Royal Borough of Kensington & Chelsea v. Bafna-Louis, Not Reported in Fed....2023 WL 6173335 (2d Cir.,2023)[United Kingdom][Habitual residence][Rights of custody] [Petition granted]

 

In Royal Borough of Kensington & Chelsea v. Bafna-Louis, Not Reported in Fed....2023 WL 6173335 (2d Cir.,2023) the Second Circuit affirmed the judgment of the district court granting the petition for return.

      Bafna-Louis first challenged the District Court’s determination that Baby L’s habitual residence was the United Kingdom. A child’s habitual residence presents a “mixed question of law and fact—albeit barely so.” Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020) (quotation marks omitted). “Once “the trial court correctly identifies the governing totality-of-the-circumstances standard, however, what remains for the court to do in applying that standard ... is to answer a factual question: Was the child at home in the particular country at issue?”  Because the District Court identified the correct legal standard, it reviewed its habitual residence determination “by a clear-error review standard deferential to the factfinding court,” id., keeping in mind that “courts must be sensitive to the unique circumstances of the case and informed by common sense,”. In general, “[a] child ‘resides’ where she lives. [A child’s] residence in a particular country can be deemed ‘habitual,’ however, only when her residence there is more than transitory.”). For children who are too young to acclimate to their surroundings, as is the case with Baby L, the “intentions and circumstances of caregiving parents are relevant considerations.” “No single fact, however, is dispositive[.]” Here, the District Court considered all of the relevant factors and credited Bafna-Louis’s testimony that she intended to relocate to New York with Baby L. The District Court nevertheless found that Baby L was a habitual resident of the United Kingdom. That finding was supported principally by the following record evidence: (1) Baby L was born in London and was issued a passport by the United Kingdom; (2) at the time Baby L was born, Bafna-Louis “had long maintained a residence in [the United Kingdom];” (3) when Bafna-Louis traveled internationally prior to Baby L’s birth, she resided principally in the United Kingdom; and (4) Baby L’s biological father was physically located in the United Kingdom, and the court proceedings related to him occurred there. On such a record, it could not conclude that the District Court clearly erred in finding that Baby L’s habitual residence was the United Kingdom.

           Bafna-Louis next challenged the District Court’s conclusion that the Royal Borough of Kensington and Chelsea (“RBKC”) had custody rights over Baby L at the time Baby L was removed from the United Kingdom. According ”considerable weight” to the laws of the United Kingdom, the country of Baby L’s habitual residence, it affirmed the District Court’s conclusion that RBKC had custody rights over Baby L at the time of removal. First, before Baby L was removed, the High Court of Justice (the “High Court”), Family Division in London issued two ne exeat orders prohibiting the removal of Baby L from the United Kingdom. See App’x 77; App’x 898 (“The mother must not remove the child from the jurisdiction of England and Wales until further order.”). These ne exeat orders granted the High Court rights of custody over Baby L. See A v. B (Abduction: Declaration) [2009] 1 FLR 1253, 1259-60 (noting that courts become vested with rights of custody once a “judicial determination” has been issued). The High Court’s ne exeat orders vested the RBKC with custody rights over Baby L before his removal and that the RBKC properly exercised those rights in this case..

         Finally, Bafna-Louis contended that the District Court erred in determining that Baby L did not face a “grave risk that his ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” within the meaning of Article 13(b) of the Convention. While the holder of a “ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic.” “[A] respondent who opposes the return of the child has the burden of establishing ... by clear and convincing evidence” that Article 13(b) applies. 22 U.S.C. § 9003(e)(2)(A); see Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999). But Article 13(b)’s “grave risk of harm” standard “involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” Souratgar, 720 F.3d at 103. “The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.”. More specifically, “a grave risk of harm from repatriation arises in two situations: (1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.”

     Based principally on her testimony that Individual-1 and Individual-2 raped, harassed, and assaulted her, Bafna-Louis argued that there is a grave risk that Baby L will be exposed to great harm from those individuals if he is returned to the United Kingdom. Substantially for the reasons set forth in the District Court’s March 7 order, however, it agreed that Bafna-Louis failed to show that Baby L’s removal to the United Kingdom posed a grave risk of harm to the child or would create an intolerable situation under Article 13(b). Bafna-Louis, 2023 WL 2387385, at *25-27.