East Sussex Children Services v. Morris, --- F.Supp.2d ----, 2013 WL 243403 (N.D.W.Va.) [United Kingdom] [Rights of Custody] [Deposit Passport] [Petition Granted]

In East Sussex Children Services v. Morris, --- F.Supp.2d ----, 2013 WL 243403 (N.D.W.Va.) Petitioner East Sussex Children Services' a Verified Petition For Return of Child to United Kingdom of S.A.M., born in 2000. Respondent Carly Louise Morris was S.A.M.'s mother and a citizen of the United Kingdom. Respondent Ralph Regis Morris was the Mother's husband, S.A.M's step-father, and a citizen of the United States. Mother and Step-Father were married on September 27, 2010 in Cecil County, Maryland. Petitioner, East Sussex Children Services, was the social services division of the East Sussex County Council. East Sussex supervised S.A.M. since February 21, 2010 because S .A.M. was subject to a Child Protection Plan after East Sussex found neglect and risk of emotional harm to S.A.M. and her half-brother, A. Since October 2010, there had been ongoing proceedings regarding S.A.M.'s care, residence, and contact in the Hastings County Court in England and in the High Court of Justice, Principal Registry of the Family Division in England. Katie Smee-Giles, a senior practitioner at East Sussex, supervised S.A.M.'s case since July 11, 2011.

 In the proceedings involving S.A.M., Mother sought leave of court to remove S.A.M. permanently from the United Kingdom and to relocate S.A.M. to the United States to live with Step-Father. In December 2011, the Hastings County Court  did not grant Mother permission to relocate with S.A.M., and the court ordered Mother to file a statement with the court "(a) setting out the status and chronology of any application for a visa for herself and S.A.M. to move to the USA, (b) her intention as to her domestic arrangement if and when she relocates, and (c) her proposal for the future contact of S.A.M. and herself with A. If and when she does settle in the USA.".
 Mother and Step-Father were also ordered to cooperate in a background check to be conducted by Children and Families Across Borders, which included a background check in the United States of the Step-Father. On February 1, 2012, the Hastings County Court ordered Mother to file S.A.M.'s passport with the solicitors for the guardian or with the court office at Hastings County Court within 48 hours of being served with the order. On February 20, 2012, Mother filed S.A.M.'s passport with Mother's solicitor. Mother's solicitor undertook to the court "not to release the passport of [S.A.M.] nor to release the passport to any other party without the prior consent of the court." Thus, in order for Mother to have S.A.M.'s passport returned to her, she would need the consent of the court.

 Mother alleged in her testimony that about a month later she was planning for holiday in the United States and she forgot that she had lodged S.A.M.'s passport with her solicitor. As a result, Mother alleged she filed for replacement passports for herself  and S.A.M. on April 7, 2012. Mother told the passport agency that she needed a replacement passport for S.A.M. because she had put the passport in a safe place at home and could not locate it. Mother and Step-Father testified that Mother did not remember that S.A.M.'s passport was with Mother's solicitor until Mother spoke with Step-Father the evening after she applied for the replacement passports. At that time, Step-Father reminded Mother that S.A.M.'s passport was with Mother's solicitor.
 On April 24, 2012, Mother received replacement passports for herself and S.A.M. from the United Kingdom's Passport Agency. Mother did not notify her solicitor or the court that she had applied for and received a replacement passport for S.A.M. On April 27, 2012, Mother also applied for and obtained a travel visa for the United States for herself and S.A.M.

 On May 31, 2012, Ms. Smee-Giles met with Mother. Ms. Smee-Giles testified that at the meeting, Mother informed Ms. Smee-Giles that her Visa application had been delayed for some time. However, only one day after the meeting, on June 1, 2012, Mother removed S.A.M. from the United Kingdom to Canada. On June 4, 2012, Mother
 and S.A.M. entered the United States via the Rainbow Bridge in Niagara Falls. Mother and S.A.M. met Step-Father at Niagara Falls. Mother testified that S.A.M. was so happy to be with Step-Father that she could not separate them. In the following days, Mother traveled with S.A.M. to Step-Father's home in Hedgesville, West Virginia. Since this time, S.A.M. has resided in Hedgesville, West Virginia with Mother and Step-Father. Until S.A.M .'s removal from the United Kingdom on June 1, 2012, S.A.M. has always lived there. She attended school in the United Kingdom, and she had friends and extended family there.

