December 6, 2013 by Robert Franklin, Esq.
Victory! Derek Larbie has finally gotten custody of his son, K. The British Supreme Court ruled on December 4th that Larbie is the parent most likely to promote a meaningful relationship between K and his mother and therefore should have custody of the boy.
The case has been convoluted to say the least. Larbie is an American of Ghanaian parents. He’s a Lieutenant Colonel in the United States Air Force, stationed at Lackland Air Force Base in San Antonio, Texas. In 2005, he married K’s mother, who was born in Ghana, but came to live in the United Kingdom when she was four. They married in San Antonio and settled there. K was born in August of 2006.
Larbie was stationed in Iraq from May to September of 2007, during which time K and his mother remained in San Antonio. On his return, his wife went to London for two months and Larbie stayed in Texas caring for his son.
In March of 2008, Larbie filed for divorce in San Antonio, but was again notified that he’d be deployed overseas, this time to Afghanistan from June of 2008 to August of 2009. Despite temporary orders of the San Antonio court that, in the words of the UK Supreme Court, “clearly envisaged that the mother and K would continue to occupy the matrimonial home in Texas,” Mom decamped to London with the little boy who was by then not quite two.
Soon enough, she was ordered to return with the child to Texas to complete the process of divorce which was accomplished in July, 2009. K lived with his father in San Antonio from March 2010 to August 2011.
Here’s what the British and Texas courts had to say about K’s mother:
[S]he applied to the immigration authorities here for K to have indefinite leave to remain, stating that she was unable to give the father notice of the application because of his deployment in Afghanistan, when in fact the agreed order provided for him to have contact with K during K’s spring break in March 2009. When the time came for that contact, the mother resisted it… [T]he mother also gave conflicting accounts of her intentions, stating to the English authorities that she intended to remain here and to the Texan court that she hoped to maintain permanent residence in the U.S.
[T]he mother had said that unless she was divorced and given custody, K was due to be deported from the UK imminently (there was nothing in the record to support this statement, which is implausible in the extreme)… The judge decided that it was in K’s best interests that his father should have the exclusive right to designate his primary residence… She concluded that the father was the parent who would best promote the child’s relationship with the other parent. In her words, “my great concern is that the testimony I have heard here today, to a certain extent, does not speak as loud as the actions do”. She found that there was a risk of international child abduction by the mother. The mother had taken or kept K away in violation of the father’s right of possession or access; she had engaged in plans and activities to facilitate K’s removal from the US while the father was in Afghanistan; she had strong ties to Ghana, a country which was not party to the Convention; she had no strong ties to the US and had undergone a change in status with the US immigration authorities which would adversely affect her ability to remain there; she had testified that she was not obliged to abide by the Texas court order; she had resisted the clear terms of the Texan access order; she would interfere with the father’s rights as custodian. The order provided for K to have contact with his mother, for the mother to pay the costs of his international travel in lieu of child support, and for her to post a $25,000 bond as security for K’s return.
In short, according to the Texas trial court judge, the mother was a serial liar and perjurer. She also made no secret of the fact that she wouldn’t abide by the court’s order, leading the judge to believe that she’d abduct K to Ghana if given half a chance. For their part, British authorities were none too impressed with Mom’s veracity either.
So, with that background, what did a federal district judge in Texas do when Mom applied to the court for an order returning K to England pursuant to the Hague Convention on the Civil Aspects of International Child Kidnapping claiming that he was “wrongfully retaining K in Texas?” (This was a father with a court order of custody, remember.) He/she agreed with everything the mother claimed and issued an order for K to be sent to live in the U.K. with her.
One British jurist labeled that decision “bizarre in the extreme” as it surely was, and the Fifth Circuit Court of Appeals overturned it in short order. But by then K and Mom were in London. That meant Larbie had to fight for custody trans-ocean.
And fight it he did, and to his great credit (and that of the British Supreme Court) he prevailed.
The Supreme Court’s opinion on the case is a trifle odd itself, even though it plainly reached the correct conclusion. The primary issue as in so many Hague Convention cases, is the determination of the habitual residence of the child. K himself stated clearly at least twice that he didn’t care what country he lived in; he liked them both, but of course he was four when he was interviewed, so it’s doubtful that he could make an informed decision in the matter.
But Lady Hale, writing for the Supreme Court, jumped through many intellectual hoops, only to come close to concluding that a child, who was born in the United States and lived most of his life there, might in some way have his habitual residence in the U.K.
In favour of K’s remaining here is the fact that he has now been living here with his mother and younger brother for over two years. He is at school here and apparently doing well. Although he is obviously confused and upset by the conflict between his parents, and his conflict of loyalties to them, there is no reason to suppose that he is unhappy here. The evidence as to his current home and school situation is readily available here and no doubt the evidence as to his prospective home and school situation in Texas would be available to a Cafcass reporter…
Clearly uncomfortable with that outcome, Hale abandoned that line of inquiry and moveed to one more amenable to the right result, i.e. the best interests of the child.
In favour of his returning to Texas is the fact that he is a Texan child. His parents were married there and he was born there. He has an older half-brother who is now at University in the United States. He also has a large extended family living in the United States. He has spent three years and seven months of his life living there, most recently in the sole “possession” (as they put it in Texas) of his father, who has facilitated contact with his mother. He is used to travelling between here and the United States and to changes in parental care. It is clear from his interview with the Cafcass officer that he has fond memories of his time in the United States…
The crucial factor, in my view, is that this is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. For as long as the Texan order remains in force, his mother is most unlikely to allow, let alone to encourage, him to spend his vacations in America with his father. Whilst conflicting orders remain in force, he is effectively denied access to his country of origin. Nor has his mother been exactly enthusiastic about contact here. The best chance that K has of developing a proper relationship with both his parents, and with the country whose nationality he holds, is for the Texas court to consider where his best interests lie in the long term.
Lady Hale gave lip service to the concept that it’s the Texas court that should rule on the child’s best interests, but what she called the “crucial factor” in the matter is the mother’s denial to the child of a relationship with his father, i.e. a “best interests” factor.
Face it, this was an easy case. The mother was trying to do what the Hague Convention exists to prevent – an abducting parent’s using her abduction of the child to establish jurisdiction in the country of her choice. After all, the Convention wouldn’t be much good if a parent could just pick a country, abduct the child to it and then claim the courts of the country from which the child was taken couldn’t decide the case because the child was no longer there.
Admittedly, in Larbie’s case, the mother absconded with the child under the color of the federal court’s erroneous order. But once that order was reversed, she could no longer claim to be acting under it. At that point, it should have been obvious that the child’s residence was in Texas and Texas courts should be the ones to adjudicate whatever issues remained.
Hale and the others reached the right conclusion, but by a process we’ve seen used all too often to deny fathers their parental rights – the best interests of the child. Put simply, the “best interests” standard has no applicability in Hague Convention cases. As I’ve said time and again, courts construing the Convention need to decide where the child’s country of residence was prior to the abduction, return the child there and let the courts in that country decide issues of custody on whatever bases the laws require.
I don’t know why that’s such a difficult concept to grasp, but we see it frequently.
Still, as any attorney will tell you, a win’s a win.
Thanks to Jeff for the heads-up.
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