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Hague Convention


The aim of the Hague Convention is to provide a mechanism for the return of a child who has been abducted from a country of their habitual residence. The premise of the Hague Convention is that any dispute in the circumstances of residency or custody would normally be dealt with by the court in the country where the child normally lives. The question for the court is not one of the welfare of the child but rather one of jurisdiction. Where is the appropriate court to deal with any issues relating to the residence of the child.


Where there has been a wrongful removal or retention of a child who is habitually resident in another jurisdiction in breach of another person’s custody rights, then the court will usually order the return of the child to the place of habitual residence.


Since I have had custody of the children since the divorce in June 2000 and we have lived in the UK since August 2001 with the court's permission, England is the children's country of Habitual residence so therefore NO ABDUCTION HAS OCCURRED.


There may be the argument of wrongful retention because of Mr Bobo's custody order that he obtained in Arkansas on June 6, 2006 (which looks to be in breach of Due Process). Still, it is an order from Arkansas and as the Hague Convention says, any issues pertaining to the children should be dealt with by the court in the country where the children are habitually resident. That would be England not Arkansas or the US.



Despite the fact that the US courts have ordered the children to return because of Mr Bobo's custody order (which he obtained in breach of Due Process) and despite the fact that the Arkansas courts have retained jurisdiction, Mr Bobo would not be advised to make an application for the return of the children under the Hague Convention because they are in the country of their habitual residence,  have not been taken from their habitual residence or retained from the country of habitual residence.

Recognition and Enforcement of the US Court Orders


There is no system of automatic recognition of US orders by an English Court but in theory Mr Bobo can make an application to the High Court in London for the return of the children to the US under the inherent jurisdiction of the High Court. But then the UK has jurisdiction under the Hague Convention Treaty.


If it was only a matter of jurisdiction, then the welfare principles would not be a major consideration. However, an application such as this one, would involve the handover of the children to their father and removal to a country which is not their habitual residence, therefore the welfare principles would be engaged.


The English courts would take the US orders very seriously but they would look at the fact that the children are habitually resident in England, that they have been here since 2001 in the custody of their mother and when transferring custody to Mr Bobo, the US courts did not undertake a full welfare enquiry and that their mother was not present or represented (because the court did not notify her) at the hearings. For these reasons , the UK court would not honour the US orders.

An application that involved change of custody, removal of the children from their home of 8 years in the UK to live in the US with their father would be unsuccessful.

Application for Access under The Children's Act of 1989

This would mean that Mr Bobo would have to accept that England has jurisdiction in relation to determining the arrangements for the children and make an application for access (not custody) under the Children Act 1989 to the English courts. The English courts would then undertake a full welfare enquiry to determine what was in the best interests of the children. The children's views would certainly be taken into account.  I would welcome this because the children' certainly have very specific views on the subject of their father's conduct. 

Article 21 of the Hague Convention merely provides a mechanism for making an application for Access.

It would essentially mean dismantling the US custody order obtained without my knowledge, dismantle the criminal prosecution route he has undertaken and give a formal promise to the courts, not to pursue any criminal prosecution against me during this process. Any orders that the Judges are prepared to make would take into account the children’s wishes and a full welfare report would be made and taken into consideration. (All of which the Arkansas court did not do or take into account) An application for Access would be a much quicker way of resolving his issues and put orders in place where Mr Bobo would be able to see and speak to his children (if that is what the children desire) but at the moment both are refusing contact with him.  If he is to have any relationship at all with his children it will have to be built up gradually, trust will have to be restored under the watchful eye of supervised contact through social services.

 

So far Mr Bobo has completely ignored any advice in making applications to the Hague convention unless it involves removing the children from their home in the UK and turning them over to him in the US.  This is why there have been no Hague Convention hearings to settle these matters. Instead Mr Bobo prefers to go on TV and give inaccurate reports to missing children's networks. 

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

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