Case Law Search

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

Appeal allowed and case remitted to the Unified Family Court to determine whether the child was now settled in its new environment.

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

Return ordered

Wrongful removal of a 7-year old girl – Chilean – unmarried parents – Chilean father – Argentine mother – custody rights belong with the father – the girl lived in Chile until late 2019 – return application submitted before the Family Court in Formosa, Argentina, in September 2020 – return ordered – main issues: removal and retention, settlement of the child, art. 13(1)(b) grave risk, objections of the child to the return, procedural matters, interpretation of the Convention – retention was wrongful because the custody rights of the father, effectively exercised by him at the time, were infringed – the time required by the Convention to refuse the return on grounds of settlement of the child in her new environment did not elapse – no evidence that the child would be exposed to grave risk upon her return – there were no objections by the child showing an irreducible objection against returning to the place of habitual residence – due to effects of the COVID-19 pandemic, the parents were invited to cooperate in the implementation of the return order and to avoid unnecessary delays – there are no incompatibilities between the Convention and the Convention on the Rights of The Child; both are meant to protect the best interests of the child.

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, application dismissed

4 children allegedly retained - aged 10, 13, 14 and 16 at the time of the decision – Nationals of Canada and Germany – Father national of Germany – Mother national of Canada – Both parents had rights of custody – Children lived in Germany until August 2017 – Application for return filed with the courts of Ontario in August 2018 – Application dismissed – Main issue(s): Habitual Residence – Art 3 – The children were habitually resident in Canada and therefore there was no wrongful retention 

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

Appeal dismissed, return ordered

The Supreme Court rejected the mother’s appeal.

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Jurisdiction Issues - Art. 16

Appeal allowed, return refused

Appeal allowed and return refused; regard had to be paid to the terms of the provisional order of the Czech District Court permitting the children to live with the mother in Sweden.

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

Appeal dismissed, return ordered subject to undertakings

Appeal dismissed and return ordered subject to undertakings; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of psychological harm had not been met.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the standard required under Articles 12(2) and 13(1)(a) had not been reached.

Aims of the Convention - Preamble, Arts 1 and 2 | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the children were not settled in the United States and the District Court had not abused its discretion in exercising jurisdiction in the case.

Rights of Custody - Art. 3 | 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, but, the children were now settled in their new environment in accordance with Article 12(2).

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the standard required under Articles 13(1)(b) and 12(2) had not been met.

Removal and Retention - Arts 3 and 12 | 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)

In respect of the elder child: The Convention was not applicable, the child having attained the age of 16 by the date of the hearing. In respect of the younger child: Return ordered; the removal was wrongful and none of the exceptions had been proved to the standard required under the Convention.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but on the basis of the children's objections a return order was refused.

Rights of Custody - Art. 3

Return refused

Return refused; the retention was not wrongful as the father had consented to the relocation of the child.

Settlement of the Child - Art. 12(2)

Return refused

Return refused; the removal was wrongful but Article 12(2) was successfully invoked, the child now being settled in her new environment.

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2)

Return ordered

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

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

Appeal allowed, return refused

Appeal allowed and return refused; the child was now settled in her new environment pursuant to the terms of Article 12(2).

Settlement of the Child - Art. 12(2)

Return refused

Return refused; the child was settled in her new environment and the court exercised its discretion not to make a return order.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Settlement of the Child - Art. 12(2)

Return refused

Return refused; the removal was wrongful but the child was found to have become settled in his new environment.

Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return refused

Settlement of the Child - Art. 12(2)

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but the children were now settled in their new environment and it would not be appropriate for them to be returned.