Latest Decisions

  • Added on: 16 July 2018 |Superior Appellate Court

    Office of the Children’s Lawyer v. Balev, 2018 SCC 16|CANADA |HC/E/CA 1389

    Languages
    Full text download EN | FR
    No summary available
    Grounds

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

    Order

    Guidance on the application of the Convention issued

    Article(s)

    1 2 3 5 11 12 13(2) 19

    Synopsis

    2 children retained at ages 11 and 8 – Nationals of Canada – Married parents – Father national of Canada – Mother national of Canada – Father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a Canadian school – Children lived in Germany until April 2013 – Application for return filed with the Superior Court of Justice (Family Court Branch) in June 2014 – The return decision of the Court of Appeal of Ontario of 13 September 2016 was appealed to the Supreme Court, but the children were returned to Germany before the Court rendered its judgment; despite the appeal being moot, the Court considered the issues raised to be important and in need of clarification – Main issues: habitual residence, objections of the child to a return, procedural matters – The “hybrid approach” to determining habitual residence (which considers all relevant factual links and circumstances in their entirety, instead of focusing either on parental intention or the child’s acclimatisation) should be followed – As part of the hybrid approach, the child’s links to and circumstances in country A and country B should be considered, as well as the circumstances of his / her move from country A to country B; considerations include the duration, regularity, conditions and reasons for the child’s stay in country B, as well as the intentions of the parents, which may be important (particularly for infants and young children) but only serve as one of many considerations – There should be a non-technical approach to considering the child’s objections to return, in which the elements of Art. 13(2) are assessed in a “straightforward fashion” without imposing conditions or requirements – It is up to the judicial authorities to ensure that the State lives up to its obligations to act expeditiously under the 1980 Hague Child Abduction Convention

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  • Added on: 11 May 2018 |Superior Appellate Court

    2017 (Ju) No. 2015 Case of a request for Habeas Corpus relief|JAPAN |HC/E/JP 1388

    Languages
    Full text download JA | EN
    Summary available in EN
    Grounds

    Non-Convention Issues | Issues Relating to Return

    Order

    Case remitted to lower court

    Synopsis

    1 child wrongfully removed at age 11 years and 3 months ― National of Japan and the United States ― Married parents ― Father and mother nationals of Japan ― Father was granted sole custody by a court in the United States after the return order became final and binding ― Child lived in the United States until 12 January 2016 ― Application for return filed with the courts of Japan in July 2016 ― Return ordered and execution by substitute failed (due to the mother’s strenuous resistance and the child’s objection); the father subsequently filed a request for habeas corpus relief ― Main issues: Non-Convention Issues, Issues Relating to Return ― There are special circumstances in which a mature child cannot be seen to be staying with the abducting parent based on his free will, so continued care of the child in defiance of a return order can amount to “restraint” under the Habeas Corpus Act and Habeas Corpus Rules ― Where continued “restraint” by the abducting parent in breach of a return order is “conspicuously illegal”, the requirements of a habeas corpus order are met.

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  • Added on: 17 April 2018 |Superior Appellate Court

    2017 (Kyo) No. 9 Case on Appeal with Permission against Modification of Final Order|JAPAN |HC/E/JP 1387

    Languages
    Full text download JA | EN
    Summary available in EN
    Grounds

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

    Order

    Appeal dismissed, return refused

    Article(s)

    13(1)(b) 13(2)

    Synopsis

    This is the first and so far the only Supreme Court decision which modified a final and binding return order due to a change in circumstances under the Hague Convention Implementation Act. It is seen as a highly exceptional case.

