Case Law Search

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

Appeal dismissed, return refused

1 child allegedly wrongfully retained at age 13 – National of Brazil – Divorced parents– Father national of Brazil – Mother national of Brazil – Joint right to determine the residence of the child. Father has custody. – Child lived in Brazil until 31 October 2014 – Application for return filed with the Courts of Switzerland on 28 April 2016 – Return refused – Main issue: Objections of the Child to a Return – Child was mature enough for its opinion to be taken into consideration which constituted a reason to refuse the return based on Article 13(2).

Removal and Retention - Arts 3 and 12 |

Appeal dismissed, return ordered

one child wrongfully retained between age 4 and 5– National of unknown –unmarried parents – Father national of unknown – Mother national of unknown – Shared parental responsibility – Child lived in Portugal until 10 March 2017 – Application for return filed with the courts of Switzerland on 23 April 2018 – Return ordered – Main issue: Removal and Retention – The father could not prove that the mother had given her consent for the child to remain in Switzerland and the mother filed an appeal within the one year period set out in Article 12.

Procedural Matters |

Appeal dismissed, return ordered

one child wrongfully removed at age 8 – National of Chile –unmarried parents – Father national of Chile – Mother national of Chile – Agreement that the “cuidado personal” is solely attributed to the mother, but in fact it is exercised by both – Child lived in Chile until 14 August 2017 – Application for return filed with the courts of Switzerland on 19 September 2018 – Return ordered – Main issue: costs – Appeal of the father regarding costs has been dismissed based on interpretation of Article 26.

Removal and Retention - Arts 3 and 12 | Procedural Matters |

Appeal dismissed, return ordered

1 child wrongfully removed at age 3 – National of Poland - Married parents (ongoing divorce proceedings) – Mother national of Poland – Father national of Poland - Parents had joint custody. Divorce court gave mother the right to have the child during the abduction until the end of the divorce proceedings. Decision that was annulled after return was ordered. – Child lived in Poland (until 4 December 2015)  – Application for return filed with the Central Authority of Switzerland on 6 June 2016 – Return ordered – Main issue: Grave Risk – The fact that the mother considers her own return to Poland to be intolerable, both financially and professionally, is not relevant to the examination of the exception to return.

Procedural Matters |

Appeal dismissed, return refused

1 child wrongfully removed at age 6 – National of Peru – Father national of Peru – Mother national of Peru – Temporary award of joint custody by Peruvian Court – Child lived in Peru until October 2019 – Application for return filed with the courts of Ontario in March 2020 – Return refused in first instance – Appeal dismissed – Main issue: Procedural matters – Conduct of hearing led to undue delay and contravened obligation for prompt resolution under the Convention. 

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Issues Relating to Return |

Return ordered with undertakings offered

One child allegedly wrongfully retained at age 5 and a half – National of Ukraine and the United Kingdom – Father national of the United Kingdom and South Africa – Mother national of Hungary and Ukraine – Child lived in Ukraine in the mother’s custody with regular contact with the father – Following Russian invasion of Ukraine in late February 2022 child and Mother move to England In April 2022 – Mother plans to return to Ukraine in Summer 2022 – Father obtains Prohibited Steps Order from English Court - Application for return issued on 29 July 2022 – Main issues: habitual residence and Art. 13(1)(b) grave risk exception to return – risk of exposure to war – risk of loss of relationship with father due to alleged closure of court system and mothers hostility to father – A child’s retained roots in Ukraine support his habitual residence remains in the Ukraine – The risk faced by the child upon return to Ukraine failed to meet the threshold of ‘grave harm’ – the region was not subject to active hostility and life continued as normal – the court system was functioning – mother promoted contact – undertakings reduced any risk below grave risk threshold. – Return ordered

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

Return ordered

Wrongful retention of an adolescent in Uruguay – Custody right exercised solely by the mother – The adolescent lived in Spain with his mother for 4 years – The return application was filed before the Spanish Central Authority – Return ordered – Main issues: Art. 13(1)(b) grave risk exception, objections of the child to a return – The father did not prove any situation in which there was a grave risk actually making return intolerable and exposing the adolescent gravely – The adolescent voiced a preference but there was no true objection in the sense of an unwavering repudiation towards return.

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Procedural Matters |

Appeal dismissed, return ordered

Wrongful retention of two children – Venezuelan nationals – Married parents – Both parents had custody rights – The return application was filed before the Chilean Central Authority in November 2018 – Return ordered – Main issues: consent, removal and retention, procedural matters – the evidence proffered by the mother was not sufficient to prove the father’s will in the travel authorisation – The father had consented to the removal, but not a change in residence, and thus there was a wrongful retention – Safe return measures were adopted for the children to undergo return with the least harm possible.

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

Appeal dismissed, return ordered

Wrongful retention of two girls when they were 8 and 11 years old – Uruguayan & Swedish – Unmarried parents – Uruguayan father – Uruguayan mother – Joint custody – The girls lived in the Kingdom of Norway until January 2019 – Return proceedings were commenced before Uruguayan courts on 27 May 2019 – Return ordered – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, objections of the child to a return, procedural matters – Retention was wrongful because it violated the father’s actually-exercised right of custody when it took place – There was not sufficient evidence on record proving the father’s consent or acquiescence to the change in the girls’ habitual residence – None of the circumstances alleged by the mother implied a grave risk for the girls if they returned to Norway – The girls’ statements evidenced that their opinions were influenced by their mother – The child support payments fixed in the first instance court judgment were overturned because this issue is outside the scope of application of the HCCH 1996 Child Protection Convention.

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Interpretation of the Convention |

Return refused

Lawful retention of two girls - Uruguayan – Separated parents – The girls lived in Brazil until 19 April 2019, when the mother removed them to Uruguay – The mother filed a return application with the Brazilian Central Authority – Return refused – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, procedural matters, interpretation of the Convention – There was no wrongful retention, as the mother actually removed them voluntarily to Uruguay – The mother had consented that the girls live in Uruguay by removing them to that country and delivering the necessary documents for them to resume their life there to the father – There was a grave risk due to the high emotional disturbance they suffered as a consequence of the physical, psychological and sexual violence they had suffered in Brazil – The proceedings are autonomous and specific for international child abduction cases under Uruguayan Law 18,895 – The children’s best interests in this case had been furthered by preventing them from returning to an environment of sexual, psychological and emotional abuse.