Case Law Search

Habitual Residence - Art. 3

Appeal allowed, application dismissed

1 child allegedly retained at age 6 months – National of the US Father national of US – Mother national of Canada – Father gave open-ended consent to mother to travel with the child to Canada – Child lived in United States for first 42 days of life – Application for return filed with the courts of Canada in December 2017 – The return decision of the Nova Scotia Supreme Court was appealed to the Nova Scotia Court of Appeal where the application was dismissed – Main issues: habitual residence – the Court of Appeal applied the “hybrid approach” to determine the habitual residence of the child and found the child to be habitually resident in Nova Scotia.

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

Return ordered

Child wrongfully retained at age 12 – Citizen of Georgia – Divorced parents – Father national of Georgia – Mother national of Greece – Parents had joint custody – Child lived in Cyprus from 2008 until August 2012 – Application for return was filed with the Central Authority on 18 December 2012 – Main issue: Article 3 – the child’s State of habitual residence was Cyprus and there was no evidence to support the use of one of the exceptions to return under the 1980 Convention.

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

Return ordered

2 children wrongfully retained at ages 1 and 2 – Married parents – Father national of the United States – Mother national of Canada – Both parents had rights of custody under the laws of Iowa – Children lived in the United State until 16 June 2018 – Application for return filed with the Central Authority of the United States on 18 August 2018 – Return ordered – Main issues: Article 3 -  children habitually resident in the United States, father had rights of custody and had only agreed to a one month stay in Canada, retention was therefore wrongful - Article 13(1)(a) Consent & Acquiescence – Exception not established, there is no “clear and cogent evidence of unequivocal consent or acquiescence” - Article 13(1)(b) Grave Risk – Exception not established, measures of protection are available in Iowa.

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

Return ordered subject to undertakings

Removal wrongful and return ordered; Article 13(1)(b) had not been proved to the standard required under the Convention.

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

Return ordered

Return ordered.

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

Appeal allowed, return refused

Appeal allowed and return refused; the removal was wrongful but the children had valid objections to a return and in the light of fresh evidence considered on appeal, a non-return order was made.

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

Return ordered subject to undertakings

2 children wrongfully removed (born in 2005 and 2007) - Separated parents - The Purvian courts had effectively granted temporary custody to the mother on 21 November 2013, and then to the father on 1 October 2014 (following the removal)  - Children lived in Peru until 20 February 2014 - Application for return filed with the District Court on 17 February 2015 - Return ordered subject to undertakings - Main issues: rights of custody, Art.13(1)(b) "grave risk" exception to return, undertakings - A very severe degree of psychological abuse is sufficient to conclude that the Art. 13(1)(b) "grave risk" exception to return under the 1980 Hague Child Abduction Convention applies, even in cases in which there is very little or no evidence of physical abuse

Acquiescence - Art. 13(1)(a)

Appeal dismissed, application dismissed

Appeal dismissed, application dismissed. The father had acquiesced.

European Convention on Human Rights (ECHR)

The Court unanimously ruled that Hungary had breached Article 8 of the ECHR where domestic courts failed to act expeditiously in the proceedings to return the child and the national authorities had failed to take adequate and effective measures for the enforcement of the return order. It also awarded the father compensation under Article 41 of the ECHR.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Jurisdiction Issues - Art. 16 | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Return refused

Removal wrongful but return refused; the child was settled in his new environment and the Court exercised its discretion not to order his return.

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

Return ordered

Father was a US national and mother was a Japanese national ― Parents married in 2014 in Japan ― Their sons were born in 2016 and 2017 in Japan respectively ― The entire family moved to California, the United States in 2018 ― In 2022 mother started to seek divorce but father refused ― Mother took the children to Japan in December 2022 ― Mother declared consensual divorce in February 2023 in Japan following their alleged divorce agreement entered in November 2022 ― Father denied to have signed a divorce form or divorce agreement ― Upon father’s petition, the Osaka Family Court ordered the return of the children to the United States ― Appeal dismissed and return ordered ― Main issue: Consent and Grave Risk.

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

Appeal allowed, return refused

Two children wrongfully removed at ages 6 and 3 - Nationals of Romania - Divorced parents - Father national of Romania - Mother national of Romania - Parents share caring responsibilities for the children and frequently moved between England and Romania throughout marriage - Father consented to children living in England with mother post-divorce - Children lived with father in Romania between September 2019 and February 2020 - Children returned to England with mother - Father sought to renege on his earlier consent - Application for return filed in England on 17 July 2020 by the father - Return ordered notwithstanding a finding of consent - Mother appealed this decision - Main issues: habitual residence and consent - Court agreed that children were habitually resident in Romania, however, allowed the appeal in relation to consent

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Appeal allowed and case remitted to trial court; determination to be made as to what undertakings, if any, would be sufficient to ensure the safety of the children upon their return to Mexico pending the outcome of custody proceedings.

Acquiescence - Art. 13(1)(a) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed and case remitted to the trial judge to enable the child's views to be ascertained.

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

Appeal allowed, return ordered

Appeal allowed and return ordered; acquiescence had not been proved to the standard required under the Convention.

Consent - Art. 13(1)(a)

Appeal declared inadmissible. The existence of a valid consent does not generally raise any important question of law which may be referred to the Supreme Court (Oberster Gerichtshof). Nor had the Court of Appeal, in the case at hand, made any key misinterpretations requiring correction by the Supreme Court.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and none of the exceptions invoked was applicable.

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

Appeal allowed, return ordered

Return ordered; the "grave risk of harm" exception had not been established.

Consent - Art. 13(1)(a)

Challenge to legality dismissed; the retention was wrongful but the standard required under Article 13(1)(a) had been met to show that the father had consented. The return was therefore refused.

Rights of Custody - Art. 3

Challenge to legality dismissed; there had been no breach of custody rights. The application was therefore dismissed.