Case Law Search

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

Appeal allowed, return refused

Appeal allowed, return refused. The first instance judge had erred in her approach to determining whether there was a grave risk to the children under Article 13(1)(b).

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

Return ordered subject to undertakings

Retention wrongful and return ordered; none of the exceptions had been proved to the standard required under the Convention.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Procedural Matters

Application dismissed

Application dismissed; the retention was not wrongful as there was no express agreement that the child would return to the United States of America on 29 December 2012.

Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal allowed, application dismissed

Appeal allowed and return application refused. There was a definite wrongful retention but more than a year had elapsed after the retention and the father had acquiesced.

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

Return ordered

Return ordered; the removal was wrongful and consent had not been established.

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

Appeal dismissed, return refused

Appeal dismissed.

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

Return refused

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

Return refused

1 child wrongfully retained at age 10 - National of El Salvador and Canada - Married parents - Father national of El Salvador - Mother national of Canada - Father exercised rights of custody for about 10 years, mother obtained custody in May 2012 - Child lived in El Salvador until November 2011 - Application for return filed with the Provincial Court in July 2012 - Return refused under Article 13(2) - Main issues: Art 13(1) (b) grave risk exception to return, objection of the child to return - Abuse of one parent by another can only be a relevant consideration for the Art. 13(1)(b) exception if the child is “placed in the midst of an abusive relationship” - An assessment of whether a child was placed in an intolerable situation due to the administration of corporal punishment should account for the range of generally accepted disciplining practices in the relevant social context - The factors to be taken into consideration when assessing whether a child has attained an age and degree of maturity at which it is appropriate to take account of her views include: level of cognitive functioning, capacity for logical and rational reasoning and nuanced evaluation of different circumstances - Decisions not to order return under Article 13(2) should account for the policy considerations underlying the 1980 Hague Child Abduction Convention 

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The retention was wrongful and the exceptions raised inapplicable.

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

Appeal dismissed, return ordered

1 child (national of Japan and the United States) removed from the United States to Japan ― Father a United States national, mother a Japanese national ― Parents married in Japan in 2012 and lived together with the mother’s son from her previous marriage ― The family moved to the United States in 2014 ― Upon becoming pregnant, the mother went back to Japan with her son in 2015 ― Mother returned to the United States with the new-born child in 2016 ― Father petitioned for divorce and obtained a provisional ne exeat order ― Mother moved to a shelter with the child within the United States ― Father had frequent access to the child, but contact broke up after an argument between the parents ― Mother removed the child to Japan in 2016 ― Obtaining assistance of the Central Authority of Japan in 2016, Father petitioned to the Osaka Family Court for return of the child in 2017 ― Return ordered ― Appeal to the Osaka High Court dismissed and return ordered in 2017 ― Main issues: Habitual Residence of the child ― Actual exercise of rights of custody ― Grave Risk for the child.

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

Appeal dismissed, return ordered

Appeal refused; return allowed. It was settled that the retention was wrongful.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

Unanimous: infringement of Article 8 of the European Convention on Human Rights (ECHR); award of damages on the basis of Article 41 of the ECHR.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The removal was wrongful and none of the exceptions raised was applicable.

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

Return ordered with undertakings offered

Removal wrongful and return ordered; the objection of one child to return was not sufficiently strong to override the policy of the Convention.

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

Return ordered subject to undertakings

Removal wrongful and return ordered, subject to undertakings; a grave risk of harm had not been established to the standard required under the Convention.

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

Appeal dismissed, return refused

Appeal dismissed in part and application dismissed; the children were habitually resident in Israel at the date of the alleged wrongful retention. The trial court had though erred in its interpretation of the concept of acquiescence.

Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20

Appeal upheld, the removal was wrongful, but the additional evidence should have been taken into account. The case was remitted to the District Court Rychnov nad Knìžnou to rule on the father's application anew. The Constitutional Court further ruled that the Convention did not violate the abducting parent's rights under the Czech Constitution.

Acquiescence - Art. 13(1)(a)

Appeal dismissed, return refused

Appeal dismissed and return refused; the retention was wrongful, but the applicant father was found to have acquiesced.

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

Appeal allowed, return ordered with undertakings offered

Appeal allowed and return ordered with undertakings offered; the father had not acquiesced in terms of Article 13(1)(a).

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

Appeal dismissed, return ordered

Appeal dismissed, return upheld. The removal was wrongful and there had been no consent to the removal.