L-S (A Child)

Judgment Approved

Lord Justice McFarlane :

The present appeal relates to proceedings brought under the Hague Convention on the Civil Aspects of International Child Abduction with respect to a boy, M, who is 21 months old. The three central issues in the appeal relate to the child’s habitual residence, whether or not his father had subsequently acquiesced if he had been wrongfully removed from the USA to England, and whether the circumstances are sufficient to engage Article 13(b) of the Convention by establishing that there is a grave risk that his return to the USA would “place the child in an intolerable situation”.

M had been removed from the USA by his mother on 25 April 2016. In a judgment given at the conclusion of a 2 day hearing, which included an element of oral evidence from each of the two parents, Mrs Justice Parker determined that M had been habitually resident in the United States at the time of his removal, she rejected the mother’s case on acquiescence and Article 13(b), with the consequence that an order for M’s return to the United States was made. It is against that outcome that the mother now appeals to this court, permission to appeal having been granted by Lady Justice Black (as she then was) on 21 July 2017.

Background

The background facts can be shortly stated. Although of South African origin, the mother lived for much of her childhood in England and was habitually resident here prior to moving to America when she was aged 21. Whilst there she met the father, who is an American citizen, in 2010 and they were married on 6 January 2011. The couple remained living together in America, albeit in a series of different locations in what has been described as a nomadic or peripatetic lifestyle, until 6 October 2015 when the mother, who was then some 28 weeks pregnant, came back to England where she accessed maternity care under the NHS.

On 25 February 2016, when M was only 4 weeks old, the mother flew with him back to America. While she had been away the father had yet again moved home to a different US state. The mother and M lived with the father for the next two months, until, on 25 April, the mother removed M back to England on a one-way air ticket without telling the father of her intention.

Since that time M has remained in his mother’s care in England.

On the judge’s findings, during the summer of 2016 the father obtained some information about his ability to apply for M’s return to the United States under the Hague Convent