Findings of fact and Conclusions of Law United Kingdom through Zimbabwe
UNITED KINGDOM
UNITED
KINGDOM-AUSTRALIA: (1987) BARRACLOUGH v BARRACLOUGH.
The mother took the children to Australia for holiday, but did
not inform the father she would be making Australia their permanent
home. The father sought an order from the English court for the
return of the children to England. The court found that it was
not the proper forum for the proceedings before it. The court
dismissed both the father's and mother's petitions.
UNITED KINGDOM(SCOTLAND)-AUSTRALIA: (1987)
UNITED
KINGDOM-AUSTRALIA: (1987) (Return ordered) HICKS v HICKS. Mother takes
child to Australia. Court orders the child returned to the United Kingdom.
Return is delayed until the mother has a chance to oppose the return under
article 13.
UNITED
KINGDOM-AUSTRALIA: (1988)
UNITED
KINGDOM-AUSTRALIA: (1988) (Return denied based on age of maturity) The
Mother consented to the child leaving England to visit the father. She also
consented to the child residing permanently with the father in Australia.
Judge ruled the child had reached an age of maturity and denied the return
to England based on the child's wishes.
UNITED
KINGDOM-AUSTRALIA (1988) (Return ordered on appeal) (Undertakings) ENGLISH
MOTHER v Australian father. mother takes child to England. English Judge
refused to return child to Australia. Father appealed. Appeal allowed with
Undertakings.
UNITED
KINGDOM-AUSTRALIA: (1988) (Return ordered on appeal) EVANS v EVANS. Father
took one of his children to England. Lower court ordered the child returned
to Australia. Father appealed. The Supreme Court of Judicature ordered the
appeal dismissed.
UNITED
KINGDOM-AUSTRALIA: (1990) (Return denied) CURRIE v SLADE. Child born out
of wedlock. Lower courts and appeals court denied return of the child from
England to Australia. Removal was not wrongful because Australian law gives
the unmarried mother sole custody and guardianship of her child.
UNITED
KINGDOM-AUSTRALIA: (1992) (Return denied on appeal) (Abduction and Acquiescence)
Mother removed children from Australia to England. Lower court ordered the
return of the two children to Australia. Mother appealed. Appeal allowed,
returned denied.
UNITED
KINGDOM-AUSTRALIA: (1993)(Return ordered with undertakings) McOWAN v McOWAN,
Mother took children to England. The Court ordered the mother to return
with the children after the father agreed to a set of undertakings. Once
in Australia, the father changed his mind and stated he would not honor
the undertakings. Court addressed what happens when the children are returned
under order of another country's courts. The Court also addressed the enforceability
of undertakings.
UNITED KINGDOM(SCOTLAND)-AUSTRALIA:
(1993) (Return Denied) (Consent) ZENEL v HADDOW. The mother took the
child to Scotland. The father applies for the return under the convention.
The mother and father were not married. The lower court ruled that the father
had consented to the mother and child's
return to Scotland if things did not work out. The decision of the court
of First instance was upheld on appeal.
UNITED
KINGDOM-AUSTRALIA: (1994) (Return ordered on appeal) (Acquiescence) (Abduction)
Mother took children to England. Lower court ordered their return. Mother
appealed, appeal was dismissed.
UNITED
KINGDOM-AUSTRALIA-WALES:
(1994) (Return ordered) Lower court ordered child returned to Australia.
Mother appealed, appeal dismissed, child ordered returned to Australia.
UNITED
KINGDOM-AUSTRALIA: (2000) (Return Denied, Return Ordered on Appeal) DEPERTMENT
OF FAMILIES, YOUTH AND COMMUNITY CARE v BENNETT. Mother retains the child
in Australia. Father files for return under the Hague Treaty. Lower court
denies the return holding it would be "unwise"
for the mother to travel to the UK (health reasons). With the mother not
there, it would place the child in an 'intolerable situation". The
decision was reversed on appeal and the child was ordered returned to the
UK. The court felt that the courts of the UK were able to handle any concerns
raised by the mother.
