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The case concerns a girl born in Trinidad and Tobago on 25 May 2013 to a Trinidadian mother and father. The father resided in Trinidad while the mother was living in the United States of America. Both parents had two other children from previous relationships. The mother’s other children were U.S. citizens. Around July 2015, the father was sent to Maryland, U.S., on a one-year military appointment. The mother and all of the 5 children (2 from the mother, 2 from the father, and the girl) joined him. The father alleged that their intention was that the family joined him on vacation. The mother, on the other hand, contested this and claimed that the intention was to remain there during the father’s stay. They had signed a lease for an apartment for the period between 1 August 2015 and 30 June 2016.

In October 2015, the mother reported the father for domestic abuse. He was taken into custody, charged and a protective order was put into place against him, with his consent. His employers ordered him to return to Trinidad and Tobago after his arrest. The mother, together with her kids and the child concerned, remained in the same apartment in Maryland and then moved to Miami, Florida, to the maternal grandparents’ apartment. The child and her half-sister attended the same school in the U.S.

In December 2015, the father applied for custody in the U.S. The court granted the parents the joint custody of the girl, with the primary physical and residential custody to the mother and specified access to the father in the U.S. and in Trinidad and Tobago when the child attained the age of 4. The court ordered that, upon failure to reach agreement on any major issues concerning the child’s life, the mother was to decide, and the father was to pay monthly maintenance for the child’s support. The father admitted that he was not up to date with his payments.

On 5 July 2017, the father was given access to the child from that same day to 15 July and was allowed to travel with her to Trinidad and Tobago. He exercised that right and then did not comply with the order. According to him, the child was refused boarding on the flight back to the U.S. because her A2 visa had expired. This fact has not been proved but it was undisputed that at the time the girl had a valid B1/B2 visa. On 18 July, the mother filed contempt proceedings and the father, in turn, filed an emergency custody application three days later. The proceedings lead nowhere.

On 28 November 2017, the mother filed the return application before the Family Court of Trinidad and Tobago seeking an order for the return of the child to the United States of America pursuant to the 1980 Hague Convention on International Child Abduction and the Trinidadian International Child Abduction Act No 8 of 2008. At the time, the child was over 4 years old and had lived in the U.S. for 2 years and 4 months.

On 19 April 2018, the trial judge granted the mother’s return application and ordered that the father should obtain a Trinidadian passport for the child within 2 weeks, and that within the next 48 hours to obtaining said document he was to apply to the U.S. Embassy for the necessary visa and to purchase an airline ticket to return to the U.S. with the child and deliver her to the mother within the next 72 hours to the visa’s issuance. The father’s appealed the decision.

Appeal dismissed, return ordered. Removal was not wrongful, but retention was.

Habitual Residence - Art. 3

The Court of Appeal held that the term “habitually resident” should not be treated as a term of art with some special meaning but understood as a question of fact to be decided by reference to all the circumstances of a particular case. It added that there is a significant difference between a person ceasing to be habitually resident in a country, and his subsequently becoming habitually resident in another, as one may cease to be so in a country in a single day but an appreciable period of time and a settled intention are necessary to become habitually resident in another one. Moreover, “where a very young child is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers” (C v S (minor-abduction-illegitimate child) [1990] 2 AII ER 961 [INCADAT Reference: HC/E/UKe 2]).

Thus, the Court of Appeal held that given the young age of the girl and that there was an order giving the mother primary custody, the integration of the mother in a social and family environment in the U.S. was of key relevance, especially considering that her other two children were American citizens. Given that there was no immediate, concrete threat of deportation, the lack of the girl’s immigration status was to be disregarded. Therefore, the trial judge had not been wrong in concluding that the girl’s habitual residence was in the U.S. and that her immigration status was not a bar to such a finding.

Removal and Retention - Arts 3 and 12

The Court of Appeal held that the father’s removal was not wrongful, contrary to the lower court’s finding, since said removal was pursuant to his entitlement under the custody order and the temporary time sharing order. However, what was in fact wrongful was the retention of the child after 15 July 2017. The father submitted that his failure to return the girl was caused by the airline’s refusal to allow her to board the flight to the U.S. given the expiration of her A2 visa. This was not an issue with the American immigration authority but the airline because a valid visa had not been produced. At the time, however, the girl was in possession of a valid visitor’s visa that would have allowed her to be boarded. Her position on landing would have been the same as anyone else’s holding any type of visa, namely, subject to the discretion of the relevant immigration authority.

Grave Risk - Art. 13(1)(b)

The Court of Appeal stressed that the issue before it was not to ascertain the best interests of the child but whether there was a grave risk that she would be exposed to physical or psychological harm or placed in an intolerable situation should she be returned to the country of her habitual residence. It confirmed the lower court’s determination that the burden of proof was borne by the father as to the exception provided by Art. 13(1)(b) of the 1980 HCCH Convention and that he had failed to discharge it.

Moreover, the Court stressed, citing a case decided by the UK Supreme Court that the risk must be grave. It is not enough for it to be real, as is in other contexts, such as asylum cases. Even though grave characterises the risk rather than the harm, in ordinary language, there is a link between the two (namely, an inverse correlation). Thus, a relatively low risk of death or really serious injury might properly be qualified as grave, while a higher level of risk might be required for other less serious forms of harm.

The Court also considered that the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis added). As previously stated in re D (2007) 1 AC 619, para 52, "Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent.

The court ruled that the fact that the mother was unemployed, had no immigration status, no means to provide for the girl and no prospect of having her status regularised in less than 7 years did not even approach the standard required to grant an Art. 13(1)(b) exception and that the fact that she had been in need of legal aid in July 2017 did not speak to her present situation. The Court cited a case (B v B [INCADAT Reference: HC/E/UKe 10]) where the impecuniosity or lack of means of the mother was considered not to approach “the high degree of intolerability” required, mere financial discomfort or distress being insufficient.

Procedural Matters

The Court understood that it is clear that the burden of proof lies with the “person, institution or other body” which opposes the child’s return. It is for them to produce evidence to substantiate one of the exceptions in the Convention. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence, the court will of course be mindful of the limitations involved in the summary nature of the 1980 Hague Convention process. Thus, hearing oral evidence on the allegations under Article 13(1)(b) is rare, and so they are not tested in cross-examination, as neither is their rebuttal.

Author: Martina Traveso (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari).