On July 2, 2021, the U.S. District Court for the Middle District of Florida denied Ms. Sain’s request to have her children returned to England under the Hague Abduction Convention.
Ms. Sain is Filipino and Mr. Sain is American. They are parents to two children. Their first child was born in 2008 in the Philippines. Their second child was born in 2009 in China. In 2012, the Sains separated, but continued living in the same house in China for the benefit of their children. In 2015, Ms. Sain left the parties’ house and moved in with her new boyfriend, leaving the children with Mr. Sain. The following year, she and her boyfriend moved farther away, but still in China. In 2018, they moved to England. The Sains and their children visited one another once in England, twice in China, and once all spending a week together in one hotel room in Hong Kong. In early 2020, the Sains and Ms. Sain’s boyfriend, all convened in the Philippines for Ms. Sain’s family reunion. The blended family spent time together, but when Mr. Sain and the children went to return to China, they learned COVID-19 had closed the borders, so the parents agreed that Mr. Sain and the children would stay in England with Ms. Sain until they could return home to China. Mr. Sain and the children spent March – August 2020 with Ms. Sain, her boyfriend, and their child, in her one-bedroom flat. During this time, Mr. Sain was unable to return to China, and began applying for jobs, although he testified he only applied for online jobs, with Ms. Sain arguing that he sought work in England. After increased tension, and a police episode, Mr. Sain and the children went to stay with his friend in Wales. In October 2020, Ms. Sain learned, through a P.I. that Mr. Sain and the children were not at the Welsh address he provided, so, she filed suit in Wales, with a hearing set for December 8, 2020. Mr. Sain failed to appear, and the Welsh court issued a Prohibited Steps Order, enjoining him from removing the children from the UK without the consent of both parents. However, it came to light that Mr. Sain and the children had left the UK on December 7, 2020 and traveled to the United States. He apparently was unable to remain in the UK past the end of 2020 on his tourist visa. This suit then ensued.
The Hague Abduction Convention mandates the prompt return of removed and retained children to signatory states only. In this family’s situation, the United States and UK are treaty partners, but China is not a signatory to the treaty. Ms. Sain had the burden to prove that the UK was the children’s habitual residence. But, all evidence pointed to China being the children’s habitual residence, and China is not a signatory state, and the treaty cannot serve as a mechanism to return the children to China. Even though the children were in the UK for 9 months, they were not attending school, not making friends, and acted like tourists. Their belongings remained in China. Their housing situation in the UK was temporary. Mr. Sain produced evidence that he was actively trying to return to China. The children were interviewed in camera, and, from their perspective, China was home. Mr. Sain and the children were in England on tourist visas. Not being able to return to China when their tourist visas were expiring, they traveled to the USA, where they were all citizens, with the intention of still returning to China when they could.