The High Court has granted a US woman’s application for a residence order for her 12 year-old daughter, while her ex-partner pursues separate proceedings in the US.
In N v K, the woman began a relationship in the US with an American man and their daughter, now 12, was born in that country.
After they separated, the woman began a new relationship with a Briton, eventually marrying him. She applied to take their daughter on holiday with to the UK and the father was opposed to this, applying for sole custody of the girl and a legal order prohibiting removal of the girl from the US.
The mother then applied for permission to relocate with the child, called ‘M’ in case reports, to the UK for two years and the issue went to a custody hearing. She was granted permission for the relocation but the former couple received shared parental responsibility and a timetable of contact (visits) was drawn up for the father.
At the end of the two years, the former couple agreed to an extension for a further two years, although the father had the right to call for his daughter’s return during that time. He claims to have done so but the mother disputes this. The daughter continued making regular visits to her father in Florida during school holidays throughout this period, returning to her mother in the UK each time.
In August last year, the father launched proceedings in the US courts for an order of paternity and his daughter’s return to the US. However, the mother was apparently not informed until the following February. When she received notice, her solicitors wrote to her ex-partner’s attorneys in the US asking the father to agree to an order that their daughter had acquired habitual residence in the UK, but he refused.
She then launched proceedings in the UK, seeking a residence order for her daughter. The father disputed the jurisdiction of the English courts, sayings proceedings were already under way in the US.
Late last month, despite a lack of liaison up to that point between the UK and US courts, an American judge found in favour of the father, ordering that the girl be returned to the US. He declared:
“The Court finds that England does not have jurisdiction over the Petitioner/Father nor the minor child. In fact, all parties to this proceeding including the Petitioner/Father, Respondent/mother and the minor child are citizens of the United States.”
But when the mother’s action came before the High Court here, Mr Justice Cobb ruled in her favour. He noted:
“M has lived in England now for over six years, nearly one half of her life. On the evidence presented to this court she appears thoroughly “integrated” here. Her mother has married a British national and they have made their family home here for many years; M’s mother and step-father have full-time employment here. M has been at school here for the last six years, recently moving to a senior school. She excels at school, and has a huge range of extra-curricular pastimes. Her social life and friends are here; she is said to be popular among her peers. Her half-sister was born here and has lived all her life here with M in her family.”
The judge added:
“…I have no hesitation in concluding that M is habitually resident in England & Wales. She could not in my judgment be regarded as habitually resident in any other country.”
“I very much hope that the father, and indeed the Florida Court, will acknowledge the value to M, and to the parties, in the proceedings being conducted in this jurisdiction. Any welfare-based enquiry focusing on M’s best interests going forward, which would be likely to include the ascertainment of M’s views given her age, would surely be best conducted in the country which has been her home for such a significant time, and in which she is, in my judgment, habitually resident. It follows that the Court of England and Wales undoubtedly, in my judgment, has jurisdiction to entertain the mother’s application.”
Having referred to “the unsatisfactory position of applications proceeding in two separate jurisdictions”, Mr Justice Cobb arranged for the UK judgement to be sent to the US judge hearing the father’s application.