UNITED KINGDOM(SCOTLAND)-CANADA:
(1986) (Return denied) KILGOUR v KILGOUR. (In Scotland,
The Child Abduction and Custody Act of 1985) (In Canada, The
Children's law Reform Act of 1982) Mother takes the children
to Scotland. Court rules against the return, stating that "I
do not however consider that these actions or their consequences
are controlled by the Convention in the present case, having
regard to the date from which the Convention came to have the
force of law in the United Kingdom" Children taken on or
about January 1986. The Convention went in to affect between
Canada and United Kingdom on August 1, 1986.
UNITED
KINGDOM-CANADA: (1987) (Return ordered) Father v Mother,
Mother takes child to England. Lower court ordered child returned
to Canada. He suspended the order by consent of terms, which
were agreed to by both parties. Mother later appeals the order
for return. Appeals Court dismissed the appeal.
UNITED
KINGDOM-CANADA: (1988) (Return ordered) MOTHER v DUNCAN.
Father took child to England. Court ordered child returned to
mother. This case involved the grandparents of the father as
well as other family members. The court ordered them to disclose
the whereabouts of the father and child.
UNITED
KINGDOM-CANADA: (1989) (Return ordered) HICKMAN v NEWELL.
Father is ordered to return the child to mother in England. Father
is ordered to pay court costs fixed at $1000.00 with stipulations.
UNITED
KINGDOM-CANADA: (1990) (Return ordered) Mother takes child
to England. Rights of custody were challenged. Mother held that
there could not be a breach of any rights of custody because
the right of custody resides in the mother. Court held that right
of custody does not have to be a person, it can be the mother,
father, a court, institution, etc. Child ordered returned to
Canada.
UNITED
KINGDOM-CANADA: (1992) (Return ordered on appeal) father
v mother. The mother took the child to England. Father applies
under the Hague Convention for return. The court refused to return
the child. The Court determined that the removal was not wrongful.
The Court also stated that to return the child would expose the
child to "grave risk". Father appeals. Child was ordered
returned on appeal.
UNITED
KINGDOM-CANADA: (1992) (ARTICLE 21 ACCESS) The mother had
been allowed by the Canadian Court to return to England with
the child, but had directed specific access to the father to
take place in Canada. After returning to England, mother refused
to comply with the access arrangements. English Court ordered
that access should take place in England. The Appeals Court questioned
what weight an access order form one State Party had on the other
State Party. Questioned the enforceability of such orders.
UNITED
KINGDOM-CANADA: (1996) (Return denied) MILLER v LAHAISE.
Mother takes children to Canada. After an interview with the
older child, the court was satisfied that the child had reached
an age of maturity and the child's wish to remain with her mother
should be taken into consideration. The Court dismissed the father's
application for return to England. (See footnotes by Mr. Hilton)
UNITED
KINGDOM-CANADA: (1997) (return denied on appeal and reconsideration
of 13b by trial court) JOHNSON v FOWLER-WINNING, Mother takes
child to England. The Mother admits to a wrongful removal. Child
is ordered returned to Canada, but in the mean time the mother
makes a personal appeal to the Court of Appeal. The Court allowed
her appeal. The Court of appeal returned the case to trial court
to consider an article 13b defense. The Court found that the
defense order 13b "has been established" and did not
order the return of the child to Canada. (See Mr. Hiltons comments)
UNITED
KINGDOM-CANADA: (1997) (Return denied) RS v PA. Mother took
the child and went into hiding. Mother was located in Canada.
The father applied for return of the child to England. During
trial, the father agreed that it was in the best interest not
to return the child to England. The court found it appropriate
not to return the child. Father however still wanted access.
Judge orders mother not to leave jurisdiction of Court and retained
jurisdiction until he could decide on access by the father.
UNITED KINGDOM-CANADA
(1998) JOHNSON V FOWLER-WINNING.
UNITED KINGDOM-CANADA-IRELAND:
(1998) (Return ordered) O'SULLIVAN v ANDERSON. Mother
left the marital home with the child and went "underground".
She was located in Canada. Father applies for return to Ireland.
Child is ordered returned forthwith.
