Case Law Search

Issues Relating to Return

Appeal allowed, application dismissed

The parents and the children resided in France ― After the parents’ separation, the father removed two children from France to Japan ― Osaka Family Court ordered the return of the children to France on 11 September 2020, which became final and conclusive on 9 December 2020 ― Divorce decree rendered in France on 23 November 2020 ordered joint custody of the parents and the children to reside with the father in Japan, while only granting visitation right to the mother ― The Osaka Family Court granted the mother’s claim for indirect compulsory execution on 1 February 2021 ― The Osaka High Court reversed the decision and dismissed the mother’s claim to honor the French custody decision on 14 April 2021 ― The Supreme Court upheld the decision on the grounds that the mother’s claim for indirect compulsory execution became unlawful after the children returned to France as a result of compulsory execution by substitute ― Two justices concurred and opined that the lower court decision may conflict with Art. 17 of the 1980 Convention  Main issue: Admissibility of indirect compulsory execution that runs counter to a foreign custody order.

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

Appeal allowed, return ordered

Wrongful removal of a seven-month-old child – U.S. national – Married parents – Father a U.S. citizen – Mother a Brazilian citizen – Shared rights of custody – Child lived in the United States from birth until May 2021 – Return application submitted to the Central Authority in the United States in September 2021 – Appeal allowed, return ordered – Key issues: habitual residence, rights of custody, settlement of the child, grave risk exception – The child’s habitual residence was in the United States – Custody matters must be resolved by the courts of the State of the child’s habitual residence – The father filed the return application within one year of the wrongful retention – The Court held that the allegations of domestic violence were not substantiated, and that neither the child’s separation from the taking parent nor the immigration obstacles faced by the mother were sufficient to establish the grave risk exception.

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) | Jurisdiction Issues - Art. 16 | Best Interests of the Child

Appeal dismissed, return ordered

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2)

Return refused

Return refused, the child was now well-settled in the US. 

Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Objections of the Child to a Return - Art. 13(2) | Non-Convention Issues

Return refused

Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Best Interests of the Child | Settlement of the Child - Art. 12(2)

Appeal allowed, return ordered

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.

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.

Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2)

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the standard required under Articles 12(2) and 13(1)(a) had not been reached.

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)

Return ordered

Return ordered; while the boy's objections to a return were valid and should be taken into account, the girl's were not and it was held that they should not be separated.

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

Appeal allowed, return ordered

Appeal dismissed and return of the children to the United States ordered; the evidence did not support a finding of a grave risk of harm pursuant to Article 13(1)(b).

Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed on the basis that there had been a breach of custody rights and case remitted to the District Court for the making of a return order and any appropriate incidental orders.