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Monday, June 18, 2012

Uzoh v Uzoh, 2012 WL 1565345 (N.D.Ill.)) [England] [Grave Risk of Harm] [Unclean hands]

In Uzoh v Uzoh, 2012 WL 1565345 (N.D.Ill.)) petitioner Chizoba Christopher Uzoh was "the father," and respondent Chidinma Akachi Uzoh was "the mother of two young children who lived in the United States without the consent of their father, a Nigerian national who resided and practices medicine in England. The mother was a Nigerian national who resided with her husband in England until May 9, 2011. The mother overstayed her tourist visa to the United States; her visa expired on November 9, 2011 and she was subject to deportation. However, she filed an asylum claim after
deciding not to return to the family home in England. Her asylum request was initially denied on December 8, 2011, with the statement; Material inconsistency(ies) within your testimony. The mother's present legal residency was far from settled. This was apparently a preliminary rejection; the notice also stated: This is not a denial of your asylum application. A removal hearing was set on April 4, 2013.

On December 27, 2011, the court granted the father's request for a rule to show  cause ordering the mother to appear before the court with the children. The mother and father are husband and wife. Both are Nigerian nationals. They were married in Nigeria in 2008, but their marital home was in Bristol, England, where the father practiced medicine with the National Health Service and the mother worked for a victims' rights organization.

Before the birth of their first child on August 31, 2009, the father arranged for the  mother to fly from England to Denver, Colorado, where their daughter was born. The  mother and infant stayed with the father's sister. On October 22, 2009, the mother  returned to the family home in England with their daughter in accordance with the  couple's plans. The agreed purpose for the trip was to provide the child with the  benefits of United States citizenship. Family life resumed in England. In time, a second child was expected. The couple agreed to follow the same plan for the birth to take place in Denver in order to secure United States citizenship for the new baby. The father purchased round trip tickets, and again the father's sister was to host the wife and their children. The mother traveled from England to Denver on May 9, 2011, accompanied by their daughter. The couple's second child, a son, was born on June 25, 2011. The father expected his wife and children to return within several months of the baby's birth. There were cordial communications between the parents immediately after the baby's birth. The father repeatedly inquired as to when his family would return home. The couple's relationship turned sour on July 27, 2011, when the mother informed the father she was in no hurry to return to England with the children. The  father responded with a series of emails, evidencing his anger and frustration. The early  emails implored the mother to return with the children, and to at least "make sure you return my kids." At the same time, he threatened to cancel the credit card he had given her if she did not come home. Id. She did not respond. Three days later, he cancelled the credit card because, as he later told his father-in-law, she threatened him with not returning to the United Kingdom with their children.

On August 9, 2011, the mother abruptly left her sister-in-law's Denver home with the children. She did not inform the father or her sister-in-law where she was taking the children. The father's reaction to his wife's disappearance with the children was acute rage, evidenced by his abusive and threatening emails to both the mother and his father-in-law, who lives in Nigeria. It was evident from the emails that the father believed his father-in-law was financially and emotionally supporting the mother's desertion of the marriage and abduction of their children. The father-in-law was an obvious advocate for his daughter. At trial, the father admitted that he "hacked" into his father-in-law's email account, deleting some communications with the mother.

At trial, the father admitted he sent the threatening emails. He explained he was  outraged and depressed by the unexpected loss of his family and especially by his  wife's refusal to communicate with him. The court found that the father's emails were  inexcusably demeaning and threatening. Albeit, aggravated circumstances were  involved: the sudden loss of his children and his wife's refusal to even inform him where  their children were located. Given this situation, the father's bad behavior in sending  emails to the mother and his father-in-law did not support a reasonable inference the
father has a proclivity for violent or abusive behavior. The mother terminated all contact with the father on October 31, 2011. A preponderance of the credible evidence established the mother unilaterally denied the father's parental and custody rights under English law.

