Case Law Search

Grave Risk - Art. 13(1)(b) | Undertakings | Jurisdiction Issues - Art. 16

Return refused

Removal wrongful but return refused; Article 13(1)(b) had been proved to the standard required under the Convention.

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Jurisdiction Issues - Art. 16 | Procedural Matters

Appeal allowed, return ordered

Wrongful retention of a 1-year-old girl – separated parents – Spanish father – Venezuelan mother – the custody rights were jointly exercised – the girl lived in Spain until July 2011 – the return request was filed before the Spanish courts on 12 July 2011 – Appeal allowed, return ordered – Main issues: removal and retention, rights of custody, grave risk, human rights, jurisdiction issues, procedural matters - removal was not wrongful, but retention was, since the father did not authorise the girl’s permanent stay in Venezuela – both parents had custody rights under Spanish law – the mother did not establish the grave risk circumstances claimed – the girl’s return did not violate any Venezuelan fundamental principle on human rights protection – who is the right parent to have custody should not be discussed within return proceedings; on the contrary, this type of proceeding is concerned with whether there was a wrongful removal or retention – measures were taken to secure the safe return  of the child to Spain and the parents were encouraged to resort to mediation.

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

Return ordered

Removal wrongful and return ordered, subject to undertakings; Article 13(1)(b) had not been proved to the standard required under the Convention.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Issues Relating to Return

Return ordered with undertakings offered

Wrongful removal of a boy when he was 10 years old - Venezuelan – the father had exclusive custody rights  - the child lived in Venezuela until 2018 – the father requested return before the Venezuelan Central Authority in July 2020 – return ordered – main issues: removal and retention, consent, settlement of the child, grave risk, objection of the child to a return, procedural matters, issues relating to return – removal was wrongful since it breached the father’s custody rights, attributed to him under the law of the State where the child was habitually resident – the father did not consent to the child’s removal – he acted towards the child’s return within a year since the wrongful removal – it was not established that the child would be exposed to a grave risk or an intolerable situation upon return to Venezuela – it was not established that the child’s fundamental rights were impaired – there was not an irreducible objection of the child against returning to the place where he was habitually resident - the Court ordered an interim exit and change of residence ban - the Court ordered the parents to collaborate with enforcement of the return order - the Court ordered to take the necessary steps for the child’s safe return

Grave Risk - Art. 13(1)(b) | Role of the Central Authorities - Arts 6 - 10

Appeal dismissed, return ordered

The Federal Court rejected the appeal and upheld the cantonal court's decision ordering the children's return to Israel. However, it stated that given the current situation in Israel, it would be up to the competent enforcement authority to organise the safe return of the children, accompanied by their mother, as soon as the situation allowed.

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

Case remitted to lower court

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 – Case remitted to lower court – Main issues: objections of the child to return – According to the mother, the child has expressed that he does not wish to return to Spain. An expert opinion that was ordered by the competent cantonal court has affirmed the child’s ability to independently form such an opinion. The father, however, invokes that the expert’s opinion was biased towards the mother and overlooked multiple factors that put the child’s maturity level as defined in 13 (2) into question.

Inter-American Convention on the International Return of Children

Return refused

Wrongful removal of three girls when they were 15, 10 and 7 years old - Paraguayan – married parents – Paraguayan father – Paraguayan mother – the girls lived in Paraguay until October 2018 – the return request was filed before the Paraguayan Central Authority – return refused – main issues: grave risk, human rights, procedural matters – returned exposed the girls to a true risk of suffering psychological and physical harm, since they were victims of their father’s violence, as well as their mother was – return would amount to a violation of their dignity due to the violence exerted by their father – considering that the mother had returned to Paraguay, the maternal grandmother was given provisional care for a 90-day period until the girls returned to Paraguay with their mother

Habitual Residence - Art. 3 | Jurisdiction Issues - Art. 16

Appeal allowed; the Luxembourg courts had no jurisdiction.

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.

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.

Rights of Access - Art. 21

Application dismissed

Application dismissed; the court did not have jurisdiction to consider a request for access rights as a remedy to a wrongful retention.

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

Appeal dismissed, return refused

Appeal dismissed in part and application dismissed; the children were habitually resident in Israel at the date of the alleged wrongful retention. The trial court had though erred in its interpretation of the concept of acquiescence.

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.

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

Appeal allowed, return ordered

Appeal allowed and return ordered; the trial judge had erred in exercising his discretion after having found the Article 13(2) exception to have been made out.

Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Human Rights - Art. 20

Appeal dismissed, return ordered

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

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

Appeal allowed and case remitted to the Family Division of the High Court to reconsider the habitual residence of the children.

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

Appeal allowed and case remitted to a different judge of the Family Division of the High Court for re-hearing; the trial judge had erred in the manner in which she had approached her interview with the child, for she had engaged in evidence gathering and then relied upon that evidence in ordering the return of the child.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2)

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal of the child was wrongful but she was now settled in her new environment and the Court exercised its discretion to refuse her return.

Removal and Retention - Arts 3 and 12 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Issues Relating to Return | Procedural Matters

Procedural Matters | Non-Convention Issues

Certificate to appeal to the Supreme Court granted; the issues raised by the applicant father were each deemed to involve a matter of general public importance.