – Mother national of Croatia – Joint parental responsibility under the  German Civil Code – Child lived in Germany until 6 April 2016 – Application for return filed with the Central Authority of Croatia on 10 June 2016 – Application for return filed with the courts of Croatia on 29 August 2016 – Return ordered – Main issues:  Rights of Custody, Art. 13(1)(b) “grave risk” exception to return, Objections of the Child to a Return – The child’s removal from Germany to Croatia was held to be unlawful under the Hague Convention, and none of the exceptions to ordering return were deemed applicable.

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.

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

Appeal allowed, return ordered

Return ordered; the "grave risk of harm" exception had not been established.

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

Return ordered

Return ordered; the children's objection was insufficient.

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

Return ordered

Removal wrongful and return ordered; none of the exceptions had been established to the standard required under the Convention, however, the return was subject to extensive and stringent conditions, including the obtaining of a mirror order in the High Court of South Africa.

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)

Return ordered

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)

Return refused

Return refused; the removal was wrongful, being in breach of the father's rights of custody, but the older siblings had valid objections to a return and the children would face a grave risk of harm if separated.

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.

Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2)

Appeal allowed, return ordered

Appeal allowed and return ordered; Article 13(1)(a) - acquiescence - had not been proved to the standard required under the Convention.

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

Appeal dismissed, return ordered

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.

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

Appeal allowed and case remitted to the Family Court of Australia for adjudication; the trial judge had erred in rejecting the Article 13(1)(b) exception without paying sufficient regard to the expert evidence on the matter.

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

Appeal dismissed, return ordered

Appeal dismissed, returned ordered; whilst the child objected to a return the Court exercised its discretion to order his return.

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

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.