Case Law Search

Non-Convention Issues | Grave Risk - Art. 13(1)(b)

Appeal allowed, return refused

The Court refused to order the return of the child until the mother's asylum application had been determined.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Article 15 Decision or Determination | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20 | Rights of Access - Art. 21

Appeal allowed, application dismissed

Appeal allowed and application dismissed; the inferior courts had erred in rejecting the determination of the Romanian courts pursuant to Article 15; under Romanian law the father had no rights of custody for Convention purposes therefore the removal of the child was not wrongful.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Return refused

Removal wrongful but return refused; Article 13(1)(a) and (b) and Article 13(2) had been proved to the standard required under the 1980 Hague Child Abduction Convention.

Non-Convention Issues

Return ordered

Return ordered. The Court denied the mother’s requests for a stay and/or an adjournment of the return application proceedings on the basis of her applications for refugee protection.

Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters

Appeal allowed, return refused

Appeal allowed and return refused; the removal was wrongful but the standard required under Art 13(1)(b) of the 1980 Hague Convention had been met.

Procedural Matters | Non-Convention Issues

In an unanimous ruling the Court held that Albania had breached Article 8 of the ECHR in that the efforts of the Albanian authorities were neither adequate nor effective to discharge their positive obligation under Article 8 to reunite the father with his daughter. The Court also made an award of compensation to the father under Article 41 of the ECHR.

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The Court held that the district court had the authority to order the return of the children, regardless of their asylum status, as the evidentiary burdens for the Convention differ from asylum proceedings.

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.

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.

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

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) – 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.

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.