Rights of Custody - Art. 3|Removal and Retention - Arts 3 and 12|Grave Risk - Art. 13(1)(b)|Undertakings
Return ordered with undertakings offered
3 children wrongfully removed at age 7 – Father national of the United Kingdom and Canada – Mother national of the United Kingdom and Canada – Both parents had rights of custody under the law of Scotland – Children lived in the United Kingdom until August 2009 – Application for return filed with the Central Authority of the Scotland on 20 October 2009 – Return ordered – Main issue(s): Rights of custody – Art. 3 – Father had rights of custody under the law of Scotland; there was no court order restricting his rights as a parent – Removal & Retention – Arts 3 and 12 – Children wrongfully removed, in breach of the father’s custody rights and without his consent. The father was exercising his rights despite the child protection investigation – Grave Risk – Art. 13(1)(b) –There is no grave risk. Social service agencies and court in Scotland will protect the children upon their return – Undertakings – Undertakings imposed to assist the return and to protect the children in the transitional period before the court in Scotland takes over.
2 children wrongfully removed at ages 4 and 7– Nationals of Canada and Norway – Married parents – Father national of Norway – Mother national of Canada – Both parents had rights of custody – Children lived in Hong Kong until 21 September 2018 – Application for return filed with the courts of Ontario (Canada) at the end of January 2019 – Return ordered – Main issue: Article 13(1)(b) Grave Risk – Evidence did not meet the 13(1)(b) threshold. Court considered affidavit and legal opinion from lawyer in Hong Kong – Undertakings – Undertakings necessary to secure safe, prompt and seamless return of children and to provide for transition between return order and when children are placed before the Hong Kong courts.
ECrtHR - Violation of Article 8 ECHR, award of damages
1 child wrongfully removed at age 2 – National of Russia – Divorced parents – Mother national of Russia – Finnish court ordered joint custody and child should live with the applicant– Child lived in Finland February 2015 – Application for return filed with the Dzerzhinskiy District Court of St Petersburg, Russia, on 6 August 2015 – Return refused on appeal to St Petersburg City Court on 3 February 2016 before application to ECtHR– Violation of Art. 8 ECHR – 23 050 EUR awarded in damages – the interpretation and application of the provisions of the Hague Convention by the St Petersburg City Court failed to secure the guarantees of Article 8 and Russia failed to comply with its positive obligations under Article 8 of the Convention to secure to the applicant the right to respect for his family life.
2 children wrongfully removed at ages 9 and 7 – Nationals of Korea – Married parents – Father national of The Republic of Korea– Mother national of The Republic of Korea– Parents had joint custody – Children lived in Japan until 28 June 2016 – Application for return filed with the court of The Republic of Korea on 21 April 2017 – Return refused – Main issue: Article 13(1)(b) – a “grave risk” includes cases where the child is at risk of psychological harm due to frequent violence committed against the other parent.
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)
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.
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|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.