Two children kept in the UK by their mother cannot be returned to their father in the United States because the mother would most likely be unable to accompany them, the Court of Appeal has ruled.
The case concerned a Pakistani father whose family initially entered the US on a temporary visa when he was 12, then illegally overstayed, settling in Texas. The father officially became an illegal alien on his 18th birthday, and so would be denied re-entry if he left the country.
The mother, meanwhile, is English. She met the father online, then flew over to visit him on a number of occasions before the couple eventually married in 2011.
Despite the mother’s lack of a residency visa she set up home with the father, living with his parents in Texas. They went on to have two children, who acquired US nationality by virtue of having been born in the country. They have also inherited British citizenship from their mother.
By 2016 the parents’ marriage had begun to encounter difficulties. In December of that year she travelled to Britain with the children but failed to return, prompting the father to issue proceedings under the Hague Convention on the Civil Aspects of International Child Abduction the following June.
The mother opposed return on three grounds: that the father had acquiesced; that the children, aged five and three, had acquired habitual residence in the UK rather than the US by that point; and article 13(b), that the children would be exposed to a “grave risk” of harm if returned. But she failed to convince the court and was ordered to return her children to their father. Specifically, they were to travel with the mother if she could obtain a visa but without her if she could not.
In the Court of Appeal, Lord Justice Moylan explained:
“The abducting parent is willing, if ordered, to return with the children, but may be unable to do so because she has no right to enter the state of their habitual residence [the United States].”
The mother argued that a requirement for such young children travel back to the United States without their mother once again engaged article 13(b): the risk of grave harm.
Mr Justice Moylan said:
“In the experience of this court the circumstances of this case are unusual. On the evidence before the judge it appeared that the mother, who is British, would be unlikely to be able to obtain a visa to enter the USA. To make matters more difficult still, it also appeared that the father, who is Pakistani, would be unable to re-enter the USA if he was able to travel to the UK, because of his precarious immigration status in the USA. It is, therefore, not a case in which a mother was refusing to return to the requesting State but one in which she would be unable to do so if the relevant authorities of that State decided not to give her a visa.”
He concluded that:
“….the Judge’s decision cannot stand and that the appeal must succeed” because “if the children were to be returned to the USA without the mother, the court would be enforcing their separation from their primary carer for an indeterminate period of time. It would be indeterminate because the court has no information as to when or how the mother and the children would be together again. These children, aged 5 and 3, would be leaving their lifelong main carer without anyone being able to tell them when they will see her again. In my view it is not difficult to describe that situation, in the circumstances of this case, as one which they should not be expected to tolerate. I acknowledge that the current situation has been caused by the mother’s actions, and that she was herself responsible for severing the children from their father but, as referred to above, the court’s focus must be on the children’s situation and not the source of the risk.”
You can read the full ruling here.