Case Law Search

Habitual Residence - Art. 3

Appeal allowed, return ordered

1 child wrongfully removed at age 4 – Child lived in France until August 2012 – Return ordered – Main issue: habitual residence – Habitual residence should be determined in the light of all the factual circumstances particular to the case, including the parents’ shared intention and decisions taken with a view to ensure the child’s integration

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

Return ordered

Return ordered. The removal was wrongful and none of the exceptions invoked applied.

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

Appeal dismissed; the pleas raised were not grounds for quashing.

Rights of Custody - Art. 3

Appeal allowed, quashing and annulment of the ruling dismissing the application for the child's return and referral of the case to the Versailles Court of Appeal to act upon the return application in the light of the Supreme Court's ruling.

Habitual Residence - Art. 3 | Acquiescence - Art. 13(1)(a) | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

The Belgian courts have no jurisdiction: the existence of acquiescence by the father in the child's wrongful retention precludes the international jurisdiction of the Belgian courts on the basis of Article 10 of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).

Rights of Custody - Art. 3 | Procedural Matters

Preliminary ruling issued to the effect that a Member State was not precluded from requiring by its law that an unmarried father must have obtained a court order granting him custody of a child in order to qualify as having "custody rights" which would render the removal of that child from its country of habitual residence as wrongful for the purposes of Article 2(11) of Council Regulation 2201/2003.

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

Appeal dismissed; there had been a wrongful retention since the child had her habitual residence in Italy.

Rights of Custody - Art. 3 | Procedural Matters

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Issues Relating to Return | Jurisdiction Issues - Art. 16

Return ordered subject to undertakings

Appeal dismissed and return ordered, subject to undertakings. The retention was wrongful; the grave risk defence under Article 13(1)(b) had not been established. There was no evidence to substantiate the mother's allegations of mistreatment at the hands of the father.

Habitual Residence - Art. 3 | Non-Convention Issues

Appeal allowed; the High Court did not have jurisdiction, the child not being habitually resident in England and Wales on the date proceedings were commenced.

Aims of the Convention - Preamble, Arts 1 and 2 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Issues Relating to Return

Return refused

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

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 7 – Unmarried, separated parents – Joint parental authority, mother primary carer – Child lived in France until 31 December 2018 – Return ordered – Main issue: Article 13(1)(b): a decision of refusal to return a child should be based on the risk of 'exposure' to harm. Where a fellow signatory to the 1980 Convention has found that there was no such grave risk of exposure to harm it would be rare to find the opposite. 

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

Return ordered

The court ordered the return of the children to the State of Connecticut, United States of America, within two weeks of the order becoming final and binding.

Procedural Matters | Interpretation of the Convention

Appeal allowed, return ordered

The court allowed the appeal and ordered the child’s return to Italy. The situation did not amount to a “fundamental change in circumstances” required in order to set aside a decision under the 1980 Convention. 

Non-Convention Issues

The court held that it would be detrimental to the child’s best interests for the return order to be enforced before the appeal before the SCA was decided. 

Interpretation of the Convention | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20

Return refused

The application for return was dismissed. There was enough evidence to show that there was a grave risk of harm if to the children if they returned to Israel. The judge refused to order the return based on Article 13(1)(b) and Article 20.

Habitual Residence - Art. 3

Return refused

The court held that the child’s habitual residence remained in Hong Kong. In light of this decision, the retention of the child in Hong Kong could not be considered wrongful. 

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

Appeal allowed, return refused

Two children allegedly wrongfully removed at ages 2 and 3 – Father national of New Zealand – Mother national of Australia – Mother the primary carer of the children – Children lived in New Zealand until May 2019 – Appeal allowed and return refused – Main issues: Article 13(1)(b) - Though New Zealand has sophisticated systems in place to protect victims of family violence, it was established that the children’s parents had persistently thwarted attempts by similar agencies in Australia to keep the mother and children safe. There was no evidence which suggests that any conditions would be effective ; COVID-19 – despite the fact travel bans were in place between Australia and New Zealand, as the case was based on a request by New Zealand to return the children, the court proceeded on the basis that the children and the mother were still able to leave Australia and enter New Zealand. If the court had decided to order a return to New Zealand they would have required further submissions concerning the effect on the children and the mother in the present crisis.

Two children allegedly wrongfully removed – Children lived in Nigeria until October 2019 – Main issue: COVID-19 determination of urgency - The present application for return was not an ‘urgent’ matter that should be dealt with during the suspension of regular court operation. 

Removal and Retention - Arts 3 and 12 | Habitual Residence - Art. 3 | Procedural Matters |

Appeal dismissed, return refused

Lawful removal of a 2-year-old girl – Argentine national – Married parents – American father – Argentine mother – The girl lived in Argentina until April 2017, when her family travelled to the United States. She stayed there and then returned to Argentina in September that same year – The father requested her return before the Argentine courts – Appeal dismissed, return refused – Main Issues: habitual residence, removal and retention – The habitual residence of the girl was in Argentina because she had created no stable or permanent bonds in the United States that allowed for a determination that her place of living was there – The removal was lawful since it had been authorised by court in accordance with Argentine law.