Mother succeeds on visa point in Hague abduction appeal

children and divorce

I can’t say that I’ve ever previously read a family case in this country that links to a news story that very day involving the President of the United States, but it happened on Monday.

On that day (and the day before) Mr Trump took to Twitter to pronounce that ‘DACA is dead’.

This may not mean a lot to those of us on this side of the pond, but ‘DACA’ is the acronym for the Deferred Action for Childhood Arrivals programme, which provides protected status to those who entered the US illegally as children. Mr Trump does not want those children to have their status in the USA legalised.

OK, having got that out of the way, let’s switch to the Royal Courts of Justice in London, where last week the Court of Appeal handed down its judgment in Re W, the report of which I came across whilst I should really have been enjoying my Bank Holiday Monday.

Re W concerned an appeal by a mother against a provision in an order made under the Hague Convention on Child Abduction. This had required her to return the children to the USA. Lord Justice Moylan  gave the leading judgment of the Court of Appeal. As he said, the case raised an unusual issue in child abduction proceedings.

The background to the case is that the mother is British and the father is Pakistani, but is resident in the USA, having arrived there with his family when he was aged 12. Since the father reached the age of 18 (he is now 38) he has been unlawfully present in the USA, with the consequence that he would be denied readmission if he were to leave. It had been thought that the father may have received temporary relief from deportation/removal under DACA, but it turned out that that was not actually the case.

The mother and father married in 2011, after which they lived together in Texas, the mother entering the USA on a temporary visa. Both of the children were born in the USA, and are therefore US citizens, as well as British nationals. They are now aged five and three.

On 15 December 2016 the mother travelled to the UK with the children. On 27 June 2017 the father issued his application under the Hague Convention for the children’s summary return to the USA. The mother raised two defences: that the father had consented/acquiesced to the children remaining here, and the Article 13(b) defence: that ordering the return of the children would expose them to a grave risk of physical or psychological harm, or otherwise place them in an intolerable situation.

The application was heard by Mrs Justice Gwynneth Knowles. She rejected the mother’s defences. However, there was a problem: the mother might not be able to obtain a visa to re-enter the USA. She therefore ordered that the children should return to the USA with the mother, but if the mother could not obtain a visa then they should return without her.

The mother appealed against the provision requiring the children to be returned if her application for a visa was refused, on the ground that the judge had failed properly to apply the principles relating to Article 13(b) when determining that the children would not be placed in an intolerable situation if returned to the USA without her, and should have determined that they would be.

Lord Justice Moylan agreed that the judge had failed to properly consider the effect upon the children of being separated from their primary carer, with whom they had lived since December 2016. Accordingly, the appeal was allowed.

Lord Justice Moylan then went on to reconsider the mother’s Article 13(b) defence. He said:

“…in my view, starkly, 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.”

Accordingly, he proposed that the provision in the order that provided for the return of the children without the mother in the event of her visa application being refused, be discharged. As he pointed out, this did not necessarily mean that the children would not be returned to the USA – it all depended upon the mother’s visa application.

Lord Justice Peter Jackson gave a concurring judgment.

There remains, of course, the issue of the father’s right to remain in the USA…

You can read the full judgment here.

Image by Molly Adams via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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