    4 children (2 sets of twins) wrongfully retained in Japan ― Children lived in the United States until July 2014, when the elder twins were 11 years and 7 months old and the younger twins 6 years and 5 months old ― Married parents ― Father national of the United States ― Mother national of Japan ― Order for the return of all children became final and binding in January 2016 ― The Supreme Court upheld the Osaka High Court decision modifying the return order due to change in circumstances and dismissed the petition for the return of the children ― Main issues: Grounds for refusal of a return order ― The elder twins’ objection to being returned ― A grave risk of placing the younger twins in an intolerable situation by separating them from their siblings 

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  • Added on: 27 March 2018 |Appellate Court

    Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016) |UNITED STATES - FEDERAL JURISDICTION |HC/E/US 1386

    Languages
    Full text download EN
    Summary available in EN
    Grounds

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

    Order

    Appeal dismissed, return ordered

    Article(s)

    13(1)(b)

    Synopsis

    1 child wrongfully removed at 4 years  – National of Spain and the United States of America – Married parents – Father national of Spain – Mother national of United States of America – The mother and father had joint custody – Child lived in Turkey until April 2014 (first removal) and April 2015 (second removal)  – Application for return filed with the courts of the United States of America (federal jurisdiction) – Return ordered – Main issue(s): Art. 13(1)(b) grave risk exception to return – an “intolerable situation” can include circumstances where there is conclusive evidence that courts of the State of habitual residence are practically or legally unable to adjudicate custody

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  • Added on: 14 March 2018 |First Instance

    Pliego v. Hayes, 86 F.Supp.3d 678 (W.D. Ky. 2015)|UNITED STATES - FEDERAL JURISDICTION |HC/E/US 1385

    Languages
    Full text download EN
    Summary available in EN
    Grounds

    Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b)

    Order

    Return ordered

    Article(s)

    13(1)(b)

    Synopsis

    1 child wrongfully removed at 3 years – National of Spain and United States of America – Married parents – Father national of Spain – Mother national of United States of America – The mother and father had joint custody – Child lived in Turkey until 6 April 2014  – Application for return filed with the courts of the United States of America (federal jurisdiction) – Return ordered – Main issue(s): habitual residence and Art. 13(1)(b) grave risk exception to return – The retention was deemed unlawful and the “grave risk” exception to ordering return had not been established

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  • Added on: 2 March 2018 |Appellate Court

    [father] tegen [mother] Hof Den Haag 14 februari 2018, ECLI:NL:GHDHA:2018:296|NETHERLANDS - KINGDOM IN EUROPE |HC/E/NL 1384

    Languages
    Full text download NL
    No summary available
    Grounds

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

    Order

    Appeal dismissed, return refused

    Article(s)

    3 12 13(1)(b) 13(2)

    Synopsis

    4 children wrongfully removed - Nationals of the Netherlands - Married parents - Father and mother nationals of the Netherlands - Order of 22 November 2017 granted a certified authority ("gecertificeerde autoriteit") temporary custody pending the execution of a return order (if any); parents initially had joint custudy  - Children lived in an unidentified State until 14 June 2017 - Return refused - Main issues: objections of the child to return, Art. 13(1)(b) grave risk exception to return - In cases in which the children's objections go farther than expressing a mere preference not to return, and in which the children's testimony is consistent and there is evidence of severe insecurity, instability and uncertainty in the environment to which they are to be returned, return may be refused under Art. 13(2) of the 1980 Hague Child Abduction Convention, provided the children have attained the appropriate age and degree of maturity - Ordering the return of only some of the children will result in separation, which could place the returned children in an intolerable situation - Return may be refused under Art. 13(1)(b) of the Convention for all children where there is a history of repeated domestic violence, intervention of the courts and social workers, and where the children have suffered from frequent changes of residence and school; and where the care provided in the requested State is restoringing continuity to their lives and enabling them to process their trauma, such that it is in their best interests to remain there

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  • Added on: 14 November 2017 |First Instance

    Sabogal v. Velarde, 106 F.Supp.3d 689 (2015)|UNITED STATES - FEDERAL JURISDICTION |HC/E/USf 1383

    Languages
    Full text download EN
    Summary available in EN
    Grounds

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

    Order

    Return ordered subject to undertakings

    Article(s)

