Case Law Search

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

Return refused

Removal wrongful but return refused; Article 13(1)(a) and (b) and Article 13(2) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

Non-Convention Issues

Return ordered

Return ordered. The Court denied the mother’s requests for a stay and/or an adjournment of the return application proceedings on the basis of her applications for refugee protection.

Removal and Retention - Arts 3 and 12 | Procedural Matters |

Appeal dismissed, return ordered

1 child wrongfully removed at age 4 – National of Poland - Married parents (ongoing divorce proceedings) – Mother national of Poland – Father national of Poland - Parents had joint custody. Divorce court gave mother the right to have the child during the abduction until the end of the divorce proceedings. Decision that was annulled after return was ordered. – Child lived in Poland (until 4 December 2015)  – Application for return filed with the Central Authority of Switzerland on 6 June 2016 – Return ordered – Main issue: Grave Risk – The fact that the mother considers her own return to Poland to be intolerable, both financially and professionally, is not relevant to the examination of the exception to return.

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.

Removal and Retention - Arts 3 and 12 | Interpretation of the Convention | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed, return ordered. 

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) |

Appeal dismissed, return refused

1 child (allegedly) wrongfully removed at age 4 – National of the USA – Unmarried parents – Father national of the USA and the Dominican Republic – Mother national of Switzerland, the Dominican Republic, Italy – Shared parental responsibility – Child lived in the USA – Application for return filed with the Central Authority of Switzerland on 7th of January 2021 – Return refused – Main issue: Grave Risk (Art. 13(1)(b) – Status quo ante cannot be attained, since mother has a travel ban to the USA. Grave risk to the child if separated from the mother for the next 10 years.

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.

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.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Issues Relating to Return | Best Interests of the Child

Return ordered with undertakings offered

Wrongful removal of a boy when he was 10 years old - Venezuelan – the father had exclusive custody rights  - the child lived in Venezuela until 2018 – the father requested return before the Venezuelan Central Authority in July 2020 – return ordered – main issues: removal and retention, consent, settlement of the child, grave risk, objection of the child to a return, procedural matters, issues relating to return, best interests of the child – removal was wrongful since it breached the father’s custody rights, attributed to him under the law of the State where the child was habitually resident – the father did not consent to the child’s removal – he acted towards the child’s return within a year since the wrongful removal – it was not established that the child would be exposed to a grave risk or an intolerable situation upon return to Venezuela – it was not established that the child’s fundamental rights were impaired – there was not an irreducible objection of the child against returning to the place where he was habitually resident - the Court ordered an interim exit and change of residence ban - the Court ordered the parents to collaborate with enforcement of the return order - the Court ordered to take the necessary steps for the child’s safe return

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 

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

Case remitted to lower court

1 child allegedly wrongfully retained at age 10 - National of United States of America and Italy - Divorced parents - Joint custody - Child lived in the United States until the second half of 2015 - Application for return filed on 21 October 2015 - Return refused - Main issues: Objection of the child to return - Due weight should be given to the child’s opinion where the child is considered to have attained an appropriate age and degree of maturity, even if certain aspects of the child’s opinion are considered to be imprecise

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

European Convention on Human Rights (ECHR) | Procedural Matters

Aims of the Convention - Preamble, Arts 1 and 2 | Procedural Matters

Judgment vacated and case remanded to the United States Court of Appeals for the Eleventh Circuit for further proceedings; the return of the child to Scotland did not render the case moot; there was a live dispute between the parties over where the child should be raised, and a possibility of effectual relief for the prevailing parent.

Removal and Retention - Arts 3 and 12 | 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) | Procedural Matters

Appeal dismissed, return ordered

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

Appeal allowed, return ordered