Re L (A Child) (Custody: Habitual Residence)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Hughes,Lord Neuberger,Lady Hale,Lord Wilson,Lord Hodge
Judgment Date04 December 2013
Neutral Citation[2013] UKSC 75
Date04 December 2013

[2013] UKSC 75

THE SUPREME COURT

Michaelmas Term

On appeal from: [2013] EWCA Civ 865

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Wilson

Lord Hughes

Lord Hodge

In the Matter of KL (A Child)

Appellant

Richard Harrison QC

Jennifer Perrins

Samantha Ridley

(Instructed by Bindmans LLP)

Respondent

Henry Setright QC Michael Gration

(Instructed by Freemans Solicitors)

Intervener (Reunite International Child Abduction Centre)

Teertha Gupta QC

Edward Devereux

Michael Edwards

(Instructed by Lyons Davidson)

Heard on 18 November 2013

Lady Hale (with whom Lord Neuberger, Lord Wilson, Lord Hughes and Lord Hodge agree)

1

How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") which is later over-turned on appeal? It might be thought that this is a somewhat rare and esoteric problem, but it could arise whenever the enforcement of the foreign order is not stayed pending an appeal. We have no means of knowing how common this combination of events is among the States party to the Convention, but it would appear from the facts of this case that it is not at all uncommon in the United States of America, the country which handles the greatest number of cases under the Convention (England and Wales being next on the list).

The facts
2

We are concerned with a little boy called K. He was born on 7 August 2006, so is now aged seven. He was born in Texas and is a citizen of the United States of America. His parents are both of Ghanaian heritage. His father is a US citizen and holds the rank of Lieutenant Colonel in the United States' Air Force. His mother came to this country from Ghana with her parents when she was aged four and has indefinite leave to remain here.

3

The parents married in Texas on 28 December 2005. The father was stationed at the Lackland Airforce Base at San Antonio at the time. He has an older son, KWE, from an earlier relationship and the family all lived together in Texas. From May to September 2007, the father was posted to Iraq and so the mother looked after K in the matrimonial home. From October to December 2007, the mother took up a short-term post in England and so the father looked after K in the matrimonial home.

4

The marriage broke up in 2008. The father issued divorce proceedings in the Texas state court in March 2008. He then learned that he was to be posted to Afghanistan from June 2008 until August 2009, so the parents agreed to temporary orders made in the Texan court. Although these gave the mother authority to determine K's residence "without regard to geographic location", they clearly envisaged that the mother and K would continue to occupy the matrimonial home in Texas. Despite this, in July 2008, the mother removed K and herself to London, where they remained until February 2010, when she was ordered to return the child to Texas for the purpose of completing the divorce proceedings. In the autumn of 2008, she applied to the immigration authorities here for K to have indefinite leave to remain, stating that she was unable to give the father notice of the application because of his deployment in Afghanistan, when in fact the agreed order provided for him to have contact with K during K's spring break in March 2009. When the time came for that contact, the mother resisted it. The father had to obtain a further order from the Texas court clarifying the position and then an order in the English court to enforce it. According to the United States Court of Appeals, the mother also gave conflicting accounts of her intentions, stating to the English authorities that she intended to remain here and to the Texan court that she hoped to maintain permanent residence in the US.

5

A Texan divorce decree was granted in July 2009, as appears from the judgment of the Court of Appeals because the mother had said that unless she was divorced and given custody, K was due to be deported from the UK imminently (there was nothing in the record to support this statement, which is implausible in the extreme). This was always without prejudice to the father's right to claim custody on his return from Afghanistan, and in fact the decree was vacated in August. A welfare-based custody hearing took place on 1 and 2 March 2010. Both parties were represented and the proceedings were governed by the best interests of the child. The mother raised no objection to the court's jurisdiction. The judge decided that it was in K's best interests that his father should have the exclusive right to designate his primary residence. Clearly, she cannot have been too concerned that by then K had been living with his mother in London since July 2008. She concluded that the father was the parent who would best promote the child's relationship with the other parent. In her words, "my great concern is that the testimony I have heard here today, to a certain extent, does not speak as loud as the actions do". She found that there was a risk of international child abduction by the mother. The mother had taken or kept K away in violation of the father's right of possession or access; she had engaged in plans and activities to facilitate K's removal from the US while the father was in Afghanistan; she had strong ties to Ghana, a country which was not party to the Convention; she had no strong ties to the US and had undergone a change in status with the US immigration authorities which would adversely affect her ability to remain there; she had testified that she was not obliged to abide by the Texas court order; she had resisted the clear terms of the Texan access order; she would interfere with the father's rights as custodian. The order provided for K to have contact with his mother, for the mother to pay the costs of his international travel in lieu of child support, and for her to post a $25,000 bond as security for K's return.

6

After the hearing, K remained living with his father in Texas from March 2010 until August 2011, but spending his summer vacation in England and Christmas and New Year with the mother. The mother lodged an appeal against the Texan court's order but that appeal was never heard. Instead, the mother applied to the United States Federal District Court for an order under the Convention. She alleged that K had been habitually resident in England in March 2010 and that by acting upon the Texan court order the father was wrongfully retaining him in Texas. In a decision described by Thorpe LJ in the Court of Appeal as "bizarre in the extreme", the District Court accepted this argument and ordered the father to deliver K and his passport to the mother immediately so that she could return with him to England. That order was communicated to the parties on Wednesday 10 August 2011. K was in fact having contact with his mother then. The father delivered K's passport to her on Friday 12 August and she and K flew to England on Sunday 14 August. They have lived here ever since.

7

The father did not apply for a stay of the District Court's order but he did lodge an appeal with the US Court of Appeals for the Fifth Circuit. That appeal was eventually determined on 31 July 2012. The mother did not contest the substance of the father's appeal. She merely argued that it was moot, given that the return order had been put into effect. The Court of Appeals rejected that argument. They held that the mother had consented to K's retention in the United States because she had consented to the Texan court's deciding the case. They also held that K had still been habitually resident in the United States in March 2010; their approach to this question is not without interest:

"We join the majority of circuits that 'have adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence'. Nicolson, 605 F 3d at 104 & n 2 (collecting cases). This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. For example, parents' intentions should be dispositive where, as here, the child is so young that 'he or she cannot possibly decide the issue of residency.' Whiting, 391 F 3d at 548–49 (citing English case that looked to parents' intentions because the child was 'two and one-half years old at the time of her abduction'). In such cases, the threshold test is whether both parents intended for the child to 'abandon the [habitual residence] left behind'. Mozes, 239 F 3d at 1075, see also Whiting, 391 F 3d at 549–50."

The record clearly established that K's presence in the UK was to last for a limited duration, that the father never agreed to any other arrangement, and that there were no circumstances to justify departing from the courts' general practice of finding no change in habitual residence in such cases. Hence by acting upon the Texan court's order the father was not wrongfully retaining K in breach of the mother's rights of custody. The District Court's order was vacated.

8

On 29 August 2012, the District Court made an order requiring the mother to return K to his father in the United States and thereafter to comply with the terms of the Texan court's order. The order of 29 August 2012 remains in force and the mother is in breach of it.

9

The mother filed an appeal to the United States Supreme Court against the decision of the Court of Appeals, asking that her case be consolidated with that of Chafin v Chafin, which raised the same issue of whether such appeals were moot. Her case was not consolidated with Chafin, but held in abeyance pending the outcome. Chafin was in fact decided by the Supreme Court in February 2013: Chafin v Chafin 568 US ___ (2013). The Court held that such appeals were not moot. Giving the unanimous...

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