Issues Relating to Return

Appeal allowed, application dismissed

Return order set aside.

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Issues Relating to Return

Return refused

Return refused, there was a grave risk of harm to the child if returned to Australia, within the meaning of Article 13(1)(b). The undertakings and protective measures offered by the father did not adequately protect the child against the identified risks.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

Violation of Article 8, the domestic authorities had failed to take all necessary steps to facilitate the execution of the return order as could reasonably be demanded in the circumstances of the case. 

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

European Court of Human Rights held, by 5 votes to 2, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

In 1980 Hague Convention proceedings national authorities were required to examine whether it would be appropriate to hear the child as part of their decision making.

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

Appeal allowed, return refused

Appeal allowed, return refused. The District Court had erred in finding that Article 13(1)(b) did not apply. 

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

Return ordered

Return ordered with undertakings and protective measures.

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

Return ordered

Return ordered, subject to undertakings.

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

Appeal allowed, return refused

Appeal allowed, return refused. The first instance judge did not properly apply the approach as set out in Re E. The mother established that Article 13(1)(b) applies and there is no justification for exercising the court’s discretion by making a return order.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2)

Return refused

Return refused. The children were at grave risk of harm if they returned to Spain and were settled in the USA. 

Non-Convention Issues

Application dismissed

Motion to Strike granted, equitable estoppel argument is stricken. The 1980 Hague Convention provides for limited exceptions to return and estoppel is not among them.