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Friday, September 16, 2016

Ahmed v Ahmed, 2016 WL 4691599 (E.D. Tenn.,2016)[United Kingdom] [Habitual Residence][Petition denied]

In Ahmed v Ahmed, 2016 WL 4691599 (E.D. Tenn.,2016) the district court denied the petition of  Faisal Ahmed,  a citizen of the United Kingdom, for the return of the children finding that the U.S. was the children’s habitual residence. The Father was employed as an accountant in the U.K. The Mother was  a citizen of the United States. The parties were married on December 29, 2009, in Dhaka, Bangladesh. At the time of their marriage, Father lived in London and Mother lived in Michigan, where she was studying optometry. Following their wedding, Mother continued to live in the United States until August 2011. In August 2011, Mother moved to London to live with Father. In December 2011, Mother returned to the United States and moved to Clarksville, Tennessee. In August 2013, Mother returned to London to live with Father, a move that she considered to be permanent at that time. In October 2013, the parties submitted an application to the U.K. Border Agency for Mother’s Indefinite Leave to Remain  in the U.K. The application was approved and, on March 16, 2014, Mother was issued an ILR Residence Permit allowing her to live in the U.K. for ten years. Mother became pregnant with the twins in February 2014. Following a domestic argument in May 2014, Mother traveled from the U.K. to Knoxville, where she had previously lived. Mother did not return to the U.K. in the summer of 2014. She also testified that she chose not to return to the U.K. because of the issues in her marriage. Father traveled to Knoxville on October 9, 2014, and the twin daughters, An.Z.A. and Am.Z.A., were born on November 4, 2014 in Knoxville. Father returned to London on January 5, 2015. other and the children have remained in Knoxville ever since. On May 18, 2015, the parties and their children traveled to the United Kingdom. Mother traveled to London on a round-trip ticket, with a return to Knoxville scheduled for November 15, 2015, so she could attend a professional conference and visit family. The children, as U.S. citizens, had a 90-day visa to stay in the U.K. Father testified that the family brought “everything of any value” with them to London. Mother testified that she did not bring her diplomas or her optometry instruments to the U.K., nor did she take the family jewelry that was “culturally and religiously ... very important” to her and her family. Mother testified that she agreed to travel to the U.K. “for a short summer visit” upon certain conditions that she wanted Father to fulfill “to see if our marriage was going to work” . On July 12, 2015, Mother and the children traveled from London to Bangladesh, with Father’s consent and accompanied by her father, to attend the wedding of Mother’s brother. On August 5, but instead flew from Bangladesh to Knoxville, Tennessee where they have resided since then. The action was filed on March 23, 2016.

The district court observed that the primary issue was whether the children’s habitual residence was the U.K., or the U.S. It observed that  term “habitual residence,”  has been described by the Sixth Circuit as the country where, at the time of removal or retention, “the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ”. A child “can have only one habitual residence.” The Court “must look back in time, not forward” to determine a child’s habitual residence and “focus on the child, not the parents, and examine past experience, not future intentions.”The determination of a child’s habitual residence is a question of fact. Only a change in geography and the passage of time may combine to establish a new habitual residence. The Sixth Circuit has acknowledged that the standard of “acclimatization” and “a degree of settled purpose,” “may not be appropriate in cases involving infants or other very young children. The reason the “acclimatization” standard is ill-fitting to the case of an infant or very young child is that the child is naturally “entirely dependent on its parents.”. Infants do not develop a “settled purpose” or “firmly rooted” ties to a location through school, friendships, or other activities as older children do. Unfortunately, the Sixth Circuit has not yet articulated an alternative standard or considerations for determining the habitual residence of an infant and has  expressly rejected the consideration of “shared parental intent” in determining a child’s habitual residence. The Court found that consideration of all available evidence, looking backward and focusing on the children’s past experience, was an appropriate path forward and consistent with the admonition in Robert to “look closely at the facts and circumstances of each case.” 507 F.3d at 989.

Given their young age, it was difficult to conclude how much the children had acclimated or become settled in the U.S. versus the amount of acclimatization that occurred during their time in the U.K. The facts and circumstances of the children’s past experience did not tilt the scale strongly in one way over the other, with the exception of the amount of time spent in each country. The children had spent most of their lives in the U.S., including most of their lives prior to the date of retention. While it is well settled that the “place of birth is not automatically the child’s habitual residence,” Holder, 392 F.3d at 1020, and that “a change in geography and the passage of time may combine to establish a new habitual residence,” Robert, 507 F.3d at 989, the Court questioned whether the children’s limited time in the U.K. was sufficient to establish a new habitual residence.  To the extent that the parents’ intent is relevant, the  preponderance of the evidence demonstrated that the parties had no settled mutual intent to live in either the U.S. or the U.K. on August 5, 2015, the date of the children’s retention. Looking backward from that date, there was no settled mutual intent during the children’s lives and much of Mother’s pregnancy. From the time of their birth to the date of retention, the children lived primarily in the U.S. While the place of their birth is not automatically the children’s habitual residence, Holder, 392 F.3d at 1020, the Court could not conclude that the seven to eight-week period the children spent in the U.K. was sufficient to establish that as a habitual or settled residence. The preponderance of the evidence indicated that Mother and the children traveled to the U.K. to visit and for Mother to determine whether she wanted to live with Father in the U.K. or return to the U.S. They did not bring all of their belongings to the U.K. and Mother did not sever her ties to living and working in the U.S. The children, as U.S. citizens, could only stay in the U.K. for three months. There was simply insufficient evidence that the children established deep-rooted ties or a degree of settled purpose in the U.K. in this limited time. The Court concluded that the facts and circumstances of the children’s past experience did not establish the U.K. as the children’s habitual residence, and therefore, their retention in the U.S. was not “wrongful” within the meaning of the Hague Convention.

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