Hague Proceedings: Child Abduction Update
Lucy Roberts, Walker Family Law’s Senior Associate Solicitor, acted for the respondent mother in successfully defending an application for the summary return of a child to the United States following an alleged international child abduction.
The child had been born in Mexico, where the family had lived for several years, before the parents decided to live on a 6-monthly alternating basis between Mexico and Alaska. It was the father’s case that the child was that the move to Alaska was permanent, and the child was habitually resident in the USA. The was the mother’s case that the family had not moved permanently to Alaska, but were living seasonally between the two countries and that, even if the child’s habitual residence had switched to Alaska in her first summer season, it had swiftly switched back to Mexico upon her return in the winter. The parents’ marriage broke down at the end of the winter season (before the commencement of the second summer season in Alaska) and the parties agreed for the mother to bring the child to England for a temporary pending a US immigration application. The mother and child thereafter remained in England. The father sought the child’s return to Alaska under the Hague Convention.
The Court noted the strength of the child’s roots in Mexico and concluded that it was likely that their habitual residence never shifted from Mexico to Alaska but went on to conclude that, even if there was a time when she was habitually resident in Alaska, it would have reverted swiftly back to Mexico once the family returned there.
Therefore, since the child was not habitually resident in the USA on the date of retention, Article 3 of the Hague Convention was not engaged and the father’s application was dismissed.
This was an interesting case involving a family living internationally between different countries, and demonstrating how habitual residence can change. The key consideration is the integration of the child into the social and family environment.
In a skeleton argument for the final hearing, the father’s legal team raised case law allowing the Court to make a decision for the return of a child to a third-party state, and sought to ask the court to order the child’s ‘return’ to the USA in the event that she was found to be habitually resident in Mexico at the relevant time. The Court, however, deemed it inappropriate for this argument to be advanced at such a late stage in proceedings, stating a that such an application would amount to a relocation application, which would have required a full assessment of the child’s welfare which has no place within proceedings under the Hague Convention which the father had initiated. This serves as a reminder to practitioners to think carefully about what applications need to be advanced at an early stage in such cases.
Lucy regularly advises and represents parents in complex children cases involving technical legal arguments and international child abduction proceedings, and this outcome reflects her experience in achieving positive outcomes for her clients.
The full Judgment can be seen here: KPW v MJQ – Find Case Law – The National Archives
