The Royal Borough of Kensington and Chelsea (RBKC), who was the guardian of two minor children after child protection proceedings, brought a Hague Abduction return petition in the Southern District of New York against the children’s mother. The Court confirmed that RBKC had standing under Article 8 of the Convention as an institution or other body permitted to make the claim. A law firm was appointed, pro bono, to represent the eldest of the two children, and participated in an in camera interview of the child after three days of trial.
On November 15, 2021, the police were called to the mother’s home to address an incident related to the children, specifically the Baby, who was dropped onto a wooden floor and taken to the hospital. This led to the implementation of a Child Protection Plan for both children, primarily out of concern that the mother abused alcohol. The case involved a lot of references to three un-named individuals, only identified as Individual 1, 2, and 3. No. 1 alleged parentage of the Baby, and the Mother alleged he raped her, which led to the Baby’s conception. There is an ongoing custody/paternity case in England, filed by No. 1, and a ne exeat order prohibiting the Mother’s removal of the Baby from England. No. 2 also allegedly raped the Mother. Mother claimed he went on a campaign of harassment against her oldest child and her. No. 3 is a London barrister, an immigration expert used by the Mother in this Hague matter, and was previously engaged to the Mother and listed on the youngest child’s birth certificate for a period of time.
On January 6, 2022, the City of Westminster held a Child Protection Conference and adopted a Child Protection Plan. The Plan ended in April 2022, when Mother and the oldest child relocated within London and came under the oversight of Petitioner RBKC (the youngest child was in New York by this time). On March 18, 2022, No. 3 removed the Baby from England to New York and dropped off the child to Mother’s mother (the Grandmother). At the time he was listed as the child’s father on the birth certificate, and Mother indicated there was a chance that he was the father. On or about May 16, 2022, Mother removed the eldest child from England to New York. Mother and both children have resided with Grandmother since that time. Wardship proceedings continued in England, with RBKC as a party, and the court issuing several orders mandating Mother and/or No. 3 to return the children to England. In addition, on August 23, 2022, No. 1’s parentage was confirmed over the Baby, and he was granted parental responsibility of the child.
The court concluded that the High Court of England and Wales had parental responsibility over the eldest child, as a Ward of the Court. RBKC is charged with effectuating the orders of the High Court, and is therefore the party/applicant for the proceedings. Furthermore, there was a ne exeat order barring removal of the eldest child from the court’s jurisdiction. RBKC is permitted, under the Convention to assert the High Court’s rights of custody over that child at the time of his removal. The Baby was not a Ward at the time of his removal. In addition to a Child Protection Plan for the Baby, there was a separate ne exeat order prohibiting the Baby’s removal from England and Wales, which constitutes a right of custody.
The court concluded that it would not return the eldest child, age 13, after a 2.5 hour interview of the child, un-transcribed, with his court appointed lawyers. The eldest child described clearly and articulately the circumstances that surrounded his life in London in recent years, including the turbulence. He came across as enthusiastic about his academic life, and concerned that application deadlines had passed for appropriate private schools in England. He also spoke about his Mother’s alcoholism, and how she is not dependent on substances in the United States, but that if she returned to London, so would the dependence. The RBKC argued that the child had taken on a parentified role given his Mother’s problems, and so he was unduly influenced. The court disagreed, describing the child as thoughtful and composed, describing his circumstances with clarity.
Mother failed to meet her burden to prove a grave risk of harm to the Baby, if returned. Her primary concern related to No. 1 and No. 2, and most of what she described, if assumed truthful, was directed at her, and not the child. Further, when timely contacted, local English authorities have been more than attentive and responsive to the Mother’s concerns. Mother also failed to meet her burden to prove an intolerable situation related to her immigration status and the potential for criminal prosecution upon attempts to re-enter the United Kingdom. The court found that the High Court had attempted to facilitate visas so that the Mother and child could return, but that the Mother “engaged in dilatory conduct to frustrate entry to the United Kingdom.” An immigration lawyer opined to the court that if the Mother had cited the High Court proceedings in her visa application, and cured other misstatements made in the application, it would have likely been a viable application.
Therefore, the court ordered the baby returned, but declined to return the 13-year-old.