Case Law Search

Rights of Custody - Art. 3

Appeal dismissed, return ordered

One child wrongfully removed at age ten – National of Switzerland and Spain – Unmarried parents – Father national of Spain – Mother national of Switzerland – Joint custody according to Spanish law – Child lived in Spain until January/February 2016 – Application for return filed with the Central Authority of Spain on 17 February 2016 – Appeal dismissed, return ordered– Main issues: parental custody – The father received parental joint custody when the child's place of residence was transferred to Spain, since in Spain both parents have parental custody by law.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Settlement of the Child - Art. 12(2)

Return refused

Return refused; the removal was wrongful but the child was found to have become settled in his new environment.

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

Appeal dismissed, return ordered

Wrongful retention of a child when she was 4 years old - Trinidadian - Trinidadian parents – Joint custody but primary and residential custody with the mother - Child lived in the United States for 2 years and 4 months until she was removed and wrongfully retained in Trinidad as from 15 July 2017 – The return application was filed before a Trinidadian Family Court on 28 November 2017 – Appeal dismissed, return ordered - Main issues: habitual residence, removal and retention, grave risk, procedural matters – The child’s habitual residence was found to be in the U.S. because that was the mother’s place of residence and the girl had lived there for a considerable time - Removal had not been wrongful since the father had a temporary timesharing order but retention was since it breached the mother’s right of custody – The exception in Article 13(1)(b) was not granted as mere financial discomfort was not grave enough 

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

Appeal dismissed, return ordered

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

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2)

Return ordered

The court ordered the return of the child to the USA.

Procedural Matters

"Amparo" granted by the Constitutional Court which mandated the Court of Appeals to decide on the merits of the appeal.

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

Appeal dismissed, return ordered

Appeal dismissed. The removal was wrongful and the exceptions of the Convention inapplicable.

Rights of Custody - Art. 3 | Article 15 Decision or Determination | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return ordered

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

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

Appeal dismissed, return ordered

Japanese child born in 2014 ― Father and mother previously foreign nationals and naturalized in Japan ― Parents married in 2001 in Japan ― Parents and child moved to the US in July 2017 ― Child obtained health insurance and enrolled in kindergarten in the US ― Parents established a company and started a business in December 2017 in the US ― Marital relationship deteriorated, and father removed child to Japan in April 2019 ― Neither father nor mother had a long-term visa for the US ― Mother filed petition for the child’s return to the Tokyo Family Court in December 2019 ― Return ordered ― Appeal dismissed and return ordered by the Tokyo High Court in June 2020 ― Main issue: Habitual residence of the child and grave risk defence.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Non-Convention Issues

Retention of the elder child wrongful and return ordered; none of the exceptions proved to the standard required under the Convention. Retention of the younger child not wrongful as she had only ever been habitually resident in England. Return ordered under common law rules.

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

Return refused

Return refused; the father had acquiesced in terms of Article 13(1)(a).

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

Return ordered; the removal was wrongful and the standard required under Article 13(1)(b) to show that the child would face a grave risk of physical harm had not been met.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3

Return ordered

Removal wrongful and return ordered; the child was habitually resident in Australia at the relevant date.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12

Return ordered

Return ordered; the retention was wrongful as only the father had the requisite intention to stay in Australia and acquire a habitual residence there.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of harm if returned had not been met.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed, refusal of Article 15 declaration overturned

Appeal allowed and a declaration was made that the removal was wrongful; while the father had no standing to make an Article 15 application, that could be made on the application of the Central Authority as an intervenor.

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

Return ordered

Return ordered; the retention was wrongful and the standard required under Article 13(1)(a) had not been met to show that the father had consented.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12

Reclaiming motion (appeal) allowed; case remitted to the Outer House of the Court of Session to determine the issues of wrongful retention and habitual residence.

Consent - Art. 13(1)(a)

Return refused

Return refused; the court found that the father had consented to the children going to and remaining in Scotland.

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

Return ordered

Return ordered; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of an intolerable situation had not been met.