Case Law Search

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

Return refused

Abduction of a 13-year-old girl – the child had lived in Nicaragua for ten years under the care of her maternal family – the return request was filed before Nicaraguan courts in April 2019 – return denied – key issues: habitual residence; Article 13(2) – the child’s habitual residence was found to be in Nicaragua as it was where she had developed her center of life, personal and cultural identity, and sense of belonging, stability, and security – the court determined that the child’s statements during the hearing constituted an objection to return according to Art. 13(2) of the Convention.

Procedural Matters |

Appeal dismissed, return refused

1 child wrongfully removed at age 6 – National of Peru – Father national of Peru – Mother national of Peru – Temporary award of joint custody by Peruvian Court – Child lived in Peru until October 2019 – Application for return filed with the courts of Ontario in March 2020 – Return refused in first instance – Appeal dismissed – Main issue: Procedural matters – Conduct of hearing led to undue delay and contravened obligation for prompt resolution under the Convention. 

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the removal was not wrongful as the child was habitually resident in Israel.

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 communications 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

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Consent - Art. 13(1)(a)

Return ordered

Return ordered at the date provided for by the parental agreement.

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, application dismissed

4 children allegedly retained - aged 10, 13, 14 and 16 at the time of the decision – Nationals of Canada and Germany – Father national of Germany – Mother national of Canada – Both parents had rights of custody – Children lived in Germany until August 2017 – Application for return filed with the courts of Ontario in August 2018 – Application dismissed – Main issue(s): Habitual Residence – Art 3 – The children were habitually resident in Canada and therefore there was no wrongful retention 

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

Appeal allowed, application dismissed

1 child allegedly retained at age 3 – National of Canada and United Stated – Unmarried parents – Father national of Brazil – Mother national of Canada – Child lived most of her life in Canada but spent several months in the United States on three separate occasions – Application for return filed with the courts on August 30, 2019 – Application dismissed – Main issue: Art 3 – The child was habitually resident in Canada and therefore there was no wrongful retention

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the retention was not wrongful as the children were no longer habitually resident in Australia on the relevant date.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Consent - Art. 13(1)(a)

Appeal allowed, return ordered

Appeal allowed, return ordered.

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 | Rights of Access - Art. 21

Appeal inadmissible as it did not raise a sufficiently significant issue of law.

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Jurisdiction Issues - Art. 16

Appeal allowed, return refused

Appeal allowed and return refused; regard had to be paid to the terms of the provisional order of the Czech District Court permitting the children to live with the mother in Sweden.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3

Appeal inadmissible: the issue whether the 1980 Hague Child Abduction Convention is applicable when the applicant resides neither in the State of habitual residence nor in the State of refuge but in a third State was not determining.

Interpretation of the Convention

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

Appeal dismissed, return refused

Appeal dismissed and return refused; a grave risk of harm had been established to the standard required by Article 13(1)(b).

Rights of Custody - Art. 3

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal breached a right of custody actually exercised by the grandmother.

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

Challenge to legality dismissed; the removal was wrongful but Articles 13(1)(b) and 13(2) had been proved to the standard required under the Convention. The return was therefore refused.

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

Challenge to legality dismissed; the removal was wrongful and Article 13(1)(b) had not been proved to the standard required under the Convention.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed, return ordered

Wrongful retention of a 5-year-old boy – Peruvian and American – Married parents –The child lived in Peru until September 2014, then the family changed its place of habitual residence to the United States – The mother filed a return request before the Peruvian courts on 24 August 2016 – Return ordered – Main issues: Habitual Residence; Removal and Retention; Settlement of the Child; Objections of the Child to a Return – The habitual residence of the child prior to the wrongful retention was in the United States – The mother had rights of custody over the child under the custody and visitation agreement approved by the U.S. court – The wrongful retention occurred because the father did not return with the child by the date established in the travel authorisation issued by the mother – The child was gradually detaching from the mother because of the father’s actions.

Aims of the Convention - Preamble, Arts 1 and 2

Return refused

In the absence of any possibility of there being a substantive hearing in France the return of the girls was refused.