Case Law Search

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

Appeal allowed and case remitted to the District Court for final judgment; the strict interpretation given to Article 13(1)(b) by the trial court was rejected by the Court of Appeals.

Habitual Residence - Art. 3

Application dismissed

Appeal dismissed and application dismissed, by a majority the Court of Appeal ruled that the child had no habitual residence on the relevant date.

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

Return ordered subject to undertakings

Removal wrongful and return ordered; Article 13(1)(b) had not been proved to the standard required under the Convention.

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

Return ordered

The Court ordered the return of the children. The Court did not accept the fathers account of events and held that, even if they were true, they would not amount to a grave risk envisaged by Article 13(1)(b).

Removal and Retention - Arts 3 and 12 |

Appeal dismissed, return ordered

one child wrongfully retained between age 4 and 5– National of unknown –unmarried parents – Father national of unknown – Mother national of unknown – Shared parental responsibility – Child lived in Portugal until 10 March 2017 – Application for return filed with the courts of Switzerland on 23 April 2018 – Return ordered – Main issue: Removal and Retention – The father could not prove that the mother had given her consent for the child to remain in Switzerland and the mother filed an appeal within the one year period set out in Article 12.

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.

Procedural Matters

Appeal dismissed, application dismissed

Appeal dismissed; the conditions for the suspension of the provisional enforcement were not met.

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

Article 15 declaration granted

Appeal allowed; article 15 declaration granted.  The applicant father was considered to hold rights of custody under New Zealand law.

Habitual Residence - Art. 3

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful, the children having retained their Italian habitual residence during their extended stays in the United States.

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

Return ordered

Return ordered.

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

Appeal dismissed, return ordered

Wrongful retention of the child – Separate parents – Custody rights were jointly exercised – The child lived in Spain until the August 11, 2014 – The request for return was filed before the Central Authority of Spain in September 2014 – Return ordered – Main issues: Habitual residence, removal and retention, settlement of the child, art. 13(1)(b) grave risk exception, procedural matters – The habitual residence of the child prior to the wrongful removal was in Spain – There was wrongful retention in breach of the right of custody which was exercised jointly according to the agreement signed by the mother and father – The settlement of the child was not evaluated because the one year period established by the Convention to that effect had not elapsed – The evidence did not contribute to determine whether there had been sexual abuse, on the contrary, a true demonstration of the risk was necessary to justify applying article 13(1)(b) - The Central Authority of Spain was urged to take measures to protect the child and to do a follow up of the case to provide the father with the necessary support. 

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

Habitual Residence - Art. 3

Application inadmissible, there had been no manifest error in analysis of the child's habitual residence.

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

Appeal dismissed, return refused

Appeal dismissed and non-return order upheld; the retention was wrongful but the child would face a grave risk of harm if returned.

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.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and none of the exceptions raised applied.

Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a)

Appeal allowed, return refused

Appeal allowed and return refused; by a 2:1 majority the Court found that Article 13(1)(a) of the 1980 Hague Child Abduction Convention had been activated, one judge found that this was on the basis of consent, the other as a result of acquiescence.

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

Return ordered subject to undertakings

Removal wrongful and return ordered; Article 13(1)(b) had not been proved to the standard required under the Convention.

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

Appeal dismissed, return refused

Wrongful removal of a child when he was 7 years old - Argentine - Unmarried parents - Paraguayan mother - The child lived in Paraguay from December 2016 to October 2017 – Return to Paraguay refused – Main issues: habitual residence, objections of the child to a return – The Supreme Court of Buenos Aires held that the child’s habitual residence was in Paraguay, and found that the removal to Argentina was  wrongful since it breached the mother’s rights of custody under the Paraguayan law – The court considered that the child´s objection to return was established since the child expressed at all stages of the proceedings his complete refusal to return to Paraguay, alleging mistreatment by classmates and relatives.