Case Law Search

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

Inter-American Convention on the International Return of Children

Return refused

Wrongful removal of three girls when they were 15, 10 and 7 years old - Paraguayan – married parents – Paraguayan father – Paraguayan mother – the girls lived in Paraguay until October 2018 – the return request was filed before the Paraguayan Central Authority – return refused – main issues: grave risk, human rights, procedural matters, best interest of the child – returned exposed the girls to a true risk of suffering psychological and physical harm, since they were victims of their father’s violence, as well as their mother was – return would amount to a violation of their dignity due to the violence exerted by their father – considering that the mother had returned to Paraguay, the maternal grandmother was given provisional care for a 90-day period until the girls returned to Paraguay with their mother

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

Appeal allowed and case remitted to a different judge of the Family Division of the High Court for re-hearing; the trial judge had erred in the manner in which she had approached her interview with the child, for she had engaged in evidence gathering and then relied upon that evidence in ordering the return of the child.

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

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

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return ordered

Appeal dismissed and non-return order upheld; the retention of the children was wrongful but the applicant father was found to have both consented to and acquiesced in the children remaining in New Zealand.

Rights of Custody - Art. 3 | 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)

Return ordered

Retention wrongful and return ordered; none of the exceptions had been established.

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

Appeal allowed, return refused

Appeal allowed and return refused; the standard required under Article 13(2) had been met.

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

Return ordered with undertakings offered

Return ordered; the standard required under Articles 13(1)(b) and 13(2) had not been met.

Rights of Custody - Art. 3 | Undertakings | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Return refused

Return refused; the High Court exercised its discretion under Article 13 not to order the return of the children; grave risk of an intolerable situation and objections of the elder child both being established.

Habitual Residence - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed, return refused

Appeal allowed and return refused; the standard required under Article 13(2) had been met.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the trial judge had been justified in finding that the standard required under 13(2) had not been met.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; the standard required under Article 13(2) to indicate that the objections of a child should be taken into account had been met.

Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Rights of Access - Art. 21

Subject to an undertaking, the child was to be sent to the United States for a two week period of contact with the father.

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

Return refused

Return refused; the removal was wrongful, but, on the strength of the child's objection to a return to Germany, the court exercised its discretion under Article 13(2) not to send her back.

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

Return ordered with undertakings offered

Return ordered, undertakings offered; a court is not required to adjourn its proceedings to allow an investigation of a child's views.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Constitutional complaint upheld; the decision of the Higher Regional Court (OLG) had violated the parental rights of the father pursuant to German Basic Law and violated the constitutional rights of the children. The case was remitted to the Higher Regional Court (OLG) of Celle.