In DL v EL, a couple of Ghanaian origin married in Texas in 2005. The father is a US citizen and the mother a legal immigrant with indefinite leave to remain in the UK.
The couple’s son, called K in case reports, was born the following year but the marriage ran into problems and the father filed for divorce in March 2008. Three months later, he was posted to Afghanistan. The mother returned to the UK with the boy for an extended stay shortly afterwards. While here, she tried to secure K’s right to remain in the UK.
Custody of K was initially awarded to the father, with the mother’s behaviour coming under severe criticism from a US judge. However, the mother appealed this ruling under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, an international legal treaty governing cases in which a child is unlawfully taken from one country into another by a parent. The mother claimed that by the time custody was awarded to the father, K’s habitual residence (place where he usually lived for legal purposes) had already become the UK, because he had lived here with his mother since July 2008.
In a decision later described by Lord Justice Thorpe as “bizarre in the extreme”, the judges ruled in her favour. The father was ordered to return the boy and his passport to the mother and shortly afterwards she flew back to the UK.
Inevitably, the father appealed. The mother claimed the father’s appeal was academic, as she had already established K’s status as an habitual resident of the UK. But the United States Court of Appeal was unimpressed by this argument and ruled in favour of the father.
The mother, back in the UK with her son, did not return the child, continuing to claim that she had already established her son’s residence in the UK. Her ex-husband then launched proceedings in England under the Hague Convention, seeking his son’s return, but was unsuccessful. High Court judge Sir Peter Singer accepted the argument that the child had already become habitually resident in the UK when the father launched his proceedings under the Hague Convention.
The father once again appealed, but Lord Justice Thorpe ruled that Sir Peter’s singer judgement had been correct. K had been lawfully removed from the US and the later decision by the US Court of Appeal did not change that fact.
The judge described the case as “extraordinary” and said it raised legal points concerning the status of orders to return children which had not previously been considered in English law.