    1 3 5 13(1)(a) 13(1)(b) 20

    Synopsis

    2 children wrongfully removed (born in 2005 and 2007) - Separated parents - The Purvian courts had effectively granted temporary custody to the mother on 21 November 2013, and then to the father on 1 October 2014 (following the removal)  - Children lived in Peru until 20 February 2014 - Application for return filed with the District Court on 17 February 2015 - Return ordered subject to undertakings - Main issues: rights of custody, Art.13(1)(b) "grave risk" exception to return, undertakings - A very severe degree of psychological abuse is sufficient to conclude that the Art. 13(1)(b) "grave risk" exception to return under the 1980 Hague Child Abduction Convention applies, even in cases in which there is very little or no evidence of physical abuse

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  • Added on: 10 November 2017 |Superior Appellate Court

    Sentencia nº 16/2016 (Sala Segunda); Número de Registro 2937-2015. Recurso de amparo.|SPAIN |HC/E/ES 1382

    Languages
    Full text download ES
    No summary available
    Grounds

    Settlement of the Child - Art. 12(2)

    Order

    Case remitted to lower court

    Article(s)

    1 11 12

    Synopsis

    1 child wrongfully removed at age 4 - National of Switzerland - Unmarried parents - Father national of Switzerland - Mother national of Spain - The lower courts had determined that the removal was in breach of the father’s custody rights - Child lived in Switzerland until August 2013 - Application for return filed with the courts of Spain on 7 November 2013 - Return refused at first instance, then return ordered on appeal - Main issue: settlement of the child - “Amparo” claim successful: the Constitutional Court found that the mother’s constitutional right to effective legal protection had been violated (no ruling on return / non-return) - A proper analysis of whether the child has become settled in its new environment should be conducted where a year has passed since the abduction occurred, in order for a decision to be rendered that is in the best interests of the child - It is immaterial that the delay is not attributable to the conduct of the parents; regardless of the cause, it may not affect the best interests of the child

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  • Added on: 8 November 2017 |Appellate Court

    Thompson v. Thompson|RUSSIAN FEDERATION |HC/E/RU 1381

    Languages
    Full text download RU
    Summary available in EN
    Grounds

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

    Order

    Appeal dismissed, return refused

    Article(s)

    13(1)(b) 12(1)

    Synopsis

    1 child wrongfully removed at age 2 - National of the United Kingdom and the Russian Federation - Married parents - Father national of United Kingdom - Mother national of Russia - Both parents had rights of custody - Child lived in Spain with both parents until April 2016 - Application for return filed with the Dzerzhinskiy District Court of St Petersburg on 18 August 2016 - Return refused - Main issue: Art. 13(1)(b) grave risk exception to return - A child aged 3 has a physchological and physiological need for her mother and since the mother had decided to stay in Russia, return to Spain would expose the child to a grave risk of harm

    This case forms the subject of an application to the European Court of Human Rights (Thompson v. Russia, Application no. 36048/17), lodged on 15 May 2017 and communicated on 23 October 2017. 

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  • Added on: 10 October 2017 |European Court of Human Rights (ECrtHR)

    Cavani v. Hungary (Application No 5493/13) |HC/E/HU 1379

    Languages
    Full text download EN
    No summary available
    Grounds

    European Convention on Human Rights (ECHR)

    Order

    ECrtHR - Violation of Article 8 ECHR, award of damages

    Article(s)

    11

    Synopsis

    Two children wrongfully removed at approximately ages 1 and 2 years old – Nationals of Hungary and Italy – Married parents – Father national of Italy – Mother national of Hungary – Shared parental authority – Children lived in Italy until June 2004 – Application for return filed with the Central Authority of Italy on 3 March 2005 – Return ordered before application to ECtHR on 16 January 2013 – Violation of Art. 8 ECHR – EUR 3,000 awarded in damages to father and EUR 3,000 awarded in damages to children – The failure to enforce the return order without any explanation or justification, which prevented the father and children from being reunited or seeing each other occassionaly for over seven years, amounted to a violation of the father's and children's right to family life

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