UNITED KINGDOM-FRANCE:
(1992) (Return denied by the lower court,
upheld on appeal) (Age of maturity) The mother takes the child
to the UK from France. The father applies for the
return of the 9 year old girl under the Hague Convention. The
lower court denies the return. The father appeals. The appeal
was dismissed. Also
see
UNITED
KINGDOM-GERMANY: (1992) (return denied on appeal) (Acquiescence)
Child is taken to England. Child is ordered returned by the lower
court. Mother appeals, appeal allowed. The case was sent to the
"High Court for consideration whether the child should or
should not be returned to the jurisdiction of the German courts".
The appeals court decision runs contra to the Convention. (see
Mr. Hilton's footnotes)
UNITED
KINGDOM-GERMANY: (1992) (Return denied) H v H. Mother took
children to Germany. British courts ordered the children returned
to Germany in 1991. The father files in Germany for the return
of the children to England. The German courts deny the petition
for return. They cite a report from the Welfare Officer, Children
were interviewed, and the court requested a psychological report.
This decision seems to be contra to the vast majority of decisions
in most other Hague countries.
UNITED
KINGDOM-GERMANY: (1992) (return denied on appeal) (Acquiescence)
Child is taken to England. Child is ordered returned by the lower
court. Mother appeals, appeal allowed. The case was sent to the
"High Court for consideration whether the child should or
should not be returned to the jurisdiction of the German courts".
The appeals court decision runs contra to the Convention. (see
Mr. Hilton's footnotes)
UNITED
KINGDOM-GERMANY: (1992) (Return denied on appeal) This is
the decision of the appeals court for the above case, Intra3_uk.txt.
UNITED
KINGDOM-GERMANY-USA: (1997) (Diplomatic Immunity)
The Father is a US national, The Mother is a
German national. The father is a senior diplomat in the service of the United
States. The mother fears that the father will remove the children to the
US. The mother, however, wishes to take the children to Germany. The judge
rules the father has diplomatic immunity and that the mother is debarred
from arguing her case in the English courts.
UNITED
KINGDOM-GERMANY-USA: (1998) (Appeal
dismissed) (declarations) Same case as above. Mother has petitioned
the court in Virginia for an order of return of the children under the Convention.
The mother has sought a declaration from the English courts that the removal
of the children from England had been wrongful. The Court had determined
that the father had State based immunity which meant that the request for
a declaration was dismissed. It is that decision that the mother now appeals.
The appeal is dismissed.
UNITED
KINGDOM-GREECE: (1995) (Return denied) GREEK FATHER v ENGLISH
MOTHER. The father and mother both shared two residences, one
in London, England and the other in Corfu, Greece. Both parents
went to London for the winter and Corfu in the tourist season.
The father went back to Corfu and the mother, unknown to the
father did not follow, but rather stayed in London and started
divorce proceedings. The father filed for return. The court ruled
that the parents had in fact two habitual residences, London
and Corfu. The court ruled that "concurrent habitual residence
was a concept that could not fit in with the aims of the Convention".
The court ruled that at the time of the alleged retention, the
children were habitual residences of England.
UNITED KINGDOM-ICELAND-USA:
(1995) (Return denied) (habitual residence) AMERICAN FATHER
v ENGLISH MOTHER. The parents were living on a US navy base in
Iceland. The mother took the children to England. A Michigan
court had ordered the mother not to remove the children from
the US Naval base. The father applies for their return to Michigan.
The mother contends that the children were habitual residences
of Iceland, a non-Hague country. The court ruled that Iceland
was the habitual resident of the children and because Iceland
was not a signatory of the Convention, the Convention did not
apply. The father's application for return to Michigan was denied.
UNITED
KINGDOM-INDIA: (1996) (Habitual residence) This was before
the court on appeal. Lower court had said that the habitual residence
was England and Wales and ordered the child returned from India.
The appeals court found for the father and determined the habitual
residence was India.
UNITED
KINGDOM-IRAQ-USA: (1994) (Ordered that the child be taken into
custody should the father and child set foot in England)
US MOTHER v IRAQI FATHER. Father removes the child to Iraq. The
California court had ordered that the child not be removed from
CA without the permission of both parents or by leave of the
court. Court ordered the father to return the child forthwith.
