Case Law Search

Courts in an overwhelming majority of Contracting States have accepted that a right of veto over the removal of the child from the jurisdiction amounts to a right of custody for Convention purposes, see:

Australia
In the Marriage of Resina [1991] FamCA 33, [INCADAT cite: HC/E/AU 257];

State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232];

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU 294];

Austria
2 Ob 596/91, OGH, 05 February 1992, Oberster Gerichtshof [INCADAT cite: HC/E/AT 375];

Canada
Thomson v. Thomson [1994] 3 SCR 551, 6 RFL (4th) 290 [INCADAT cite: HC/E/CA 11].

The Supreme Court did draw a distinction between a non-removal clause in an interim custody order and in a final order. It suggested that were a non-removal clause in a final custody order to be regarded as a custody right for Convention purposes, that could have serious implications for the mobility rights of the primary carer.

Thorne v. Dryden-Hall, (1997) 28 RFL (4th) 297 [INCADAT cite: HC/E/CA 12];

Decision of 15 December 1998, [1999] R.J.Q. 248 [INCADAT cite: HC/E/CA 334];

United Kingdom - England & Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465, [1989] 1 FLR 403, [1989] Fam Law 228 [INCADAT cite: HC/E/UKe 34];

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [INCADAT cite: HC/E/UKe 880];

France
Ministère Public c. M.B. 79 Rev. crit. 1990, 529, note Y. Lequette [INCADAT cite: HC/E/FR 62];

Germany
2 BvR 1126/97, Bundesverfassungsgericht, (Federal Constitutional Court), [INCADAT cite: HC/E/DE 338];

10 UF 753/01, Oberlandesgericht Dresden, [INCADAT cite: HC/E/DE 486];

United Kingdom - Scotland
Bordera v. Bordera 1995 SLT 1176 [INCADAT cite: HC/E/UKs 183];

A.J. v. F.J. [2005] CSIH 36, 2005 1 SC 428 [INCADAT cite: HC/E/UKs 803];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313];

Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493];

Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494];

Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008), [INCADAT cite: HC/E/USf 989].

The 11th Circuit however endorsed the standard international interpretation.

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT cite: HC/E/USf 578].

The matter was settled, at least where an applicant parent has a right to decide the child's country of residence, or the court in the State of habitual residence is seeking to protect its own jurisdiction pending further decrees, by the US Supreme Court endorsing the standard international interpretation. 

Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].

The standard international interpretation has equally been accepted by the European Court of Human Rights, see:

Neulinger & Shuruk v. Switzerland, No. 41615/07, 8 January 2009 [INCADAT cite: HC/E/ 1001].

Confirmed by the Grand Chamber: Neulinger & Shuruk v. Switzerland, No 41615/07, 6 July 2010 [INCADAT cite: HC/E/ 1323].


Right to Object to a Removal

Where an individual does not have a right of veto over the removal of a child from the jurisdiction, but merely a right to object and to apply to a court to prevent such a removal, it has been held in several jurisdictions that this is not enough to amount to a custody right for Convention purposes:

Canada
W.(V.) v. S.(D.), 134 DLR 4th 481 (1996), [INCADAT cite: HC/E/CA17];

Ireland
W.P.P. v. S.R.W. [2001] ILRM 371, [INCADAT cite: HC/E/IE 271];

United Kingdom - England & Wales
Re V.-B. (Abduction: Custody Rights) [1999] 2 FLR 192, [INCADAT cite: HC/E/UKe 261];

S. v. H. (Abduction: Access Rights) [1998] Fam 49 [INCADAT cite: HC/E/UKe 36];

United Kingdom - Scotland
Pirrie v. Sawacki 1997 SLT 1160, [INCADAT cite: HC/E/UKs 188].

This interpretation has also been upheld by the Court of Justice of the European Union:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].

The European Court held that to find otherwise would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the sole custodian.

For academic commentary see:

P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford, OUP, 1999, p. 75 et seq.;

M. Bailey The Right of a Non-Custodial Parent to an Order for Return of a Child Under the Hague Convention; Canadian Journal of Family Law, 1996, p. 287;

C. Whitman 'Croll v Croll: The Second Circuit Limits 'Custody Rights' Under the Hague Convention on the Civil Aspects of International Child Abduction' 2001 Tulane Journal of International and Comparative Law 605.

