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CJ v KJ [2005] EWHC 2998 (Fam)

Application for return of child to the United States under the Hague Convention refused.

Family Division: Sumner J (12 December 2005)

Application for return of child to the United States under the Hague Convention refused.

The mother, a UK citizen, and the father, a US citizen, were married in 1999; their daughter was born in September 2001; and they lived in Wales until they moved to the United States in September 2003. In October 2003, the mother, who had a Green Card, applied for a visa to stay in the United States as the wife of a US citizen, but that process was not completed before the parties separated in December 2004. During the period from October 2003, the mother was only entitled under the terms of the Green Card to remain in the US for a maximum of 90 days at a time, so she and her daughter travelled to Wales on five occasions and stayed with the mother's parents.

At the end of their planned stay in October 2004, the mother and daughter stayed on in Wales, with the father's consent, until the mother's sister's marriage on 23 December; and the father arrived in the UK, to attend the marriage, on 14 December. Shortly after the father's arrival, the parties' relationship broke down, and he returned to the US on 23 December. Thereafter, the parties exchanged messages by telephone and email; the father did not ask the mother or their daughter to return; and no action was taken until, in August 2005, the father issued an application under the Hague Convention for the immediate return of his daughter to the US.

The main issues were: (1) whether the child was habitually resident in the US at the relevant time (ie for the Hague Convention to be engaged); (2) whether the father had consented to or acquiesced in his daughter remaining in the UK; and (3) whether the child would be exposed to grave risk of harm if her return were ordered.

In brief, the judge found that: the child was habitually resident in the US at the relevant time; the father had consented to and acquiesced in the unlawful retention by the mother of their daughter; and the mother had established grave risk in only one limited area if the child were forced to return. Accordingly, he would exercise his discretion not to order her return to the US.

On the issue of habitual residence, the judge reviewed the authorities and applied them to the facts of the case; he was satisfied that both parents had a settled intention in September 2003 to make their home in the US. The mother's status in the US as a visitor did not prevent her acquiring a domicile of choice there; and habitual residence was not lost by virtue of temporary absences, especially where they were taken to advance the primary intention of obtaining a permanent residence in the US.

As to consent, the parties had spoken about the prospects of separating and, in the event of separation, there was an agreement about the parent with whom the child would live. When the parties separated in December 2004, the father knew of the mother's intention to stay in Wales, and accepted that situation: by his actions and words, he consented to the mother's unlawful act.

As to acquiescence, the judge referred specifically to the fact that the father was not aware until July 2005 of the existence of the Hague Convention and the mechanisms that exist to enforce rights arising under it. Nonetheless, he was satisfied that the father had made it clear to the mother, over a period of time, that he would not assert any right to claim their daughter's summary return, and it would be inequitable now to permit him to do so.

Read the full text of the judgment here