Father agrees to come to England to discuss the future. Mother
applies to have the child turned over to her when the father
arrives in England. The question before the court was, could
the court make such an order before the father had arrived in
England? The court determined it had jurisdiction to do so under
the Child Abduction and Custody Act of 1985 and thus the Hague
Convention.
UNITED
KINGDOM-IRELAND: (1997) (Habitual residence) This case is
a question of habitual residence. Mother and father were not
married. The mother is resident in England when she dies. The
maternal Grandmother and Aunt take the child back to Ireland.
The court rules that England is the habitual residence and the
removal of the child was unlawful.
UNITED
KINGDOM-ISRAEL: (1990) (Return ordered on appeal) (Return to
a non-Hague Convention Country) Mother asks for the return
of the child to Israel. Israel was not a signatory of the Hague
Convention. The English court gave interim control and care to
the father and ordered the mother not to remove the child from
the courts jurisdiction. The mother appeals the decision. The
mother's appeal was allowed. The child was ordered returned to
Israel. This case relied on practices which the Australian courts
have adopted.
UNITED
KINGDOM-ISRAEL: (1993) (Return ordered) The mother and father
went to England on scholarships, both are scientists. The mother
refused to return the children after their time in England was
over. The father applied for their return. The court ordered
the children returned to Israel. The decision was up held on
appeal.
UNITED
KINGDOM-ISRAEL: (1994) (Return of the children affirmed) (Undertakings)
The Court of Appeals upheld the decision of the lower court that
had ordered the return of children to Israel. The court stated
that "Undertakings attached to an order for return of a
child under the Convention were designed to protect the child
for the limited period before the foreign court took over and
were not to be used to fetter or delay the enforcement of the
decision to return the child"
UNITED
KINGDOM-ISRAEL: (1996) (Return denied on appeal) (Acquiescence)
H. v H. The mother removed the children to England. The lower
court ordered the return of the children to Israel. The appeals
court overturned the lower court finding that the father did
in fact acquiescence. (See Mr. Hiltons footnotes)
UNITED
KINGDOM-ISRAEL: (1997) H. v H. the House of lords reversed
the decision of the appeals court and ordered the immediate return
of the children to Israel.
UNITED
KINGDOM-ISRAEL: (2002) (Return Ordered by Lower Court)
(Grave Risk) the mother took the child to the UK. The lower
court ordered the
children returned to Israel. The mother appeals the decision
citing
grave risk.
UNITED
KINGDOM-ISRAEL: (2002) (Return Ordered) (Grave Risk) (Return
to a country at war) (Intolerable Situation) "S"
A Child. This case is on
appeal from the High Court of Justice Family Division. The mother
had taken the child from Israel. The family court ordered the
return of the child to Israel. The mother claims grave risk to
herself and the baby if they are returned to Israel due to the
war like conditions. Also the child would suffer without the
"day to day care of the defendant". The appeal was
denied.
UNITED
KINGDOM-ITALY: (1996) (Return denied while an "appraisal
is run") COLLI v COLLI. The court did not order the
children returned, but rather ordered an appraisal to better
understand the relationship between the mother and father. This
"runs contra to the express purpose of the Convention, which
is to return a child to his or her 'habitual residence' (clearly
the UK here) and let the courts of the 'habitual residence' hear
evidence on the merits of the case" (See Mr. Hilton's footnotes)
UNITED
KINGDOM-ITALY:
(1999) (Return ordered) Bochford v Bochford The mother
removed the child from England to Italy. The court ruled that
the habitual residence of the child was England and that the
removal was unlawful. The court ordered the child returned.
UNITED
KINGDOM-ITALY: (1999) (Article 15) CANETTI v THORPE. The
Father applies to the English court for the return of the child
from England. The English court issued an order asking the Italian
court to provide an article 15 declaration attesting to weather
the minor child is being wrongfully retained out of the Italian
jurisdiction. The Italian court declared that the child was not
wrongfully retained out of the Italian jurisdiction pursuant
to article 3 of the Convention.
