Case Law Search

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

ECrtHR - Violation of Article 8 ECHR, award of damages

The court found that there had been a violation of the Article 8 Right to Respect for Private and Family Life and awarded damages to the mother and the children.

Appeal dismissed, return ordered

1 child wrongfully retained at age 6 – Married parents – Father national of France, Italy and Lebanon – Mother national of Spain and Uruguay – Joint custody – Child lived in France until July 2018  – Application for return filed with the US District Court in Washington in June 2019 – Return ordered – Main issue(s): Article 3 - wrongful retention before the expected date of return.

Interpretation of the Convention | Human Rights - Art. 20

Return ordered subject to undertakings

Where a grant of asylum has been made by the Home Secretary it is impossible for the court later to order a return of the subject child under the 1980 Hague Convention. Equally, it is impossible for a return order to be made while an asylum claim is pending (including pending an appeal). Such an order would be in direct breach of the principle of non-refoulement.

The court ordered that the children be returned to Israel, but that this order should not take effect until 15 days after the promulgation by the First-tier Tribunal of its decision on the appeal by the mother and the children against the refusal of the grant of asylum by the Home Secretary. If the First-tier Tribunal allowed the appeal then the return order would be stayed. If the First-tier Tribunal dismissed the appeal, then the return would be implemented, unless the mother wished to appeal on a point of law, in which case the court would appraise the strength or otherwise of the grounds of appeal. 

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

Appeal dismissed, return ordered

The City Court (first instance) determined that the child was living in Poland before the removal and that a return to Poland would not harm the child. Therefore, the removal/retention was wrongful and that the child should go back to the mother in Poland.

The Eastern High Court (second instance) upheld the decision.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Article 15 Decision or Determination | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Appeal allowed, application dismissed

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

Appeal dismissed, return ordered

1 child (national of Japan and the United States) removed from the United States to Japan ― Father a United States national, mother a Japanese national ― Parents married in Japan in 2012 and lived together with the mother’s son from her previous marriage ― The family moved to the United States in 2014 ― Upon becoming pregnant, the mother went back to Japan with her son in 2015 ― Mother returned to the United States with the new-born child in 2016 ― Father petitioned for divorce and obtained a provisional ne exeat order ― Mother moved to a shelter with the child within the United States ― Father had frequent access to the child, but contact broke up after an argument between the parents ― Mother removed the child to Japan in 2016 ― Obtaining assistance of the Central Authority of Japan in 2016, Father petitioned to the Osaka Family Court for return of the child in 2017 ― Return ordered ― Appeal to the Osaka High Court dismissed and return ordered in 2017 ― Main issues: Habitual Residence of the child ― Actual exercise of rights of custody ― Grave Risk for the child.

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

Appeal dismissed, return refused

1 child (UK national) removed from Singapore to Japan ― Parents married in 2010, living together mostly in Singapore and briefly in Japan ― Father Singaporean national, mother Indian national ― Divorce in 2014 ― Father provided with access right, Mother with right to primarily care for the child and freely relocate with the child to Japan ― Mother went to Japan with the child and returned to Singapore in 2014 ― Failed access, Father sought a modification of the relocation clause and the modality of access ― Mother definitively removed the child to Japan in 2015 ― Assistance of the Central Authority of Japan revoked in 2016 ― The father filed a petition for the child’s return to the Osaka Family Court in 2016 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in 2016 ― Main issues: Habitual residence of the child ― Rights of custody of the father or the Singaporean court.

Habitual Residence - Art. 3

Appeal allowed, return refused

The Supreme Court (third instance) determined that the children’s habitual residence had changed from the United States to Denmark during the period in which the father consented to them being in Denmark (December 2010 - February 2013). By the time that the father had opposed the children's continued residence in Denmark they were habitually resident there therefore not unlawfully retained. Therefore, the Supreme Court ruled that the retention was not wrongful and that the children should not be returned to their father in the United States.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Non-Convention Issues | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return ordered

1 child removed at age 3 years  ― National of Canada and Japan ― Married parents ― Father and Mother married in Canada in 2009 and living there ― Joint custody at the time of wrongful retention ― Child lived in Canada until July 2013 ― Mother removed the child to Japan with Father’s consent ― A wrongful retention of the child after the entry into force of the Convention between Canada and Japan on 1 April 2014  ― Application for return filed with the courts of Japan in March 2015 ― Appeal dismissed and return ordered ― Main issues: Article 3 Habitual residence of the child ― The initial time of the wrongful retention ― Article 13(1)(a) Prior consent or subsequent approval by the father ― Abuse of rights by the father.

Habitual Residence - Art. 3

Appeal allowed, return ordered

Two children wrongfully removed at age 1 – nationals of the Netherlands – married parents – father national of the Netherlands – mother national of the Netherlands – joint custody – children lived in Spain until 15 September 2018 - application for return filed with the court of the Hague on 16 November 2018 - return ordered – main issue: habitual residence, at any given time, a child can only have one place of habitual residence