Trans-atlantic custody battle

Posted: 5th August 2013

US AirportAn extraordinary trans-Atlantic struggle between the parents of a six-year-old boy - which set English judges in direct conflict with the United States Supreme Court – has been finally resolved by a Court of Appeal ruling that the boy is habitually resident in England and should remain in this country with his mother.

The mother, a social worker, and the father, a lieutenant-colonel in the US Air Force, separated in 2008 and the mother took her son to live in England between July 2008 and March 2010. The parents’ divorce was finalised in 2010 by a Texas court which was highly critical of the mother’s conduct, awarded the father custody of the boy and granted him the exclusive right to designate his son’s place of residence.

Nevertheless, the mother later issued an application in America under the 1980 Hague Abduction Convention, asserting that her son was habitually resident in England and that the father had wrongfully retained him in Texas. Her application was granted in August 2011 and the father was required to deliver up the boy to his mother who swiftly returned with him to England where they had since remained.

The father subsequently mounted a successful appeal against the return order to the United States Court of Appeal for the 5th Circuit. The mother’s appeal against that decision was dismissed by the United States Supreme Court; however she failed to comply with the Court’s order for the boy’s return to America.

The father’s application to the English High Court for a return order was dismissed on the basis that the boy was habitually resident in England. That ruling left the respective orders of the English and US courts in direct conflict in that the mother and father had each been granted residence orders respectively in England and America.

In dismissing the father’s appeal, the Court of Appeal noted that the procedural history of the matter was ‘on any view extraordinary’. The Court rejected the father’s plea that his invocation of the appellate process in America meant that his son had retained his habitual residence in the United States.

The Court noted that the boy’s removal from America by his mother had been lawful and that the father had co-operated in his departure, albeit under the compulsion of a court order. The boy had previously been resident in England for an extended period and had in all probability acquired habitual residence in England by the date of the filing of the father’s appeal. It was ‘almost fanciful’ to label the boy’s residence in England between the summer of 2011 and the summer of 2012 as conditional upon the outcome of the father’s appeal and therefore transient.