Family Law Hub

KL (A Child) [2013] UKSC 75

Judgment concerning return of a child to the US where the mother had successfully obtained a ruling in Texas that the child had been wrongfully retained in the US, the father had complied with that order and then had appeals turned down by the High Court and Court of Appeal. Father's appeal allowed.

  • In brief: Here we have the Supreme Court looking at the approach to be taken when a child is brought to England pursuant to an order made abroad in Hague Convention proceedings which is then later overturned on appeal.  

    The proceedings concerned a child, K, who was born in 2006 in Texas and is a United States citizen. His father ("F") is also a US citizen; his mother ("M") came to the UK from Ghana as a very young child and she had indefinite leave to remain in the UK. They married in Texas in December 2005 and lived together there. The marriage broke up and in March 2008 F issued divorce proceedings in the Texas state court. That court made orders by consent providing for M to take care of K (in the former matrimonial home) while F was posted abroad on military service. In July 2008 she took him to London. In March 2010 a welfare-based custody hearing took place in the Texas court in which both parents were represented. The judge in those proceedings decided that it was in K's best interests that he reside with F and have contact with M. As a result K moved back to the US. 

    M applied to the US Federal District Court for an order under the Hague Convention, alleging that K had been habitually resident in the UK in March 2010 and that K had been wrongfully retained in Texas by F. This argument succeeded in the District Court in August 2011. F complied with the order to return K and his passport to M, whereupon M returned to the UK with K and they have lived here ever since. F appealed against the order. On 31 July 2012 the US Court of Appeals for the Fifth Circuit overturned the decision of the District Court and on 29 August 2012 the District Court ordered K's return to the US. When M did not comply, F issued applications under the Hague Convention in the UK. He argued that M's retention of K in the UK was wrongful because K's habitual residence had remained in the US. He further argued that the UK court should exercise its inherent jurisdiction to return K to the US in the circumstances of his case, even if it was not required to do so under the Hague Convention. 

    On 17 January 2013, the High Court dismissed F's applications, and his decision was upheld on appeal to the Court of Appeal. The Supreme Court granted F permission to appeal on the grounds that K had been wrongfully retained in the UK after 29 August 2012 under the Hague Convention and/or that the court should order his return to the US under its inherent jurisdiction. 

    The Supreme Court unanimously allowed the appeal by F and ordered the return of K to the US on the basis of the undertakings offered by F to enable M to live in Texas, independently of F and sharing the care of K between them, pending any application she might make to the Texas court to modify the order relating to K's residence. The sole judgment was given by Lady Hale. 

    F's application could only succeed if K was habitually resident in the US when the US Court of Appeals overturned the earlier order of the District Court in M's favour. The Hague Convention does not define habitual residence but the UK, as we know, applies the concept of habitual residence adopted by most member states of the European Union, namely that it is a question of fact and corresponds to the place which reflects some degree of integration by the child in a social and family environment. Parental intention plays a part in establishing or changing a child's residence and this has to be factored in with all the other relevant factors in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence. 

    In this case, the move of M with K to the UK in August 2011 was intended by her to be permanent and neither she nor K would have perceived it as temporary, notwithstanding the appeal. K became integrated into a social and family environment in the UK during the year before the appeal succeeded. The judge had been entitled to hold that K had become habitually resident in the UK by 29 August 2012. Thus F was not entitled to an order for K's return under the Hague Convention. 

    However, under the Family Law Act 1986, the High Court has the power to exercise its inherent jurisdiction in relation to children by virtue of the child's habitual residence and presence here. Before the Hague Convention was adopted, this jurisdiction was used to secure the prompt return of children who had been wrongfully removed from their home country. The existence of an order made by a competent foreign court is a relevant factor in deciding whether to exercise it. 

    The judge had not asked himself the correct question, which was whether it was in K's best interests to remain in the UK, so that the dispute between his parents was decided here, or to return to Texas so that the dispute could be decided there. The Supreme Court was in as good a position as the judge was to answer this as he had heard no oral evidence. 

    The approach and procedure of the Texan and English courts are actually very similar and F's evidence was that an application by M in Texas would be decided in less than three months. In favour of K's remaining in the UK was the fact that he had been living here with M for over two years, was at school and apparently doing well. In favour of return to the US was the fact that he was born in Texas, had a large extended family in the US, and had spent half his life living there, most recently in the sole care of F, who had facilitated contact with M.  The crucial factor was that K was a Texan child who was currently being denied a proper opportunity to develop a relationship with F and with his country of birth. 

    While the conflicting orders remained in force, K had effectively been denied access to the US. It was necessary, Lady Hale said, to restore the synthesis between the two jurisdictions which M's actions had distorted. Despite the passage of time, there was no reason to consider that K would suffer any significant harm by returning to Texas on the basis proposed by F. Accordingly the Supreme Court allowed the appeal and ordered K's return on these terms. This order was to stand even if M chooses not to avail herself of the opportunity to return with her son.

Case note, published: 18/02/2014

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See also

  • Judgment concerning return of a child to the US where the mother had successfully obtained a ruling in Texas that the child had been wrongfully retained in the US, the father had complied with that order and then had appeals turned down by the High Court and Court of Appeal. Father's appeal allowed. Judgment, 04/12/2013, free

Published: 18/02/2014

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