Case Law Search

Removal and Retention - Arts 3 and 12 | Procedural Matters |

Appeal dismissed, return ordered

1 child wrongfully removed at age 3 – National of Poland - Married parents (ongoing divorce proceedings) – Mother national of Poland – Father national of Poland - Parents had joint custody. Divorce court gave mother the right to have the child during the abduction until the end of the divorce proceedings. Decision that was annulled after return was ordered. – Child lived in Poland (until 4 December 2015)  – Application for return filed with the Central Authority of Switzerland on 6 June 2016 – Return ordered – Main issue: Grave Risk – The fact that the mother considers her own return to Poland to be intolerable, both financially and professionally, is not relevant to the examination of the exception to return.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Procedural Matters |

Appeal dismissed, return ordered

Wrongful retention of two children – Venezuelan nationals – Married parents – Both parents had custody rights – The return application was filed before the Chilean Central Authority in November 2018 – Return ordered – Main issues: consent, removal and retention, procedural matters – the evidence proffered by the mother was not sufficient to prove the father’s will in the travel authorisation – The father had consented to the removal, but not a change in residence, and thus there was a wrongful retention – Safe return measures were adopted for the children to undergo return with the least harm possible.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Article 15 Decision or Determination | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20 | Rights of Access - Art. 21

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the inferior courts had erred in rejecting the determination of the Romanian courts pursuant to Article 15; under Romanian law the father had no rights of custody for Convention purposes therefore the removal of the child was not wrongful.

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

Return refused

Removal wrongful but return refused; Article 13(1)(a) and (b) and Article 13(2) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

Non-Convention Issues

Return ordered

Return ordered. The Court denied the mother’s requests for a stay and/or an adjournment of the return application proceedings on the basis of her applications for refugee protection.

Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Procedural Matters

Appeal dismissed, return ordered

Appeal refused; return allowed. It was settled that the retention was wrongful.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

Unanimous: infringement of Article 8 of the European Convention on Human Rights (ECHR); award of damages on the basis of Article 41 of the ECHR.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The removal was wrongful and none of the exceptions raised was applicable.

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

Return ordered with undertakings offered

Removal wrongful and return ordered; the objection of one child to return was not sufficiently strong to override the policy of the Convention.

Removal and Retention - Arts 3 and 12 | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed, return ordered. 

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The retention was wrongful and the exceptions raised inapplicable.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) |

Appeal dismissed, return refused

1 child (allegedly) wrongfully removed at age 4 – National of the USA – Unmarried parents – Father national of the USA and the Dominican Republic – Mother national of Switzerland, the Dominican Republic, Italy – Shared parental responsibility – Child lived in the USA – Application for return filed with the Central Authority of Switzerland on 7th of January 2021 – Return refused – Main issue: Grave Risk (Art. 13(1)(b) – Status quo ante cannot be attained, since mother has a travel ban to the USA. Grave risk to the child if separated from the mother for the next 10 years.

Removal and Retention - Arts 3 and 12

Appeal dismissed, application dismissed

Appeal dismissed and application dismissed; the removal was not wrongful as the father had consented to the relocation of the child on the basis of Article 13(1)(a).

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

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful as the child was habitually resident in Australia at the relevant time, and none of the exceptions had been proved.

European Convention on Human Rights (ECHR) | Procedural Matters

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Procedural Matters

Application dismissed

Application dismissed; the child was not habitually resident in Australia at the time of the removal and in any event there had been no breach of actually exercised rights of custody.

Aims of the Convention - Preamble, Arts 1 and 2 | Procedural Matters

Judgment vacated and case remanded to the United States Court of Appeals for the Eleventh Circuit for further proceedings; the return of the child to Scotland did not render the case moot; there was a live dispute between the parties over where the child should be raised, and a possibility of effectual relief for the prevailing parent.

Removal and Retention - Arts 3 and 12 | 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) | Procedural Matters

Appeal dismissed, return ordered

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

Appeal allowed, return ordered