Case Law Search

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

Appeal dismissed, return refused

Wrongful retention of a child approximately 12 years old at the time of judgment – national of Argentina and Uruguay – separated parents – father of Argentine nationality – mother of Uruguayan nationality – child born in Argentina and lived there until around age 4, then moved to Uruguay with his mother – application for international return initiated on August 19, 2020, before the Uruguayan Central Authority – appeal dismissed, return denied – key issues: Art. 13(1)(b) grave risk exception, child’s objection to return; procedural matters – returning the child would have entailed a grave risk of further psychological harm – the child's opposition to returning to Uruguay, considering his age and maturity, was decisive in denying the return – the Court indicated that mediation could be reopened to address the child's re-establishment of ties with his mother.

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

Return refused

Three children, 8-year-old boy (D), 6-year-old boy (Y) and 3-year-old girl (B), wrongfully removed - Parents divorced - Father national of Sudan - Mother national of Sudan - D and Y born in Egypt - B born in the Netherlands - Children subject to supervision order in the Netherlands, primarily cared for by the mother with the father allowed contact - Family lived in the Netherlands from 2020 until 2023 - Mother made serious allegations of domestic abuse against the father, including rape, beatings of her and the children, and a desire for B to undergo FGM - Mother wrongfully removed the children from the Netherlands on 6 or 7 July 2023, travelling by small boat to the UK - Father filed application for return with the High Court of England and Wales on 13 June 2024 - Return refused - Main issues: Article 13(b) - Domestic abuse allegations so severe that the risk of return was grave - Undertakings offered by the father were inadequate to be sufficient protective measures - D and Y opposed return but this did not constitute an objection for Article 13 purposes.

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

Appeal dismissed, return ordered with undertakings offered

Unlawful retention of a one-year-old child – Argentine national – Married parents – Father was an Argentine national – Mother was a Uruguayan national – Both parents held custodial rights – The child lived in Argentina until July 2015 – The restitution request was submitted to the Argentine Central Authority – Appeal granted, return ordered – Key issues: Article 3 (habitual residence), Articles 3 and 12 (removal and retention), Article 13(1)(b) (grave risk exception) – The child's habitual residence was Argentina – The retention was deemed unlawful as the mother lacked the other parent’s consent – No grave risk was established, as Argentina had judicial mechanisms to protect the mother and child.

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

Return refused

Abduction of a 13-year-old girl – the child had lived in Nicaragua for ten years under the care of her maternal family – the return request was filed before Nicaraguan courts in April 2019 – return denied – key issues: habitual residence; Article 13(2) – the child’s habitual residence was found to be in Nicaragua as it was where she had developed her center of life, personal and cultural identity, and sense of belonging, stability, and security – the court determined that the child’s statements during the hearing constituted an objection to return according to Art. 13(2) of the Convention.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Jurisdiction Issues - Art. 16

Return ordered

Wrongful removal of a 12-year old child – Custody rights were exercised by the child’s aunt and her husband – The child lived in Costa Rica since he was 2 years old until February 2019 – Return ordered – Main Issues: habitual residence; rights of custody; jurisdiction issues – The habitual residence of the child is where his centre of life is, irrespective of the child’s nationality – Even though the mother had parental authority over the child, the rights of custody were exercised by the child’s aunt and her husband, and thus removal was wrongful – Return proceedings are not aimed at determining the parent’s ability to take care of and raise the child.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed, return ordered

Wrongful retention of a 5-year-old boy – Peruvian and American – Married parents –The child lived in Peru until September 2014, then the family changed its place of habitual residence to the United States – The mother filed a return request before the Peruvian courts on 24 August 2016 – Return ordered – Main issues: Habitual Residence; Removal and Retention; Settlement of the Child; Objections of the Child to a Return – The habitual residence of the child prior to the wrongful retention was in the United States – The mother had rights of custody over the child under the custody and visitation agreement approved by the U.S. court – The wrongful retention occurred because the father did not return with the child by the date established in the travel authorisation issued by the mother – The child was gradually detaching from the mother because of the father’s actions.

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

Return ordered

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

Appeal dismissed, return ordered

The current situation in Israel does not preclude the return of a minor child based on the provision of Article 13(1)(b).

Non-Convention Issues | Grave Risk - Art. 13(1)(b) | European Convention on Human Rights (ECHR)

Application dismissed

The constitutional complaint of the child was not lodged in a permissible way (need to be presented by a guardian-ad-litem). 

The complaint brought by the mother in her own name was inadmissible as she returned with the child to Ukraine for around 3 weeks. Additionally she did not demonstrate sufficiently a possible violation of basic rights.

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

Appeal allowed, return refused

One child wrongfully retained at age 3 - Dual British-American national - Parents married in 2018 but separated in 2023 -  Father American national - Mother British national - Family lived in Texas, USA until mother wrongfully retained child in UK in February 2023 - Father applied for return in England on 22 June 2023 - Return ordered by consent - Mother appealed this based on a lack of consent and absence of protective measures in light of alleged abuse - Main issues: grave risk (Article 13(1)(b) and protective measures; Lack of proper consent - Court found the protective measures were ineffective and not enforceable in Texas, and absence of agreement - Appeal allowed, return refused, and case remitted to lower court.