Case Law Search

Removal and Retention - Arts 3 and 12

Return ordered

The father's appeal was dismissed and the daughter's return ordered. The mother's appeal was dismissed and the son's return refused at this time.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

2 children wrongfully retained at ages 6 and 10 – Married parents – Father national of Poland – Mother national of Poland – Joint custody excercised in Switzerland – Children lived in Switzerland – Application for return filed with the Central Authority of Switzerland on 24 October 2008 – Application dismissed before application to ECtHR on 1 December 2009 – Violation of Art. 8 ECHR – EUR 11,800 awarded in damages – The Polish courts had not taken into account the legitimate interests of the applicant in an adequate or fair manner in the judicial proceedings; i.a. improperly relying on a Polish interim custody order to consider the retention lawful

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

Appeal allowed, return ordered

Appeal allowed and return ordered. The removal and retention of the child in Uruguay was considered wrongful.

European Convention on Human Rights (ECHR) | Procedural Matters

Application dismissed

Application dismissed; in an unanimous ruling, the Chamber ruled that there had not been a breach of the father and children's right to family life under Article 8 of the ECHR.

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

Return ordered

The judge ordered that the children should be returned to Quebec within 14 days.

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.

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 | 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.

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

Appeal allowed, return ordered

2 children wrongfully 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 Superior Court of Justice (Family Court Branch) in June 2014 - Return ordered - Main issues: habitual residence, rights of custody, objections of the child to return - A parent cannot unilaterally change the habitual residence of a child during a time-limited period of consensual stay in another State agreed to by the other parent - Contemplation of an extension of such a period of consensual stay does not defeat its time-limited nature - Evidence of the child settling in his new environment is irrelevant if the application for return is brought within one year of the removal or retention - Where rights of custody have been transferred by one parent to another for the sole purpose of enrolling children in school in a given State, the parent who transferred those rights exercises them when the taking parent refuses to return the child, or would have exercised them but for the removal or retention - A child’s objection to return that is unsubstantial or merely expresses a preference for one place over another is insufficient grounds for refusing to order return under Art. 13(2) of the 1980 Hague Child Abduction Convention

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).

Habitual Residence - Art. 3

Leave to appeal refused and dismissal of the return application therefore confirmed; the removal was not wrongful since the child still retained his habitual residence in England at that time.

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.

Acquiescence - Art. 13(1)(a) | Undertakings

Return ordered subject to undertakings

Retention wrongful and return ordered; none of the exceptions had been proved to the standard required under the Convention.

Habitual Residence - Art. 3 |

Appeal dismissed, return refused

1 child (Australian and Japanese national) resided in Australia and Japan ― Father Australian national, mother Japanese national ― Parents married in 2013 in Australia ― Parents lived together in Japan from November 2013 until June 2014, until the father returned to Australia ― Mother joined Father in Australia from September 2014 until October 2015, with a written agreement to reside there only up to two years ― Mother returned to Japan with the child in October 2015 ― Father visited them in Japan from mid-December 2015 until mid-January 2016 ― Father filed petition for the child’s return to the Osaka Family Court in March 2016 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in 2017 ― Main issue: Habitual residence of the child.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Procedural Matters

Application dismissed

Application dismissed; the retention was not wrongful as there was no express agreement that the child would return to the United States of America on 29 December 2012.

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.

Habitual Residence - Art. 3 | Procedural Matters

Appeal allowed, application dismissed

Appeal allowed and return application dismissed; the children had not acquired a habitual residence in Scotland.

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

Return ordered

Return ordered.

Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal allowed, application dismissed

Appeal allowed and return application refused. There was a definite wrongful retention but more than a year had elapsed after the retention and the father had acquiesced.