Case Update (5 Nov 2024): Onobun v. Ojiekhudu; future plans to move to USA do not shift habitual residence
The parties are married spouses and parents, who met in Nigeria, but who had both immigrated to England. The Mother had given birth to the parties’ child in Virginia, USA in 2023, but returned to England. The parties had a home in England. The child had doctors in England. On May 29, 2024, the Mother, under the guise of taking the child to a birthday photoshoot, traveled with the child to the United States. The next morning, she WhatsApp’d the Father, informing him that her life had been ruined in England because she had been terminated from her job, and that she was struggling with her mental health. The Mother was in the United States on a non-immigrant visa that did not authorize her to work or reside permanently.
At trial, the Mother argued that the child had no habitual residence, with the child having been born in the United States. She also “relied heavily on the family’s future plans of leaving England and eventually settling in the United States” to argue her position. The court disagreed, stating that a “habitual residency analysis requires a more holistic approach” and “on its face, habitual residence pertains to customary residence prior to the removal” and “[t]he court must look back in time, not forward”. Therefore, parental agreement to “eventually raise their child in the United States does not concern the child’s habitual residence at the time of removal.”
Separately, the Mother argued that the Father consented to the child’s removal and provided a transcript of a May 16, 2024 phone call, where the Father apparently said, “Fine. You can have [the child]. You can have [the child]. You can take [the child] to America. You can do what you want to do.” The court found credible the father’s statement that he said the words out of frustration, and found that, on its face, the words do not say that the Mother could permanently move to the USA. Finally, the Father’s prompt actions to seek the child’s return also indicate that he did not consent to the child’s permanent relocation.
The child is ordered returned under the Hague Abduction Convention.
