K v M

I am concerned with an application by K, the father of AB, an eighteen month old boy, for AB’s summary return to the United States of America (“USA”) pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”).

The Respondent, M, is AB’s mother. She opposes the application on three grounds: first that AB was habitually resident in the UK at the date of the removal / retention; secondly that the father consented to, or subsequently acquiesced to, the relocation; and third that AB would be at grave risk of harm or otherwise placed in an intolerable situation were he to be returned.

This judgment was circulated in draft electronically on Thursday 10^th October and is handed down today 19 November 2024.

I read the evidence in the court bundle and viewed the video exhibits at DC2 – DC7. I heard submissions from Ms Logan Green on behalf of the father and Ms Courtney on behalf of the mother. Both the father and the mother attended the hearing, The father attending by video link from the USA.

I was invited at the start of the hearing by Ms Courtney to hear live evidence from the father so he could be cross-examined by her as to the support he could provide to the mother in the event that I were to order return. Ms Logan Green opposed this on the basis that the father has voluntarily offered a sum of financial support to the mother were she to return and should not be cross-examined on a voluntary undertaking. I decided that it was not necessary for me to hear the father’s evidence in relation to his financial offer; if there were any queries about the undertakings offered by the father, Ms Logan Green would be able to take instructions during the course of the hearing.

During the course of her submissions, Ms Courtney also referred me to ZJ’s witness statement, noting that she was in court (via video link) should her evidence be required. Neither party sought to call her and I did not consider it necessary to do so.

The key elements of the factual background to this application are as follows.

The father and the mother met online in 2020 while the mother was working as a nanny in Virginia. They married on 23 February 2022 in the USA. The mother moved in with the father and his mother (paternal grandmother) in Maryland. The child, AB, was born in America on 25 April 2023. AB is a dual US/UK citizen. He holds both US and UK passports.

On 13 November 2023 the mother travelled to the UK, with AB. The father made an application on 18 January 2024 in the Circuit Court for Frederick County, Maryland seeking legal and physical custody of the child. On 22 February 2024, the mother was served with the application. An Order was made on the 22 March 2024 granting the father physical custody of the child. Divorce proceedings, initiated by the father, are pending.

The father applied to the Central Authority on 12 April 2024 and subsequently issued this application.

The USA and the UK are signatories to the 1980 Convention. The fundamental objectives of that Convention as set out in Article 1 are:

“(a)

to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Article 3 explains that removal or retention is wrongful if:

“(a)

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention”.

Article 12 provides that where a child has been wrongfully removed or retained under Article 3: “[…] the authority concerned shall order the return of the child forthwith […] unless a defence is established by the person who so acted.”

The cardinal purpose of the 1980 Convention, as set out in Article 1, is to secure the prompt return of children wrongfully removed or retained to the country with which the child has the closest link, so as to ensure it is that jurisdiction which makes the substantive decisions regarding the child’s welfare where a welfare dispute arises.

As pointed out by Mr Justice Mostyn in B v B [2014] EWHC 1804 it is always important to remember that a decision by the court to return a child under the terms of the Convention is, nor more and no less, a decision to return the child for a specific purpose and for a limited period of time pending the court of his or her habitual residence deciding the long-term position.

The mother asks me not to make a return order on three bases:

A removal will only be wrongful for the purposes of Art 3 of the Convention if, immediately prior to the removal or retention of the child, that child was habitually resident in the State from which the removal or retention took place. It is therefore necessary to start any analysis of habitual residence by determining the date on which the retention or removal took place. In this case, both parties agree that the father consented to the mother taking the child to the UK. What is in dispute is whether the father was consenting to a two-week holiday or a more permanent relocation. Ms Logan Green submits that the unlawful retention occurred on either 25 November – the date the mother confirmed in a message to the paternal grandmother that she was remaining in the UK indefinitely - or 27 November, the expiry of the two-week period. Ms Courtney did not disagree with those dates. I agree that habitual residence falls to be determined on either 25 or 27 November – the precise date makes no difference to the analysis.

There is a significant amount of case law on the concept of habitual residence. I repeat here the summary of the law taken from a recent decision of MacDonald J in NMvSM [2023] EWHC 2209 (Fam)):

I have also considered the guidance on determining the habitual residence of an infant in the Mercredi v Chaffe case before the CJEU where it was held that:

“where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State.”

