Case Law Search

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a)

Application dismissed

Application dismissed; the child was habitually resident in Israel on the relevant date.

European Convention on Human Rights (ECHR)

By a 4:3 majority: No infringement of Article 8 of the European Convention on Human Rights.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was wrongful and the exceptions raised inapplicable.

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

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

Appeal dismissed, return refused

1 child (UK national) removed from Singapore to Japan ― Parents married in 2010, living together mostly in Singapore and briefly in Japan ― Father Singaporean national, mother Indian national ― Divorce in 2014 ― Father provided with access right, Mother with right to primarily care for the child and freely relocate with the child to Japan ― Mother went to Japan with the child and returned to Singapore in 2014 ― Failed access, Father sought a modification of the relocation clause and the modality of access ― Mother definitively removed the child to Japan in 2015 ― Assistance of the Central Authority of Japan revoked in 2016 ― The father filed a petition for the child’s return to the Osaka Family Court in 2016 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in 2016 ― Main issues: Habitual residence of the child ― Rights of custody of the father or the Singaporean court.

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.

Procedural Matters

Return ordered

Wrongful retention of a 1-year-old boy – Costa Rican – unmarried parents – Nicaraguan father – Dominican mother – Joint custody rights – The boy lived in Costa Rica until January 2018 – The return request was filed before a Nicaraguan court in January 2019 – Return ordered – Main issues: procedural matters – The parents agreed that the child would return to Costa Rica in the company of his father once the latter was assured that he would not be criminally sanctioned for child abduction.

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 | 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 

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.

Habitual Residence - Art. 3

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the Lord Ordinary had incorrectly inferred that the father had consented to the children's relocation to Germany, thereby enabling them to acquire a habitual residence there.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2)

Return refused in respect of the older child; the standard required under Article 13(2) had been met. Return ordered in respect of the younger child; the standard required under Article 13(2) had not been met.

Rights of Custody - Art. 3

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the removal of the child did not breach any rights of custody and was not therefore wrongful.

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) | Procedural Matters

Return ordered with undertakings offered

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

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

Appeal dismissed, return ordered

1 child removed at age 3 years  ― National of Canada and Japan ― Married parents ― Father and Mother married in Canada in 2009 and living there ― Joint custody at the time of wrongful retention ― Child lived in Canada until July 2013 ― Mother removed the child to Japan with Father’s consent ― A wrongful retention of the child after the entry into force of the Convention between Canada and Japan on 1 April 2014  ― Application for return filed with the courts of Japan in March 2015 ― Appeal dismissed and return ordered ― Main issues: Article 3 Habitual residence of the child ― The initial time of the wrongful retention ― Article 13(1)(a) Prior consent or subsequent approval by the father ― Abuse of rights by the father.

Habitual Residence - Art. 3

Case remitted to lower court

One child allegedly wrongfully retained at age one month – Married parents – Father national of Greece – Mother national of Switzerland – Child was born in Greece and went to France when he was one month old  – Case remitted to lower court – Main issue: Article 3 – habitual residence of an infant. Given the very young age of the child and the circumstances in which he arrived in France at only one month old and the fact that he has stayed there since with his mother, it was the responsibility of the judges in the lower courts to see if his social and family environment, and so the centre of his life, was in France, notwithstanding the initial intention of the parents regarding the return of the mother and child to Greece after their stay in France.

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

Appeal dismissed, return ordered with undertakings offered

The Court dismissed the appeal and ordered the return of the child: the habitual residence of the child was in the United States, the retention was wrongful and none of the exceptions had been proved to the standard required under the Convention.

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

Appeal dismissed, return ordered

1 child wrongfully retained at age 2 - Married parents - Father national of the United States of America - Mother national of Canada - Child lived in the United States of America until 2013 - Application for return filed in 2013 - Return ordered - Main issue: Habitual residence, acquiescence and the Art.13(1)(b) grave risk exception to return - The application of the Art. 13(1)(b) exception requires the child’s exposure to a high degree, intensity and frequency of physical or psychological abuse - A return order that does not deliver the child and parent directly to the left-behind parent upon return diminishes the risk of incidents of domestic abuse occurring, while ensuring that the appropriate forum adjudicates the merits of custody and access issues

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The mother's allegation of grave risk was not found to be proved.

Issues Relating to Return | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

The Court unanimously ruled that Romania had breached Article 8 of the ECHR in failing to thoroughly assess the best interests of the child and to give the father the opportunity to present his case. It also awarded the father compensation under Article 41 of the ECHR.