Case Law Search

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

Appeal dismissed, return ordered

Appeal dismissed, return ordered. The removal was wrongful and the exceptions inapplicable.

Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2)

Appeal allowed, return refused

Appeal allowed and return refused; the retention was wrongful but the child was now settled in her new environment.

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

Return ordered

The court held that the exceptions under Article 13 of the 1980 Convention did not apply in this case and ordered the return of the children to Israel. 

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful, the child having retained her habitual residence in Mexico and none of the exceptions was applicable.

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

Return ordered with undertakings offered

3 children wrongfully removed at age 7 – Father national of the United Kingdom and Canada – Mother national of the United Kingdom and Canada – Both parents had rights of custody under the law of Scotland – Children lived in the United Kingdom until August 2009 – Application for return filed with the Central Authority of the Scotland on 20 October 2009 – Return ordered – Main issue(s): Rights of custody – Art. 3 – Father had rights of custody under the law of Scotland; there was no court order restricting his rights as a parent – Removal & Retention – Arts 3 and 12 – Children wrongfully removed, in breach of the father’s custody rights and without his consent. The father was exercising his rights despite the child protection investigation – Grave Risk – Art. 13(1)(b) –There is no grave risk. Social service agencies and court in Scotland will protect the children upon their return – Undertakings – Undertakings imposed to assist the return and to protect the children in the transitional period before the court in Scotland takes over. 

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

Return ordered subject to undertakings

Removal wrongful and return ordered; the Article 13(1)(b) defence had not been proved to the standard required under the Convention.

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

Appeal dismissed, return ordered

Appeal dismissed; return ordered. The removal was wrongful and none of the exceptions raised was applicable.

Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | European Convention on Human Rights (ECHR)

Return refused

One child wrongfully retained at age 5 – National of Germany - Divorced parents – Father national of Germany – Mother national of Russia – Parents had joint custody – Child lived in Germany until 13 July 2017  – Application for return was filed with the Court on 30 August 2018 – Return refused – Main issue(s): Article 13(1)(b), grave risk due to violence from the father; Article 12, child settled in new environment.

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

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

Appeal dismissed, return ordered

1 child wrongfully removed at age 6 - National of Canada - Divorced parents - Father national of Mexico - Mother national of Canada - Joint custody: the mother had primary care, the father periods of care - Child lived in the United States of America until March 2013 - Application for return filed with the Court of Queen’s Bench of Manitoba on 28 March 2013 - Return ordered - Main issues: Art 13(1) (b) grave risk exception to return, objection of the child to return, procedural matters - Motion for staying the enforcement of the first instance return order dismissed - A child aged 8 years (at the time of the proceedings) does not face a grave risk of being exposed to physical or psychological harm or being placed in an intolerable situation if return is ordered while the primary caregiver cannot (immediately) accompany her, pending the outcome of a visa application - Bar an extraordinary level of maturity,  a child aged 8  years has not attained the necessary age and degree of maturity at which her wishes ought to be considered under Art. 13(2) of the 1980 Hague Child Abduction Convention

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

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

Return ordered

Return ordered with undertakings and protective measures.

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

Appeal dismissed, return ordered

Wrongful retention of a girl when she was 4 years old – Guatemalan and American – separated parents – the girl was born in the United States, as proved by her birth certificate – the Central Authority of Guatemala filed the return request before court in Quetzaltenango, Guatemala – appeal dismissed, return ordered – main issues: habitual residence; removal and retention; settlement of the child; interpretation of the Convention – the habitual residence of the child before the wrongful retention was in the United States, as evidenced by her birth certificate and medical records – the wrongful retention took place when the father did not return her to the United States on the agreed date after her holiday with the grandparents, to which the mother had consented – the immediate return ought to be ordered since the child had spent less than a year in the requested State – the HCCH Convention on Child Abduction does not require the conduction of socioeconomical or psychological studies on the parents in order to make a decision on return

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

Return ordered

Return ordered.

Habitual Residence - Art. 3

Appeal dismissed, return refused

Application dismissed. The children were habitually resident in Canada.

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

Appeal allowed in part; the removal was wrongful but the return of the girls would be refused for the father by his actions had acquiesced in their remaining in Israel.

Aims of the Convention - Preamble, Arts 1 and 2 | Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2)

Return ordered

Removal wrongful and return ordered; none of the Article 13 exceptions had been proved to the standard required under the Convention.

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

Return ordered

The retention was wrongful and Article 13(2) was not proved to the standard required under the Convention.

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

Return ordered

Return ordered, the retention was wrongful and none of the exceptions were applicable.

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

Appeal dismissed, return refused

2 children wrongfully removed at ages 9 and 7 – Nationals of Korea – Married parents – Father national of The Republic of Korea– Mother national of The Republic of Korea– Parents had joint custody – Children lived in Japan until 28 June 2016 – Application for return filed with the court of The Republic of Korea on 21 April 2017 – Return refused – Main issue: Article 13(1)(b) – a “grave risk” includes cases where the child is at risk of psychological harm due to frequent violence committed against the other parent.