US custody agreement opens the door for a child to remain in England
Case ref  EWCA Civ 2177
In proceedings brought under the Hague Convention, Amanda Dench represented a mother who had been accused of the wrongful abduction of her son from the USA to England and who was appealing a decision by the court to return the young boy to his father in the USA.
The Court of Appeal looked at whether:
- the child’s place of habitual residence was the USA;
- the father had acquiesced regarding the child’s move to England; and
- there was a grave risk that returning to the USA would place the child in an intolerable situation.
By way of background, the mother had grown up in England, but moved to the USA before meeting and marrying the child’s father in 2011. The couple moved around a lot, enjoying a ‘nomadic or peripatetic lifestyle’ until October 2015 when the mother returned to England to access maternity care under the NHS. After the baby was born, she returned in February 2016 to a home in a new location in the USA, and spent a couple of months with her husband before returning to England without notifying him.
The father commenced divorce proceedings in autumn 2016, and the divorce agreement came before the American court for approval including ‘full legal and physical custody of the child’ for the mother and visitation rights for the father. The final decree was issued in January 2017.
The mother and child remained in England, where the mother had a stable support network of friends and family, and the child started to attend a toddler group. As the father had moved into a mobile home in another new location, she was concerned about the potential loss of security and support, as well as her immigration status post-divorce and access to medical care in the USA.
The mother’s trip to England for healthcare had not established their habitual residence as being in England. As the child’s place of habitual residence was then the USA, this remained a case of ‘wrongful removal’ and this was upheld at the appeal.
In considering whether the father had acquiesced, the judge accepted that the formal divorce agreement supported the mother’s position. It was held that “The agreement, in giving ‘full legal and physical custody’ to the mother, with mere summer vacation visitation rights to the father, determines that the mother will be sole custodial parent at a time when both parents knew that she intended to stay in England. Further, the limitation of visitation rights solely to the ‘summer break’, strongly suggests that the child will not be in the US at other times; it is difficult to see of any other reason for otherwise limiting the ability of this father to see his child at other times of the year or on a regular basis.”
Risk to child
In considering whether there was a ‘grave’ risk that returning to the child to the USA would place the boy in an ‘intolerable’ situation, the judge found that as the child was young enough that it would not be very difficult to resettle back in the USA and, accepting the father’s undertakings, there would be no ‘grave risk’.
However, it was accepted that for the mother to return to the USA in ‘straitened circumstances’ and with a ‘precarious immigration status’ this would have an adverse impact on her ability to care for her son, but would not be ‘intolerable’.
Discretion of court
Because of the acquiescence, the question of whether there should be an order to return the child to the USA was at the discretion of the court.
It was also recognised that the American divorce had awarded full custody to the mother, and ‘contemplation of the mother and child living in very straitened circumstances in a trailer park, in a part of the States which is wholly unfamiliar’ added to the case against ordering a return of the child.
In consequence, the court exercised its discretion and the mother’s appeal was allowed and they have been able to stay in England.
Click here to read the full case report: https://www.bailii.org/ew/cases/EWCA/Civ/2017/2177.html
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