On appeal from: [2013] EWCA Civ 865

This appeal concerned proceedings under the Hague Convention on the Civil Aspects of International Child Abduction. The child in question was born in Texas, and is a US citizen. His father is also a US citizen, and his mother is Ghanaian with indefinite leave to remain in the UK. After the breakdown of the parents’ marriage, a Texas court deemed it was in the child’s best interests for him to reside with his father in the US. The child’s mother applied for an order under the Convention, alleging the child had been habitually resident in the UK when the US custody hearing was held, and that the child had been wrongfully retained in Texas. This was successful in the US Federal District Court and the child was returned to the UK. The father then issued applications in the UK under the Convention.

The Supreme Court unanimously allowed the father’s appeal, ordering the return of the child to the US on the basis of the undertakings offered by the father to enable the mother to live independently in Texas, sharing the care of the child between them.

Regarding the Convention proceedings, the judge had been entitled to hold that the child had become habitually resident in the UK at the time when the original order was overturned in the mother’s favour, and so the father was not entitled to an order for the child’s return under the Convention.

However, the judge did not ask the correct question – whether it is in the child’s best interests to remain in the UK, so the dispute between his parents can be decided here, or whether he should return to Texas so it can be decided there. Although the child has been living in the UK for over two years and is doing well at school, he has a large extended family in the US and has spent half his life living there, and while the conflicting orders are in place it denies him a proper opportunity to develop a relationship with his father and his country of birth.

For judgment, please download: [2013] UKSC 75
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII