Case Law Search

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.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Return refused

Removal wrongful but return refused; Article 13(2) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

Procedural Matters

Appeal allowed; however the application for residence was dismissed on the merits.

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the removal was not wrongful as the child was habitually resident in the United States on the relevant date.

Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20

Appeal dismissed, return ordered

Appeal dismissed and return ordered; there had been a wrongful removal and neither Article 13(1)(b) nor Article 20 had been proved to the standard required under the Convention.

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

Return refused

Return refused; the removal had been wrongful, but Article 13(1)(b) had been proved to the standard required under the Convention.

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 the court exercised its discretion under Article 13(2) not to make a return order.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; a grave risk of harm had been established to the standard required by Article 13(1)(b).

Rights of Custody - Art. 3

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal breached a right of custody actually exercised by the grandmother.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Interpretation of the Convention

In its preliminary ruling the Court noted, inter alia, that where the removal of a child has taken place in accordance with a judgment which was provisionally enforceable and which was thereafter overturned, the child's habitual residence must be determined by undertaking an assessment of all the circumstances of fact. Whilst it was possible the child's habitual residence may have changed, account must be taken of the fact that the judgment authorising the removal could be provisionally enforced and that an appeal had been brought.

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

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Role of the Central Authorities - Arts 6 - 10

Appeal allowed and case remitted to the District Court to consider remedies that might allow both the return of the children to their habitual residence and their protection from harm pending a custody hearing in France.

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

Appeal dismissed, return refused

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

Appeal dismissed, return refused

Appeal dismissed and return refused; Article 13(1)(b) had been proved to the standard required under the Convention in light of the intervening custody order made by the authorities in the State of the children's habitual residence.

Rights of Custody - Art. 3

Return refused

Return refused; the retention was not wrongful as the father had consented to the relocation of the child.

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.

European Convention on Human Rights (ECHR) | Procedural Matters

Unanimous: breach of Article 8 of the European Convention on Human Rights (ECHR): the father had waited two years for the judgment ordering the child's return, and the mother's obstructive behaviour had been comforted by a judgment awarding custody to her even though a judgment ordering return had also been delivered.

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

Appeal dismissed, return refused

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The Hague Convention, as complemented by the Brussels II a Regulation imposed the return of the children to Spain, considering that adequate protection measures had been taken.

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

Guidance on the application of the Convention issued

2 children retained at ages 11 and 8 – Nationals of Canada – Married parents – Father national of Canada – Mother national of Canada – Father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a Canadian school – Children lived in Germany until April 2013 – Application for return filed with the Central Authority of Germany on 11 April 2014 – Return decision of the Court of Appeal of Ontario of 13 September 2016 was appealed to the Supreme Court, but the children were returned to Germany before the Court rendered its judgment; despite the appeal being moot, the Court considered the issues raised to be important and in need of clarification – Main issues: interpretation of the Convention, habitual residence, objections of the child to a return, procedural matters – To ensure uniformity of State practice, courts should generally adopt the interpretation of the Convention that has gained the most support in other foreign domestic courts – The “hybrid approach” to determining habitual residence (which considers all relevant factual links and circumstances in their entirety, instead of focusing either on parental intention or the child’s acclimatisation) should be followed – Courts should adopt a non-technical and straightforward approach to considering the child’s objections to return – It is up to the judicial authorities to ensure that the State lives up to its obligations to act expeditiously under the 1980 Hague Child Abduction Convention – Convention proceedings should be judge-led, not party-driven, and judges should not hesitate to use their authority to expedite proceedings