UNITED
KINGDOM-ITALY: (1999) (Article 15) (On appeal) CANETTI v
THORPE.The Italian court declared that the child was not wrongfully
retained out of the Italian jurisdiction pursuant to article
3 of the Convention. The father appeals the decision of the court. The court "rejects
the appeal filed by Mr. Mirko Canetti against the decree of the Milan
Juvenile Court dated March 24, 1999".
UNITED
KINGDOM-NETHERLANDS: (1991) (Return ordered) The mother took the children
to England for a visit. The father followed and the mother informed him
that she wanted to end their relationship and stay in England. The father
takes the children back to Netherlands. The mother applies for their return.
She had gotten a court order prior to children's removal, forbidding the
children's removal. The court ordered the child returned to England.
UNITED KINGDOM-NEW ZEALAND: (1997)
(Return ordered) (13b, grave risk)
(Age of maturity) NARAINE v NARAINE. The mother took the children to
New Zealand for a visit. The mother alleged abuse by the father. The father
applies for return under the Hague Convention. The court, after testimony
by a clinical psychologist, determined that the children, who have reached
an age of maturity, in the courts opinion, objected to the return to the
father rather than a return to England. The court ordered the return to
the English Central Authority in order to secure the safety of the children
until the matter was heard by the English authorities.
UNITED KINGDOM-NIGERIA:
(1995) (Return denied) (habitual residence) BURTIN v OYEKAN. The
mother took the children to the United States. The father applies for their
return to England. The mother holds that the children were not habitual
residences of England, but rather Nigeria where she feels they were settled.
The court ruled that Nigeria was in fact the habitual residence of the children
and dismissed the petition for return to England.
UNITED
KINGDOM-PAKISTAN: (1992) (Return ordered) (Non Convention case). The mother
took the youngest of three kids to England with out the fathers knowledge.
The father applied for their return under Children's Act of 1989. (Pakistan
was not a signatory of the Hague Convention) The court decided that the
children should go straight back to Pakistan. The mother appealed. The Court
of Appeals held that "it was settled law that the court must apply
the philosophy of the Hague Convention in non-Convention cases" the
appeal was dismissed.
UNITED
KINGDOM-PAKISTAN: (1995) (Wardship) (Habitual residence) The child was
sent to Pakistan to attend school. The mother wanted the child to return
to England and the father felt the child should remain in Pakistan. The
English court determined that it did have jurisdiction and awarded wardship
to the mother. It was determined that both parents were habitual residence
of England and that by attending school in Pakistan the child did not change
her habitual residence.
UNITED
KINGDOM-SUDAN: (1999) (Return ordered) (Non-Convention Country)
(Muslim Law) the mother took the three children to England. The
father applies for their return. The court orders the children
returned to Sudan. The mother appeals, the appeal is dismissed.
Court held that "the application of Muslim law to this Muslim
family was appropriate and acceptable".
UNITED
KINGDOM-SWEDEN: (1990) (Return denied) SHAMSI v HEIJKENSKJOLD-SHAMSIE.
The mother traveled to Sweden to visit. The mother informed the
father that she was going to remain in Sweden. The father applies
for the children's return. The court found that the retention
of the children was unlawful and that the father had been denied
his custodial rights. However, the court denied the return of
one child who had reached the age of maturity and had expressed
a desire to stay in Sweden. The other child's return was denied
because the court felt that by removing the younger child from
his sister and mother would cause a risk to his physical and
mental health.
(Return ordered for the son (age 9) denied for the daughter (age 13) The father appeals to the Sundsvall Administrative Court of Appeal. The court affirmed the lower court and refused to return the older daughter to the father. The court overturned the lower court's order not to return the younger boy to his father in England. The child is ordered returned.
UNITED
KINGDOM-SWEDEN: (1997) (Return to U.S. denied in Sweden, return
to Sweden ordered in England) The mother takes the children
to Sweden. The father applies for their return. Return denied
under article 13(b). The father files an appeal and the appeals
court reserved its judgement. The father then abducted the children
from Sweden and was stopped at the airport in England. The father
applies to the English court for the return of the children to
the U.S. The mother applies for their return to Sweden. The English
court ordered the children returned to Sweden. The father did
not seek a stay or appeal. He stated he would wait for the Appeals
court decision in Sweden. (See Mr. Hilton's extensive footnotes
on this case)
UNITED
KINGDOM-SWITZERLAND: (1988) (Return denied by lower court) (Return
ordered on appeal)(Age of maturity) RAJARATNAM v RAJARATNAM.
