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Court clarifies quasi-settlement defence to removed child’s return (L-S (a child))

Date:12 JAN 2018
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Family analysis: Katy Chokowry, barrister at 1 King’s Bench Walk, examines the Court of Appeal’s approach in L-S (a child) to a child’s habitual residence, a parent’s acquiescence in the child’s removal, and the intolerability of the child’s position if returned after settling in new country.

Original news

In L-S (a child) [2017] EWCA Civ 2177 the Court of Appeal allowed a mother’s appeal against a court order to return her son from England to the US under the Hague Convention on the Civil International Aspects of Child Abduction 1980 (Hague Convention 1980). The Court of Appeal held that while the judge at first instance had been entitled to conclude that the child had not been habitually resident in England and his return to the US would not place him in an intolerable situation, the father was to be taken to have acquiesced in the child’s wrongful removal to England because he had unequivocally accepted that the child would remain with the mother in England and it would be unjust to permit him to resile. In view of its conclusion on acquiescence, the Court of Appeal decided to exercise its discretion against making an order for the child’s immediate return to the US.

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What was the background to the case?

The mother is a British national and the father an American citizen. They met online and shortly thereafter married in the US. While there, they lived in a number of different states and at times led a peripatetic lifestyle. While pregnant, the mother returned to England to obtain antenatal care. She remained here and gave birth to the child. A month after his birth, the mother travelled with him to the US. The father had rented new accommodation for the family. The mother found the environment unacceptable and after two months she returned to England with her son without the father’s knowledge and consent.

The father sought the child’s summary return to the US. He made his application to the English court approximately 11 months after the mother and child’s return.

The mother argued that the child was not habitually resident in the US at the time that she removed him to England. Further, she contended that, if he was habitually resident in the US, the father had by his actions acquiesced, within the meaning of Art 13(a) of the Hague Convention 1980, in his removal to England. Finally, she argued that a return to the US would expose the child to a grave risk of harm or place him in an intolerable position, within the meaning of Art 13(b), on account of the fact that he was settled in England, where he had spent the majority of his life.

Parker J found that the child had acquired habitual residence in the US during the two months he had spent there with his mother and father. She went on to find that the father had not acquiesced in the wrongful removal and that a return would neither expose the child to a grave risk of harm nor place him in an intolerable position. Accordingly, she made an order pursuant to Art 12 of the Hague Convention 1980 requiring the child to return to the US forthwith.

The mother appealed.

What issues arose for the Court of Appeal’s consideration?

There were three issues:

  • whether the child was habitually resident in the US at the time that he was removed by his mother to England;
  • in the event that he was habitually resident in the US, whether the father had acquiesced in his removal to England; and
  • whether returning the child would expose him to a grave risk of harm or place him in an intolerable position in light of the fact that he had spent the majority of his life in England by the time that the father brought his application for summary return.

What did the court decide, and why?

McFarlane LJ, delivering the judgment of the court, stated that the mother’s appeal regarding her son’s habitual residence did not raise any issue of law. Parker J had correctly stated the law. As she had heard the parties’ oral evidence and rejected the mother’s case that she had returned to the US for a trial period, the Court of Appeal declined to interfere with her finding on this issue.

In relation to the mother’s reliance on Art 13(a), the Court of Appeal found that the father had indeed acquiesced in the removal of his son to England. While again finding that Parker J had correctly stated the law, the Court of Appeal found that she had failed to refer to, and take account of, an agreement made by the parties which later became embodied in an order made by the American court.

Shortly before issuing his Hague Convention 1980 proceedings, the father had engaged in discussion with the mother with a view to obtaining a divorce. The father agreed to a divorce on the basis that the child would spend the summer holidays with him in the US and that the mother would have full custody of the child. It was common ground between the parties that the mother’s intention at that time was to remain in England with the child, and the American court was aware that she was in England during those proceedings. At first instance, Parker J had accepted the father’s case that he had not acquiesced, despite leading the mother to believe that he was agreeing to her remaining in England with their son as that was not his true intention. The Court of Appeal considered that the agreement was a sufficiently clear and unequivocal statement amounting to acquiescence, and by not taking proper account of the agreement, the judge had fallen into error.

The mother had sought to rely on the child’s settlement in England as a basis for resisting, under Art 13(b), the father’s application for summary return. Parker J also dismissed this limb of the mother’s case. In her judgment, she appeared to state that settlement can only be relied on in cases where the Hague Convention 1980 permits it under Art 12, and not as a ground as to the threshold for grave risk of harm or intolerability established under Art 13(b). The Court of Appeal considered that Parker J was wrong in her analysis of the law. However, McFarlane LJ affirmed that the judge was correct in stating that the mere passage of time could not be relied on to meet the threshold under Art 13(b).

On the facts of this case, the Court of Appeal considered that the overall evaluation of the child’s circumstances conducted by Parker J, allowing a margin of discretion to the trial judge, was not wrong. He had been in England for 13 months out of his 16 months of life. However, McFarlane LJ stated that at his age the amount of time spent in England in a settled environment was insufficient to establish a grave risk of harm or intolerability if he were returned.

The mother was ultimately successful in her appeal as the Court of Appeal found in her favour in respect of her case under Art 13(a) that the father had acquiesced in the son’s removal to England.

To what extent is the judgment helpful in clarifying the law in this area? Are there still any unresolved issues practitioners will need to watch out for?

This judgment is particularly helpful in two respects. First, the Court of Appeal states that Parker J was correct in taking into account the father’s position as well as the mother’s in the determination of the child’s habitual residence. Thus, in determining the habitual residence of a very young child who lived with both parents at the time of the wrongful retention or removal, it is not only the habitual residence of the primary carer that should be examined. The father’s residence in the US was considered a significant factor. It should, however, be borne in mind that in this case Parker J found that both parents were in fact habitually resident in the US. In the event that a court finds that the parents have different habitual residences, there is a scope for the court to make a finding that a baby or toddler’s habitual residence follows that of the primary carer rather than both their parents.

The second aspect in which this judgment is particularly important is that it clarifies the law in respect of the exception sometimes referred to as ‘quasi-settlement’ under Art 13(b). Parker J had differed from Macur J (as she then was) in RS v KS (Abduction: Habitual Residence) [2009] EWHC 1494 (Fam), [2009] 2 FLR 1231. Unlike Macur J, Parker J found that a substantial length of time could not be relied on as a defence unless an application under the Hague Convention 1980 was made 12 months from the date of the removal or retention. The Court of Appeal considered that Parker J’s judgment in that regard was not particularly clear, but in so far as Baroness Hale had plainly held in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 that settlement of a substantial length of time had, on the facts of any given case, to be one of the factors to be considered when assessing intolerability under Art 13(b), if the judge held the contrary view she was inadvertently in error and the decision of Macur J in Re S was, on its facts, a correct application of the law.

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