|Image: UK Supreme Court|
The correct approach to be taken to the situation where a child is removed from his/her country of residence pursuant to a return order under the Hague Convention, which order is made erroneously and overturned on appeal. Whether, in those circumstances, the parent from the care of whom the child was removed has a remedy to recover the child.
The Father is a male US national of Ghanaian origin, the Mother a female Ghanaian national currently based in the UK. The Father and the Mother married in Texas in December 2005, where their child K was born in August 2006. The Father and the Mother lived together in Texas until their divorce in 2008. In July 2008 the mother and child went to England where they remained until February 2010. In 2010, the Father was granted custody of K and the right to designate his place of residence by the Texas courts. In 2011, however, the Mother instituted abduction proceedings in the Texas Federal Court on the basis that K was being wrongly retained in Texas by the Father. She obtained an order requiring K and his passport immediately to be delivered to her. The Father complied with the order, and K and the Mother travelled to England in August 2011. The Father then appealed against the order, which was overturned in July 2012. The Mother appealed this, but her appeal was rejected: On the 29th August the Texan court made an order requiring the Mother to return K to the Father. She remains in breach of that order. The Father issued an application for the return of K in the UK under the Hague Convention on 9 August 2012 and then a further application in September 2012. The High Court and Court of Appeal have rejected the Father’s claim.
The Supreme Court unanimously allowed the father's appeal and ordered the return of K to the United States under the inherent jurisdiction, on the basis of undertakings offered by the father to enable the mother to live in Texas, independently of the father and sharing the care of K between them, pending any application she might make to the Texas court to modify the order relating to K’s residence. Handing down the judgment, Lady Hale said that the crucial factor was that K was a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. Despite the passage of time there was no reason to consider that K would suffer any significant harm by returning to Texas.
You can read a press summary of the judgment here, the full judgment here (PDF - HTML version here) and the Court of Appeal judgment here.