Father loses appeal against ex-wife’s refusal to return their child
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.
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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