In previous articles, I have explored what in family law are called 'international child abduction cases'. As abduction connotes criminal activity, it is important to state that these types of cases usually involve situations in which there is a custody order in one jurisdiction, and one parent removes the child from that jurisdiction or refuses to return him there in defiance of the court order. The matter, therefore, does not involve the criminal courts.
There have been a few such cases in Jamaica, such as the matter of Hanna v Panton, which was determined in the Court of Appeal in November 2006. In that case, there was a custody order in Atlanta, Georgia, where the child resided with his father. He visited his mother in Jamaica, and she refused to return him to Atlanta and even got a custody order from the Jamaican Court. This triggered hearings all the way to the Court of Appeal, which resulted in the summary return of the child to the care and control of his father in Atlanta.
Cases such as these usually involve technical legal arguments, and a multiplicity of court actions in different jurisdictions. However, as confirmed in a recent decision delivered by the UK Supreme Court on December 4, 2013 - In the Matter of KL (A Child) - the issue is ultimately resolved by determining what is in the best interest of the child.
In this case, the little boy, K, now aged seven, was born in Texas, USA, to Ghanaian parents. He is a US citizen. The marriage was terminated in 2008. During divorce proceedings in Texas, the parents agreed to temporary orders which gave the mother authority to determine K's residence, but envisaged that they would continue to reside in the family home in Texas.
Despite that order, the mother moved to England with K in July 2008 and remained there until February 2010 when she was ordered to return K to Texas for the purpose of completing the divorce proceedings. Subsequently, there was a custody hearing in Texas, the mother having acceded to the jurisdiction of the Texan court, and the father was granted exclusive right to determine K's ordinary residence. The mother then applied to the US Federal District Court under The Hague Convention on Civil Aspects of International Child Abduction ('The Convention') and obtained an order for the father to deliver K and his passport to the mother.
After K and his mother flew to England, the father appealed to the US Court of Appeals. The mother argued that, because the father had not obtained a stay of the US District Court's order and the order had already been put into effect, the issue was moot. The Court of Appeals did not agree, and vacated the District Court's order. The District Court then ordered the mother to return K to his father, but she breached that order.
The mother appealed to the US Supreme Court, and the order of the Court of Appeals was upheld. As the mother still did not comply, the father filed proceedings in the UK under the Convention, arguing that the mother had wrongfully retained K in the UK, but his application was dismissed by the High Court. The Court of Appeals upheld that decision, but granted the father permission to appeal to the Supreme Court.
The UK Supreme Court allowed the father's appeal, and ordered K's return to his father in the US, highlighting the fact that K is a Texan child who was being denied a proper opportunity to develop a relationship with his father and with the country of his birth.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to email@example.com or firstname.lastname@example.org on twitter @lawsofeve.