Case Law Search

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

Appeal dismissed, return ordered

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

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.

Habitual Residence - Art. 3 | Procedural Matters

Appeal dismissed, return refused

Appeal dismissed; the child had not had a habitual residence in Greece.

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.

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

Appeal allowed and Article 15 declaration refused.

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

Appeal allowed, return ordered

2 children wrongfully removed at ages 3 and 2 - Nationals of Switzerland and the United Kingdom - Divorced parents - Father national of the United Kingdom - Mother national of Switzerland - Joint rights of custody; the father had supervised access rights while the mother effectively exercised custody - Repeated incidents of domestic violence were known to the social services - Children lived in the United Kingdom (England and Wales) until 25 March 2016 - Application for return filed with the first instance court in Switzerland on 5 September 2016 - Return ordered - Main issues: exceptions to ordering return - The exceptions to return should be interpreted restrictively - The determination whether ordering return would place the child in an intolerable situation, within the meaning of Art. 13(1)(b) of the 1980 Child Abduction Hague Convention, may only be made in respect of the child, and not the taking parent -  Return must be ordered if the actual cause of the risk of placing the child in an intolerable situation upon return is an unfounded refusal of the taking parent to return with the child - The taking parent may stay in an area far from the left-behind parent's place of residence upon return to the requesting State, in order to preserve the stability that was gained by geographic separation from the left-behind parent

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

Habitual Residence - Art. 3

Appeal allowed, return refused

The Supreme Court (third instance) determined that the children’s habitual residence had changed from the United States to Denmark during the period in which the father consented to them being in Denmark (December 2010 - February 2013). By the time that the father had opposed the children's continued residence in Denmark they were habitually resident there therefore not unlawfully retained. Therefore, the Supreme Court ruled that the retention was not wrongful and that the children should not be returned to their father in the United States.

Rights of Custody - Art. 3

Appeal dismissed, return ordered

One child wrongfully removed at age ten – National of Switzerland and Spain – Unmarried parents – Father national of Spain – Mother national of Switzerland – Joint custody according to Spanish law – Child lived in Spain until January/February 2016 – Application for return filed with the Central Authority of Spain on 17 February 2016 – Appeal dismissed, return ordered– Main issues: parental custody – The father received parental joint custody when the child's place of residence was transferred to Spain, since in Spain both parents have parental custody by law.

Appeal dismissed, return ordered

Appeal dismissed. There were no grounds for reversing the decision of the District Court.

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

Case remitted to lower court

Appeal allowed and case remitted for a further hearing.

Grave Risk - Art. 13(1)(b) | Non-Convention Issues

Appeal allowed, return refused

Appeal allowed. The Court set aside the order for return and dismissed the father’s application under the 1980 Hague Convention.

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

Return ordered

Return ordered. The child was not settled in the UK, within the meaning of Article 12(2), nor was there a grave risk of harm to the child on return to Portugal within the meaning of Article 13(1)(b).

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

Return ordered

Return ordered. No grave risk of harm was established and even if there had been one, protective measures were sufficient to ameliorate the risk. Though the child objected, discretion should be exercised so as to override this objection.

Procedural Matters

Application dismissed

Application dismissed; there were concurrent parallel proceedings in the North Carolina State Court and an applicant may only petition before one jurisdiction.

Acquiescence - Art. 13(1)(a) | Procedural Matters

Return refused

Return refused; the father had acquiesced in terms of Article 13(1)(a).

Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Rights of Access - Art. 21 | Procedural Matters

Appeal allowed, return refused

Appeal allowed and return refused; on the basis that the father was prepared to contemplate the children remaining in New Zealand if he could have satisfactory access in the United States.

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

Return ordered; the removal was wrongful and the standard required under Article 13(1)(b) to show that the child would face a grave risk of physical harm had not been met.

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

Return ordered

Removal wrongful and return ordered; the child was habitually resident in Australia at the relevant date.