The mother took the two children to Switzerland. The father asked
for the return of the children under the Hague Convention. The
lower court denied the fathers petition bases on Article 13,
Paragraph 2 (Age of Maturity). The father filed an appeal. The
High Court reversed the lower court and ordered the return. The
mother appeals to the Supreme Court of Appeals. The court dismissed
the complaint on the merits.
UNITED
KINGDOM-USA (Switzerland): (1989) (Return
ordered) HAEFELI V WARREN. the father takes the child from England to the United
States. The mother applies for the return of the child. The court
orders the return to England or Switzerland. The court stated
that the father had legal rights, but they were in the courts
of Europe.
UNITED KINGDOM-USA:
(1989) (Return ordered) SHEIKH v CAHILL. The
father did not return the 9 year old child to the UK
following summer visitation in the US. The mother applies for
the child's return under the Hague Convention. The court ruled
that the childís habitual residence was the UK
and the retention was unlawful. The child is ordered returned.
UNITED KINGDOM-USA:
(1989) (Wrongful removal, Article
15) FATHER V MOTHER. The Father asks the English courts for a declaration that
the removal of the child from the UK was wrongful
within the meaning of article 3 of the convention. The court
granted the declaration.UNITED
KINGDOM-USA: (1989) (Return ordered) MOTHER v FATHER.
The English nanny, with the knowledge of the father, removed
the child from the United States to England.
(Note, DCT: This case is an example of the
speed at which The Hague can be applied if everyone does their
job.) The court ruled for the
return of the child to the United States. However, the court
had words for both the father and mother in regards to the welfare
of the child. The court also commented on the filing of "interlocutory
proceedings - especially ex parte interlocutory proceedings in
an attempt to obtain final orders on a summary or ex parte basis".
The court commented that in some cases moving too fast may not
give the Convention a chance to work as planned.
UNITED
KINGDOM-USA: (1991) (Return Denied) COLLOPY v CHRISTODOULOU.
The father seeks return of the child to the United Kingdom. Even
though the court determined the retention of the child in the USA was wrongful,
the court ruled that the child has settled in her new environment.
UNITED
KINGDOM-USA: (1991) (Access ordered) COSTA V COSTA. Father
withdraws his request for return to the United States under the
Hague Convention. Father seeks access. Court seeks to set up
an access plan in the UK to eventually include access in the
US. Court orders mother and father to share costs of visitations.
Court states that the mother should contribute to expenses of
any access in the US because "she is responsible for the
children being wrongfully brought here in the first place" UNITED KINGDOM-USA:
(1991) (Return ordered) KEANE V BRADLEY. The
father, with the mother's permission, took the child to the US
for a visit. The mother was assured that the child would be returned,
the father buying a return ticket for the child. When the father
got to the US he did not return the child as promised. The mother
files for return from South Carolina under the Hague Convention.
The child is ordered returned.
UNITED KINGDOM-USA:
(1991) MEREDITH VS. MEREDITH (return denied) WMH: "this appears to be the first case
that holds that concealing a child does not cause the place of
concealment to become the habitual residence of the child"
"see Curtis vs. Curtis (Miss. 1990) 574 So. 2d 24 for a
discussion of this point"
UNITED KINGDOM
-USA: (1992)(Return ordered) CROFTON V CROFTON. Mother removes
the children from the UNITED KINGDOM to USA. Father seeks relief
pursuant to the Hague Convention. Children are ordered returned
to the UK by the New York court.
UNITED
KINGDOM-USA: (1993) (Return Ordered) GRIMER v GRIMER.
Father takes child to the USA. Court orders the child returned to the
United Kingdom. Court also orders the father to give the necessary
information in order to solve any passport questions.
