Case Law Search

Human Rights - Art. 20 | Procedural Matters

Appeal allowed and application dismissed; under Australian law an individual had no standing to make a return application. Permission was nevertheless granted for a new application to be made by the Commonwealth Central Authority.

Habitual Residence - Art. 3

Application dismissed

Application dismissed; the child was not habitually resident in another Contracting State at the date of the retention.

Grave Risk - Art. 13(1)(b) | Rights of Access - Art. 21 | Procedural Matters

Appeal dismissed, return ordered

Appeals dismissed and return ordered; the step-sister's application for contact with her wrongfully removed half sibling had to await the outcome of the Convention proceedings, and, the Commonwealth Central Authority was not estopped from bringing a separate return application.

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

Return ordered

Return ordered; the retention was wrongful and none of the exceptions had been proved to the standard required under the Convention.

Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2)

Appeal dismissed, return refused

Appeal dismissed and return refused; the removal was wrongful but the standard of harm required under Article 13(1)(b) had been proved.

Procedural Matters

Appeal dismissed; the Court confirmed the provisional measure rendering the decision taken by the Higher Regional Court not enforceable until the Court had decided on the merits of the case in the main proceedings.

Rights of Custody - Art. 3

Application dismissed

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

Removal wrongful, return of the younger children ordered; the standard of harm required under Article 13(1)(b) had not been made out. Return of the older child refused; her objections met the standard required under Article 13(2).

Grave Risk - Art. 13(1)(b) | Undertakings | Objections of the Child to a Return - Art. 13(2) | Human Rights - Art. 20 | Procedural Matters

Appeal dismissed, return ordered with undertakings offered

Appeal dismissed, removal wrongful and return ordered with undertakings offered; none of the exceptions argued had been proved to the requisite standard.

Settlement of the Child - Art. 12(2) | Procedural Matters

Appeal dismissed, return refused

Appeal dismissed, removal wrongful but return refused; the court found that the child was emotionally and physically integrated as to be settled in Australia within the meaning of Article 12(2).

Rights of Access - Art. 21

Access ordered; the maternal grandmother possessed rights of access pursuant to the order of the Superior Court of Arizona and those rights had been breached by the father's actions.

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

Return ordered

Return ordered; the removal of the child was wrongful as it was in breach of the father's rights of custody and the standard required under Article 13(1)(b) to indicate a grave risk of harm had not been met.

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Human Rights - Art. 20 | Procedural Matters

Appeal allowed, return ordered subject to undertakings

Appeal upheld in part, return ordered subject to undertakings / a mirror order being entered in the Supreme Court of British Columbia. The retention was wrongful and the standard of harm required under Article 13(1)(b) had not been made out. Furthermore, the Convention was found to be consistent with the South African Constitution.

Habitual Residence - Art. 3

Article 15 declaration granted

Article 15 declaration made; the retention was wrongful as the children were habitually resident in Australia at the relevant date.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b)

Return ordered

Removal wrongful and return ordered; the child was habitually resident in Switzerland at the time of the removal and the standard required under the Article 13 exceptions had not been made out.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3

Return ordered

Return ordered; the removal was wrongful since the child was both habitually resident in the United States and the father had custody rights, at the time of the removal.

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

Return ordered

Return ordered; none of the exceptions had been proved to the standard required under the Convention.

Non-Convention Issues

Appeal dismissed and leave to remove the child out of the jurisdiction granted.

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

Return refused

Return refused; the removal was wrongful, but Article 13(2) had been proved to the standard required under the Convention.