Case Law Search

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.

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

Appeal dismissed, return ordered

Challenge rejected and return order confirmed. The removal was wrongful and the court of appeal had correctly found the Article 13(1)(b) exception to be inapplicable.

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

Appeal dismissed and return ordered subject to conditions; the removal was wrongful and none of the exceptions had been established to the standard required under the Convention.

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.

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

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

Return ordered

Challenge to legality dismissed; the child was habitually resident in Canada on the relevant date, therefore the retention was wrongful. None of the exceptions was established.

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.

Grave Risk - Art. 13(1)(b) | Interpretation of the Convention

Appeal allowed, return ordered

Appeal allowed and return ordered in respect of the youngest child as the Article 13 exception of the 1980 Hague Child Abduction Convention did not apply. Application rejected in respect of the older children, who were over 16 years old.

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.

Issues Relating to Return

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

Return ordered

Wrongful retention of a 4 year old child – Colombian and Salvadorian – Married parents –  Salvadorian mother – Shared rights of custody – the child lived in Colombia since birth until January 2019 – the return request was filed before the Colombian Central Authority in February 2019 – Return ordered – Main issues: habitual residence; removal and retention; art. 13(1)(b) grave risk exception; procedural matters – The habitual residence of the child was in Colombia – The child was wrongfully retained, in breach of the parents’ jointly-exercised rights of custody – The grave risk the child would be exposed to was not established – Measures were ordered to ensure the child’s return to Colombia, such as his return together with his father and his preparation toward the return

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful, the child being habitually resident in Canada at the relevant date.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

European Court of Human Rights held, by 5 votes to 2, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

In 1980 Hague Convention proceedings national authorities were required to examine whether it would be appropriate to hear the child as part of their decision making.

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

Case remitted to lower court

Decision set aside and matter remitted for rehearing. 

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.

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

Appeal dismissed, return refused

Appeal dismissed, removal wrongful but return refused; the standard of harm required under Article 13(1)(b) had been made out.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters

Appeal dismissed, return ordered subject to undertakings

Appeal dismissed and return upheld, subject to undertakings; neither Art. 3(1) UNCRC nor Art. 8 ECHR, as interpreted by the Grand Chamber in Neulinger, required a re-appraisal of the interpretation of the Hague Convention in England & Wales. It was accepted that Art. 13(1)(b) should be interpreted without any additional gloss being applied to its terms, but this did not impact upon the outcome of the appeal.

Issues Relating to Return | Procedural Matters

Appeal dismissed; the application for the child's independent representation was manifestly groundless and the mother failed to assert any genuinely new circumstance.

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

Appeal dismissed, return ordered

Appeal dismissed insofar as it was admissible. In particular, the mother had failed to prove the existence of acquiescence or a grave risk of danger.

Aims of the Convention - Preamble, Arts 1 and 2 | Settlement of the Child - Art. 12(2) | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Case remitted to lower court

Wrongful retention of a child when she was 5 years old - US national - parents married - father US national - mother Colombian national - both parents had custody rights under the Convention - child lived in the US until 19 December 2015 - return application was filed before the US Central Authority on 13 June 2016 - lower court was ordered to make a new judgment in the international return proceedings, taking into account the child's views - main issues: aims of the Convention - Preamble, settlement of the child, acquiescense, art. 13(1)(b) grave risk exception, child's objections to return – the best interests of the child is to be returned to his or her center of life without delay, unless one of the grounds of exception is proven - assessment of the child's settlement is appropriate only if one year has elapsed between the wrongful conduct and the date of filing of the international return application - the grave risk must be greater than the natural hardship that may result from a change of his or her residence or the dislocation of the current living group - the decision on the application of the exception of Art. 13(2) requires consideration of the voice of the child who is of sufficient age and maturity.