Thursday, 21 February 2013

US Supreme Court gives decision in Transatlantic Custody Dispute

The US Supreme Court gave Judgment on Tuesday in a long-running custody dispute.

The court is the highest in the US, which seldom deals with family cases unless they raise questions of national significance.  The Judgment relates to Eris Chafin, the daughter of Jeffrey and Lynne.  Jeffrey is a US national and Lynne is Scottish.

The US Supreme Court Building
Lynne and Eris lived in Scotland from 2007, whilst Jeffrey was serving in the US Army as a bomb disposal expert.  Their relationship ran into trouble in 2010.  Lynne travelled to the US with Eris to try to salvage the relationship.  She was deported for overstaying her visa.  She was forced to return to the UK leaving Eris with her father.

In 2011, a Judge in Alabama gave Lynne permission to take Eris back to Scotland.  This was on the basis that that was Eris’s habitual residence under an international treaty dealing with parental child abduction, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”).

Lynne left the US with Eris for Scotland shortly after this decision, which Jeffrey appealed.  The appeal court – the 11th US Circuit Court of Appeals - dismissed the case, saying the issue was academic because Eris was already in the UK and therefore beyond the US court’s control.

The Supreme Court, however, disagreed.  The court, consisting of nine judges, unanimously decided the 11th US Circuit Court had got it wrong.  It should have considered the merits of Jeffrey’s case.  It was not enough just to say the point was moot because the child was now living outside of the US.

Chief Justice John Roberts wrote:  “This dispute is very much alive [and the parents] continue to vigorously contest the question of where their daughter will be raised.”

The other Judges agreed, and were critical of the time that had been allowed to pass.  Justice Ruth Bader Ginsburg commented that dragging out the case “is hardly consistent with [the Abduction Convention’s] objectives.”

Reports indicate that there are custody proceedings already underway in Scotland about Eris.  No doubt, on the back of the Supreme Court’s decision, a renewed custody application will be made about her in Alabama.  It is quite possible there will be two conflicting decisions made by courts on each side of the Atlantic.  An issue will then arise about whether and how a Scottish decision is recognised in the US, and vice versa.  Eris’s future is far from certain, and court proceedings seem likely to wear on for some time. 

The US Supreme Court was dealing with one international agreement, which focuses on parental child abduction.  However, there is another agreement from the Hague Conference that would help in Eris’s situation.  This is the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”).

The Child Protection Convention contains rules on which courts should take responsibility for resolving disagreements about children and their upbringing.  The general approach is that it is the courts in the country where the child usually lives, although there are some exceptions to this.

The Child Protection Convention also has a rule to ensure that litigation is not run in parallel in two countries.  This is to prevent potentially conflicting decisions.  Under the Convention, a court should not make decisions about a child’s future if it knows a court in another country is already considering the matter. 

Last, the Child Protection Convention contains a series of rules so that custody decisions are recognised internationally.  So, a parent who does not like a decision taken in another country cannot just ignore it.  Under the Child Protection Convention, almost all custody decisions taken in Country A must be respected and implemented in Country B.

The Child Protection Convention started operating in the UK in November 2012, so it is still a pretty recent development in custody cases like Eris’s.  As at today, it operates between the UK and most EU countries, some non EU-countries in Europe, and others further afield (for example, Australia, Ecuador, Uruguay and Morocco).  The Russian Federation will come on board in June 2013.

Unfortunately for Eris and her parents, the Child Protection Convention has not entered into force in the US.  There is not presently any indication about when it will.  In the meantime, therefore, Eris and her family will have to endure the inevitable stress, uncertainty, anguish and expense of custody proceedings in two countries. 

Anyone in a situation similar to that facing Eris and Mr and Mrs Chafin should take legal advice from a specialist who knows his or her way around the Child Protection Convention, and how it can help families.  Whilst the Convention cannot currently aid Eris, there are many children it can and will assist. 

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