Case Law Search

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

Return ordered

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

Rights of Custody - Art. 3

Appeal dismissed, return refused

Two children retained in Japan ― United States nationals born in 2009 and 2012 ― Married parents living in the United States ― Father and mother nationals of the United States ― Father and children travelled to Japan from November 2018 and resided there from 2019 ― Mother visited father and children in Japan several times but did not relocate there ― Mother and fathers’ relationship deteriorated and father retained children in Japan from November 2019 ― Father instituted in-court conciliation to obtain sole custody before the Japanese courts in January 2020 ― Mother sought return of the children in the Japanese courts in February 2020 ― Japanese courts dismissed the claim as children were habitually resident in Japan ― Habitual residence determined on the grounds of the children’s close connection and integration into their social and family environment ― Limited role of the parents’ intentions in determining habitual residence ― Main issue: Habitual residence.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return refused

Child born in 2014 in Singapore ― Parents married in 2008 ― Nationality of the entire family is unknown ― The family travelled abroad in August 2017 ― On the evening of 30 August 2017 in Japan, father drank and exercised physical violence against the mother ― Father arrested and criminal proceedings instituted ― Parents reached a settlement on 15 September 2017 ― Parents agreed that they would live separately ― The mother would live in Japan with the child as the primary caregiver, whereas the father would pay damages and maintenance and have visitation with the child ― Father filed petition for the child’s return to Singapore in the Tokyo Family Court in December 2017 ― Application dismissed ― Appeal dismissed by the Tokyo High Court in May 2018 ― Main issues: consent and grave risk.

Habitual Residence - Art. 3

Appeal dismissed, return refused

Appeal dismissed, the child was habitually resident in Canada. 

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

Appeal allowed, return refused

Appeal allowed and return refused; the objections of the child were of sufficient strength to activate the Article 13(2) exception.

Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return refused

Appeal dismissed and non-return order confirmed; the boy objected to a return and the standard required under Article 13(2) had been reached.

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

Return ordered subject to undertakings

Appeal allowed and return ordered subject to undertakings. The removal was wrongful and any potential harm to the child from a return could be minimized by the father's compliance with the conditions set and the child could otherwise be protected by the English authorities.

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

Appeal dismissed and child's application for leave to intervene in the Convention proceedings refused.

Settlement of the Child - Art. 12(2)

Return refused

Return refused; the removal was wrongful but the children were now settled in their new environment.

Procedural Matters

Application dismissed; no jurisdiction existed to set aside a return order under New Zealand law.

American Convention on Human Rights (ACHR) | Best Interests of the Child

Guidance on the application of the Convention issued

Wrongful removal of a child when he was 2 years old - married parents – Paraguayan mother – Argentine father – the child lived in Argentina until January 2006 – return request filed before the Argentine Central Authority – return ordered – unenforced order – petition before the Inter-American Commission on Human Rights – case referred to the Inter-American Court on Human Rights – Paraguay was found liable on the violation of the father’s rights, enshrined in the American Convention on Human Rights.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Procedural Matters

Application dismissed

Application dismissed; the child was not habitually resident in Australia at the time of the removal and in any event there had been no breach of actually exercised rights of custody.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Human Rights - Art. 20 | Procedural Matters | Best Interests of the Child

Appeal dismissed, return ordered

Appeal rejected. Return ordered.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Best Interests of the Child

Return ordered

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

Appeal dismissed; the children had lost their habitual residence in the United Kingdom - England & Wales, therefore the courts of that jurisdiction were no longer competent to adjudicate in respect of them.

Grave Risk - Art. 13(1)(b) | Undertakings | Issues Relating to Return

Return ordered subject to undertakings

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

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

Appeal allowed, return refused

Appeal allowed and return refused; the removal was wrongful but a return to Portugal would expose the child to a grave risk of danger.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the mother's constitutional rights had not been violated by the application of the Convention, nor had the lower courts erred in their application of the Convention: the retention was wrongful and none of the exceptions had been proved to the standard required.

Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Issues Relating to Return | Procedural Matters

Appeal allowed, return ordered

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

Settlement of the Child - Art. 12(2)

Challenge to legality dismissed; the removal was wrongful but the child had become settled in her new environment. The return was therefore refused.