There is no dispute that AB’s place of habitual residence prior to 13 November 2023 was the USA. The burden of proof is therefore on the mother as the person asserting that a change in habitual residence has taken place. The mother’s case is that AB acquired habitual residence in the UK within the 11 day / two-week period between arriving in the UK and the mother deciding to stay in the UK / failing to return to the US. Ms Courtney relied on the fact that habitual residence can be obtained instantaneously, and that it is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent. Ms Courtney argued that in this case AB obtained habitual residence on the date he landed from the USA as it was clear that the mother did not intend to return. She relied on the fact that the mother is British and the child is dual British / US national, that at the date of retention, AB had no awareness of his life in America and on arrival in the UK was embedded in his English family and way of life. She also relied on the mother’s wishes that the proceedings remain in this jurisdiction for further assessments given a potential diagnosis of autism in the future and the mother's fears that she will not be able to participate in court proceedings in the US as she has previously been refused permission by the USA court to attend remotely. She further submitted that AB is currently integrated into his British family and has spent over half his life in the UK.

Counsel for the father submitted that AB was born in the United States, had lived nowhere but the United States prior to the date of retention, other than the two-week holiday, which could not be sufficient for him to have acquired habitual residence in the UK.

I have looked at all the facts pertinent to habitual residence in the round:

Doing my best with the available evidence, while AB evidently has strong links with the UK as a dual national and as the place where his maternal family live, I do not accept that this is a case where habitual residence could have changed over as little as two weeks. This is particularly in circumstances where it is AB’s first visit to the UK, and where the father and paternal family remain in the US.

Having found that AB was habitually resident in the US at the time of the unlawful retention, I now need to consider whether one of the Article 13 exceptions apply such that I have discretion not to order his return. I turn to consent / acquiescence first.

Article 13(a) provides that:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a)

the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;”

The issues of consent and acquiescence were addressed in Re PJ (Children) (Abduction: Consent) [2009] EWCA Civ 588. Ward LJ set out a number of principles for consent. They are:

In the same case Ward LJ noted the difference between consent and acquiescence at paragraph 53 as follows:

“we have to construe the words ‘had consented to or subsequently acquiesced in the removal or retention’ in Art 13(a) of the Convention. The use of the pluperfect tense (‘had consented’), contrasted with the qualification of the word ‘acquiesced’ by the word ‘subsequently’, seems clearly to show that the concept of ‘consent’ relates to a stance taken by the left-behind parent prior to the child’s removal (or retention) and that the concept of ‘acquiescence’ relates to his stance afterwards.”

In Re B (A Child) (Consent; Acquiescence; Intolerability) [2023] EWHC 2162 (Fam), John McKendrick KC, sitting as a Deputy High Court Judge summarised acquiescence as follows at paragraph 15:

“The exception of acquiescence requires the court to look at the subjective mind of the wronged parent and ask: “has he in fact consented to the continued presence of the child in the jurisdiction to which he has been abducted? Has the wronged parent gone along with the abduction?” Acquiescence is of the actual subjective intention of the wrong parent. It is a pure question of fact for the judge on the material before him. The burden of proof is on the abducting parent to establish the acquiescence has occurred. Earlier misstatements of the law drawing distinctions between ‘active’ and ‘passive’ acquiescence are incorrect. The fact there has been some active conduct indicating possible acquiescence does not justify ignoring the subjective intentions of the wronged parent (Re H (Minors) (Acquiescence) [1998] AC 72). Parents should not be deterred from agreeing sensible arrangements for the future of their children, the fact such negotiations have taken place should not necessarily lead to the conclusion that there has been acquiescence.”

In Re H [1998] AC 72, Lord Browne-Wilkinson held that:

“in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world’s perception of his intentions. Once it is established that the question of acquiescence depends upon the subjective intentions of the wronged parent, it is clear that the question is a pure question of fact to be determined by the trial judge on the, perhaps limited, material before him.”

