TRINIDAD AND TOBAGO
Court of Appeal
Jones (voting judge), Mendonca, and Des Vignes, Justices of Appeal
UNITED STATES - FEDERAL JURISDICTION
TRINIDAD AND TOBAGO
14 January 2019
Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Procedural Matters
Appeal dismissed, return ordered
Trinidadian International Child Abduction Act No 8 of 2008
Butler-Scloss LJ in Re M (Abduction Undertakings) [1995 1 FLR 1021] [INCADAT Reference: HC/E/UKe 20]; Boggs J in Friedrich v Friedrich [number 2] 78 F. 3d 1060 (6th Cir. 1996) [INCADAT Reference: HC/E/USf 82]; C v S (A Minor) (Abduction: Illegitimate Child)  2 AII ER 961 [INCADAT Reference: HC/E/UKe 2]; Katarnych J in Francis v Maharaj; H-K (Children)  EWCA Civ. 1100; Reg v Barnet LBC., Ex p Shah  2 AC 309, 344B-D; Re Morris, US District Court of Colorado, 55 F. Supp. 2d 1156 (1999) [INCADAT Reference: HC/E/USf 306]; In re B Del CSB (A Minor) Mendoza v Miranda No 08-55067 DC CV -07-00290 [INCADAT Reference: HC/E/US 1260]; Lady Hale in Re A (children)  UKSC 60.A [INCADAT Reference: HC/E/PK 1233]; In re E (Children) (Abduction-Custody)  1 AC 144 [INCADAT Reference: HC/E/UKe 1068]; DP v Commonwealth Central Authority (2001) 206 CLR 401 [INCADAT Reference: HC/E/AU 346]; In re D  1 AC 619 [INCADAT Reference: HC/E/UKe 880]; B v B (1993) 2 AII ER 144 [INCADAT Reference: HC/E/UKe 10];
Wrongful retention of a child when she was 4 years old - Trinidadian - Trinidadian mother and father - The child lived in the United States for 2 years and 4 months - Return ordered - Appeal dismissed - Main issues: habitual residence, grave risk, immigration status – The young child’s habitual residence was found to be in the U.S. because that was the place of residence of the mother and because she had lived there for a considerable time - The removal had not been wrongful but retention was since it breached the mother’s right of custody.
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.
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
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.
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
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)
Author: Martina Traveso (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari).