Case Law Search

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

Confirmation of the order of 8 March 2006, in that it ordered the child's return; reversal of judgment of 23 March 2006. The removal was wrongful and the return could not be denied on the basis of Article 13 because adequate protection measures had been taken in Italy.

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2)

Return ordered

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

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

Appeal dismissed, return ordered

Appeal dismissed. The removal was wrongful and the exceptions of the Convention inapplicable.

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Case remitted to lower court

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents– Father national of Croatia and Germany – Mother national of Croatia – Joint custody according to the German Civil Code and under Croatian law – Child lived in Germany until December2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 - The Court granted the appeal, set aside the first instance judgment and remitted the case for a new trial to the court of first instance – Main issues: Rights of Custody, Brussels IIa Regulation –The first instance court should have applied the Brussels II a Regulation, including its requirement for return to be ordered in Art. 13(1)(b) cases in which it has been established that adequate arrangements have been made to secure the protection of the child upon his return.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Interpretation of the Convention | Best Interests of the Child |

Return refused

Lawful retention of two girls - Uruguayan – Separated parents – The girls lived in Brazil until 19 April 2019, when the mother removed them to Uruguay – The mother filed a return application with the Brazilian Central Authority – Return refused – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, procedural matters, interpretation of the Convention, best interests of the child – There was no wrongful retention, as the mother actually removed them voluntarily to Uruguay – The mother had consented that the girls live in Uruguay by removing them to that country and delivering the necessary documents for them to resume their life there to the father – There was a grave risk due to the high emotional disturbance they suffered as a consequence of the physical, psychological and sexual violence they had suffered in Brazil – The proceedings are autonomous and specific for international child abduction cases under Uruguayan Law 18,895 – The children’s best interests in this case had been furthered by preventing them from returning to an environment of sexual, psychological and emotional abuse.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Issues Relating to Return

Appeal allowed, return ordered subject to undertakings

1 child wrongfully removed at age 6 – Unmarried parents – The mother had day-to-day care of the child and the father had supervised contact – Child lived in New Zealand until May 2016 – Application for return heard at first instance in December 2016 – First appeal: application dismissed – Second appeal: return ordered – Main issues: rights of custody, Art. 13(1)(b) grave risk exception, undertakings / conditions for return – The finding that there is no ”grave risk” within the meaning of Article 13(1)(b) “while at the same time foreshadowing a preparedness to impose conditions on the order for return” can be consistent - fulfilment of conditions prior to the child’s return should be feasible and cannot place the taking parent in a better situation than she was before the removal

Procedural Matters | Consent - Art. 13(1)(a)

Appeal allowed and case remitted to the High Court for it to exercise its discretion as to whether the child should be returned to England.

Rights of Custody - Art. 3 | Procedural Matters

Appeal allowed, return ordered

Appeal against return order dismissed; the removal was in breach of the father's rights of custody and therefore wrongful.

Rights of Custody - Art. 3

Challenge to legality dismissed; the removal was not wrongful as it was not in breach of any rights of custody.

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

Appeal dismissed, return ordered

The court rejected the Beschwerde appeal against the decision and ordered the return of the children.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Jurisdiction Issues - Art. 16

Return ordered

Wrongful removal of a 12-year old child – Custody rights were exercised by the child’s aunt and her husband – The child lived in Costa Rica since he was 2 years old until February 2019 – Return ordered – Main Issues: habitual residence; rights of custody; jurisdiction issues – The habitual residence of the child is where his centre of life is, irrespective of the child’s nationality – Even though the mother had parental authority over the child, the rights of custody were exercised by the child’s aunt and her husband, and thus removal was wrongful – Return proceedings are not aimed at determining the parent’s ability to take care of and raise the child.

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

Appeal dismissed, return ordered

Wrongful retention of a child when she was 4 years old - Trinidadian - Trinidadian parents – Joint custody but primary and residential custody with the mother - Child lived in the United States for 2 years and 4 months until she was removed and wrongfully retained in Trinidad as from 15 July 2017 – The return application was filed before a Trinidadian Family Court on 28 November 2017 – Appeal dismissed, return ordered - Main issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was found to be in the U.S. because that was the mother’s place of residence and the girl had lived there for a considerable time - Removal had not been wrongful since the father had a temporary timesharing order but retention was since it breached the mother’s right of custody – The exception in Article 13(1)(b) was not granted as mere financial discomfort was not grave enough 

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

Return ordered with undertakings offered

2 children wrongfully removed at ages 4 and 7– Nationals of Canada and Norway – Married parents – Father national of Norway – Mother national of Canada – Both parents had rights of custody – Children lived in Hong Kong until 21 September 2018 – Application for return filed with the courts of Ontario (Canada) at the end of January 2019 – Return ordered – Main issue: Article 13(1)(b) Grave Risk – Evidence did not meet the 13(1)(b) threshold. Court considered affidavit and legal opinion from lawyer in Hong Kong – Undertakings – Undertakings necessary to secure safe, prompt and seamless return of children and to provide for transition between return order and when children are placed before the Hong Kong courts.

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

Return ordered

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents – Father national of Croatia and Germany – Mother national of Croatia – Joint costudy according to the German Civil Code – Child lived in Germany until December 2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 – Return ordered – Main issues: Art. 13(1)(b) grave risk exception to return, Undertakings, Objections of the Child to a Return – The Court ordered the return of the child, whose retention in Croatia was found to be unlawful under Art. 3 of the 1980 Hague Child Abduction Convention.

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

Return ordered

Appeal allowed, return ordered. The removal to Panama was considered wrongful and the grave risk exception of Article 13(1)(b) raised by the mother was not established.

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Undertakings

Appeal allowed, return ordered with undertakings offered

Appeal allowed and return ordered with undertakings given; the standard of proof required under Article 13(1)(a) and 13(1)(b) had not been met.

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Human Rights - Art. 20 | Procedural Matters

Legal challenge dismissed and return order confirmed; the retention was wrongful and the conditions necessary for the application of Article 13(1)(b) and Article 20 of the 1980 Hague Child Abduction Convention had not been met.

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

Appeal allowed, return ordered

Issues Relating to Return

Removal and Retention - Arts 3 and 12

Appeal dismissed, application dismissed

Appeal dismissed and application dismissed; there had been no wrongful removal as the Convention had not entered into effect between the United Kingdom and Ontario at the relevant date.