The mother attempted to justify her conduct by claiming the father physically and mentally abused her while she lived with him in England. She related three instances of  physical abuse, claiming two happened while she was pregnant and one purportedly  took place in the presence of their daughter, then less than two years old. The father denied her accusations. The court did not find credible or trustworthy the mother's testimony that she fled from England to the United States out of fear of her husband. The mother was a well-educated and well-spoken university graduate, and she worked as a banker in Nigeria before her marriage. During and after the claimed abuse, she was a divisional administrator for a charitable organization that assisted victims and witnesses of crime, including domestic violence, in England and Wales. She had regular and frequent contact with British law enforcement officers and social services agencies in the course of her work. Yet she never complained to a law enforcement officer or social services agency about mistreatment. This is astounding because she is a sophisticated person on abuse issues and victims' rights. She did not testify that she suffered any actual injury, nor did she seek medical  treatment or counseling for the purported assaults. When the mother traveled to the  United States with her young daughter, it was for the purpose of providing United  States citizenship by giving birth in Denver. The agreed intent of the parents at the relevant time was that the mother would use the round trip tickets to return home as
soon as she and the new baby could do so. She traveled on a tourist visa that was to  expire in November 2011. She did not resign from her job until January 2012. Her  elusive conduct after her son was born is far more revealing than her trial testimony.

The mother's demeanor in relating the three purported instances of violence was akin  to testimony by an aggrieved spouse in an acrimonious divorce proceeding. The same  may be said of the trial testimony of her own father. Although he never witnessed the  father inflicting harm on the mother, the father-in-law testified that she told him about  the husband's alleged abuse. The court does not find the father-in-law's testimony  probative or reliable, given the lack of foundation and personal knowledge, as well as  his close relationship with the mother. There was no reliable evidence proffered that  these attacks happened. More importantly, there was no evidence that the father posed
any threat whatsoever to the safety of his children.

The Court observed that Habitual residence may be established by the  shared actions and intent of the parents, coupled with the passage of time. Koch v. Koch, 350 F.3d 703, 715 (7th Cir.2006). The mother and father lived together  in England during most of their marriage. The family's home was in England. Both parents were legal English residents and were employed in England. The mother did not resign from her job in England until January 2012, more than six months after traveling to the United States. The mother had an English drivers license reflecting the address of the couple's Bristol home. Their daughter received  medical care in Bristol. Pet. Ex. 11 (reflecting also the child's Bristol home address).

She was enrolled in a local nursery school. Overwhelming evidence established that the daughter, like her parents, habitually resided in the United Kingdom. The son was born in the United States. Due to his mother's unilateral decision to remain in the United States against the father's wishes, the son had not lived in England. Nonetheless, at the time of the son's birth, the established family home was in Bristol, England. The father consented to the son's birth in the United States with the joint understanding that his wife would return to England with their children within several months. He purchased round trip airline tickets. The parents' joint intent for the son to live with the family in England was established by a preponderance of the evidence. The mother testified that she traveled to the United States for the express purpose of obtaining United States citizenship for the baby. This reason may have been a ruse, or she may have changed her own intentions after the baby's birth. The mother's reluctance to return to England was not disclosed to the father until she was due to return, several months after the son was born. She did not deny that the family home was in England, and that she lived and worked in England during her marriage until May 11, 2011. The only reason the son has not actually resided in England was the mother's decision to retain the children in the United States.

Birth in the United States does not automatically render the son's habitual residence as the United States. Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (Infant born in the United States did not acquire a United States habitual residence when the mother's habitual residence was in Sweden). A preponderance of the evidence established that the shared actions and intent of the parents before the son's birth was that he would reside in the family home in England. This was sufficient to show that the son's habitual residence was in the United Kingdom. The mother's argument that her son's habitual residence is in the United States lacked merit, given that his residence in the county since birth was due to her wrongful retention.

The father's assertion of parental custody rights under English law was uncontested at trial. The mother and father had a joint parental responsibility for their minor children, including the joint right to custody. The evidence was uncontested that the father exercised his joint custody rights with respect to his daughter before she was wrongfully retained in the United States. The family lived together, he provided for his daughter, and the family engaged in regular outings. The father never had contact with his son, who is an infant and is thousands of miles away due to the mother's wrongful conduct. The father repeatedly sought the return of his children and vigorously continues to do so through legal processes. The mother frustrated the father's efforts to exercise his joint right to custody of his children. A preponderance of the evidence establishes that the father had taken every reasonable (and a few unreasonable) means to exercise his joint custody rights.

