Case Law Search

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

Appeal dismissed, return ordered

The court rejected the application for deferment of enforcement.

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

Appeal allowed, return refused

Appeal allowed; return refused. The daughters objected to a return that exposed them to a grave risk of danger, whereas no adequate measures had been taken in Belgium.

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) | Jurisdiction Issues - Art. 16 | Procedural Matters

Appeal allowed, return ordered

Appeal allowed, return ordered. The removal was wrongful and no exception raised was applicable.

Non-Convention Issues | Grave Risk - Art. 13(1)(b) | European Convention on Human Rights (ECHR)

Application dismissed

The constitutional complaint of the child was not lodged in a permissible way (need to be presented by a guardian-ad-litem). 

The complaint brought by the mother in her own name was inadmissible as she returned with the child to Ukraine for around 3 weeks. Additionally she did not demonstrate sufficiently a possible violation of basic rights.

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

Appeal dismissed, return refused

One child wrongfully removed at age 1 – National of Ukraine – Married parents – Father national of Ukraine – Mother national of Ukraine – Mother and father have joint custody –Child lived in Ukraine until 02.03.2022 –Application for return filed with the Central Authority/courts (choose!) of [State] on [date] –Return refused – Main issue(s): Art. 13(1)(b) grave risk exception to return  – [Summary of the outcome of the main contentious issue(s) The return of a child to a war zone where it could be exposed to a real threat entails a serious risk of physical or psychological harm being caused to the child.

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

Return ordered

Removal wrongful and return ordered; the father was to have sole possession of the children's travel documentation.

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

Return ordered

Removal wrongful and return ordered; the children were habitually resident in Scotland on the relevant date and the argument based on Article 13(1)(b) was dismissed.

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

Return refused

Return refused.

Non-Convention Issues | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2)

Return refused

Return Refused.

Non-Convention Issues | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Return ordered

Return ordered.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Issues Relating to Return |

Return ordered with undertakings offered

One child allegedly wrongfully retained at age 5 and a half – National of Ukraine and the United Kingdom – Father national of the United Kingdom and South Africa – Mother national of Hungary and Ukraine – Child lived in Ukraine in the mother’s custody with regular contact with the father – Following Russian invasion of Ukraine in late February 2022 child and Mother move to England In April 2022 – Mother plans to return to Ukraine in Summer 2022 – Father obtains Prohibited Steps Order from English Court - Application for return issued on 29 July 2022 – Main issues: habitual residence and Art. 13(1)(b) grave risk exception to return – risk of exposure to war – risk of loss of relationship with father due to alleged closure of court system and mothers hostility to father – A child’s retained roots in Ukraine support his habitual residence remains in the Ukraine – The risk faced by the child upon return to Ukraine failed to meet the threshold of ‘grave harm’ – the region was not subject to active hostility and life continued as normal – the court system was functioning – mother promoted contact – undertakings reduced any risk below grave risk threshold. – Return ordered

Procedural Matters

Appeal against the provisional stay of execution of the return order dismissed.

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

Appeal dismissed, application dismissed

1 child allegedly wrongfully removed at age 13 – National of Canada – Divorced parents – Parents have joint custody and mother has primary care – Child lived in Arizona, USA until August 2017 – Application for return filed with the courts of Alberta, Canada on May 18, 2018 – Application dismissed – Main issue: Art 13(1)(b) – It would be an intolerable situation to return the child to Arizona as neither parent resides there.

Settlement of the Child - Art. 12(2) |

Return refused

3 children habitually resident in Spain ― Father Spanish national, mother Japanese national ― Parents married in 2009 in Japan ― Upon marriage, father adopted mother’s child born out of wedlock in 2006 ― Two children were born within wedlock in 2011 and 2015 ― Parents first lived together in Japan and later relocated to Spain in May 2011 ― Mother brought three children to Japan in May 2017 and notified Father of her intent to divorce and stay in Japan ― Father filed petition for the return of the children to the Tokyo Family Court in October 2018 ― Petition dismissed ― Main issue: Settlement of the children.

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) | Human Rights - Art. 20 | Procedural Matters

Appeal allowed and case remitted to trial court; the trial court had failed to give due consideration to the child's status as a refugee when determining the return application. Furthermore, there had been procedural failings in the conduct of the trial and the exceptions to return had not been investigated properly.

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

Appeal dismissed, return ordered

4 children wrongfully removed to Japan ― Parents married in 2001 and living in the United States ― Father and mother nationals of Japan ― 5 children ― The parents separated and had been living apart since 2011 ― The mother obtained a restraining order against the father for the third time in 2012, along with a provisional custody order over the 5 children ― The father removed 4 of their 5 children via Canada to Japan in 2014 ― The parents obtained a divorce decree in the United States in 2014, which declared the mother as the sole custodian ― The mother filed an application for return with the courts of Japan in 2014 ― The Tokyo Family Court ordered return ― The father filed an appeal ― Main issues: No objections of the children ― No grave risk in ordering return of the child.

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

Appeal dismissed, return ordered

Appeal dismissed and return refused. The removal was wrongful but the exceptions in Articles 13(1)(a), 13(1)(b) and 13(2) had been made out to the standard required under the Convention. In addition the father's lack of good faith barred him from receiving the court's assistance.

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

Appeal dismissed, return refused

1 child removed to Japan ― National of Algeria and Japan ― Married parents ― Father an Algerian national, Mother a Japanese national ― Parents married in France in 1998 ― Child born in 2004 and lived in France until 2015 ― Mother removed and has retained the child in Japan ― Petition for return of the child filed with the Osaka Family Court ― Petition dismissed ― Appeal to the Osaka High Court dismissed ― Main issues: Father’s Consent or Acquiescence ― Grave Risk for the Child ― Child’s objection

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

Return ordered

Return ordered, subject to undertakings.

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

Return refused

Return refused due to acquiescence of the father.