A recent appeal by a father to allow him to secure the return of his child to the USA from England has failed.

By way of background to the case of DL v EL [2013] EWCA Civ 865, the father and mother of the child, known as K in the case reports, are both of Ghanaian origin. A Lieutenant Colonel in the US Air Force, the father is a US citizen and married the mother in 2005 before having K in 2006. The mother is a legal immigrant with indefinite leave to remain in the UK; she works as a social worker.

After filing for divorce in March 2008, the father was then posted to Afghanistan with the US Air Force in June 2008, leaving the mother and his son in the USA. The mother returned to London, UK the following month with their son for an ‘extended stay’. It was during this time that the mother attempted to secure K’s right to remain in the UK.

The father was awarded residence at the conclusion of the divorce and Children Act proceedings which finalized in March 2010.  Concerns were raised in respect of the mother’s behaviour, namely her attempt to seek an immigration status for K, as well as preventing contact between K and his father. The mother’s conduct was heavily criticized by a US Judge.

The mother issued an application for a return order under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, (Hague Abduction Convention) the mother successfully argued that by the time residence was granted to the father in 2010, K’s ‘habitual residence’ was already in the UK.  She also asserted that the father had wrongly retained K in the USA by relying on the order granted in March 2010.

The Hague Abduction Convention was developed by the Hague Conference on Private International Law.  It basically provides a way for a child to be returned when they have been internationally abducted by a parent from one of the member nations to another. Habitual residence of the child must be established in the country to which the child is to be returned and it only applies to children under the age of 16.

The mother was successful in her application, a decision later described by Lord Justice Thorpe as ‘bizarre in the extreme’. Thus the father was ordered to return K to his mother along with K’s passport. A few days after the order was granted the mother and son returned to the UK.

The father appealed the decision and the mother was ordered to return the child to the father. The Mother did not comply with this order and failed to return the child. She simply sought to reiterate that the father’s argument was ‘moot’ as it is termed in the US. High Court Judge Sir Peter Singer accepted that the child was already habitually resident in the UK.

Her failure in the US Supreme Court and the Father’s failure to obtain a return order from the UK courts left the US and UK courts in direct conflict with one another. It was noted by Lord Justice Thorpe that K had remained in the UK since August 2011, without interruption. Lord Justice Thorpe ruled that Sir Peter Singer’s judgment was correct; K had been lawfully removed from the USA. He also ruled that the later decision made by the US Court of Appeal did not affect that.

Lord Justice Thorpe described the case as ‘extraordinary’ and stated that it raised legal questions in respect of the status of orders to return children which had not been considered in English Law prior to this case.

If you are having problems with regard to the residence of your children, the experienced family law solicitors at Farleys can help. For legal advice on child custody or Child Care Agreements, do not hesitate to contact us.