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 which is later over-turned on appeal? K was a child born in Texas and a US citizen. His father was a US citizen, and his mother of Ghanaian origin wih UK right of residence. After the marriage breakdown, M brought K to the UK, but a US court ordered his return to the US to be with his father. M appealed saying that K’s habitual residence was the UK. She succeeded, and returned with K to England. F appealed successfully, and asked the UK court to order his return again to the US.
Held: On F undertaking to make provision for M to live in Texas, the court ordered K to be returned to the US.
Habitual residence is not defined in the Convention, but UK (and European law) is that it is a question of fcat reflecting the extent of any settled integration by the child in a social and family environment. The parents’ intentions are part of this.
The judge had been entitled to hold as he had that K was habitually resident in the UK. The Convention alone would therefore not have entitled him to an order. However, the court retained a common law power to make the necessary order given the undertakings offered by the father.
Otherwise: In re L (A Child) (Custody: Habitual Residence)
Judges:
Lord Neuberger, President, Lady Hale, Deputy President, Lord Wilson, Lord Hughes, Lord Hodge
Citations:
[2013] UKSC 75, [2014] 1 AC 1017, [2014] 1 FLR 772, [2014] Fam Law 266, [2013] 3 WLR 1597, [2014] 1 All ER 999, [2014] 1 FCR 69, [2013] WLR(D) 475, UKSC 2013/0212
Links:
Bailii, Bailii Summary, SC Summary, SC, WLRD
Statutes:
Hague Convention on the Civil Aspects of International Child Abduction, Family Law Act 1986
Jurisdiction:
England and Wales
Citing:
Cited – Mercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .
Appeal from – DL v EL CA 16-Jul-2013
M had returned to the UK with her child on the strength of a US court order. F appealed successfully and now sought an order from the UK court for the return of the child.
Held: F’s appeal against refusal of an order failed. Acting under the . .
At First Instance – DL v EL (Hague Abduction Convention: effect of reversal of return order on appeal) FD 17-Jan-2013
F sought the return of his son K to the US. K had been brought here by M after a court order in the US,but the father subsequently appealed sucessfully, obtaining an order for K’s return. M said that the UK court had originally and correctly found K . .
Cited – A (Area of Freedom, Security and Justice) ECJ 2-Apr-2009
ECJ Judicial co-operation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Regulation (EC) No 2201/2003 . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – In Re S (Minors) (Convention On the Civil Aspects of International Child Abduction) FD 21-Jul-1993
(Child Abduction: Wrongful Retention) A failure by a parent to return a child to his country of residence can constitute a wrongful retention under the Convention. Where both parents have equal status in relation to the child, one parent can not . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – In Re M (A Minor) (Habitual Residence) CA 3-Jan-1996
An habitual residence dispute is a dispute on a matter of fact not of law. It cannot be settled by the choice of the parents. A child cannot acquire habitual residence in a country without actually being physically present in that country. . .
Cited – McKee v McKee PC 15-Mar-1951
(Canada) There was a choice open to the trial judge facing a contest for the custody of a child: ‘It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best . .
Cited – In Re K (Abduction: Consent: Forum Conveniens) 1995
An application was made to stay proceedings here for the return of a child to the other parent’s country of jurisdiction on the ground that the question has already been determined, or that it is more appropriate for it to be determined, in . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited by:
Cited – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 05 May 2022; Ref: scu.518638