Case Law Search

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at age 2 – Married parents – Father national of Argentina – Mother national of Romania and Argentina – Joint custody – Child lived in Argentina until September 2006 and in Cyprus (for a UN mission) until March 2007 – Application for return filed with the Central Authority of Argentina on 4 December 2007 – Return ordered, subsequently quashed at extraordinary appeal before application to ECtHR on 21 December 2009 – Violation of Art. 8 ECHR – EUR 7,500 awarded in damages – The lack of expeditious enforcement of the final return order and the subsequent decision to quash this order in the extraordinary appeal, on the basis of irrelevant, unjustified and insufficient reasons, formed a violation of Article 8 

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

Return refused

Return refused; the removal was wrongful but the children validly objected to their return.

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

Appeal allowed and case remitted to a different judge of the Ontario Court of Justice to re-determine the Article 13(1)(b) issues.

Settlement of the Child - Art. 12(2)

Return ordered

Return ordered. The Court did not find that the father had consented or acquiesced to the removal of the child from the United Kingdom and the mother did not provide enough evidence to make out an exception to return under Article 13(2) (child’s objections), Article 13(1)(b) (grave risk of harm) or Article 12 (settlement of the child).

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Procedural Matters

Return ordered

Wrongful retention of a 7-year-old boy - Venezuelan – unmarried parents – Venezuelan father - Venezuelan mother – The rights of custody were jointly exercised – The child lived in Venezuela until November 2012 – The return request was filed before the Panamenian courts in November 2014 – Return ordered – Main Issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was in Venezuela – Removal was wrongful because the travel authorisation used by the mother was false – It was not proved that the father abused the child; the refugee status request was not an impediment against return – Measures were adopted for the child’s safe return to his habitual residence.

European Convention on Human Rights (ECHR)

Unanimous: no breach of Article 8 of the European Convention on Human Rights (ECHR).

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

Appeal allowed, return refused

Appeal allowed and return refused; Article 12(2) had been proved to the standard required by the 1980 Hague Child Abduction Convention and discretion exercised not to make a return order.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered

Return ordered.

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 

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

Appeal dismissed, return refused

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

Aims of the Convention - Preamble, Arts 1 and 2 | Acquiescence - Art. 13(1)(a)

Appeal allowed, return refused

Appeal allowed and return refused; the standard required under Article 13(1)(a) to show acquiescence had been met.

Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed; the removal was wrongful but the case was remitted to the Family Court in Christchurch to enable it to determine whether any of the exceptions were applicable.

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 allowed, return refused

The Convention cannot be invoked if by the time of the alleged wrongful act the child is habitually resident in the requested state.

Repudiatory retention exists and involves a subjective intention on the part of the travelling parent not to return, manifested by objectively identifiable act or statement.

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Return ordered subject to undertakings

The court ordered the return of the child to the USA.

Settlement of the Child - Art. 12(2) | Procedural Matters | Interpretation of the Convention

Appeal allowed, return ordered

Wrongful removal of 5-year-old child - American – unmarried parents, they split up -  the girl lived in California with her mother until she was removed by her father to Mexico – the return request was filed before the Central Authority in the United States of America – appeal allowed, return ordered – main issues: settlement of the child; procedural matters; interpretation of the Convention – the settlement of the child exception was not granted since the mother had filed for return within a year from the wrongful conduct – the Supreme Court held that Mexico lacks a special proceeding for child abduction cases – the HCCH 1980 Child Abduction Convention safeguards the best interests of the child and is compatible with the Political Constitution of the United Mexican States and the different international treaties signed and ratified by Mexico.

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Issues Relating to Return

Appeal allowed, return ordered

Wrongful removal of two girls when they were 10 and 6 years old – Married parents – The girls lived in Spain until July 2016 – Appeal allowed, return ordered – Main issues: Removal and retention, Art. 13(1)(b) grave risk exception, objections of the child to a return, matters relating to return – There was no concluding evidence that the mother had consented to a change in the girls’ habitual residence to Argentina – There was no grave risk that returning to Spain would cause psychological or physical harm to the girls – The girls did not strongly resist against or oppose returning to Spain, they only stated a mere preference for continuing to live in Argentina – The circumstances of the case had to be taken into account and the COVID-19 health emergency context as well in order to make return immediate and safe.

Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2) | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return ordered

Two children wrongfully retained at ages 14 and 12 – Nationals of Switzerland and Slovakia –Divorced parents – Father national of Switzerland and Slovakia – Mother national of Czech Republic – The children are under joint custody of the parents. The mother has sole care. – Children lived in Spain (until June 2021) – Application for return filed with the Courts of Switzerland on 16 September 2021 – Return ordered

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.