Case Law Search

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.

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

Appeal dismissed, return ordered

One child (Russian national) born in 2014 resided in Russia ― Father and mother Russian nationals ― Parents married in 2014 in Russia ― Parents divorced in 2016 ― Mother took the child to Japan in October 2017 and settled there following her remarriage ― A ne exeat order of the Russian court was partly set aside by confirming the child’s temporary residence in Japan in January 2019 ― Central Authority of Japan assisted the Father with a return application in July 2018 ― Father filed petition for the child’s return to the Tokyo Family Court in October 2018 ― Return ordered ― Appeal dismissed by the Tokyo High Court in February 2019 ― Main issues: rights of custody and grave risk.

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

Appeal dismissed, return ordered

Wrongful retention of two girls when they were 8 and 11 years old – Uruguayan & Swedish – Unmarried parents – Uruguayan father – Uruguayan mother – Joint custody – The girls lived in the Kingdom of Norway until January 2019 – Return proceedings were commenced before Uruguayan courts on 27 May 2019 – Return ordered – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, objections of the child to a return, procedural matters, best interests of the child – Retention was wrongful because it violated the father’s actually-exercised right of custody when it took place – There was not sufficient evidence on record proving the father’s consent or acquiescence to the change in the girls’ habitual residence – None of the circumstances alleged by the mother implied a grave risk for the girls if they returned to Norway – The girls’ statements evidenced that their opinions were influenced by their mother – The child support payments fixed in the first instance court judgment were overturned because this issue is outside the scope of application of the HCCH 1996 Child Protection Convention.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed and return order upheld; the retention was in breach of actually exercised rights of custody, the children having retained their Canadian habitual residence, and none of the exceptions was applicable.

Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2)

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the standard required under Articles 12(2) and 13(1)(a) had not been reached.

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

Return ordered

Return ordered; while the boy's objections to a return were valid and should be taken into account, the girl's were not and it was held that they should not be separated.

Acquiescence - Art. 13(1)(a) | Procedural Matters | Interpretation of the Convention

Appeal allowed, return ordered

Appeal allowed and return ordered; Article 13(1)(a) was not established.

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

Appeal allowed, return refused

Appeal allowed and return refused; the father had acquiesced in the retention of his son. The court exercised its discretion not to order the return of the child.

Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a)

Appeal dismissed, return ordered with undertakings offered

Appeal dismissed and return ordered, undertakings offered; the standard required under Article 13(1)(a) to indicate consent or acquiescence of the removal had not been met.

Aims of the Convention - Preamble, Arts 1 and 2 | Objections of the Child to a Return - Art. 13(2)

Appeal allowed, return refused

Appeal allowed and return refused. The Lord Ordinary had erred in the exercise of his discretion with respect to the objections of the younger child.

Aims of the Convention - Preamble, Arts 1 and 2 | Consent - Art. 13(1)(a) | Role of the Central Authorities - Arts 6 - 10 | Procedural Matters

Return ordered

Return ordered; the standard required under Articles 13(1)(a) and 13(1)(b) had not been met.

Acquiescence - Art. 13(1)(a)

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful and the father had not acquiesced in the children's retention.

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

Return ordered

Return ordered; the removal was wrongful and neither Article 13(1)(b) nor Article 13(2) had been proven to the standard required under the Convention.

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

Return ordered

Return ordered; although the children objected to a return there was evidence of external pressure and the court exercised its discretion to make a return order, finding that the appropriate forum for a substantive custody hearing was South Africa.

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

Return ordered

Retention wrongful and return ordered. Acquiescence on the part of the applicant parent was established to the standard required under Article 13(1)(a) but the court nevertheless exercised its discretion to order the return of the child. None of the other exceptions had been proved to the standard required under the Convention.

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

In respect of the elder child: The Convention was not applicable, the child having attained the age of 16 by the date of the hearing. In respect of the younger child: Return ordered; the removal was wrongful and none of the exceptions had been proved to the standard required under the Convention.

Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but on the basis of the children's objections a return order was refused.

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

Return ordered

Return ordered; the removal was wrongful having been in breach of actually exercised rights of custody and none of the exceptions had been proved to the standard required under the Convention.

Rights of Custody - Art. 3

Return ordered

Removal wrongful and return ordered; the father was actually exercising his rights of custody and none of the exceptions had been proved to the standard required under the Convention.

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the child was not habitually resident in Australia on the relevant date.