The application related to twins born in Venezuela in 1999 to married Venezuelan parents. In 2005 the mother petitioned for divorce after meeting an American man via the internet. Pursuant to the divorce decree the mother was granted physical custody of the children but both parents were accorded the power of patria potestas. The father was granted unlimited visitation rights and a right of veto over the removal of the children from the jurisdiction.
In 2006 the father agreed to the mother taking the children to the US for a marriage ceremony in Florida. However, the mother instead took the children to Illinois where she retained them and married her American boyfriend.
The father’s return petition was suspended mid trial when the parties reached a settlement over the future of the children whereby they would spend vacations in Venezuela, with the mother and her new husband assisting with the travel costs. A clause in the agreement provided that Hague proceedings could be resumed if the mother failed to abide by the terms. A further clause specified that the children’s habitual residence would transfer to Illinois. A judgment was then granted dismissing the return petition.
The mother did not abide by the agreement and in early 2008 the father issued proceedings to have the judgment dismissing the return petition set aside on the basis that it had been obtained by fraud. This motion was granted and the US District Court for the Central District of Illinois then proceeded to order the return of the twins, finding their retention to be wrongful and that none of the exceptions had been established. The mother appealed.
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