Case Law Search

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

Appeal allowed, return ordered

Wrongful retention of a 5-year-old boy – Peruvian and American – Married parents –The child lived in Peru until September 2014, then the family changed its place of habitual residence to the United States – The mother filed a return request before the Peruvian courts on 24 August 2016 – Return ordered – Main issues: Habitual Residence; Removal and Retention; Settlement of the Child; Objections of the Child to a Return – The habitual residence of the child prior to the wrongful retention was in the United States – The mother had rights of custody over the child under the custody and visitation agreement approved by the U.S. court – The wrongful retention occurred because the father did not return with the child by the date established in the travel authorisation issued by the mother – The child was gradually detaching from the mother because of the father’s actions.

Rights of Custody - Art. 3

Application dismissed: all allegations presented by the father were ill-founded.

Grave Risk - Art. 13(1)(b) | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Case remitted to lower court

1 child wrongfully removed at age 3 – National of Croatia– Married parents– Father national of Croatia– Mother national of Croatia – Joint parental responsibility according to German Civil Code – Child lived in Germany until 6 April 2016 – Application for return filed with the Central Authority of Croatia on 10 June 2016 – Application for return filed with the Central court of Croatia on 29 August 2016 - Main issue(s): Art. 13(1)(b) grave risk exception to return; Procedural matters, Brussels IIa Regulation – the courts are obliged to give a fully-founded factual basis for the application of Articles 12 and 13 of the Hague Convention.

Procedural Matters

Partial appeal dismissed insofar as it was admissible; award of a low indemnity for costs against the mother upheld.

Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Interpretation of the Convention | Best Interests of the Child

Return ordered

Wrongful removal of a 7-year old girl – Chilean – unmarried parents – Chilean father – Argentine mother – custody rights belong with the father – the girl lived in Chile until late 2019 – return application submitted before the Family Court in Formosa, Argentina, in September 2020 – return ordered – main issues: removal and retention, settlement of the child, art. 13(1)(b) grave risk, objections of the child to the return, procedural matters, interpretation of the Convention, best interests of the child – retention was wrongful because the custody rights of the father, effectively exercised by him at the time, were infringed – the time required by the Convention to refuse the return on grounds of settlement of the child in her new environment did not elapse – no evidence that the child would be exposed to grave risk upon her return – there were no objections by the child showing an irreducible objection against returning to the place of habitual residence – due to effects of the COVID-19 pandemic, the parents were invited to cooperate in the implementation of the return order and to avoid unnecessary delays – there are no incompatibilities between the Convention and the Convention on the Rights of The Child; both are meant to protect the best interests of the child.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters | Best Interests of the Child

Appeal dismissed, return ordered

Wrongful retention of two girls when they were 8 and 11 years old – Uruguayan & Swedish – Unmarried parents – Uruguayan father – Uruguayan mother – Joint custody – The girls lived in the Kingdom of Norway until January 2019 – Return proceedings were commenced before Uruguayan courts on 27 May 2019 – Return ordered – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, objections of the child to a return, procedural matters, best interests of the child – Retention was wrongful because it violated the father’s actually-exercised right of custody when it took place – There was not sufficient evidence on record proving the father’s consent or acquiescence to the change in the girls’ habitual residence – None of the circumstances alleged by the mother implied a grave risk for the girls if they returned to Norway – The girls’ statements evidenced that their opinions were influenced by their mother – The child support payments fixed in the first instance court judgment were overturned because this issue is outside the scope of application of the HCCH 1996 Child Protection Convention.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Procedural Matters

Appeal dismissed, return ordered

Appeal dismissed and return order upheld; the retention was in breach of actually exercised rights of custody, the children having retained their Canadian habitual residence, and none of the exceptions was applicable.

Appeal dismissed and refusal to enforce return order upheld. The Court did not find any indication for a violation of the applicant's rights granted either by the Federal Constitution or by international instruments.

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

Appeal dismissed, ordering execution of the return order.

Rights of Access - Art. 21

Application to enforce foreign access order refused; Article 21 confers no jurisdiction on a court to determine matters relating to access.

Aims of the Convention - Preamble, Arts 1 and 2

Return refused

In the absence of any possibility of there being a substantive hearing in France the return of the girls was refused.

Removal and Retention - Arts 3 and 12

Appeal dismissed, application dismissed

Appeal dismissed and application dismissed; there had been no wrongful removal as the Convention had not entered into effect between the United Kingdom and Ontario at the relevant date.

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

Return ordered

Appeal dismissed and return ordered; the standard required under Article 13(1)(b) had not been met.

Habitual Residence - Art. 3

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful and the court upheld the trial court's view that the girls were still habitually resident in Germany at the relevant date.

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

Appeal allowed; the court held that the children were habitually resident in France when retained by the mother in the United Kingdom.

Rights of Custody - Art. 3

Return refused

Return refused; the father had no rights amounting to custody rights for the purposes of the Convention. Consequently there could be no wrongful removal.

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

Return ordered with undertakings offered

Return ordered; the standard required under Articles 13(1)(b) and 13(2) had not been met.

Rights of Custody - Art. 3

Appeal dismissed, application dismissed

Appeal dismissed and application dissmissed; the Supreme Judicial Court of Massachusetts agreed that no custody rights of the father had been breached and refused to return the boys to Hungary.

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

Appeal dismissed, return ordered subject to undertakings

Appeal dismissed and return ordered subject to undertakings; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of psychological harm had not been met.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings

Return ordered subject to undertakings

Return ordered subject to undertakings; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of psychological harm had not been met.