Case Law Search

Removal and Retention - Arts 3 and 12

Appeal dismissed; the Court of Appeal had rightly taken into account the High Court judgment to refuse a return order.

Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters

Appeal allowed, the exception of grave risk was inapplicable; case returned to the Superior Court of the canton of Lucerne for a ruling on the terms of the return to Burkina Faso.

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

Appeal dismissed and return of older sibling ordered; his removal had been wrongful and the Article 13(1)(b) exception had not been established.

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

Guidance on the application of the Convention issued

2 children retained at ages 11 and 8 – Nationals of Canada – Married parents – Father national of Canada – Mother national of Canada – Father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a Canadian school – Children lived in Germany until April 2013 – Application for return filed with the Central Authority of Germany on 11 April 2014 – Return decision of the Court of Appeal of Ontario of 13 September 2016 was appealed to the Supreme Court, but the children were returned to Germany before the Court rendered its judgment; despite the appeal being moot, the Court considered the issues raised to be important and in need of clarification – Main issues: interpretation of the Convention, habitual residence, objections of the child to a return, procedural matters – To ensure uniformity of State practice, courts should generally adopt the interpretation of the Convention that has gained the most support in other foreign domestic courts – The “hybrid approach” to determining habitual residence (which considers all relevant factual links and circumstances in their entirety, instead of focusing either on parental intention or the child’s acclimatisation) should be followed – Courts should adopt a non-technical and straightforward approach to considering the child’s objections to return – It is up to the judicial authorities to ensure that the State lives up to its obligations to act expeditiously under the 1980 Hague Child Abduction Convention – Convention proceedings should be judge-led, not party-driven, and judges should not hesitate to use their authority to expedite proceedings

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.

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

Return refused

Return refused; the father had acquiesced in terms of Article 13(1)(a).

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Rights of Access - Art. 21 | Procedural Matters

Appeal allowed, return refused

Appeal allowed and return refused; on the basis that the father was prepared to contemplate the children remaining in New Zealand if he could have satisfactory access in the United States.

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

Return ordered; the removal was wrongful and the standard required under Article 13(1)(b) to show that the child would face a grave risk of physical harm had not been met.

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

Return ordered

Return ordered; the retention was wrongful and the standard required under Article 13(1)(a) had not been met to show that the father had consented.

Aims of the Convention - Preamble, Arts 1 and 2

Return order struck out given it had not been enforced for three and a half years.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12

Reclaiming motion (appeal) allowed; case remitted to the Outer House of the Court of Session to determine the issues of wrongful retention and habitual residence.

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

Return ordered

Return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of an intolerable situation had not been met.

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

Return ordered

Return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of physical harm or an intolerable situation had not been met.

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

Return refused in respect of the older child; the standard required under Article 13(2) had been met. Return ordered in respect of the younger child; the standard required under Article 13(2) had not been met.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20

Appeal dismissed, return ordered

Appeal dismissed, retention wrongful and return ordered; the child was habitually resident in the United States at the relevant date and the standard had not been met under Article 13(1)(a) to show that the father had acquiesced.

Objections of the Child to a Return - Art. 13(2) | Role of the Central Authorities - Arts 6 - 10

Appeal allowed, return ordered

Appeal allowed; there had been a fundamental change in the circumstances since the original decision and it was now appropriate to take the girl's objections into account. The case was remitted to the trial judge.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a)

Return ordered

Return ordered; the children were habitually resident in Germany at the relevant date.

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

The Court of Appeal upheld the finding that there had not been a wrongful retention under the Convention. However, the court allowed the appeal in that it stayed the substantive family law proceedings and held that the child's future should be determined in Texas.

Human Rights - Art. 20

Application dismissed and return ordered; the Convention does not violate the Irish Constitution.

Procedural Matters

Appeal allowed; the child was habitually resident in Sweden at the relevant date. The case was remitted to the High Court for a hearing to determine if an Article 13 exception applied.