Case Law Search

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

Return ordered

Return ordered.

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

Appeal dismissed, return refused

1 child (allegedly) wrongfully removed at age 4 – National of the USA – Unmarried parents – Father national of the USA and the Dominican Republic – Mother national of Switzerland, the Dominican Republic, Italy – Shared parental responsibility – Child lived in the USA – Application for return filed with the Central Authority of Switzerland on 7th of January 2021 – Return refused – Main issue: Grave Risk (Art. 13(1)(b) – Status quo ante cannot be attained, since mother has a travel ban to the USA. Grave risk to the child if separated from the mother for the next 10 years.

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

Appeal dismissed, return ordered

Appeal dismissed, return upheld. The removal was wrongful and there had been no consent to the removal.

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.

Habitual Residence - Art. 3 | Jurisdiction Issues - Art. 16 | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Appeal allowed and case remitted to trial court to re-assess the issue of the child's habitual residence and consequently whether the removal was wrongful.

Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Non-Convention Issues

Return refused

Three children, 8-year-old boy (D), 6-year-old boy (Y) and 3-year-old girl (B), wrongfully removed - Parents divorced - Father national of Sudan - Mother national of Sudan - D and Y born in Egypt - B born in the Netherlands - Children subject to supervision order in the Netherlands, primarily cared for by the mother with the father allowed contact - Family lived in the Netherlands from 2020 until 2023 - Mother made serious allegations of domestic abuse against the father, including rape, beatings of her and the children, and a desire for B to undergo FGM - Mother wrongfully removed the children from the Netherlands on 6 or 7 July 2023, travelling by small boat to the UK - Father filed application for return with the High Court of England and Wales on 13 June 2024 - Return refused - Main issues: Article 13(b) - Domestic abuse allegations so severe that the risk of return was grave - Undertakings offered by the father were inadequate to be sufficient protective measures - D and Y opposed return but this did not constitute an objection for Article 13 purposes.

Objections of the Child to a Return - Art. 13(2) | Issues Relating to Return

Appeal dismissed, return refused

Two children, 12-year-old girl a (‘X’) and 6-year-old boy (‘Y’), wrongfully removed - Nationals of the United Kingdom and Mauritius - Father national of the United Kingdom and Mauritius - Mother national of the United Kingdom and Mauritius - All lived together in the United Kingdom until 2019 before travelling to Mauritius - Parents separated in 2020, following which Mother had primary care and Father had regular contact - Mother wrongfully removed children to the United Kingdom in 2022 - Father filed application for return with the High Court - Summary return ordered and Article 13(1)(b) defence rejected - X joined as a party - Summary return order set aside following X’s Article 13(2) objections - Father appeals this - Main issues: scope of solicitor-guardian’s role in Hague proceedings - weight attributed to the child’s objections - Appeal dismissed, return refused. 

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Procedural Matters

Appeal dismissed, return ordered

Wrongful retention of the child – Separated parents – Custody rights were jointly exercised – The child lived in Spain until 11 August 2014 – The request for return was filed before the Central Authority in Spain in September 2014 – Return ordered – Main issues: habitual residence, removal and retention, settlement of the child, art. 13(1)(b) grave risk exception, procedural matters – The habitual residence of the child prior to the wrongful removal was in Spain – There was wrongful retention in breach of the custody rights, which were exercised jointly pursuant to the agreement signed by the mother and father – The settlement of the child was not considered because the one-year period required by the Convention had not elapsed – The evidence did not contribute to determining whether there had been sexual abuse; on the contrary, a true demonstration of the risk was necessary to justify the application of article 13(1)(b) - The Central Authority of Spain was urged to take measures to protect the child and to do a follow-up on the case to provide the father with the necessary legal support.

Habitual Residence - Art. 3

Appeal dismissed, return refused

Appeal dismissed, return refused. The child was habitually resident in Canada.

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

Appeal by the mother (the taking parent) dismissed: the removal was wrongful and none of the grounds for exception invoked were applicable. The father's appeal was partially allowed: removal of the condition of taking protective measures.

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

Return ordered

Return ordered; the removal was wrongful and consent had not been established.

Habitual Residence - Art. 3

Appeal allowed, return refused

Child (Japanese national) born in 2017 in Japan ― Father and mother are Japanese nationals ― Parents went to the Philippines from Japan with the child in December 2017 ― Parents and child travelled back and forth due to absence of long-term visa in the Philippines ― Parents maintained properties in the Philippines and Japan, and business in Japan ― Mother removed the child from the Philippines to Japan in November 2018 ― Father filed petition in Japanese courts for the child’s return in October 2019 ― Return ordered at first instance ― Appeal allowed and return dismissed by appellate Japanese court ― Main issue: Habitual Residence.

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

Return ordered

Removal wrongful and return ordered; the child was habitually resident in France and Article 13(1)(b) had not been proved to the standard required under the Convention.

Removal and Retention - Arts 3 and 12 | Procedural Matters |

Appeal dismissed, return ordered

1 child wrongfully removed at age 4 – National of Poland - Married parents (ongoing divorce proceedings) – Mother national of Poland – Father national of Poland - Parents had joint custody. Divorce court gave mother the right to have the child during the abduction until the end of the divorce proceedings. Decision that was annulled after return was ordered. – Child lived in Poland (until 4 December 2015)  – Application for return filed with the Central Authority of Switzerland on 6 June 2016 – Return ordered – Main issue: Grave Risk – The fact that the mother considers her own return to Poland to be intolerable, both financially and professionally, is not relevant to the examination of the exception to return.

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

ECrtHR - Violation of Article 8 ECHR, award of damages

The court found that there had been a violation of the Article 8 Right to Respect for Private and Family Life and awarded damages to the mother and the children.

Non-Convention Issues

Appeal dismissed, return ordered

Appeal dismissed, return ordered.

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.

Procedural Matters |

Appeal dismissed, return ordered

one child wrongfully removed at age 8 – National of Chile –unmarried parents – Father national of Chile – Mother national of Chile – Agreement that the “cuidado personal” is solely attributed to the mother, but in fact it is exercised by both – Child lived in Chile until 14 August 2017 – Application for return filed with the courts of Switzerland on 19 September 2018 – Return ordered – Main issue: costs – Appeal of the father regarding costs has been dismissed based on interpretation of Article 26.

Procedural Matters

Challenge against the return order declared inadmissible; request for legal aid rejected.

Rights of Access - Art. 21

Appeal dismissed, application dismissed

Appeal dismissed and application dismissed; by a majority verdict it was held that under the International Child Abduction Remedies Act there was no jurisdiction for a Federal Court to hear an access claim.