UNITED KINGDOM-USA:
(1993) (Custody rights) (Access) The father applied under Article
21 for an order that the mother "take all necessary steps
to facilitate access to his three children pursuant to an order
of the Superior Court of the state of California" The application
was dismissed. The court stated "It is not correct procedure
for the central authority to issue an originating summons in
the circumstances of the present case, since article 21 confers
no jurisdiction on a court to determine matters relating to access
or to recognize and enforce foreign access orders, the role of
the central authority is limited to one of executive cooperation".
The court said that the fathers application should have been
brought under the Children's Act of 1989.
UNITED
KINGDOM-USA-IRAQ: (1994) (Ordered that the child be taken into
custody should the father and child set foot in England)
US MOTHER v IRAQI FATHER. Father removes the child to Iraq. The
California court had ordered that the child not be removed from
CA without the permission of both parents or by leave of the
court. Court ordered the father to return the child forthwith.
Father agrees to come to England to discuss the future. Mother
applies to have the child turned over to her when the father
arrives in England. The question before the court was, could
the court make such an order before the father had arrived in
England? The court determined it had jurisdiction to do so under
the Child Abduction and Custody Act of 1985 and thus the Hague
Convention.
UNITED KINGDOM-USA-ICELAND:
(1995) (Return denied) (habitual residence) AMERICAN FATHER
v ENGLISH MOTHER. The parents were living on a US navy base in
Iceland. The mother took the children to England. A Michigan
court had ordered the mother not to remove the children from
the US Naval base. The father applies for their return to Michigan.
The mother contends that the children were habitual residences
of Iceland, a non-Hague country. The court ruled that Iceland
was the habitual resident of the children and because Iceland
was not a signatory of the Convention, the Convention did not
apply. The father's application for return to Michigan was denied.
UNITED KINGDOM-USA: (1995) (Article 15) (Jurisdiction)
Mother takes child to California. Father filed for the return
under the Hague Convention. California decided not to accept
the convention application due to a letter given the mother granting
her permission to leave England with the child. Father advised
to seek declaration from the English court that the removal was
wrongful. Courts had to decide if the English courts had jurisdiction
to make such a declaration. The mother appealed the declaration,
the appeal was dismissed.
UNITED
KINGDOM-USA: (1996) (fathers application granted) (Child
still missing) BROOK v WILLIS. The mother keeps the child
in the U.S. and, in doing so, breaks an agreement. The father
petitions the court for relief. The petition is granted. Because
the mother and child are still hidden from the father and the
courts, "A writ of habeas Corpus shall issue ordering the
[mother] to appear in this court with [the child] to show cause
why the child has been kept from [the father]." The court
orders the mother to appear with the child.
UNITED KINGDOM-USA:
(1997) (Return ordered) (Concurrent
original jurisdiction) MAHMOUD V MAHMOUD. Mother filed to have
her child returned to the UK. On the day of the State
court hearing the father filed a notice of removal with the State
and Federal courts. The father advised the State court that the
action had been removed. However, the State court judge still
ruled in favor of the mother and granted the mothers requested
relief. The mother returned to the UK. The father
moves to vacate the State court order (which the mother wants
to remain in place in order to make an application for attorney's
fees and costs. The Mother claims that the federal court lacks
subject matter jurisdiction and that the state court order is
valid. The court vacated the state court order and dismisses
the action as moot (the child had been returned to England) (See Lops
vs. Lops Court of appeals, eleventh circuit)
UNITED KINGDOM-USA: (1997) (Return
denied) (Settled In) (Age of maturity) ROBINSON V. ROBINSON. The mother takes the children
to the US. The court ruled that the removal from the UK
was wrongful under the Convention and ICARA. The Court addresses
"Settled In" and "Age of Maturity". Father's
petition for return is denied. See Bill Hiltons Notes
UNITED KINGDOM-USA-GERMANY:
(1997) (Diplomatic Immunity)
The Father is a US national, The Mother is a German national.
The father is a senior diplomat in the service of the United
States. The mother fears that the father will remove the children
to the US. The mother, however, wishes to take the children to
Germany. The judge rules the father has diplomatic immunity and
that the mother is debarred from arguing her case in the English
courts.