The burden of proof rests with the mother to show that the father consented to, or subsequently acquiesced in, the removal or retention. The mother asserts four bases for this:

Counsel for the father asserted that of the text messages exhibited to the mother’s statement, those sent in 2022 are irrelevant to the issue of whether the father consented to the removal of AB in November 2023. I agree with this. In so far as the text message sent on 13 November 2023 (i.e. the day of removal) at page 106 of the bundle is concerned (“I been trynna be a nice guy for a long time. But when you come back i will be a different person and i refuse to change That’s the litteral only last thing i have to say to you. ...Goodbye [M] take care.” Ms Logan Green argued that this did not amount to consent but was simply the father saying goodbye ahead of a two-week holiday and wishing the mother a safe journey. Counsel further referred me to various text message exchanges subsequent to the mother’s arrival in the UK which in her submission support the fact that the father was unaware that the mother intended to stay in the UK beyond the two weeks, let alone consented to it. These exchanges comprise:

Ms Logan Green further relies on the steps the father took to make contact with his lawyers in the US, the FBI and various family members. She says that the fact that he didn’t immediately seek a Hague application cannot be held against him. He was doing what he could to ensure AB returned.

In response to the mother’s reliance on the 16 December 2023 message as acquiescence, Ms Logan Green submits that the authorities are clear that just because a party is trying to sort things out amicably, this does not amount to acquiescence.

I find that there was no clear and unambiguous consent by the father prior to the mother’s departure from the US for taking AB for anything more than a two week break. I am asked to infer consent from the father’s knowledge of the one-way ticket and the issues around the mother’s immigration status. Set against that are the references (prior to the mother’s departure) to the two-week period in the text message exchange between the mother and father at pages 171-175 of the bundle. I also consider that the text message exchange at pages 178 to 179 supports the father’s case that he was not consenting to a more permanent removal as the mother refers to the father having been invited on the trip.

The evidence supports the case that the father had suspicions that the mother may not return; indeed he expresses these concerns in the text message exchange at page 179. But this does not reach the threshold of clear and unambiguous consent. I further accept the submissions made by Ms Logan Green and outlined above as to acquiescence. I find that the mother cannot have been under any illusion as from the end of November 2023 that the father consented to or acquiesced with AB remaining in the UK. I therefore do not find that the exception in Article 13(a) is made out by the mother on the balance of probabilities.

I now turn to the exception in Article 13(b) which provides that a state is not bound to order the return of a child if (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The law in respect of the defence of harm or intolerability under Art 13(b) was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144. The applicable principles may be summarised as follows:

Within the context of this tension between, on the one hand, the need to evaluate the evidence against the civil standard of proof and, on the other hand, the summary nature of the proceedings, the Supreme Court further made clear that the approach to be adopted in respect of the harm defence is not one that demands that the court engage in a fact-finding exercise to determine the veracity of the matters alleged as grounding the defence under Art 13(b). Rather, the court should assume the risk of harm at its highest and then, if that risk meets the test in Art 13(b), go on to consider whether protective measures sufficient to mitigate the harm can be identified.

The mother bases her assertion that returning her son would put him at grave risk of harm or otherwise in an intolerable situation on three bases.

Counsel for the father submitted that this was clearly a case where there were regular marital arguments and unpleasantness. But even taken at its highest does not reach the threshold for article 13(c) defence. Counsel referred me to the protective measures proposed by the father, which include:

I am going to deal with the mother’s visa situation first. The expert report states variously that “The mother should be able to travel to the United States with AB”, that “it is highly likely that the US government will facilitate The mother’s travel to the United States even though she may be inadmissible to the United States” and that “she is reasonably likely to be permitted to enter the United States pursuant to an exercise of the Secretary of Homeland Security’s discretionary parole power”. It is clear that there is no certainty in respect of the mother’s ability to travel to the USA now or in the future. Ms Logan Green submits that the mother should have been making enquiries with the US consulate in anticipation that the result of this hearing could be a return order. I agree. But the fact is that I am faced with a situation where there is uncertainty as to whether the mother will be able to return to the USA.

