The Supreme Court of the United Kingdom has unanimously overturned an earlier appeal court ruling that a seven year boy should not be returned to the United States.
In the Matter of KL concerned a married couple of Ghanaian origin who married in Texas in 2005. The father had taken US citizenship and served in the Air Force, while the mother had lived in the UK and acquired ‘indefinite leave to remain’. Their son was born in 2006 but by 2008 the father had filed for divorce.
Later that same year, the father went on active service and the mother went back to the UK, taking their son, called K in case reports, with her.
Courts granted custody to the father, but the mother cited the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty which governs the return of abducted children to their countries of ‘habitual residence’ (the place where they normally live). The mother argued in the US courts that by the time custody had been awarded to the father, his habitual residence had already become the UK because he had lived there with his mother since July 2008.
The court ruled in her favour, to the later surprise of UK judges. The mother and K returned to England.
The father appealed and this time the US court ruled in his favour, ordering that the child be returned to the US. The mother did not travel back so the father launched proceedings in the UK courts, but both the High Court and the Court of Appeal reached the same conclusion: K was now habitually resident in the UK and should not be returned.
However, the Justices of the Supreme Court have now reached a very different conclusion, ordering that K be taken back to the US and his father after all. They highlighted undertakings by the father that would allow the mother to live independently in Texas and share parenting.
So on what basis did the Justices believe they could set aside the central issue of habitual residence? Original High Court judge Sir Peter Singer had, suggested the Justices, “asked himself the wrong question”.
This was not whether K had become habitually resident in the UK, but “…is it in K’s best interests to remain in this country so that the dispute between his parents is decided here or to return to Texas so that the dispute can be decided there?”
The estimable Lady Justice Hale highlights the conflict that has arisen between the US and UK courts.
“The crucial factor, in my view, is that this is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. For as long as the Texan order remains in force, his mother is most unlikely to allow, let alone to encourage, him to spend his vacations in America with his father. Whilst conflicting orders remain in force, he is effectively denied access to his country of origin. Nor has his mother been exactly enthusiastic about contact here. The best chance that K has of developing a proper relationship with both his parents, and with the country whose nationality he holds, is for the Texas court to consider where his best interests lie in the long term. It is necessary to restore the synthesis between the two jurisdictions, which the mother’s actions have distorted.”
She emphasised the key fact that K is Texan.
“His parents were married there and he was born there. He has an older half-brother who is now at University in the United States. He also has a large extended family living in the United States. He has spent three years and seven months of his life living there, most recently in the sole “possession” (as they put it in Texas) of his father, who has facilitated contact with his mother.”
The Supreme Court has sent a strong signal with this judgment: that the Hague Convention must be upheld in all but the most exceptional of circumstances.
It is also a very child-focused judgment, with the child’s interests placed above those of his parents. The “crucial factor” highlighted by the Supreme Court was that a return to Texas would give this child the best chance of developing a proper relationship with both his father and his mother – quite rightly the judgment emphasises the important roles played by both parents in a child’s life.