 On June 11, 2012, Mother e-mailed Ms. Smee-Giles to inform her that a scheduled supervised visit between S.A.M. and her half-brother A. could not take place because S.A.M. had chicken pox. The Court found that Mother wrote the e-mail to deceive East Sussex as to her and S.A.M.'s whereabouts. Ms. Smee-Giles testified that Mother's e-mail was unusual as she had never received an e-mail from Mother, so, on June 12, 2012 she conducted an unannounced visit to the family home. When she arrived at the family home, it was clear that Mother and S.A.M. had left the address. Ms. Smee-Giles testified that the house was locked up and that there was a mattress sitting in the doorway. At that point, Ms. Smee-Giles notified S.A.M.'s guardian, and S.A.M.'s guardian called an emergency hearing in Hastings County Court. At the emergency hearing, the Hastings County Court entered an Interim Care Order placing the Child in the care of East Sussex County Council Social Services. The Order granted East Sussex Children Services and East Sussex County Council shared parental responsibility over S.A.M. under the Children Act of 1989. The Order also provided the following: WARNING: Where a Care Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or leave of court. However, the local authority, in whose care the child is, may remove the child from the United Kingdom for a period of less than 1 month. It may be a criminal offence under the Child Abduction Act 1984 to remove the child from the United Kingdom without the leave of the court.

 On June 28, 2012, prior to discovering that Mother had removed S.A.M. from the United Kingdom, Justice Moylan of the High Court of Justice, Principal Registry of the Family Division, entered a Passport Order ordering the Mother to hand over to the Tipstaff all of S.A.M.'s and Mother's passports and any and all other travel documents, prohibiting Mother from obtaining or attempting to obtain replacement passports for
 herself or S.A.M., and prohibiting Mother from removing S.A.M. from the United Kingdom. After learning of S.A.M.'s removal from the United Kingdom, East Sussex prepared and filed its Application for Return of the Child and submitted the Application to the Central Authority for England and Wales on July 5, 2012. The Application was transmitted to the United States Central Authority. On December 3, 2012, Petitioner filed its Verified Petition for the Return of the Child to the United Kingdom and Issuance of Show Cause Order.

 On December 13, 2012, the Court conducted a hearing to show cause why the Petition should not be enforced. The Court ordered Mother to turn into the Clerk of Court her passport and S.A.M.'s passport on December 19, 2012, which was the day after the Respondents and S.A.M. were required to attend a previously scheduled immigration interview in Pittsburgh, Pennsylvania, regarding their application for United States citizenship. On December 19, Mother turned in her passport and S.A.M.'s passport to the Clerk of Court for safe-keeping until the case was resolved. On December 21, 2012, Mother and S.A.M. received their green cards. Mother was ordered to surrender S.A.M.'s green card to the clerk of the court for safe-keeping.


 The district court found that Mother made a unilateral decision to remove S.A.M. from the United Kingdom. On the date of removal, Petitioner was unaware of Mother's intention to remove the child, and Petitioner had not acquiesced to S.A.M.'s removal., S.A.M. had lived in the United Kingdom her whole life. S .A.M. attended school in the United Kingdom, and she had extended family and friends there. Step-Father and Mother testified that on June 1, 2012, Mother's intention was merely to vacation in Canada and then in the United States at Niagara Falls. Step-Father admitted on cross-examination that, at the time S.A.M. entered the United States, her home was in the United Kingdom. Moreover, Mother could not create a new habitual residence by wrongfully removing S.A.M. Therefore, the Court found by a preponderance of the evidence that the United Kingdom was the habitual residence of S.A.M. immediately before her removal to the United States.

