Case Law Search

Removal and Retention - Arts 3 and 12

Application dismissed

Application dismissed; the removal was not wrongful.

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

Maltese non-return order considered but not followed; child ordered to be sent back to England, his State of habitual residence, in accordance with Article 11 of the Brussels II a Regulation.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the removal was wrongful and none of the exceptions had been proved to the standard required by the Convention.

Consent - Art. 13(1)(a)

Return ordered

Retention wrongful and return ordered; the father had not consented to the relocation of his children to England.

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

The removal was wrongful but there was a grave risk of harm to the children. The Public Prosecutor was asked to inform the Court of the steps taken to protect the children following their return.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered.  The removal was wrongful; the children were habitually resident in Spain on the relevant date and consent had not been established.

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

Return ordered

1 child wrongfully removed at age 6 – National of the United Kingdom and Norway – Married parents– Father national of the United Kingdom – Mother national of Norway –  Parents exercised joint rights of custody – Child lived in the United Kingdom until 5 June 2007 – Application for return filed with the Central Authority of Norway on 25 June 2017– Return ordered – Main issue(s): Article 13(1)(b) – the exception was not met, the risk must be serious and must relate to harm or an intolerable situation for the child. Although harm to the child’s next-of-kin may also entail a risk of the child being harmed psychologically but the risk was not sufficiently serious in this case.

Habitual Residence - Art. 3

Return refused

1 child allegedly wrongfully retained at age 2 – National of Norway and USA – Married parents– Father national of USA – Mother national of Norway – Parents exercised joint rights of custody – Child lived in USA until 2010 – Application for return filed with the Central Authority of Norway in December 2011 –Return refused – Main issue: Article 3 – The father had consented to the change of habitual residence of the child

Procedural Matters

Preliminary ruling issued: The provisions laid down in Article 21 et seq. of the Brussels IIa Regulation do not apply to provisional measures, relating to rights of custody, falling within the scope of Article 20 of that regulation.

Aims of the Convention - Preamble, Arts 1 and 2 | Procedural Matters

Preliminary ruling issued on Questions 1, 2, 4 and 5; see below.

Human Rights - Art. 20

Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)

Appeal dismissed, return ordered

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

Appeal dismissed, return ordered

Issues Relating to Return

The Argentinean decisions ordering the return of the child were not contrary to Arts. 8 and 25 (and therefore not contrary to Arts. 17 and 29) of the American Convention on Human Rights (San José Pact).

Procedural Matters

An order for costs could be made against an applicant in Convention proceedings, although this should only happen in exceptional cases. In the instant case an order would be made because the mother had acted unreasonably in her pursuit of a return order, which she was ultimately advised to withdraw.

Habitual Residence - Art. 3 | Procedural Matters

Appeal dismissed, application dismissed

Appeal dismissed and thereby application dismissed; the child was not habitually resident in Italy on the date the removal took place.

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

Return ordered

Removal wrongful and return ordered; none of the exceptions had been established to the standard required under the Convention, however, the return was subject to extensive and stringent conditions, including the obtaining of a mirror order in the High Court of South Africa.

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

Return ordered

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)

Return refused

Return refused; the removal was wrongful, being in breach of the father's rights of custody, but the older siblings had valid objections to a return and the children would face a grave risk of harm if separated.

Removal and Retention - Arts 3 and 12 | Settlement of the Child - Art. 12(2)

Appeal dismissed, return refused

Appeal dismissed and return refused: the removal was wrongful, but Article 12(2) had been proved to the standard required under the Convention.