arrangements for their travel to the United Kingdom. The court will consider, but does not

require, conditions with respect to the return order.

ENTER:

SuzanneB. Conlon
May 2, 2012 UNITED STATES DISTRICT JUDGE

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on October 31, 2011. A preponderance of the credible evidence established the mother has
unilaterally denied the father’s parental and custody rights under English law.

The mother attempted to justify her conduct by claiming the father physically and
mentally abused her while she lived with him in England. She related three instances of physical
abuse, claiming two happened while she was pregnant and one purportedly took place in the
presence of their daughter, then less than two years old. The father denied her accusations.

The court does not find credible or trustworthy the mother’s testimony that she fled from
England to the United States out of fear of her husband. The mother is a well-educated and well-
spoken university graduate, and she worked as a banker in Nigeria before her marriage. During
and after the claimed abuse, she was a divisional administrator for a charitable organization that
assisted victims and witnesses of crime, including domestic violence, in England and Wales. She
had regular and frequent contact with British law enforcement officers and social services
agencies in the course of her work. Yet she never complained to a law enforcement officer or
social services agency about mistreatment. This is astounding because she is a sophisticated
person on abuse issues and victims’ rights. She did not testify that she suffered any actual injury,
nor did she seek medical treatment or counseling for the purported assaults. When the mother
traveled to the United States with her young daughter, it was for the purpose of providing United
States citizenship by giving birth in Denver. The agreed intent of the parents at the relevant time
was that the mother would use the round trip tickets to return home as soon as she and the new
baby could do so. She traveled on a tourist visa that was to expire in November 2011. She did
not resign from her job until January 2012. Her elusive conduct after her son was born is far

more revealing than her trial testimony.


capacity for violence. The record does not support her argument. The three contested acts of
domestic violence she relies on were not credible, much less clear and convincing. She did not
claim she suffered any resulting injuries. She never sought law enforcement intervention or
complained to a social services agency, despite her work with victims of domestic abuse. Her
testimony was implausible, and her father’s testimony was based on hearsay.

In addition, the mother relies on the father’s threatening language in emails after she
abducted the children, as a predictor of his capacity for violence. The emails are evidence of bad
judgment, a mean spirit, and anger control problems. But the emails must be considered in
context. His wife had just abducted the children in a foreign country, for awhile he did not even
know where she had taken them, his wife ignored his demand that she bring the children home,
and his father-in-law appeared to be supporting her wrongful behavior. The threatening “get
even” emails to his wife and father-in-law were not violent behavior, nor was his possibly illegal
intrusion into his father-in-law’s email account evidence of a grave risk of harm to the children.
The father’s anger was out of control and his brutish emails were inexcusable. However, this
remote form of misbehavior was not clear and convincing evidence of a proclivity for actual
violence. There was no evidence to suggest that he ever abused the children or that he presents a
grave risk of harm to them.

Unclean hands. The mother argues that the father’s petition should be denied on account
of his bad conduct. She relies on evidence that the father intercepted her emails, which allowed
him to know she had applied for asylum. The father then sent an email to her asylum attorney,
threatening to expose (what he saw as) the fraudulent nature of his wife’s asylum claim. The

father sent a copy of this email to the Federal Bureau of Investigation. The mother testified that

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Habitual Residence in the United Kingdom

The Hague Convention does not define “habitual residence.” This consideration is
analyzed by application of the everyday meaning of the words. Altamiranda Vale v. Avila, 538
F.3d 581, 583 (7th Cir. 2008). Habitual residence may be established by the shared actions and
intent of the parents, coupled with the passage of time. Koch v. Koch, 350 F.3d 703, 715 (7th
Cir. 2006). The mother and father lived together in England during most of their marriage. The
family’s home is in England. Both parents were legal English residents and were employed in
England. The mother did not resign from her job in England until January 2012, more than six
months after traveling to the United States. The mother has an English drivers license reflecting
the address of the couple’s Bristol home. Pet. Ex. 9. Their daughter received medical care in
Bristol. Pet. Ex. 11 (reflecting also the child’s Bristol home address). She was enrolled in a
local nursery school. Pet. Ex. 10. Overwhelming evidence has established that the daughter, like
her parents, habitually resided in the United Kingdom.