 The Court found that East Sussex Children Services asserted the United Kingdom's court's custody rights under the Hague Convention prior to S.A.M.'s removal. On February 21, 2010, S.A.M. was under a Child Protection Plan, enacted due to the risk of emotional harm to S.A.M. According to Ms. Smee-Giles' testimony, she was required under United Kingdom law to see children on those plans at least every ten days in person. Therefore, East Sussex Children Services regularly supervised S.A.M.'s well-being. In addition, the Child Protection Plan at issue in this case required Mother to notify East Sussex of any intention to remove the child from the country, or even when moving addresses within the country. When Mother removed S.A.M. from the United Kingdom, the Child Protection Plan was still in place. Most importantly, on February 1, 2012, the Hastings County Court ordered Mother to "lodge the passport of [S.A.M.] ... with either Elaine Parkes & Co., as solicitors for the guardian, or with the court office at Hastings County Court." Mother lodged S.A.M.'s passport with her Solicitor, who took an oath to the court not to release S.A.M.'s passport "to any other party without the prior consent of the court." 5. Ms. Smee-Giles testified that the Court's order regarding S.A.M.'s passport was to ensure that should S.A.M. be removed from the country, the court would be made aware of that intention prior to her removal. Pursuant to Petitioner's Exhibit 4, Mother would need consent of the court to obtain S.A.M.'s passport in order to leave the country. Thus, if Mother desired to remove S.A.M. from the country, she must inform and receive permission from the English court. According to Petitioner's Exhibit 16, an Affidavit of English and Welsh Law admitted pursuant to Article 14 of the Hague Convention, the English Court exercised its rights of custody on February 20, 2012, when Mother's solicitor undertook to the court not to release S.A.M.'s passport to any other party without the prior consent of the court. The Court found that the February 1, 2012 and February 20, 2012 orders created a ne exeat right, and the United States Supreme Court has concluded that "ne exeat rights are rights of custody...." Abbott, 130 S.Ct. at 1993.

 The Court found that the Hastings County Court's February 1, 2012 order was a ne exeat order that conferred custody rights upon the court. Petitioner, East Sussex Children Services, asserting the court's custody rights, could determine S.A.M.'s residence by requiring East Sussex Children Services' and the Hastings County Court's consent for S.A.M. to leave the United Kingdom. Petitioner and the United Kingdom's courts acquired custody rights through the court's ne exeat order. Although a ne exeat order does not fit within "traditional notions of physical custody," the Convention nevertheless established an increasingly broad definition of custody rights. Abbott, 130 S.Ct. at 1991. Therefore, construing the definition of custody rights broadly pursuant to the text and purpose of the Hague Convention, the Court found that Petitioner had custody rights over S.A.M. at the time of removal.

 In determining whether removal is wrongful, the Fourth Circuit Court of Appeals will liberally find "exercise" of a nonremoving parent's custodial rights, as required for removal to be wrongful under the Hague Convention whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. Bader, 484 F.3d at 671. Under this approach, a person [who] has valid custody rights to a child under the law of the country of the child's habitual residence ... cannot fail to "exercise" those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. The Petitioner had custody rights under the February 2010 Child Protection Plan. Petitioner regularly monitored and supervised Mother and S.A.M. pursuant to the plan, and this included an in person visit with S.A.M. every ten days. Also, in February 2012, the Court instructed Mother to lodge S.A.M.'s passport with S.A.M.'s solicitor or the Court for safe-keeping. Although Mother ultimately turned S.A.M.'s passport into Mother's solicitor, the solicitor undertook not to release the passport to any other party. The Court's order exercised custody rights as it was designed to prevent Mother from unilaterally removing S.A.M. from the United Kingdom. Therefore, the Court found that Petitioner was exercising its custody rights at the time of S.A.M.'s removal.

 Accordingly, the Court concluded that pursuant to the Hague Convention and ICARA, Petitioner had proven by a preponderance of the evidence that on June 1, 2012, Mother wrongfully removed S.A.M. from the United Kingdom-S.A.M.'s habitual residence at that time.