Case Law Search

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Procedural Matters

Cross-appeal allowed in part and return refused; the standard had been met to show that the children would face a grave risk of harm if returned and the return petition could not be re-activated.

Rights of Custody - Art. 3

Case remitted to lower court

1 child allegedly wrongfully removed - Married parents - Father national of Italy - Mother national of Italy - Joint custody - Child lived in Belgium until February 2014 - Return refused - Main issues: Rights of custody - A removal cannot be considered wrongful if it did not breach custody rights that were actually exercised at the time of the removal 

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 7 – National of France – Married parents – Father national of France – Mother national of France – Child lived in Morocco until February 2011 – Application for return filed with the Central Authority of Morocco in March 2011 – Application dismissed – Main issues: Art. 13(1)(b) grave risk exception, costs – It is up to the parent who alleges an exception to return under Art. 13 of the 1980 Hague Child Abduction Convention to prove that the conditions for non-return have been met – In accordance with Art. 26 of the Convention, the parent who wrongfully removed the child can be ordered to pay for the costs of the return proceedings

Rights of Custody - Art. 3

Appeal allowed, return refused

1 child allegedly wrongfully removed at age 11 – Divorced parents – Father national of France and Morocco – Mother national of France – Full custody rights automatically awarded to the mother after the divorce under Moroccan law – Child lived in Morocco until October 2014 – Application for return filed with the Juge aux affaires familiales of France in December 2014 – Return refused – Main issue: Rights of custody – Rights of custody, including in particular the right to determine the child’s place of residence, has to be determined in accordance with the law of the State where the child had his habitual residence immediately before the removal

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Non-Convention Issues | Grave Risk - Art. 13(1)(b)

Appeal dismissed, return ordered

1 child removed at age 3 years  ― National of Canada and Japan ― Married parents ― Father and Mother married in Canada in 2009 and living there ― Joint custody at the time of wrongful retention ― Child lived in Canada until July 2013 ― Mother removed the child to Japan with Father’s consent ― A wrongful retention of the child after the entry into force of the Convention between Canada and Japan on 1 April 2014  ― Application for return filed with the courts of Japan in March 2015 ― Appeal dismissed and return ordered ― Main issues: Article 3 Habitual residence of the child ― The initial time of the wrongful retention ― Article 13(1)(a) Prior consent or subsequent approval by the father ― Abuse of rights by the father.

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

Return ordered

The court ordered the return of the child to Armenia within four weeks.

Habitual Residence - Art. 3

Return ordered

The court ordered the return of the child to the United States to the district of the court competent for the father's place of residence within two weeks of the decision taking effect.

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

Return refused

The court refused to order the return of the children. The Article 13(1)(b) exception had been made out and there would be a grave risk of harm to the children if they were returned.

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

Application dismissed

The Court dismissed the return application.

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

Return refused

The court found that the father acquiesced in the children remaining in Canada, and refused to order the return of the children under the the Article 13(a) exception.

Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3 | Article 15 Decision or Determination | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Appeal allowed, application dismissed

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

Return ordered

The Court found that the retention of the children in South Africa was wrongful and ordered their return to New Zealand.

Habitual Residence - Art. 3

Case remitted to lower court

One child allegedly wrongfully retained at age one month – Married parents – Father national of Greece – Mother national of Switzerland – Child was born in Greece and went to France when he was one month old  – Case remitted to lower court – Main issue: Article 3 – habitual residence of an infant. Given the very young age of the child and the circumstances in which he arrived in France at only one month old and the fact that he has stayed there since with his mother, it was the responsibility of the judges in the lower courts to see if his social and family environment, and so the centre of his life, was in France, notwithstanding the initial intention of the parents regarding the return of the mother and child to Greece after their stay in France.

Return ordered

Two children wrongfully removed - Children lived in Poland until their removal to Canada – Return ordered – Main issue: COVID-19 delay to return due to travel restrictions – a date was set for the return to Poland accompanied by an order to account for the possibility that travel would be further delayed until August 2020. 

Return ordered

One child wrongfully retained at age 4 – Separated parents – Father national of Australia – Mother national of United Kingdom – Joint custody rights – Child lived in Australia until August 2019 – Application for return filed in November 2019 – Return ordered  – Main issue: COVID-19 – due to the current travel restrictions in the UK and in Australia, a date would be fixed for the protective measures to be in place and a date thereafter for the child to return.

Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Interpretation of the Convention

Appeal dismissed, return ordered

Appeal dismissed and return ordered.  

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

Appeal dismissed, return ordered with undertakings offered

The Court dismissed the appeal and ordered the return of the child: the habitual residence of the child was in the United States, the retention was wrongful and none of the exceptions had been proved to the standard required under the Convention.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Interpretation of the Convention

Appeal allowed and case remitted to the trial court; the removal was wrongful but a determination had to be made as to whether any of the exceptions were applicable.

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Procedural Matters

Appeal dismissed, return ordered subject to undertakings

Appeal dismissed and return upheld, subject to undertakings; neither Art. 3(1) UNCRC nor Art. 8 ECHR, as interpreted by the Grand Chamber in Neulinger, required a re-appraisal of the interpretation of the Hague Convention in England & Wales. It was accepted that Art. 13(1)(b) should be interpreted without any additional gloss being applied to its terms, but this did not impact upon the outcome of the appeal.

Acquiescence - Art. 13(1)(a)

Appeal dismissed. The Court of Appeal had proper grounds to hold that the retention was wrongful, and had observed correctly that the father had acquiesced in the child's residence in France.