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(Court of Appeal, Thorpe, Arden, Beatson LJJ, 16 July 2013)
The Ghanian parents married and had a child in the USA. When the father, who served with the US Air Force, was posted to Afghanistan, the mother took their child to the UK and sought immigration status. The US court awarded custody of the child to the father but once the child had travelled back to the USA the mother applied for a return order pursuant to the Hague Convention 1980. Surprisingly, a return order was granted and the mother returned with the child to the UK while the father appealed. The mother argued that the father's appeal was academic as the child's habitual residence was now established in the UK.
The father's appeal was allowed by the United States Court of Appeal for the 5th Circuit but the mother failed to comply with the return order and sought to renew her argument that the father's appeal had been moot. The mother's failure in the US Supreme Court and the father's failure to achieve a return order from the English court left the two decisions in conflict. The child had now resided in the UK for almost 2 years. The father appealed the decision of the English court.
The development of domestic and international law had steadily displaced other tests such as nationality and domicile in favour of habitual residence. There was now no distinction between domestic law, the test of the Court of Justice of the European Union as expounded in A (C-523/07) and Mercredi v Chaffe and the autonomous law of the Hague Convention.
The introduction of an element of permanence to the test was not one that existed in the original judgment of Mercredi and appeared to raise an issue of translation with the English version.
The child's removal from the USA had been sufficient for him to lose his habitual residence there considering that it was a lawful removal pursuant to an order of the court and that the father co-operated in his departure.
It was artificial to assert that the effect of the appellate decision was to render a lawful removal wrongful and that the father was exercising rights of custody prior to the issue of his Hague Convention application and/or at the date of trial. The language of Art 3 of the Convention did not support that interpretation. The Convention was never foreseen or intended to be used in the instant circumstances. Once there had been a lawful departure, annulled 12 months later by a successful appeal, only Art 18 provided a remedy for the successful appellant.
Ideally the judge would have referred to the protective undertakings and the extent to which they would have resulted in the mother and child returning together. However it was doubtful whether any protective undertakings would have cleared the obvious impediments. There was insufficient evidence to allow any welfare conclusion to be drawn. Whether a case required further investigation, further evidence or more expertise was essentially one for the discretion of the trial judge who bore the responsibility for the outcome of a welfare based judgment.
The appeal was dismissed.
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