Case Law Search

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)

Appeal allowed, return ordered

1 child wrongfully removed at age 7 – National of Poland –unmarried parents– Father national of Poland – Mother national of Poland – Disputed custody rights– Child lived in Poland until August 2014 – Application for return filed with the Central Authority of Poland in September 2014 – Return ordered – Main issues: Article 3 – Rights of custody –  the father had limited custody rights but these extended to the right to decide the child’s habitual residence and therefore the father had rights of custody within the meaning of the Convention; Article 13(1)(b) – Grave risk of harm - there were no grounds for concluding that return would be “clearly unfavourable to the child” or that he would most likely suffer harm if returned. Therefore the exception did not apply; Article 13 – Child’s objections - the fact that the child  said he wanted to live with his mother  was not a ground for concluding that the child was opposed to returning to Poland, therefore the exception did not apply.

Appeal dismissed, return ordered

Two children wrongfully retained at age 3 – Nationals of Canada and Mexico –divorced parents – Father national of Canada – Mother national of Mexico – Mother was primary carer and father had rights of access – Children lived in Mexico until 2014 – Return ordered and appeal dismissed – Main issue(s): Article 13(1)(b) – The argued risk of psychological harm to one of the children if returned to Mexico due to the lack of autism therapies was not sufficient to invoke the Article 13(1)(b) exception.

Rights of Custody - Art. 3 | European Convention on Human Rights (ECHR) | Procedural Matters

The European Court of Human Rights held by sixteen votes to one that, in the event of the enforcement of the return order, there would be a violation of the mother and child's right to family life under Article 8 of the European Convention on Human Rights.

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.

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).

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Best Interests of the Child

Return refused

Return refused based on the elder child's objections, the fact that the children were now settled in the USA and the grave risk of harm should they be returned to Mexico.

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

Return refused

Return refused. Separating the siblings would present a grave risk of psychological harm to both children, within the meaning of Article 13(1)(b).

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

Return refused

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 parental responsibility  according to the German Civil Code – Child lived in Germany until December 2015 – 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 – Return refused – Main issues: Art. 13(1)(b) grave risk exception to return, Objections of the Child to a Return, Procedural matters  – The Court refused the request for return of the child under Art. 13(1)(b) of the 1980 Hague Child Abduction Convention.

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

Appeal dismissed, return ordered with undertakings offered

Unlawful retention of a one-year-old child – Argentine national – Married parents – Father was an Argentine national – Mother was a Uruguayan national – Both parents held custodial rights – The child lived in Argentina until July 2015 – The restitution request was submitted to the Argentine Central Authority – Appeal granted, return ordered – Key issues: Article 3 (habitual residence), Articles 3 and 12 (removal and retention), Article 13(1)(b) (grave risk exception), Best interests of the child – The child's habitual residence was Argentina – The retention was deemed unlawful as the mother lacked the other parent’s consent – No grave risk was established, as Argentina had judicial mechanisms to protect the mother and child.

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

ECrtHR - Violation of Article 8 ECHR, award of damages

The court found that there had been a violation of the Article 8 Right to Respect for Private and Family Life and awarded damages to the mother and the children.

Aims of the Convention - Preamble, Arts 1 and 2 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Procedural Matters

Appeal allowed, return ordered

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

Appeal dismissed, return ordered

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

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The Court held that the district court had the authority to order the return of the children, regardless of their asylum status, as the evidentiary burdens for the Convention differ from asylum proceedings.

Habitual Residence - Art. 3 | Human Rights - Art. 20

Return ordered

Return ordered.

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

Return refused

Three children, 8-year-old boy (D), 6-year-old boy (Y) and 3-year-old girl (B), wrongfully removed - Parents divorced - Father national of Sudan - Mother national of Sudan - D and Y born in Egypt - B born in the Netherlands - Children subject to supervision order in the Netherlands, primarily cared for by the mother with the father allowed contact - Family lived in the Netherlands from 2020 until 2023 - Mother made serious allegations of domestic abuse against the father, including rape, beatings of her and the children, and a desire for B to undergo FGM - Mother wrongfully removed the children from the Netherlands on 6 or 7 July 2023, travelling by small boat to the UK - Father filed application for return with the High Court of England and Wales on 13 June 2024 - Return refused - Main issues: Article 13(b) - Domestic abuse allegations so severe that the risk of return was grave - Undertakings offered by the father were inadequate to be sufficient protective measures - D and Y opposed return but this did not constitute an objection for Article 13 purposes.

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

Appeal dismissed, return refused

Two children, 12-year-old girl a (‘X’) and 6-year-old boy (‘Y’), wrongfully removed - Nationals of the United Kingdom and Mauritius - Father national of the United Kingdom and Mauritius - Mother national of the United Kingdom and Mauritius - All lived together in the United Kingdom until 2019 before travelling to Mauritius - Parents separated in 2020, following which Mother had primary care and Father had regular contact - Mother wrongfully removed children to the United Kingdom in 2022 - Father filed application for return with the High Court - Summary return ordered and Article 13(1)(b) defence rejected - X joined as a party - Summary return order set aside following X’s Article 13(2) objections - Father appeals this - Main issues: scope of solicitor-guardian’s role in Hague proceedings - weight attributed to the child’s objections - Appeal dismissed, return refused. 

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Procedural Matters

Appeal dismissed, return ordered

Wrongful retention of the child – Separated parents – Custody rights were jointly exercised – The child lived in Spain until 11 August 2014 – The request for return was filed before the Central Authority in Spain in September 2014 – Return ordered – Main issues: habitual residence, removal and retention, settlement of the child, art. 13(1)(b) grave risk exception, procedural matters – The habitual residence of the child prior to the wrongful removal was in Spain – There was wrongful retention in breach of the custody rights, which were exercised jointly pursuant to the agreement signed by the mother and father – The settlement of the child was not considered because the one-year period required by the Convention had not elapsed – The evidence did not contribute to determining whether there had been sexual abuse; on the contrary, a true demonstration of the risk was necessary to justify the application of article 13(1)(b) - The Central Authority of Spain was urged to take measures to protect the child and to do a follow-up on the case to provide the father with the necessary legal support.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

The ECrtHR fount there had been a violation of Article 8 of the ECHR. The arguments provided to the District Court fell short of the requirements of Article 13(1)(b).

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

Appeal dismissed, return refused

Appeal dismissed.