A case in which the mother was in a very similar visa situation was considered by the Court of Appeal in Re W [2018] EWCA Civ 664. Lord Justice Moylan said the following:

“Putting it simply but, in my view, starkly, if the children were to be returned to the USA without the mother, the court would be enforcing their separation from their primary carer for an indeterminate period of time. It would be indeterminate because the court has no information as to when or how the mother and the children would be together again. In my view it is not a situation the child should have to tolerate. I acknowledge that the current situation has been caused by the mother's actions, and that she was herself responsible for severing the children from their father but, as referred to above, the court's focus must be on the children's situation and not the source of the risk.

It is therefore clear to me that if the judge had analysed all the circumstances from the children's perspective she would have come to the conclusion that to return the children to the USA when the mother had been refused a visa would be to place them in an intolerable situation.”

While the children in Re W were slightly older than AB, the youngest was only three years old. Ms Logan Green suggested that the separation of an 18 month old child from his mother, while distressing for the child, does not amount to an intolerable situation in the way that may be argued for an older child who has known the mother as prime carer for a substantial period of time. I disagree. An 18 month old child will have developed a strong attachment to his primary carer, and in my view it would be intolerable to return AB without his mother and separate them for an indeterminate period of time. I will not therefore be making a return order for AB in the absence of a means for his mother to enter the USA with him.

Looking at the grave risk of harm / intolerability test on the basis that AB would be returning with his mother, I consider the mother’s first basis for relying on 13(b), namely her assertions of domestic abuse while she was living with the father. The mother’s statement specifies one instance of violence towards her where she alleges he hit her with a vape. In addition some of the text messages from the mother to the father exhibited to the mother’s statement appear to be her showing marks on her body and suggesting that the father caused them, although the mother has not provided any explanation in her statement of this. The mother also alleges that the father exercised financial control over her, not providing her with sufficient or appropriate food or buying necessary items for the baby, including nappies, and that the father exercised control over the mother's socialising and clothing. The mother describes an episode where the father became angry with her for socialising with friends at a pumpkin patch party and describes the father being so angry about her wearing a vest top that he closed the boot so aggressively it smashed. She alleges the father showed no interest in the baby, not being present during most of the birth or subsequently caring for the baby. The mother’s second statement (but not her first) makes reference to the father shaking AB on two occasions.

The father disputes all of these allegations and gives a cogent alternative version of events in his statement. Without conducting a fact-finding exercise to determine the veracity of the mother’s allegations, there are some points that can be made on the basis of the evidence as presented in the bundle. The statement from ZJ supports the mother’s allegations in relation to the father not providing sufficient food for the mother and AB and the father’s lack of interest in caring for AB. However, ZJ’ knowledge is limited to what the mother told her contemporaneously and the fact of the father’s absence at the times ZJ was with the mother and AB (which may be explainable by the father having been at work). I also note the photographic evidence of the father spending time with his son exhibited to the father’s statement, albeit these are only snapshots in time. The text messages between the parents reveal an unhappy relationship including instances of the father being verbally abusive to the mother. The videos – while also only snapshots in time - also indicate high levels of anger and discord between the parents (on both sides) and an element of oppressive and controlling behavior by the father in seeking to film the mother. On the face of it the allegation that the father shook the child is an extremely concerning allegation, however it is not one in respect of which the mother has provided any detail at all (when or where the incidents took place, how it occurred, or what the impact was on the child) or supporting medical evidence.

My assessment of the risk of harm needs to look forward to the future, to the situation as it would be if I were to return AB. The intention is not for the mother and AB to live with the father. The proposal is for the mother and AB to live in separate accommodation to which the father is willing to contribute $800 a month; that the father not attend at the mother's address nor seek to separate her from AB pending the first inter partes hearing.

Ms Courtney submitted that the considerable uncertainty as to where the mother and AB would be living, the lack of any guarantee that the father will pay her the $800 a month towards her rent, the lack of any income beyond the $800 which would all go on rent, and the potential for arrest and prosecution, equates to a situation in which it would be intolerable to place AB.

Turning first to the risk of arrest. The case law is clear that the abducting parent being arrested and prosecuted for child abduction is not sufficient by itself to satisfy Article 13(b). In Re L (Abduction: PendingCriminal Proceedings) [1999] 1 FLR 433 the possibility of criminal proceedings being brought and even the possibility of the mother being arrested at the airport on her return was not enough to establish a grave risk of harm to the children. In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 the possibility that the father would change his mind and bring criminal proceedings against the mother if she returned to the United States was likewise not sufficient to establish the exception under Article 13(b). As I understand it, Ms Courtney’s submission is that in the event of the mother being arrested AB would either be taken into the care of the state authorities, or looked after by his father who was never his primary carer, and whom AB has not seen for several months and will have no memory of and that this would amount to an intolerable situation for AB.