The mother claimed the children would be at a grave risk of harm because of the  father's capacity for violence. The record did not support her argument. The three  contested acts of domestic violence she relied on were not credible, much less clear  and convincing. She did not claim she suffered any resulting injuries. She never sought law enforcement intervention or complained to a social services agency, despite her work with victims of domestic abuse. Her testimony was implausible, and her father's testimony was based on hearsay. In addition, the mother relied on the father's threatening language in emails after she abducted the children, as a predictor of his capacity for violence. The emails were evidence of bad judgment, a mean spirit, and anger control problems. But the emails must be considered in context. His wife had just abducted the children in a foreign country, for awhile he did not even know where she had taken them, his wife ignored his demand that she bring the children home, and his father -in-law appeared to be supporting her wrongful behavior. The threatening "get even" emails to his wife and father-in-law were not violent behavior, nor was his possibly illegal intrusion into his father-in-law's email account evidence of a grave risk of harm to the children. The father's anger was out of control and his brutish emails were inexcusable. However, this remote form of misbehavior was not clear and convincing evidence of a proclivity for actual violence. There was no evidence to suggest that he ever abused the children or that he presents a grave risk of harm to them.

The mother argued that the father's petition should be denied on account of unclean hands, ie., his bad conduct. She relied on evidence that the father intercepted her emails, which allowed him to know she had applied for asylum. The father then sent an email to her asylum attorney, threatening to expose (what he saw as) the fraudulent nature of his wife's asylum claim. The father sent a copy of this email to the Federal Bureau of Investigation. The mother testified that the father also accessed her checkbook in England and used her funds. She again cited his admitted intrusion into his father-in-law's email account. The Court noted that an action under the Hague Convention is purely jurisdictional, it is not appropriate to consider the details of the parties' messy domestic disputes beyond their relevance to those defenses explicitly provided by the Hague Convention. The Hague Convention does not  recognize unclean hands as a defense. Karpenko v. Leendertz, 619 F.3d 259, 265 (3d  Cir.2010).

The Court also rejected the mothers Article 20 defense. Article 20 provides that a court may refuse to grant a petition under the Hague Convention if the return of the child would violate the United States' principles of human rights and fundamental freedoms. The mother argued that Article 20 was applicable for two reasons: the risk  of harm created by returning the children to their father, who she alleges is abusive; and the possibility that the mother returning to the United Kingdom with her children would threaten the mother's pending application for asylum in the United States. The court pointed out that Article 20 is rarely invoked. This defense has never been asserted successfully in a published opinion in the United States. Here, there was no evidence that the children's human rights and fundamental freedoms would be in jeopardy in England in any way.

Article 13 of the Hague Convention provides that an abducted child need not be returned if the complaining parent consented or subsequently acquiesced in the child's removal or retention in another country. The Court found that the father only consented to his daughter traveling to the United States to accompany his wife for the agreed purpose of giving birth to their second child.
He purchased round trip tickets. He demanded that the mother return the children to England when she first revealed she was "not in a hurry" to return. He forcefully and repeatedly reiterated his view that she did not have a right to retain the children in the United States. In asserting this defense, the mother relied on a single email, in which the father stated his exasperation over the situation to his father-in-law. He said he was finished with his wife, but his "children will remain his children" and his wife "can keep them for now." This email sharply contrasts the father's consistent objections to his family remaining in the United States. He had been steadfast in his attempts to ensure their return, as evidenced by his conduct and his credible testimony at trial. A preponderance of the evidence did not support the argument that the father either consented or acquiesced to the mother's wrongful retention of the children in the United States.

The mother raised the defense of abandonment. The court noted that the Hague Convention does not recognize abandonment as an affirmative defense to child abduction. Moreover, the record did not factually support a conclusion that the father ever abandoned his children. Quite to the contrary, the record suggested that the mother abandoned her husband, home and legal residence in England.

The petition was granted for the return to the United Kingdom of the parties' children, identified as "O.U." born in 2009 and "N.U ." born in 2011.

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