AC v NC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 21 April 2021 |
| Neutral Citation | [2021] EWHC 946 (Fam) |
| Court | Family Division |
| Date | 21 April 2021 |
| Docket Number | Case No: FD21P00039 |
[2021] EWHC 946 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Mostyn
Case No: FD21P00039
The Applicant appeared in person.
Paul Edwards (instructed by Major Family Law) for the Respondent.
Hearing date: 14 April 2021
Approved Judgment
This judgment was delivered in private. This anonymised version of the judgment has been prepared for publication on the Bailii website.
This application concerns K, a boy born in January 2017 (now aged 4). K's father, AC (“the father”), has applied for an order for K's immediate return to the USA under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The father, a USA national, lives in the USA and is a police officer. K currently lives with his mother, NC (“the mother”), in the north-east of England. The mother is a British national, and works for a software company. K is a dual national of both the USA and the UK.
The parents met and began their relationship in 2014, while the mother was on a work placement in the USA. They married on 16 November 2015 in State A in the USA, and initially lived there together after their marriage.
While the mother was pregnant with K in 2016, she went on a visit to England to see her family, and for medical reasons had to remain in England rather than return to the USA. K was consequently born in England, and his birth was registered there. The father travelled to England for K's birth and remained there for two weeks, but he then had to return to the USA for his work.
There is a minor factual dispute between the parties over when the mother returned to the USA with K. The mother says they returned in February 2018, when K was nearly 14 months old. The father says they first returned when K was nine months old, but that the mother then took K back to England when he was 18 months old and remained there until after his second birthday. I have not found it necessary to resolve this dispute. In any event, the parties resumed living together in the USA with K at some point between late 2017 and early 2019.
In April 2019, the parents separated. On 22 October 2019, they signed a “Marital Settlement Agreement” (“the agreement”), governed by the law of State A. That agreement compromised the parties' respective capital and income claims against each other, and also set out the future arrangements that would apply regarding the care of K.
Paragraph 3 of the agreement set out that:
“Upon finalization of Divorce, [NC] (Mother) and [K] (Child) will be relocating to the United Kingdom (UK), with agreement from [AC] (Father). We agree to Joint (50/50) Custody of Child, whereby Child will attend school in the United Kingdom, and have his school breaks in the USA with his Father.”
It further stated that each year K would make a minimum of three visits to see his father in the USA.
On 24 January 2020, a Family Magistrate sitting in the Circuit Court of State A heard an application which had been made by the mother for absolute divorce. On that occasion the agreement was approved by the court, as, no doubt, was the mother's application for a divorce. On 18 February 2020, the order reflecting those decisions (“the USA order”) was issued. This granted the mother the absolute divorce she had sought. The part of the order relating to the care of K reads as follows:
“…ORDERED, that the parties be awarded joint legal custody of the minor child of the parties, namely [K], born on [a date in January] 2017; and it is further,
ORDERED, that the Plaintiff [the mother] shall be the primary residential custodian, with reasonable rights of parenting time granted to the Defendant [the father]; and it is further
ORDERED, that the Defendant shall have parenting time in accordance with the terms of the Written Settlement Agreement dated October 22, 2019; and it is further,
ORDERED, that the Written settlement [sic] agreement dated October 22, 2019 be incorporated, but not merged, into this Judgment…”
The agreement was therefore specifically endorsed by the Court in State A, and formed part of the order which that Court made upon the parents' divorce.
On 27 January 2020, three days after the hearing before the Family Magistrate in State A, and in accordance with the agreement, the mother and K moved to England. They have lived at the mother's parents' house in the north-east of England since that time.
Unfortunately, in April 2020 the Covid-19 pandemic and subsequent lockdown and travel restrictions meant that the mother was not able to fly with K to the USA over Easter 2020, in accordance with the agreement. The mother had booked flights and was due to depart for the USA on 31 March 2020, but those flights were cancelled and so the trip did not go ahead.
The mother intended for K to travel to the USA over the summer of 2020, in accordance with the agreement. However, the quarantine obligations put in place because of Covid-19 meant that it was impossible for K to spend a full six-week period with the father, as it would have resulted in K missing the start of his first year at school in September 2020 while he was in quarantine following his return to England. (K was due to start at primary school in April 2020, but as a result of the school closures during the pandemic he in fact started there in September 2020.) The mother therefore suggested that K should spend a two-week period in the USA, but that was not acceptable to the father.
K was again due to fly to the USA during his school Christmas holiday, but the quarantine obligations once again made travel to the USA impossible.
The mother suggested that instead of K travelling to the USA for the summer and Christmas visits, the father could fly to England given that that would not result in K having to miss any school. However, that was not possible for the father because of his work commitments.
The mother has facilitated video contact between K and his father every other day, as well as video contact between K and his paternal grandparents.
On 29 October 2020, the father filed both a petition for contempt and a petition to modify custody at the Circuit Court in State A. He alleged that the mother had violated the USA order, and sought full custody of K. The mother responded to those petitions on 24 November 2020 and a settlement conference took place in State A on 11 February 2021. The proceedings in State A are ongoing. I asked the father to explain to me what was the jurisdictional foundation for the proceedings in State A given that, as I shall explain below, by October 2020, K was habitually resident in England and Wales, and had been for a long time. The father was not able to answer my question.
On 19 January 2021, the father also filed an application in England in Form C67 seeking K's immediate return to the USA under the Hague Convention.
The first hearing of that application took place before Nicholas Cusworth QC, sitting as a Deputy High Court Judge, on 28 January 2021. A hearing to determine K's habitual residence was listed.
A further hearing then took place before Arbuthnot J on 12 March 2021, at which the matter was adjourned and relisted. I then heard the application on 14 April 2021.
In section 4 of his Form C67 the father pleaded his case under the Hague Convention as follows:
“The father was married to the mother of the child and the divorce was finalised on the 4/ 1/2020 which activated the custody and contact agreement made as part of the divorce proceedings within the court in [State A]. The mother has failed to keep her side of this agreement and the father filed an application for full custody in respect of the child in the court in [State A] and dated 29/10/2020 before he was aware of the ability to issue Hague proceedings which are now issued for the return of the child to the USA. It is disputed that the child is now habitually resident in England as the mother's solicitors have asserted in a letter to the father because permission to relocate to England was only made on the basis on the agreement which has not been adhered to by the mother.”
The elementary rule
It is elementary that the 1980 Hague Convention can only be invoked where the child's habitual residence has not changed to the new state prior to the alleged act of removal or retention: see, among countless other authorities, In re L (A Child) (Custody: Habitual Residence) [2013] UKSC 75, [2014] AC 1017, at [17], where Baroness Hale of Richmond stated:
“It is not at all uncommon for there to be competing custody orders made in different jurisdictions, as there are here. Under the Convention, the tie-breaker is the habitual residence of the child. As the preamble to the Convention states, it was the desire of the States parties “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence”. Article 3 provides that:
‘The removal or the retention of a child is to be considered wrongful where — (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention… .’
Hence it is common ground that the father can only succeed in his application under the Convention if K was habitually resident in the United States on either 31 July or 29 August 2012 when the mother's disobedience of the Texan order became wrongful.”
Earlier, in the same vein, in Re G (A Minor) (Enforcement of Access Abroad) [1993] Fam. 216, a case with similar facts to the present case, Butler-Sloss LJ stated:
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