Buscador de jurisprudencia

The parents had two children who were age 4 and 11 at the time of the hearing. The children were born in Mexico and had lived there their entire lives before being retained in the United States. 

The parents decided to move the family to the US and made a plan for the father to cross the border with the children and the mother to follow soon after. Their attempt failed. The father was detained for two months in a detention facility and, in the interim, the children were taken across the border by traffickers and picked up by the mother’s family. 

The father returned to Mexico and requested that the mother’s family, including the children’s maternal grandmother, return the children to Mexico.

The mother’s family refused and enrolled the children in school in the US. The children have a close bond with their family in the US, integrated well into school and accused the parents of physical abuse.

The parents filed an application for return under the 1980 Hague Convention.

Return refused based on the elder child's objections, the fact that the children were now settled in the USA and the grave risk of harm should they be returned to Mexico.

Habitual Residence - Art. 3

The Court considered the shared intent of the parents and found that they intended to move to the US as a family. As this was not possible, the court found the children’s place of habitual residence to be in Mexico. 

Rights of Custody - Art. 3

The standard for exercising custodial rights at the time of the wrongful retention is lenient and requires fairly minimal activity on the part of a petitioner. In this case the parents sufficiently demonstrated they were exercising their parental rights at the time of the wrongful retention.

Objections of the Child to a Return - Art. 13(2)

The eldest child was nearly 12 at the time of the hearing with significant maturity, insight, intelligence and strength. She coherently articulated her objections to going back to Mexico and her reasons for wishing to remain in the US. Testimony from the child’s psychotherapist said she had a persistent and long-standing fear of returning to Mexico and a consistent narrative wherein she asserted she experienced physical and emotional abuse at the hands of her parents.

Therefore, the Court found that the child was of a sufficient age and maturity where it was reasonable to take into consideration her objections to returning to Mexico.

Settlement of the Child - Art. 12(2)

The elder child was very well integrated into her new community, attending church and being recognised at school for achievements and being an exemplary student. She had many friends at school and took part in extra-curricular activities.

Regarding the younger child, it was found that she also had strong bonds with the maternal family, including a strong mother-child bond with her grandmother, and had now lived the majority of her life in the US. 

The children were also both in the financially secure care of the maternal family.

Therefore, the Court found that both children were settled in the US.

Best Interests of the Child

The Court went on to say that, even if no exception to return had been found to be applicable to the younger child, the Court would still not have ordered for her return and would have instead prioritised protecting the sibling relationship.