Case Law Search

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

Appeal allowed, return ordered

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

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Case remitted to lower court

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents– Father national of Croatia and Germany – Mother national of Croatia – Joint custody according to the German Civil Code and under Croatian law – Child lived in Germany until December2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 - The Court granted the appeal, set aside the first instance judgment and remitted the case for a new trial to the court of first instance – Main issues: Rights of Custody, Brussels IIa Regulation –The first instance court should have applied the Brussels II a Regulation, including its requirement for return to be ordered in Art. 13(1)(b) cases in which it has been established that adequate arrangements have been made to secure the protection of the child upon his return.

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

Appeal dismissed, return ordered

On appeal, the lower instance decision of the Osaka Family Court was upheld and the Osaka High Court ordered the return of the children, C and D, from Japan to France. The Court rejected the father’s argument that the return of the children should be refused because the mother had not exercised her custody rights and because of the children’s views.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Interpretation of the Convention | Best Interests of the Child |

Return refused

Lawful retention of two girls - Uruguayan – Separated parents – The girls lived in Brazil until 19 April 2019, when the mother removed them to Uruguay – The mother filed a return application with the Brazilian Central Authority – Return refused – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, procedural matters, interpretation of the Convention, best interests of the child – There was no wrongful retention, as the mother actually removed them voluntarily to Uruguay – The mother had consented that the girls live in Uruguay by removing them to that country and delivering the necessary documents for them to resume their life there to the father – There was a grave risk due to the high emotional disturbance they suffered as a consequence of the physical, psychological and sexual violence they had suffered in Brazil – The proceedings are autonomous and specific for international child abduction cases under Uruguayan Law 18,895 – The children’s best interests in this case had been furthered by preventing them from returning to an environment of sexual, psychological and emotional abuse.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. 

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

Appeal allowed, return ordered subject to undertakings

1 child wrongfully removed at age 6 – Unmarried parents – The mother had day-to-day care of the child and the father had supervised contact – Child lived in New Zealand until May 2016 – Application for return heard at first instance in December 2016 – First appeal: application dismissed – Second appeal: return ordered – Main issues: rights of custody, Art. 13(1)(b) grave risk exception, undertakings / conditions for return – The finding that there is no ”grave risk” within the meaning of Article 13(1)(b) “while at the same time foreshadowing a preparedness to impose conditions on the order for return” can be consistent - fulfilment of conditions prior to the child’s return should be feasible and cannot place the taking parent in a better situation than she was before the removal

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

Appeal allowed, return refused

Appeal allowed, return refused. The first instance judge did not properly apply the approach as set out in Re E. The mother established that Article 13(1)(b) applies and there is no justification for exercising the court’s discretion by making a return order.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Procedural Matters | Best Interests of the Child

Appeal allowed, return ordered subject to undertakings

Appeal allowed, return ordered subject to undertakings.

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

Return ordered

Return ordered.

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

Return refused

Return refused.

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

Appeal allowed, return ordered

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

Return ordered

Wrongful retention of an adolescent in Uruguay – Custody right exercised solely by the mother – The adolescent lived in Spain with his mother for 4 years – The return application was filed before the Spanish Central Authority – Return ordered – Main issues: Art. 13(1)(b) grave risk exception, objections of the child to a return, best interests of the child – The father did not prove any situation in which there was a grave risk actually making return intolerable and exposing the adolescent gravely – The adolescent voiced a preference but there was no true objection in the sense of an unwavering repudiation towards return.

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

Challenge to legality dismissed; the standard of harm required under Article 13(1)(b) had not been met and the return was therefore ordered.

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

Appeal allowed, return refused

The High Court allowed the appeal in both cases. The cases were remitted to the Full Court of the Family Court for further consideration consistent with the reasons for judgment of the High Court.

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

Appeal dismissed, return ordered

Appeal dismissed; the standard required under Article 13(1)(a) to show that the father had acquiesced had not been met.

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

Appeal allowed and case remitted to the High Court for it to exercise its discretion as to whether the child should be returned to England.

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

Return ordered

Return ordered; the removal was wrongful and the standard of harm required under Article 13(1)(b) had not been made out.

Rights of Custody - Art. 3 | Procedural Matters

Appeal allowed, return ordered

Appeal against return order dismissed; the removal was in breach of the father's rights of custody and therefore wrongful.

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

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

Appeal dismissed, return refused