Case Law Search

Issues Relating to Return | Procedural Matters

Appeal inadmissible; the appeal did not raise a substantial legal issue.

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

Appeal allowed, case referred to the lower court. If the court in the State of refuge contemplates denying return of the child (or its enforcement) owing to a grave risk of danger, it is a prior requirement to ascertain sua sponte that the necessary protective measures to make the return possible could not be taken.

Non-Convention Issues

Legal challenge upheld. The Audiencia Provincial order was set aside and the Supreme Court ordered a new decision to be made on the child's relocation, which would assess the appropriateness of her removal to the United States of America and the attribution of contact rights in a way which was fair and equal for both the child and her parents.

European Convention on Human Rights (ECHR) | Procedural Matters

In a unanimous ruling, the Court declared the application to be admissible, and found that the national authorities had not taken all the steps which could be reasonably required to enforce the father's access rights, leading to a violation of Article 8 of the ECHR.

Removal and Retention - Arts 3 and 12 | Article 15 Decision or Determination

Appeal allowed and Article 15 declaration refused.

Habitual Residence - Art. 3 | Procedural Matters

Application dismissed

Application dismissed; the removal was not wrongful as the child had retained his habitual residence in Northern Ireland during the course of his stay in Poland.

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

Appeal allowed and order made that the child should be returned to Greece.

Issues Relating to Return | Procedural Matters

Appeal inadmissible: the issue whether the Austrian courts may deliver a return order and take execution measures in a single ruling is not sufficiently substantial to justify an appeal. While admittedly there are no Supreme Court precedents on this point, the issue does not raise a substantial difficulty since it is clearly resolved by legislation.

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

Appeal dismissed, return ordered

The Court of Appeals upheld the District Court decision and ordered the return of the child.

Appeal dismissed, return refused

The court considered the jurisprudence on habitual residence and upheld the finding of the first instance judge: that the child’s residence in the USA had not acquired the necessary degree of stability to become habitual.  On the established principles, there was no basis to interfere with the judge’s finding.

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

Appeal allowed, return ordered

Appeal allowed; return ordered. The Appellate Court held that the Article 13(1)(b) exception was not established.

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was wrongful and the exceptions raised inapplicable.

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

Appeal dismissed, return refused

Appeal dismissed, return refused. The retention was wrongful but several exceptions applicable.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful and Art 13(1)(b) had not been proved to the standard required under the 1980 Hague Child Abduction Convention.

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

Appeal dismissed, return refused

Appeal dismissed and return refused; removal was wrongful but the mother had proved Article 13(1)(b) to the standard required under the Convention. No undertakings had been proposed which could mitigate the harm of returning the child.

Interpretation of the Convention | Habitual Residence - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Guidance on the application of the Convention issued

2 children retained at ages 11 and 8 – Nationals of Canada – Married parents – Father national of Canada – Mother national of Canada – Father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a Canadian school – Children lived in Germany until April 2013 – Application for return filed with the Central Authority of Germany on 11 April 2014 – Return decision of the Court of Appeal of Ontario of 13 September 2016 was appealed to the Supreme Court, but the children were returned to Germany before the Court rendered its judgment; despite the appeal being moot, the Court considered the issues raised to be important and in need of clarification – Main issues: interpretation of the Convention, habitual residence, objections of the child to a return, procedural matters – To ensure uniformity of State practice, courts should generally adopt the interpretation of the Convention that has gained the most support in other foreign domestic courts – The “hybrid approach” to determining habitual residence (which considers all relevant factual links and circumstances in their entirety, instead of focusing either on parental intention or the child’s acclimatisation) should be followed – Courts should adopt a non-technical and straightforward approach to considering the child’s objections to return – It is up to the judicial authorities to ensure that the State lives up to its obligations to act expeditiously under the 1980 Hague Child Abduction Convention – Convention proceedings should be judge-led, not party-driven, and judges should not hesitate to use their authority to expedite proceedings

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Case remitted to lower court

1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents– Father national of Croatia and Germany – Mother national of Croatia – Joint custody according to the German Civil Code and under Croatian law – Child lived in Germany until December2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 - The Court granted the appeal, set aside the first instance judgment and remitted the case for a new trial to the court of first instance – Main issues: Rights of Custody, Brussels IIa Regulation –The first instance court should have applied the Brussels II a Regulation, including its requirement for return to be ordered in Art. 13(1)(b) cases in which it has been established that adequate arrangements have been made to secure the protection of the child upon his return.

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

Return refused

Alleged wrongful retention of the child when he was 9 years old – National of Argentina – Unmarried parents –Argentine father – Argentine mother – The child lived in Argentina until November 2014 – The return request was filed before the Chilean court on 22 April 2016 – Return refused – Main issues: habitual residence, rights of custody, settlement of the child, art. 13(1)(b) exception of grave risk, objections of the child to a return, procedural matters - the habitual residence of the child before the removal was in Argentina – the mother had rights of custody under the Convention, and thus retention was not wrongful and the father had no standing to request the international return – over two years elapsed between the arrival of the boy in Chile and the filing of the request, and the child was already settled in – return would certainly put the child at risk of endangering his physical and psychological integrity, due to his mother and him experiencing family violence – the child openly stated his wish not to return to Argentina.

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

Appeal dismissed, return ordered

The court rejected the Beschwerde appeal against the decision and ordered the return of the children.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Procedural Matters

Appeal allowed, return ordered subject to undertakings

Appeal allowed, return ordered subject to undertakings.