The son was born in the United States. Due to his mother’s unilateral decision to remain
in the United States against the father’s wishes, the son has not lived in England. Nonetheless, at
the time of the son’s birth, the established family home was in Bristol, England. The father
consented to the son’s birth in the United States with the joint understanding that his wife would
return to England with their children within several months. He purchased round trip airline
tickets. The parents’ joint intent for the son to live with the family in England has been
established by a preponderance of the evidence. The mother testified that she traveled to the
United States for the express purpose of obtaining United States citizenship for the baby. This

reason may have been a ruse, or she may have changed her own intentions after the baby’s birth.


The mother’s demeanor in relating the three purported instances of violence was akin to
testimony by an aggrieved spouse in an acrimonious divorce proceeding. The same may be said
of the trial testimony of her own father. Although he never witnessed the father inflicting harm
on the mother, the father-in-law testified that she told him about the husband’s alleged abuse.
The court does not find the father-in-law’s testimony probative or reliable, given the lack of
foundation and personal knowledge, as well as his close relationship with the mother. There was
no reliable evidence proffered that these attacks happened. More importantly, there was no
evidence that the father posed any threat whatsoever to the safety of his children.

An international child abduction in the context of a domestic dispute falls under the
jurisdiction of the Hague Convention and ICARA. Abbott v. Abbott, 130 S. Ct. 1983, 1988
(2010) (citing the Hague Convention, art. 1). The Hague Convention was adopted to secure the
prompt return of children either wrongfully removed to or retained in contracting states. Id. The
United States and the United Kingdom are signatories to the Hague Convention; Nigeria is not.

The initial burden is on the father to establish, by a preponderance of the evidence, that
his children have been wrongfully removed or retained within the meaning of the Hague
Convention. 42 U.S.C. § 11603(e)(1)(A). To establish wrongful removal or retention, the father
must show that his children were habitual residents of the United Kingdom immediately before
the breach of his custody rights under English law, and that his custody rights were actually
exercised, either jointly or alone, or would have been exercised were it not for the unlawful
removal or retention of his children in the United States. Hague Convention, arts. 3-4. If he
meets this burden, the mother may establish an exception to return of the children available under

the Hague Convention. 42 U.S.C. § 11603(e)(2)(A)-(B).


including the joint right to custody. Pet. Ex. 17.

Exercise of Custody Rights

The evidence was uncontested that the father exercised his joint custody rights with
respect to his daughter before she was wrongfully retained in the United States. The family lived
together, he provided for his daughter, and the family engaged in regular outings. The father has
never had contact with his son, who is an infant and is thousands of miles away due to the
mother’s wrongful conduct. The father repeatedly sought the return of his children and
vigorously continues to do so through legal processes. The mother has frustrated the father’s
efforts to exercise his joint right to custody of his children. A preponderance of the evidence
establishes that the father has taken every reasonable (and a few unreasonable) means to exercise
his joint custody rights.

The Affirmative Defenses

Grave risk of harm. The Hague Convention provides that abducted children should not
be returned when the removing parent (here, the mother) shows that return of the children would
place them in grave risk of physical or psychological harm, or any other “intolerable situation.”
Hague Convention, art. 13(b); Abbott v. Abbott, 130 S. Ct. 1983, 1997 (2010). Given the
concern of comity among nations, this defense is interpreted narrowly. Van De Sande v. Van De
Sande, 431 F.3d 567, 572 (7th Cir. 2005). The safety of children is paramount, but the risk of
harm must “truly be grave.” Jd.; Norinder v. Fuentes, 657 F.3d 526, 535 (7th Cir. 2011). The
mother must meet the demanding standard of clear and convincing evidence that a grave risk of
harm exists. 42 U.S.C. § 11603(e)(2)(A). She has failed to do so.

The mother claims the children would be at a grave risk of harm because of the father’s


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHIZOBA CHRISTOPHER UZOH )
)
Petitioner )
) Case No. 11-cv-09124
v. )
) Suzanne B. Conlon, Judge
CHIDINMA AKACHI UZOH )
)
Respondent. )
)
)
DECISION ON THE MERITS
Introduction

This case centers on two young children who live in the United States without the consent
of their father, a Nigerian national who resides and practices medicine in England.' The children
are in the custody of their mother, a Nigerian national who resided with her husband in England
until May 9, 2011. The mother has overstayed her tourist visa to the United States; her visa
expired on November 9, 2011 and she is subject to deportation. However, she filed an asylum
claim after deciding not to return to the family home in England. Her asylum request was
initially denied on December 8, 2011, with the statement,

After careful consideration of all available information and explanations

at your asylum interview, your claim was deemed not credible of the basis
of: Material inconsistency(ies) within your testimony.

