Case Law Search

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

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

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

Appeal dismissed, return ordered subject to undertakings

2 children wrongfully removed at ages 7 and 8 – Nationals of Canada – Married parents– Joint custody – Children lived in Spain until September 2014 – Return ordered – Main issues: Art 13(1) (b) grave risk exception to return, procedural matters – A grave risk of placing the child in an intolerable situation upon return can be mitigated or eliminated by ordering return subject to appropriate undertakings

Habitual Residence - Art. 3 | Rights of Custody - Art. 3

Appeal dismissed, return ordered

1 child wrongfully retained at age 2 – Unmarried parents – Father national of Italy – Mother national of France – Italian court granted joint custody rights and decided that the child should live with the mother – Child lived in Italy until December 2015 – Application for return filed with the Central Authority of Italy in September 2016 - Application dismissed – Main issues: Rights of custody, habitual residence – It is up to the taking parent to prove that the left-behind parent was not exercising his rights of custody at the time of the removal or retention – It is for the authorities of the requesting State to determine the arrangements for the reception of the child upon her return

Rights of Custody - Art. 3

Appeal allowed, return refused

1 child allegedly wrongfully removed at age 11 – Divorced parents – Father national of France and Morocco – Mother national of France – Full custody rights automatically awarded to the mother after the divorce under Moroccan law – Child lived in Morocco until October 2014 – Application for return filed with the Juge aux Affaire Familiales of France in December 2014 – Return refused – Main issue: Rights of custody – Rights of custody, including in particular the right to determine the child’s place of residence, has to be determined in accordance with the law of the State where the child had his habitual residence immediately before the removal

Habitual Residence - Art. 3

Appeal allowed, return ordered

1 child wrongfully removed at age 4 – Child lived in France until August 2012 – Return ordered – Main issue: habitual residence – Habitual residence should be determined in the light of all the factual circumstances particular to the case, including the parents’ shared intention and decisions taken with a view to ensure the child’s integration

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

Return ordered with undertakings offered

2 children wrongfully retained, aged 11 and 13 on the date of the judgment – Nationals of France and Canada – Married parents – Mother national of Canada – Joint custody – Children lived in France until July 2013 – Application for return filed with the Superior Court of Quebec in October 2013 – Direct judicial communication took place - Return ordered – Main issues: consent / acquiescence, Art. 13(1) (b) grave risk exception to return, undertakings, objection of the child to return – Consent or acquiescence to the removal or retention must be clear, positive and unequivocal – The risk of the children suffering psychological harm by returning without the taking parent is mitigated by arranging for appropriate measures to protect the taking parent to be in place upon return, through administrative and judicial co-operation with the authorities of the requesting State – Return may be ordered if the child is mainly concerned about being removed from the taking parent, rather than being opposed to returning to the requested State or fearing the left-behind parent

Grave Risk - Art. 13(1)(b) | Procedural Matters

Appeal dismissed, return ordered

1 child wrongfully removed at age 7 – National of France – Married parents – Father national of France – Mother national of France – Child lived in Morocco until February 2011 – Application for return filed with the Central Authority of Morocco in March 2011 – Application dismissed – Main issues: Art. 13(1)(b) grave risk exception, costs – It is up to the parent who alleges an exception to return under Art. 13 of the 1980 Hague Child Abduction Convention to prove that the conditions for non-return have been met – In accordance with Art. 26 of the Convention, the parent who wrongfully removed the child can be ordered to pay for the costs of the return proceedings

Objections of the Child to a Return - Art. 13(2)

Case remitted to lower court

1 child allegedly wrongfully retained at age 10 – National of United States of America and Italy - Divorced parents – Joint custody – Child lived in the United States until the second half of 2015 – Application for return filed on 21 October 2015 – Return refused – Main issues: Objection of the child to return – Due weight should be given to the child’s opinion where the child is considered to have attained an appropriate age and degree of maturity, even if certain aspects of the child’s opinion are considered to be imprecise

Rights of Custody - Art. 3

Case remitted to lower court

1 child allegedly wrongfully removed – Married parents – Father national of Italy – Mother national of Italy – Joint custody – Child lived in Belgium until February 2014 - Return refused – Main issues: Rights of custody – A removal cannot be considered wrongful if it did not breach custody rights that were actually exercised at the time of the removal 

Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return ordered

1 child wrongfully removed aged less than one year old – Unmarried parents – Joint custody – Child lived in Greece until May 2010 – Application for return filed in April 2011 - Return ordered – Main issues: Settlement of the child, Art. 13(1)(b) grave risk exception to return, procedural matters – Art. 12(2) of the 1980 Hague Child Abduction Convention only applies where return proceedings have been commenced after a period of more than one year has elapsed since the date of the wrongful removal