Case Law Search

Habitual Residence - Art. 3

Case remitted to lower court

One child allegedly wrongfully retained at age one month – Married parents – Father national of Greece – Mother national of Switzerland – Child was born in Greece and went to France when he was one month old  – Case remitted to lower court – Main issue: Article 3 – habitual residence of an infant. Given the very young age of the child and the circumstances in which he arrived in France at only one month old and the fact that he has stayed there since with his mother, it was the responsibility of the judges in the lower courts to see if his social and family environment, and so the centre of his life, was in France, notwithstanding the initial intention of the parents regarding the return of the mother and child to Greece after their stay in France.

Return ordered

Two children wrongfully removed - Children lived in Poland until their removal to Canada – Return ordered – Main issue: COVID-19 delay to return due to travel restrictions – a date was set for the return to Poland accompanied by an order to account for the possibility that travel would be further delayed until August 2020. 

Return ordered

One child wrongfully retained at age 4 – Separated parents – Father national of Australia – Mother national of United Kingdom – Joint custody rights – Child lived in Australia until August 2019 – Application for return filed in November 2019 – Return ordered  – Main issue: COVID-19 – due to the current travel restrictions in the UK and in Australia, a date would be fixed for the protective measures to be in place and a date thereafter for the child to return.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed and return ordered.  

Habitual Residence - Art. 3

Appeal dismissed, return refused

Application dismissed. The children were habitually resident in Canada.

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

Appeal dismissed, return ordered with undertakings offered

The Court dismissed the appeal and ordered the return of the child: the habitual residence of the child was in the United States, the retention was wrongful and none of the exceptions had been proved to the standard required under the Convention.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed and case remitted to the trial court; the removal was wrongful but a determination had to be made as to whether any of the exceptions were applicable.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters

Appeal dismissed, return ordered subject to undertakings

Appeal dismissed and return upheld, subject to undertakings; neither Art. 3(1) UNCRC nor Art. 8 ECHR, as interpreted by the Grand Chamber in Neulinger, required a re-appraisal of the interpretation of the Hague Convention in England & Wales. It was accepted that Art. 13(1)(b) should be interpreted without any additional gloss being applied to its terms, but this did not impact upon the outcome of the appeal.

Acquiescence - Art. 13(1)(a)

Appeal dismissed. The Court of Appeal had proper grounds to hold that the retention was wrongful, and had observed correctly that the father had acquiesced in the child's residence in France.

Issues Relating to Return

Jurisdiction Issues - Art. 16

Rights of Custody - Art. 3 | Procedural Matters

Application dismissed

Application dismissed; the applicant father was found, in a majority verdict, not to have possessed rights of custody for the purposes of the Hague Convention at the time of the removal.

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

Return refused

Return refused; the removal was wrongful, but there was a grave risk that a return would expose the child to psychological harm and place him in an intolerable situation.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3

Return ordered

Return ordered; the retention was wrongful and none of the exceptions had been proved to the standard required under the Convention.

Issues Relating to Return | Procedural Matters

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

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.

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

Rights of Custody - Art. 3 | Article 15 Decision or Determination

Article 15 declaration granted

Article 15 declaration granted; both the English courts and the applicant father held rights of custody in respect of the child at the moment of the child's removal.

Procedural Matters

Appeal dismissed. The condition had indeed been met (though in a different form), but this was due to a US decision which was a new fact that the Federal Tribunal might not consider.

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.