Four years ago today, I argued before the United States Supreme Court in Chafin v Chafin. When the Court issued its opinion, it agreed with me 9-0. Yes, it was a unanimous Supreme Court with a Concurring Opinion by Justices Ginsburg, Scalia and Breyer. It was, indeed, a kumbaya moment for our Supreme Court.
I argued that our courts in the United States should not lose jurisdiction over our children just because they are removed from our shores. The state of the law in Georgia, Alabama and Florida was that when children were removed from the United States, from the moment they cease to touch their toes on American soil the United States became powerless to do anything for them. Powerless? I didn’t think that sounded very United Statesy. Fortunately, the Supreme Court of the United States agreed.
As often happens when new law is made, other courts mold themselves to, around and in opposition to that new law. This case was no different. My Supreme Court victory in Chafin v Chafin is an often cited case for many reasons. Courts cite the case for support and to distinguish their facts from the Chafin facts. Sometimes courts react significantly to Chafin as an undercurrent to their ever evolving assessment of the development of international family law under the Hague Convention on International Child Abduction.
Such is the case with a ground breaking case out of the United Kingdom, In re A.R. Incensed that American Courts would continue to claim and protect their children, the Court of Session in Scotland appears to completely turn the tables and vitiate the Hague Convention’s application and even its very purpose.
While the Hague Convention has no statute of limitations, it does apply a one year period from the date that children turn up in a new country as a critical deadline within which to require a mandatory return of children to their homes. After that year has passed, the children’s return is much more discretionary.
In the In re A.R. case however, the Court of Session asserted that a child can obtain Habitual Residence as soon as immediately, once the child arrives in the United Kingdom. The Court held that the duration of the stay in the UK is relevant, but not determinative. Going further, “Even when there is no settled intent on the part of the parents to abandon the child’s prior habitual residence, courts should find a change in habitual residence if ‘the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.’”
Let me break that down. The Scottish Court is saying that even if the parties never intended to abandon the United States, the UK will assert authority over their child. There need not be mutual parental intent nor even unilateral intent for the child to leave one place and live in another. If the child is resting his head somewhere in the UK, “BAM,” to quote Chef Emeril, the child’s Habitual Residence is now the UK. Bye, bye Ms. American pie.
The Court continued, “In order to establish a new habitual residence, It is not necessary to show that when the child moved to the new country there was any intention to reside there permanently. Nor need there be any intention to reside there indefinitely. It is sufficient if there is an intention to reside there for an appreciable period. A habitual residence could be for a limited period. Thus, even if the minute of agreement was to be construed as an arrangement limited to six months.”
Got that? The Court here is saying that Habitual Residence in the UK can be accomplished within a minute, if the plan was to reside in the UK for as little as six months.
Let’s break that down. This means that, to the UK, if a student is studying abroad for a semester and he brings his family along with him, the UK will assert that it has the right to determine what happens to the student’s child. The child ceases to be under the protection and laws of the United States. This case means that if a corporation sends its employee to Great Britain for a year to launch a new office and that employee takes his family along for the ride, the UK government exerts authority on all the decisions about that employee’s children from the moment they touch down at Heathrow until they escape.
This ruling is coming as a huge shock to our American businesses and colleges. They never intended that their employees and students should become prisoners of the UK, just because they spent some limited time there to accomplish some finite purpose. Travelers beware indeed!
Best practices would demand that if you are traveling to the UK, even to Europe in general as this virus from this ruling is spreading throughout the EU, you should clearly express your intent, not only on the duration of your stay but your understanding, your commitment, your autonomy to remain a citizen of and subject to The United States of America, lest you risk becoming the Queen’s unwilling subject.
Of course, this is only the most recent word on the subject from the UK. Enterprising Barristers and Advocates are already working to further define, refine and demolish the abhorrent aspects of In re A.R.. Soon, the American business community and American schools will make their displeasure abundantly known. The absence of their dollars will echo through the vaunted halls of Britain’s courts.
The common law is an ever evolving landscape. If you rest for a few days, you become a few days behind. Four years since my argument is a long, long time. I’m very honored for the experience of arguing before the Supreme Court. I’m exceptionally happy for the unanimous win. But, like the law, The Manely Firm keeps moving, keeps reaching higher, keeps pressing the law to be better, more responsive, more family centered. And while this new law out of the UK seems anything but, the Firm is working, even over there, to make it safer for all of our American children.