Case Law Search

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.

Non-Convention Issues | Issues Relating to Return

Case remitted to lower court

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

CJEU - Preliminary ruling issued, case remitted to national courts

In the case of abduction to a third party (non-EU Member) State, the jurisdiction of the court of an EU Member State that is seised of an action relating to parental responsibility cannot be based on Article 10 of the Brussels II bis Regulation.

Where a finding is made that the child now has his or her habitual residence in a third State, the jurisdiction of the court will have to be determined in accordance with the applicable international conventions or, in their absence, in accordance with Article 14 of the Brussels II bis Regulation.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

There had been a violation of Article 8 of the ECHR in respect of both the father and the child.

Habitual Residence - Art. 3

Case remitted to lower court

Appeal dismissed, return ordered

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

Appeal allowed, return refused

The court allowed the appeal and refused to order the return of the child.

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

1 child wrongfully retained at age 6 – National of Ukraine – Unmarried parents – Father national of Georgia and Ukraine – Mother national of Ukraine – Child lived in Ukraine until July 2010 – Application for return filed with the Central Authority of Ukraine in October 2010 – Return refused before application to ECtHR on 28 December 2012 – Violation of Art. 8 ECHR – EUR 8,300 awarded in damages – The reasoning of the Georgian Supreme Court regarding Art. 13(1)(b) of the 1980 Child Abduction Hague Convention was insufficient and misconceived - The child's best interests in view of the specific circumstances of the case were not properly determined

Procedural Matters | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return refused

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 – Return refused – Main issues: substantially changed circumstances; objection of the child to a return – If the circumstances have changed substantially, it must be possible, to reassess a return decision; the child's opposition within the meaning of Article 13(2) must be expressed with a certain emphasis and with comprehensible reasons.

Role of the Central Authorities - Arts 6 - 10

Parties urged to resort to mediation in order to solve the dispute involving visitation rights within the context of Article 21 of the 1980 Hague Child Abduction Convention.

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

Appeal dismissed, return ordered

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

Removal and Retention - Arts 3 and 12

Appeal allowed and decision of the Appeal Court annulled and case remitted so that a new ruling be rendered on the issue of return in light of the decision of the Cour de Cassation.

Return ordered

One child wrongfully removed at age 6 – National of Spain – Father national of Bolivia – Mother national of Colombia and Spain – Mother primary carer and father exercising rights of contact, including staying contact – Child lived in Spain until September 2018  – Return ordered – Main issue: COVID-19 – due to travel restrictions between the UK and Spain it was acknowledged that a safe return may take more time to organise than usual, but that it should take place as soon as reasonably practicable.

One child wrongfully removed at age 11 – Married parents – Father national of Greece – Mother national of Greece – Joint custody rights – Child lived in Greece until 2018 and then in the United Kingdom until 2020, he was habitually resident in the United Kingdom – Application for return filed with the Central Authority of England and Wales in March 2020 – Decision on inward return order deferred – Main issues: Inward return orders : the court should wait until the conclusion of the Greek proceedings under the 1980 Hague Convention before deciding on whether to make an inward return order; COVID-19 - Mother removed the child to Greece as she considered it to be a safer environment with regards to the COVID-19 pandemic.

Case remitted to lower court

Children wrongfully retained – Mother the primary carer of the children, Father exercising custody rights at time of removal – Children lived in  Colombia until December 2018 – Application for return filed with the Central Authority of Colombia –Return refused at first instance, appeal allowed and case remitted to lower court – Main issues: Article 13(1)(b) -  whether the return to Colombia would pose a grave risk of harm to the children; COVID-19 - the court asked for submissions about travel to Colombia in the event a return order were to be made; Father had right to appeal despite the fact that in the first instance he was not a party but represented by the Central Authority. The father was substantially, if not technically, a party and a person who might properly have been one.

Settlement of the Child - Art. 12(2) | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return refused

The Court of Appeal dismissed the appeal and refused to order the return of the child. 

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

Appeal allowed, return ordered

The immediate complaint appeal was approved and the father’s application for a return was successful.

The accusations made against the father, which led to a rejection of the return application in accordance with Article 13(1)(b) of the Hague Child Abduction Convention by the court of first instance, were not held to have been proven.

However, the court refrained from ordering the immediate surrender of the three children to the father, and has instead opted for a “graduated return order”. The “graduated return order”, granted the mother the opportunity to effect the return of the children herself. The Hague Child Abduction Convention does not contain any explicit rules on how exactly the courts are to order returns. Determining the operative provisions of the return order is a matter of domestic procedural law.