Case Law Search

Habitual Residence - Art. 3

Appeal allowed, application dismissed

1 child allegedly retained at age 6 months – National of the US Father national of US – Mother national of Canada – Father gave open-ended consent to mother to travel with the child to Canada – Child lived in United States for first 42 days of life – Application for return filed with the courts of Canada in December 2017 – The return decision of the Nova Scotia Supreme Court was appealed to the Nova Scotia Court of Appeal where the application was dismissed – Main issues: habitual residence – the Court of Appeal applied the “hybrid approach” to determine the habitual residence of the child and found the child to be habitually resident in Nova Scotia.

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

Return ordered

2 children wrongfully retained at ages 1 and 2 – Married parents – Father national of the United States – Mother national of Canada – Both parents had rights of custody under the laws of Iowa – Children lived in the United State until 16 June 2018 – Application for return filed with the Central Authority of the United States on 18 August 2018 – Return ordered – Main issues: Article 3 -  children habitually resident in the United States, father had rights of custody and had only agreed to a one month stay in Canada, retention was therefore wrongful - Article 13(1)(a) Consent & Acquiescence – Exception not established, there is no “clear and cogent evidence of unequivocal consent or acquiescence” - Article 13(1)(b) Grave Risk – Exception not established, measures of protection are available in Iowa.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a)

Appeal dismissed, return ordered

The Supreme Court rejected the mother’s appeal.

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

Appeal allowed, return ordered

The immediate complaint appeal was approved and the father’s application for a return was successful.

The accusations made against the father, which led to a rejection of the return application in accordance with Article 13(1)(b) of the Hague Child Abduction Convention by the court of first instance, were not held to have been proven.

However, the court refrained from ordering the immediate surrender of the three children to the father, and has instead opted for a “graduated return order”. The “graduated return order”, granted the mother the opportunity to effect the return of the children herself. The Hague Child Abduction Convention does not contain any explicit rules on how exactly the courts are to order returns. Determining the operative provisions of the return order is a matter of domestic procedural law.

Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Appeal allowed, return refused

The complaint appeal was approved and the father’s application for a return was refused. The court ruled that the child’s wellbeing would be endangered were he to be returned.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Appeal allowed, return refused

The complaint appeal was approved and the Applicant’s application for the children to be returned was rejected. It was ruled that there was a grave risk of physical or mental harm to both of the children, meaning that the exception set out in Article 13(1)(b) of the Hague Child Abduction Convention applied.

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

Appeal dismissed, return ordered

The child’s mother’s application for an interlocutory order was rejected. The court ruled that it was not able to find any evidence that there would be grave consequences for the child if the order of the Higher Regional Court were enforced.

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

Appeal dismissed, return ordered

The complaint appeal was broadly rejected and it was once again ordered that the daughter be returned; the deadline for this was extended. It was not possible to establish any reason to believe that the child’s wellbeing would be endangered in the event that she were returned.

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

Appeal dismissed, return ordered

The mother’s complaint appeal was rejected and the father’s application for the return of the child was approved. It was not possible to establish any reason to suggest that the child’s wellbeing would be endangered in the event that she were returned.

One child wrongfully removed at age 3 – National of Slovakia – Unmarried parents– Father national of Slovakia – Mother national of Slovakia – Joint rights of custody – Child lived in Slovakia until September 2010 – Application for return filed with the Central Authority of Hong Kong on 22 August 2011 –Return refused – Main issue(s): Article 13(1)(a) acquiescence - the Father’s words and inaction were inconsistent with the fundamental objective of the Convention to secure a prompt return, and he was held to have acquiesced. Article 13(1)(b) – due to the child’s instable background and now being settled in his new environment, there was a grave risk that he would be placed in an intolerable situation if an order for return was made.