The father’s Counsel describes the issue of arrest as a ‘red herring’ given that there is no indication the FBI has pursued the case following the one conversation the father had with them. She also refers to the voluntary undertaking the father has given not to institute or voluntarily support any proceedings whether criminal or civil for the punishment of the mother. Nevertheless, I do not consider the risk of prosecution can be entirely discounted given the view of the expert that the mother could face criminal prosecution for parental child abduction, which is a crime at both the federal and state level. The question is whether that risk amounts to a ‘grave risk of harm’ or ‘otherwise intolerable situation’. While the authorities are clear that the risk of arrest and prosecution of itself is insufficient, I still need to consider whether the risk of the mother being separated from AB (albeit it within the same jurisdiction, with access to the US judicial system, and with some level of direct contact) would put AB at grave risk of harm or otherwise intolerable situation. This is a situation in which the father has expressed himself willing to look after AB, no doubt with the support of the paternal grandmother with whom the father lives. I take the allegations made by the mother about AB’s parenting of, and interest in AB, as discussed above into account, but on the balance of probabilities do not consider that the risk of arrest (which given the voluntary undertaking by the father not to initiate or otherwise voluntarily support any proceedings is relatively low) and consequence that AB may end up living with the father for a period of time to reach the Article 13(b) threshold.

Beyond the risk of arrest I turn to look at whether returning the mother to the USA on the basis proposed would lead to a grave risk of harm to AB or putting AB into an intolerable situation. In addition to paying for the mother and AB’s flights back to the USA, the father has offered to: pay $800 per month towards separate accommodation for the mother, until the first inter-partes hearing in court proceedings, which I am told is the most he can afford; not to attend the airport on the mother’s arrival if she objects; not to attend the mother's home; and not to seek to separate AB from his mother until the first inter-partes hearing in any court proceedings.

The undertakings not to attend the airport or the mother’s home speak for themselves. I raised during the hearing with Ms Logan Green my concern as to how the undertaking not to seek to separate AB from his mother until the first inter-partes hearing in any court proceedings could be squared with the order that is currently in place giving the father custody. I subsequently received confirmation – by way of an email exchange between Counsel for the father and the father’s attorney in the US - that the issue of custody can be dealt with in the current proceedings in the US by the parties filing a consent order.

On the father’s evidence $800 per month would cover a one-bedroom rental property in a town 30 minutes from the Frederick area. Ms Courtney submits that this would leave very little for utilities or food for AB and the mother and, in the absence of any means of enforcing the payment, the mother could become homeless at any point. It seems to me that it will be essential for the father to have secured accommodation for the mother prior to her returning to the USA in order to ensure the mother’s return with AB is, in practice, on the basis proposed.

I accept that returning AB to the USA even with accommodation to go to would be extremely difficult for the mother. I do not underestimate that. Unless her family are able to assist or she is able to find work, she will be living with very little means, and she will be away from the love and care of her immediate family She does, however, have the support of the father’s family with whom she remains close and who have supported her and AB in the past. On the balance of probabilities, I do not find the threshold for Article 13(b) is made out for a return on the basis proposed.

I therefore find that AB was unlawfully retained in the UK; that the father did not consent to, or subsequently acquiesce in, the unlawful retention. I find that the 13(b) exception is made out to the extent that returning AB without his mother would put him in an intolerable situation. I find that the 13(b) exception is, on balance, not made out were AB to be returning with his mother on the basis proposed.

I will therefore order that AB is to be returned to the USA, his country of habitual residence, provided his mother is granted entry into the USA and provided:

I should make clear that I expect the mother to make best endeavors to obtain a visa or humanitarian parole. I authorise disclosure of this judgment and subsequent order into her immigration application and invite Counsel to include in the draft order a clear timetable by which the mother should take the necessary steps in respect of her immigration status.