(Supreme Court, Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes, Lord Hodge, 4 December 2013)
The Ghanaian parents met, married and had a child, now 7, together in the USA. The marriage broke down and while the father served with the US army in Afghanistan the mother took the child to England.
The mother and child returned to the USA during divorce proceedings in which a welfare-based decision was made that it was in the child's best interests for his father to designate his place of primary residence. The judge found that in the mother's care there was a risk of international child abduction and the possibility of a failure to promote contact with the father.
The mother issued Hague Convention proceedings in the US court for a return order in respect of the child on the basis that he was habitually resident in England and Wales. The District Court accepted the mother's claim and ordered the child's return. The mother and child flew to England where they had since remained.
The father did not apply for a stay of the order but lodged an appeal with the US Court of Appeals for the Fifth Circuit. The return order was overturned by the appeal court which held that the child had remained habitually resident in the USA and that the mother had consented to the child's retention there as she had accepted the jurisdiction of the US court in determining the custody issue. The District Court ordered the child's return and the mother remained in breach of that order.
The mother's appeal to the US Supreme Court claiming that the father's argument was moot given that the return order had already been put into effect was rejected.
The father issued an application for a return order under the Hague Convention claiming that the effect of appeal overturning the decision ordering the child's return to England had retrospectively made the mother's removal of the child wrongful. That argument was rejected by Singer J in the High Court.
In a second application, the father asserted that the child's removal was wrongful based on his habitual residence in the USA or alternatively that the court should exercise its inherent jurisdiction to return the child although not required to do so under the Hague Convention. The father further offered undertakings which would allow him and the mother to share custody in the USA pending a substantive welfarae decision by the US court.
The father's application and subsequent appeal were both dismissed and permission to appeal to the Supreme Court was granted.
It was common ground that the father could only succeed in his application if the child was habitually resident in the USA at the time the return order was overturned by the appeal court. Well established authority formulated the test of habitual residence as one of fact and that the concept was one which corresponded to the place which reflected some degree of integration by the child in a social and family environment. There was no rule akin to that of domicile in which the child acquired the habitual residence of a parent and one parent could not unilaterally alter a child's habitual residence without the other's consent.
Looked at from the point of view of the child, the judge was entitled to hold that by the time the return order was reinstated by the District Court following the appeal, he had become habitually resident in England and Wales. The mother had made the move with the intention of it being permanent and the child was fully integrated here. The father had failed to establish the child's habitual residence in the USA at the relevant time.
By virtue of the Family Law Act 1986 the High Court could exercise its inherent jurisdiction to order a return where it was in the child's best interests to do so where he was habitually resident and present here. In the interests of international comity the existence of an order of a foreign court of competent jurisdiction was a relevant factor.
In considering the application for a return order under the inherent jurisdiction the High Court judge had asked himself the wrong question. The correct question was whether it was in the child's best interests to remain in England while the dispute between the parents was decided or whether to return to the USA for the dispute to be decided there.
The crucial factor was that this was a Texan child who was being denied a proper opportunity to develop a relationship with his father and with his country of birth. While the return order remained in place, which was in conflict with the English order, the mother was unlikely to permit the child to spend vacations in the USA with his father. The best chance the child had of developing a proper relationship with both parents and his home country was for the US court to determine where his best interests lie.
On the facts of this case despite the passage of time, there was no reason to consider that the child would suffer any significant harm in returning to the USA on the basis proposed by the father.
The Supreme Court unanimously allowed the appeal and directed a return of the child to the USA on the basis of undertakings offered by the father for a shared care arrangement pending further judgment by the US court.