Conflicts have on occasion emerged between courts in different Contracting States as to the outcomes in individual cases.  This has primarily been with regard to the interpretation of custody rights or the separate, but related issue of the ‘wrongfulness' of a removal or retention.

Conflict Based on Scope of ‘Rights of Custody'

Whilst the overwhelming majority of Contracting States have accepted a uniform interpretation of rights of custody for the purposes of the Convention, some differences do exist.A

For example: in New Zealand a very broad view prevails - Gross v. Boda [1995] 1 NZLR 569 [INCADAT cite: HC/E/NZ 66].  But in parts of the United States of America a narrow view is favoured - Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313].

Consequently where a return petition involves either of these States a conflict may arise with the other Contracting State as to whether a right of custody does or does not exist and therefore whether the removal or retention is wrongful.

New Zealand / United Kingdom - England & Wales
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT cite: HC/E/UKe 809].

A positive determination of wrongfulness by the courts in the child's State of habitual residence in New Zealand was rejected by the English Court of Appeal which found the applicant father to have no rights of custody for the purposes of the Convention.

United Kingdom  - Scotland / United States of America (Virginia)
Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494].

For the purposes of Scots law the removal of the child was in breach of actually exercised rights of custody.  This view was however rejected by the US Court of Appeals for the 4th Circuit.

United States of America / United Kingdom - England & Wales
Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591].

Making a return order the English Court of Appeal held that the rights given to the father by the New York custody order were rights of custody for Convention purposes, whether or not New York state or federal law so regarded them whether for domestic purposes or Convention purposes.

Conflict Based on Interpretation of ‘Wrongfulness'

United Kingdom - England & Wales
The Court of Appeal has traditionally held the view that the issue of wrongfulness is a matter for law of the forum, regardless of the law of the child's State of habitual residence.

Re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224 [INCADAT cite: HC/E/UKe 8].

Whilst the respondent parent had the right under Colorado law to remove their child out of the jurisdiction unilaterally the removal was nevertheless regarded as being wrongful by the English Court of Appeal.

Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591];

Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT cite: HC/E/UKe 809].

In the most extreme example this reasoning was applied notwithstanding an Article 15 declaration to the contrary, see:

Deak v. Deak [2006] EWCA Civ 830 [INCADAT cite: HC/E/UKe 866].

However, this finding was overturned by the House of Lords which unanimously held that where an Article 15 declaration is sought the ruling of the foreign court as to the content of the rights held by the applicant must be treated as conclusive, save in exceptional cases where, for example, the ruling has been obtained by fraud or in breach of the rules of natural justice:

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619, [INCADAT cite: HC/E/UKe 880].

Elsewhere there has been an express or implied preference for the general application of the law of the child's State of habitual residence to the issue of wrongfulness, see:

Australia
S. Hanbury-Brown and R. Hanbury-Brown v. Director General of Community Services (Central Authority) (1996) FLC 92-671, [INCADAT cite: HC/E/AU 69];

Austria
3Ob89/05t, Oberster Gerichtshof, 11/05/2005 [INCADAT cite: HC/E/AT 855];

6Ob183/97y, Oberster Gerichtshof, 19/06/1997 [INCADAT cite: HC/E/AT 557];

Canada
Droit de la famille 2675, Cour supérieure de Québec, 22 April 1997, No 200-04-003138-979[INCADAT cite : HC/E/CA 666];

Germany
11 UF 121/03, Oberlandesgericht Hamm, [INCADAT cite: HC/E/DE 822];

2 UF 115/02, Oberlandesgericht Karlsruhe, [INCADAT cite: HC/E/DE 944];

United States of America
Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), [INCADAT cite: HC/E/USf 970].

The United States Court of Appeals for the 3rd Circuit refused to recognize a Spanish non-return order, finding that the Spanish courts had applied their own law rather than the law of New Jersey in assessing whether the applicant father held rights of custody.

The European Court of Human Rights (ECrtHR)
The ECrtHR has been prepared to intervene where interpretation of rights of custody has been misapplied:

Monory v. Hungary & Romania, (2005) 41 E.H.R.R. 37, [INCADAT cite: HC/E/ 802].

In Monory the ECrtHR found that there had been a breach of the right to family life in Article 8 of the European Convention on Human Rights (ECHR) where the Romanian courts had so misinterpreted Article 3 of the Hague Convention that the guarantees of the latter instrument itself were violated.

Preparation of INCADAT commentary in progress.