Case Update (22 Sept 2023): RBKC v. Bafna-Louis; institution has a right of custody, Hague Abduction Convention return affirmed
The district court had granted the Petitioner’s request to return the Respondent Mother’s minor child to England on March 7, 2023. Respondent appeals.
Respondent challenges the return order, arguing that the United Kingdom is not the child’s habitual residence. Under Monasky v. Taglieri, this is a factual determination, and can only be overturned if the district court committed clear error. For children “too young to acclimate to their surroundings”, the intentions and circumstances of the child’s caregiving parents are relevant, but no single fact is dispositive. Despite the fact that Respondent, in this case, testified that she intended to relocate the child to New York, the trial court found that the UK was the child’s habitual residence, supported by the facts that the child was born in London; issued a UK passport; that Respondent had been a long-time resident of the UK at the time of the child’s birth; that when Respondent traveled prior to the child’s birth, she nonetheless returned and continued residing in the UK; the child’s biological father was physically in the UK; and, court proceedings related to the child occurred in London. Given the high clear error standard, the Second Circuit concluded that the district court did not commit clear error.
Respondent also challenged the district court’s conclusion that the Petitioner had a right of custody. A right of custody is given a broad definition, and is not constrained to “traditional notions of physical custody” and includes, per Abbott v. Abbott, a right of ne exeat. At the time of removal, the High Court in London had issued 2 ne exeat orders. The Petitioner was entitled, under UK law to enforce the rights of the High Court. The district court concluded that these orders provided a right of custody. The Second Circuit agreed.
Finally, Respondent argued that, based on the rape, harassment, and assault of Respondent from 2 individuals in London, the child would be exposed to a grave risk of harm if returned. The Second Circuit, however, affirmed the district court’s finding that Respondent failed to show that the harm that might have befallen her would expose the child to harm.