UNITED KINGDOM-USA-GERMANY:
(1998) (Appeal dismissed)
(declarations) Same case as above. Mother has petitioned the
court in Virginia for an order of return of the children under
the Convention. The mother has sought a declaration from the
English courts that the removal of the children from England
had been wrongful. The Court had determined that the father had
State based immunity which meant that the request for a declaration
was dismissed. It is that decision that the mother now appeals.
The appeal is dismissed.
UNITED
KINGDOM-USA: (1998) (Petition denied) (Access) BROMLEY
v BROMLEY. The father petitions for relief concerning his right
of visitation and custody of the children. The court finds that
they do not have jurisdiction over the relief requested by the
father.
Note: Wm. M. Hilton The Court, cites 42 U.S.C. 11603(a) (Jurisdiction of the Court) but neglects to cite 42 U.S.C. 11603(b): Here a Federal Statute specifically states that a Federal Court has the jurisdiction to secure " ... exercise of rights of access to a child ..." The court simply does not want to become involved in family law, holding itself aloof from such mundane affairs. This, while predictable, is unfortunate, since it is common ground that good access to a child is known to be one of the best tools to prevent abduction of a child. I would also differ in the court's argument that there is no authority under The Convention to implement access. The authority [therefore] exists in both The Convention and ICARA to implement access arrangements.
UNITED
KINGDOM-USA-SCOTLAND: (1998) BUCHANAN v BUCHANAN.
While the mother was in the hospital, the father took the children
to Edinburgh, Scotland. The mother petitions the court to "sist
the whole proceedings which had been raised in Scotland".
The court ruled in favor of the father, determining that Scotland
was the children's habitual residence and not New York, USA.
"There fore the court refused the mothers motion to sist
the present proceedings in the Court of Session".
UNITED KINGDOM-USA:
(1999) (return ordered) (Judicial
Collaboration) (Undertakings) Re M and J. Great Grandmother files
for the return of the two children to the US. The judge, by collaborating
with the American DA and courts, was able to order the return
of the children while safeguarding the welfare of the children.
Note: Bill Hilton, "This is the second known case under
the Convention where judicial collaboration has been used. The
first being Diab
vs Benoit (Canada 1996)"
UNITED
KINGDOM-USA: (2000) (Article 15 Declaration) WARNER
v RICHARDSON. The father files a motion to remand the underlying
action to wake County Superior Court. The petitioner's motion
to remand is granted.
USA
VENEZUELA VENEZUELA-USA:
( 1999), (Return denied) (Art. 13b, Grave Risk) RODRIGUES v RODRIGUES
The Mother takes the children to the United States. The father seeks the
return of the children to Venezuela. The court, after hearing testimony
and interviewing the son, age 12 and a half, rules that the removal from
Venezuela was wrongful but declined to return the three children because
of what felt was a grave risk to the mother and children. Bill Hilton's Comment: In my opinion, the trial court should have ordered the return of the children to Venezuela using a "safe harbor order" or "undertakings", e.g., that the children will be returned conditioned upon an action being raised in the family court in Venezuela and preliminary orders issued providing for the protection of the children and the abused spouse".
VENEZUELA-USA:
(2002) (Return Ordered) GIL v RODRIGUEZ. The mother took the child
to Miami, Florida, USA. The father located the child and her mother with
the help of a private investigator. The father applied for the child's return
under the Convention. The mother and father were not married. The father
initiated proceedings in Venezuela to define his custodial rights. The Superior
Court dismissed his petition. The Court of Appeals reversed the lower court's
decision and remanded the case back to Superior Court. The US court ruled
that there was a wrongful removal and ordered the child returned to Venezuela.
The court also ordered that the child be returned in a manner that is the
best interest of the child.
ZIMBABWE ZIMBABWE-AUSTRALIA:
(2002) (Returned Denied) (Diplomatic Immunity) CENTRAL AUTHORITY
v PROKOP. The mother takes the children to Australia for a visit and refuses
to return to Zimbabwe. The Central Authority applies for their return. The
court ruled that because diplomatic Immunity exists the courts in Zimbabwe
would not be able to hear custody matters.
