Relationship break-ups where the couple are of different nationalities often present particular difficulties for the courts – especially where the custody of children is in dispute.

A recent case involving an American father and his British ex-wife illustrates the sorts of issues that can arise. The couple married in the USA in 2006. They had a son, but by 2008 the husband had petitioned for divorce and the couple were divorced in 2010. The mother had returned to the UK with their son in 2008.

The father was given custody of the couple’s child by the American courts in 2010 and was given the right to determine his place of residence, which he chose to be the USA. The mother sought an order of the British court (under the Hague Convention on the Civil Aspects of International Child Abduction 1980) for the child to be ‘returned’ to the UK (where, in fact, he already was), which was granted. The father, however, appealed that decision in the USA and obtained an order requiring that the child be returned to him. The mother refused to return him to the USA.

The result was that the legal systems of the USA and UK were in conflict.

The father claimed that the UK court’s decision was wrong because the couple’s son had not lost his habitual residence in the USA, and that since he had rights of custody over the child, the mother’s removal of the child to the UK was a wrongful act.

The Court of Appeal concluded that the child’s removal from the USA (to which the father had agreed at the time) was not improper. Subsequent to that, the child had been resident in the UK for an extended period, probably becoming habitually resident in the UK in that time.

The father’s argument, in effect, sought to make the child’s removal from the USA improper because of a decision made later, which was a ‘fanciful’ argument.

The Court accordingly refused the father’s application for the repatriation of the child to the USA.


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