Case Law Search

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.

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

Appeal dismissed, return ordered

Challenge rejected and return order confirmed. The removal was wrongful and the court of appeal had correctly found the Article 13(1)(b) exception to be inapplicable.

Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return ordered

Challenge dismissed and return order confirmed. The court of appeal had not breached Article 13(2) by refusing to hear the children.

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.

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2)

Appeal dismissed, return refused

2 children allegedly wrongfully retained (aged 10 and 14 at the time of the decision) – Married parents – Father national of the United-States – Mother national of China Hong Kong SAR and the United-States – Children lived in the United States until July 2013 – Application for return filed in February 2015 – Application dismissed – Main issues: habitual residence, wrongful retention, and children’s objections to return – A change of habitual residence occurs when a move from one State to another has a sufficient degree of stability – The absence of a joint parental intention to reside in a given State is not decisive in precluding the possibility of the children having established habitual residence there – Retention is considered wrongful from the moment the parent knows (s)he will not return to the previous country – When taking into account children’s views, a preference may be sufficient to meet the standard of the child’s objection exception under Art. 13(2), provided it is substantial

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

Appeal dismissed, return ordered

1 child wrongfully retained at age 2 - Married parents - Father national of the United States of America - Mother national of Canada - Child lived in the United States of America until 2013 - Application for return filed in 2013 - Return ordered - Main issue: Habitual residence, acquiescence and the Art.13(1)(b) grave risk exception to return - The application of the Art. 13(1)(b) exception requires the child’s exposure to a high degree, intensity and frequency of physical or psychological abuse - A return order that does not deliver the child and parent directly to the left-behind parent upon return diminishes the risk of incidents of domestic abuse occurring, while ensuring that the appropriate forum adjudicates the merits of custody and access issues

Rights of Custody - Art. 3

Appeal allowed, return refused

1 child allegedly wrongfully removed at age 13 - Divorced parents - Father had been granted custody - Child lived in Germany until March 2010 - Application for return filed with the Central Authority of Germany on 7 June 2010 - Return refused - Main issues: Rights of custody - The parent who issued the return request had not been exercising his custody rights at the time of removal, and therefore the removal could not be considered wrongful within the meaning of the 1980 Child Abduction Hague Convention

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

Appeal dismissed, return refused

One child wrongfully removed – National of Venezuela – Unmarried parents– Father national of Venezuela – Mother national of Venezuela – Father awarded primary custody which was revoked when he left for the USA. Mother granted supervised visits – Child lived in Venezuela until February 2014 – Application for return filed with the court of the USA on 15 December 2014 – Return refused – Main issue(s): Article 13(1)(b) – sufficiently serious threats and violence directed against a child’s parent can pose a grave risk of harm to the child as well.

Habitual Residence - Art. 3

Appeal allowed, return ordered

3 children wrongfully retained at age 8, 10 and 12 - Married parents - Father national of Australia - Mother national of Finland and Australia - Family moved to Finland from Australia in June 2014 - Family returned to Australia for a temporary visit in March 2015 - Application for return filed with the first instance court in May 2015 - Return ordered - Main issues: Habitual residence - Where the parents have a common intention to settle in a given State for a year without any agreement as to where they would live thereafter, the children may be considered habitually resident there, depending on the facts of the case (including attendance and progression at school, engagement in extra-curricular activities, connections with friends and family, receipt of government benefits, the parents’ (search for) employment, participation in local health schemes) - The finding that a child has acquired habitual residence in a given State may more readily be made where the child has already lost habitual residence in the State in which he or she previously lived

Rights of Custody - Art. 3

Appeal dismissed, return ordered

2 children wrongfully removed at ages 5 and 6 – Unmarried parents – After separation the mother obtained an ex parte interim order granting her sole custody – Children lived in Canada until July 2011 – Application for return filed with the Central Authority of Germany on 15 June 2012  - British Columbia Supreme Court issued a decision / declaration under Art. 15 of the 1980 Hague Child Abduction Convention that the removal was wrongful on 9 July 2012 - Return ordered by the German Court of Schleswig on 23 July 2012 – Main issue: rights of custody – While a final determination of custody has yet to be made but custody has been awarded on an interim basis, the court retains rights of custody within the meaning of the Convention – This principle is not affected by the absence of a non-removal clause in an interim order  

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.

Settlement of the Child - Art. 12(2)

Case remitted to lower court

1 child wrongfully removed at age 4 - National of Switzerland - Unmarried parents - Father national of Switzerland - Mother national of Spain - The lower courts had determined that the removal was in breach of the father’s custody rights - Child lived in Switzerland until August 2013 - Application for return filed with the courts of Spain on 7 November 2013 - Return refused at first instance, then return ordered on appeal - Main issue: settlement of the child - “Amparo” claim successful: the Constitutional Court found that the mother’s constitutional right to effective legal protection had been violated (no ruling on return / non-return) - A proper analysis of whether the child has become settled in its new environment should be conducted where a year has passed since the abduction occurred, in order for a decision to be rendered that is in the best interests of the child - It is immaterial that the delay is not attributable to the conduct of the parents; regardless of the cause, it may not affect the best interests of the child

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

Return ordered subject to undertakings

2 children wrongfully removed (born in 2005 and 2007) - Separated parents - The Purvian courts had effectively granted temporary custody to the mother on 21 November 2013, and then to the father on 1 October 2014 (following the removal)  - Children lived in Peru until 20 February 2014 - Application for return filed with the District Court on 17 February 2015 - Return ordered subject to undertakings - Main issues: rights of custody, Art.13(1)(b) "grave risk" exception to return, undertakings - A very severe degree of psychological abuse is sufficient to conclude that the Art. 13(1)(b) "grave risk" exception to return under the 1980 Hague Child Abduction Convention applies, even in cases in which there is very little or no evidence of physical abuse

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

Appeal allowed, return ordered

Appeal allowed, return ordered. The retention was considered wrongful. The appeal was considered unfounded and lacking any legal basis since the mother had not demonstrated the existence of substantive or procedural errors which would have served as a basis to overturn the decision that ordered the return.

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Appeal allowed, return ordered

Appeal allowed; return ordered.

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

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