Case Law Search

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

Appeal allowed, return refused

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

Return ordered

Wrongful retention of a 7-year-old boy - Venezuelan – unmarried parents – Venezuelan father - Venezuelan mother – The rights of custody were jointly exercised – The child lived in Venezuela until November 2012 – The return request was filed before the Panamenian courts in November 2014 – Return ordered – Main Issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was in Venezuela – Removal was wrongful because the travel authorisation used by the mother was false – It was not proved that the father abused the child; the refugee status request was not an impediment against return – Measures were adopted for the child’s safe return to his habitual residence.

American Convention on Human Rights (ACHR)

Guidance on the application of the Convention issued

Wrongful removal of a child when he was 2 years old - married parents – Paraguayan mother – Argentine father – the child lived in Argentina until January 2006 – return request filed before the Argentine Central Authority – return ordered – unenforced order – petition before the Inter-American Commission on Human Rights – case referred to the Inter-American Court on Human Rights – Paraguay was found liable on the violation of the father’s rights, enshrined in the American Convention on Human Rights.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Jurisdiction Issues - Art. 16 | Procedural Matters

Appeal allowed, return ordered

Wrongful retention of a 1-year-old girl – separated parents – Spanish father – Venezuelan mother – the custody rights were jointly exercised – the girl lived in Spain until July 2011 – the return request was filed before the Spanish courts on 12 July 2011 – Appeal allowed, return ordered – Main issues: removal and retention, rights of custody, grave risk, human rights, jurisdiction issues, procedural matters - removal was not wrongful, but retention was, since the father did not authorise the girl’s permanent stay in Venezuela – both parents had custody rights under Spanish law – the mother did not establish the grave risk circumstances claimed – the girl’s return did not violate any Venezuelan fundamental principle on human rights protection – who is the right parent to have custody should not be discussed within return proceedings; on the contrary, this type of proceeding is concerned with whether there was a wrongful removal or retention – measures were taken to secure the safe return  of the child to Spain and the parents were encouraged to resort to mediation.

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

Return refused

Return refused.

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

Case remitted to lower court

A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm.

Case remanded to District Court to determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to the child, bearing in mind that the Convention sets as a primary goal the safety of the child.

Non-Convention Issues | Grave Risk - Art. 13(1)(b)

Return ordered

Return ordered.

Non-Convention Issues | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2)

Return refused

Return Refused.

Grave Risk - Art. 13(1)(b) | Non-Convention Issues

Return ordered

Return ordered.

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

Return ordered

Return ordered.