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The judgment in KL (A Child) UKSC 75 (on appeal from  EWCA Civ 865) has been released today by the Supreme Court which concludes (in the UK at least) proceedings in relation to a child who was brought here pursuant to an order made in the USA in proceedings under the Hague Convention which was later overturned on appeal. It seems the courts are grappling more frequently with issues of nationality, habitual residence and whether to utilise the inherent jurisdiction.
Recently in A v A (Return Order on the Basis of British Nationality)  EWHC 3298 (Fam),  1 FLR (forthcoming) the Supreme Court remitted a case to the first instance judge for determination of whether the court should exercise its discretion to order a youngest sibling's return to the UK from Pakistan on the basis of his British nationality.
Ordering immediate return of the child and his siblings, the court held that England was the most appropriate place to determine matters; the older children having spent their lives in the jurisdiction and the mother likely to experience a range of difficulties litigating in Pakistan.
Similarly, O v O (Abduction: Return to Third Country)  EWHC 2970 (Fam),  1 FLR (forthcoming and reported in January  Fam Law) tackled the issue of whether a return order could be granted in respect of returning a child to a country she had not yet become habitually resident in. In applying a purposive interpretation of the Hague Convention, Keehan J found that the Convention, properly interpreted permitted the court to order the child's return for a welfare determination. Even if that interpretation was not permitted the court would order a return pursuant to the inherent jurisdiction, on the basis that it was overwhelmingly in the child's best interests to be returned.
Turning to KL (A Child), the proceedings concerned K a boy, born in 2006 in Texas and a US citizen. K's father was also a US citizen of Ghanaian heritage; his mother came to the UK from Ghana as a child and had indefinite leave to remain in the UK. The parents married in Texas in December 2005 and lived there until the marriage broke up in 2008.
An order was made by consent that the mother would look after K (in the former matrimonial home) while the father was posted to Afghanistan on military service. In July 2008 the mother took K to London. In March 2010 a welfare-based custody hearing took place in the Texas court. The judge in those proceedings decided it was in K's best interests to reside with his father and have contact with his mother, and accordingly K moved back to the USA.
The mother applied to the US Federal District Court for an order under the Convention, alleging that K had been habitually resident in the UK in March 2010 and had been wrongfully retained in Texas by his father. The argument succeeded in the district court in August 2011 and the father complied with the order to return K and his passport to the mother.
The mother then returned to the UK with K and remained here. The father appealed the order and the US Court of Appeals for the Fifth Circuit overturned the decision of the district court and ordered K's return to the USA. The mother did not comply, so the father issued applications under the Convention in the UK.
He argued that the mother's retention of K in the UK was wrongful as K's habitual residence had remained in the USA. He further argued that the UK court should exercise its inherent jurisdiction to return K to the USA in the circumstances of the case, even if it was not required to do so under the Convention.
In January 2013 the judge in the High Court dismissed the father's applications, and this decision was upheld on appeal to the Court of Appeal. The Supreme Court granted the father permission to appeal on the grounds that K had been wrongfully retained in the UK after August 2012 under the Convention and/or that the court should order his return to the USA under its inherent jurisdiction.
The Supreme Court unanimously allowed the appeal by the father and ordered the return of K to the USA on the basis of undertakings offered by the father to enable the mother to live in Texas independently of him and share the care of K between them.
Under Convention proceedings, the father's application could only succeed if K was habitually resident in the USA when the US Appeals court overturned the earlier order of the district court in the mother's favour.
The Convention did not define habitual residence but the UK applied the concept of habitual residence that it was a question of fact and corresponded to the place which reflected some degree of integration by the child in a social and family environment. Parental intention played a part in establishing or changing a child's residence and this had to be factored in together with the other relevant factors in deciding whether a move from one country to another was sufficient to amount to a change of habitual residence.
In this case, the mother intended her move to the UK in August 2011 with K to be permanent for both of them, notwithstanding the appeal. K was integrated into a social and family environment and the judge was entitled to hold that K had become habitually resident in the UK by August 2012. Accordingly the father was not entitled to an order for K's return under the Convention.
Under the Family Law Act 1986 the High Court had power to exercise its inherent jurisdiction by virtue of the child's habitual residence and presence here. The existence of an order made by a competent foreign court was a relevant factor.
The question to be considered was whether it was in K's best interests to remain in the UK, so the dispute between his parents was decided here, or to return to Texas so that the dispute could be decided there.
The approach and procedure of the Texan and English courts were very similar and the father's evidence was that an application by the mother in Texas would be decided in less than 3 months. In favour of K remaining in the UK was the fact that he had been living here for over 2 years and was doing well in school. In favour of return to the USA was the fact that K was born in Texas, had an extended family there and had spent half his life living there with his father, who had facilitated contact with the mother.
The crucial factor was that K was a Texan child who was being denied a proper opportunity to develop a relationship with his father and with his country of birth. While the conflicting orders remain in force he had effectively been denied access to the USA. It was necessary to restore the synthesis between the two jurisdictions which the mother's actions had distorted.
There was no reason to believe that K would suffer any significant harm by returning to Texas and accordingly the Supreme Court allowed the appeal and ordered K's return on the basis of the father's terms. The father incidentally had offered to enable the mother to live in Texas independently of him while K could divide his time between them in a shared care arrangement pending the decision of the Texan court. This order was to stand whether the mother chose to return to Texas or not.
The culmination of delay and the subsequent back and forth between jurisdictions in this case certainly did not make for comfortable reading when considering K's stability.
The full judgment is available here.
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