Case Law Search

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Jurisdiction Issues - Art. 16

Return ordered

Wrongful removal of a 12-year old child – Custody rights were exercised by the child’s aunt and her husband – The child lived in Costa Rica since he was 2 years old until February 2019 – Return ordered – Main Issues: habitual residence; rights of custody; jurisdiction issues – The habitual residence of the child is where his centre of life is, irrespective of the child’s nationality – Even though the mother had parental authority over the child, the rights of custody were exercised by the child’s aunt and her husband, and thus removal was wrongful – Return proceedings are not aimed at determining the parent’s ability to take care of and raise the child.

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

Return ordered subject to undertakings

Return ordered, subject to undertakings; the child was habitually resident in Canada on the relevant date.

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

Return ordered

Return ordered; the removal was wrongful and Article 13(1)(b) was not proved to the standard required under the Convention.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; Article 13(1)(a) had not been proved to the standard required under the Convention.

Interpretation of the Convention

Appeal dismissed; refusal to make a custody order upheld. The Court held that Article 16 prohibits a custody decision on the merits where a return order has been made but not yet enforced.

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

Return ordered subject to undertakings

Return ordered, subject to undertakings; a grave risk of harm had not been proved to the standard required under the Convention.

European Convention on Human Rights (ECHR)

Unanimous: no breach of Article 8 of the European Convention on Human Rights (ECHR). There was no separate issue concerning the claims based on Articles 6 and 13. The authorities' lack of diligence in preventing the abduction was admittedly manifest but had been indemnified by the Spanish authorities. The authorities had not been lacking in diligence regarding the child's return, despite the absence of results in this respect.

Issues Relating to Return

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

Return refused

Return refused; the removal was wrongful, but there was a grave risk that a return would expose the child to psychological harm and place him in an intolerable situation.

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)

Return refused

Return refused; the removal was wrongful, being in breach of the father's rights of custody, but the older siblings had valid objections to a return and the children would face a grave risk of harm if separated.

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

Return ordered

Child wrongfully retained at age 12 – Citizen of Georgia – Divorced parents – Father national of Georgia – Mother national of Greece – Parents had joint custody – Child lived in Cyprus from 2008 until August 2012 – Application for return was filed with the Central Authority on 18 December 2012 – Main issue: Article 3 – the child’s State of habitual residence was Cyprus and there was no evidence to support the use of one of the exceptions to return under the 1980 Convention.