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Issues Relating to Return | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

The Court unanimously ruled that Romania had breached Article 8 of the ECHR in failing to thoroughly assess the best interests of the child and to give the father the opportunity to present his case. It also awarded the father compensation under Article 41 of the ECHR.

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

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

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  

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 and case remitted to the trial court; the trial court had erred by failing to determine whether the parents had intended to abandon their habitual residence in the United States of America or whether they had intended to retain it while residing abroad temporarily.

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

Return ordered

1 child wrongfully removed at age 3 – National of Croatia – Married parents– Father national of Croatia – Mother national of Croatia – Joint parental responsibility under the  German Civil Code – Child lived in Germany until 6 April 2016 – Application for return filed with the Central Authority of Croatia on 10 June 2016 – Application for return filed with the courts of Croatia on 29 August 2016 – Return ordered – Main issues:  Rights of Custody, Art. 13(1)(b) “grave risk” exception to return, Objections of the Child to a Return – The child’s removal from Germany to Croatia was held to be unlawful under the Hague Convention, and none of the exceptions to ordering return were deemed applicable.

Acquiescence - Art. 13(1)(a)

Appeal dismissed, application dismissed

Appeal dismissed, application dismissed. The father had acquiesced.

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

Appeal dismissed, return ordered

1 child wrongfully removed aged less than one year old - Unmarried parents - Joint custody - Child lived in Greece until May 2010 - Application for return filed in April 2011 - Return ordered - Main issues: Settlement of the child, Art. 13(1)(b) grave risk exception to return, procedural matters - Art. 12(2) of the 1980 Hague Child Abduction Convention only applies where return proceedings have been commenced after a period of more than one year has elapsed since the date of the wrongful removal

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 

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

Return ordered

Wrongful retention of a 4 year old child – Colombian and Salvadorian – Married parents –  Salvadorian mother – Shared rights of custody – the child lived in Colombia since birth until January 2019 – the return request was filed before the Colombian Central Authority in February 2019 – Return ordered – Main issues: habitual residence; removal and retention; art. 13(1)(b) grave risk exception; procedural matters – The habitual residence of the child was in Colombia – The child was wrongfully retained, in breach of the parents’ jointly-exercised rights of custody – The grave risk the child would be exposed to was not established – Measures were ordered to ensure the child’s return to Colombia, such as his return together with his father and his preparation toward the return

Non-Convention Issues

Appeal dismissed, return ordered

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Best Interests of the Child | Procedural Matters | Interpretation of the Convention

Appeal dismissed, return refused

European Convention on Human Rights (ECHR)

ECrtHR - Violation of Article 8 ECHR, award of damages

European Court of Human Rights held, by 5 votes to 2, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

In 1980 Hague Convention proceedings national authorities were required to examine whether it would be appropriate to hear the child as part of their decision making.

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

Appeal dismissed, return ordered

Appeal dismissed and return ordered; the retention was wrongful, the child being habitually resident in Canada at the relevant date.

Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Jurisdiction Issues - Art. 16 | Best Interests of the Child

Appeal allowed, return ordered