' For convenience, petitioner Chizoba Christopher Uzoh is referred to as “the father,” and
respondent Chidinma Akachi Uzoh is identified as “the mother.” The parties’ trial exhibits are
referred to as either “Pet. Ex.” or “Resp. Ex.”


Nor is there legal authority or evidence suggesting the children would not have adequate
protection of their rights under the English legal and law enforcement systems. The mother’s
assertion of an Article 20 defense based on her asylum application is wholly without legal or
logical support. The mother has failed to show why returning to England would jeopardize her
asylum application (which, incidently, has already been preliminary denied). Pet. Ex. 19.
Additionally, she has presented nothing to suggest that Article 20 applies to the protection of a
parent’s human rights and fundamental freedoms, as opposed to those the children.

Consent or acquiescence. Article 13 of the Hague Convention provides that an abducted
child need not be returned if the complaining parent consented or subsequently acquiesced in the
child’s removal or retention in another country. These affirmative defenses must be proven by a
preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(B); Baxter v. Baxter, 423 F.3d 363, 368
(3d Cir. 2005).

The father only consented to his daughter traveling to the United States to accompany his
wife for the agreed purpose of giving birth to their second child. He purchased round trip tickets.
He demanded that the mother return the children to England when she first revealed she was “not
ina hurry” to return. He forcefully and repeatedly reiterated his view that she did not have a
right to retain the children in the United States. In asserting this defense, the mother relies on a
single email, in which the father stated his exasperation over the situation to his father-in-law.
He said he was finished with his wife, but his “children will remain his children” and his wife
“can keep them for now.” Resp. Ex. 9. This email sharply contrasts the father’s consistent
objections to his family remaining in the United States. He has been steadfast in his attempts to

ensure their return, as evidenced by his conduct and his credible testimony at trial. A

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the father also accessed her checkbook in England and used her funds. She again cited his
admitted intrusion into his father-in-law’s email account.

As an action under the Hague Convention is purely jurisdictional, it is not appropriate to
consider the details of the parties’ messy domestic disputes beyond their relevance to those
defenses explicitly provided by the Hague Convention. Hague Convention, art. 19; 42 U.S.C. §
11601(b)(4). The Hague Convention does not recognize unclean hands as a defense. Karpenko
v. Leendertz, 619 F.3d 259, 265 (3d Cir. 2010). The reasoning in Karpenko is instructive. The
primary objectives of the Hague Convention — protecting the abducted child, restoring the pre-
abduction status quo, ensuring comity amongst contracting states — would be undermined by
considering an unclean hands defense to child abduction. Jd.

Protection of human rights and fundamental freedoms. Article 20 provides that a
court may refuse to grant a petition under the Hague Convention if the return of the child would
violate the United States’ principles of human rights and fundamental freedoms. This defense
must be proven by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A). The mother
argues that Article 20 is applicable for two reasons: the risk of harm created by returning the
children to their father, who she alleges is abusive; and the possibility that the mother returning
to the United Kingdom with her children would threaten the mother’s pending application for
asylum in the United States.

Article 20 is rarely invoked. In fact, respondent concedes that this defense has never been
asserted successfully in a published opinion in the United States. Here, there is no evidence that
the children’s human rights and fundamental freedoms would be in jeopardy in England in any

way. As discussed above, there is no evidence that the father ever threatened to hurt the children.

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The mother’s reluctance to return to England was not disclosed to the father until she was due to
return, several months after the son was born. She did not deny that the family home was in
England, and that she lived and worked in England during her marriage until May 11, 2011. The
only reason the son has not actually resided in England was the mother’s decision to retain the
children in the United States.

Birth in the United States does not automatically render the son’s habitual residence as
the United States. Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir. 2006) (Infant born in the
United States did not acquire a United States habitual residence when the mother’s habitual
residence was in Sweden). A preponderance of the evidence established that the shared actions
and intent of the parents before the son’s birth was that he would reside in the family home in
England. This is sufficient to show that the son’s habitual residence was in the United Kingdom.
The mother’s argument that her son’s habitual residence is in the United States lacks merit, given
that his residence in the county since birth was due to her wrongful retention.

The mother’s argument that the children’s habitual residence is Nigeria lacks any legal or
evidentiary support. While the parents are Nigerian citizens, they are legal residents of the
United Kingdom, where they lived and worked before the son’s birth, and where they were
raising their daughter until she was unlawfully retained in the United States. Neither child has
lived in Nigeria, nor was there any evidence proffered that the parents shared an intent to move
the family to Nigeria.

Breach of Custody Rights

The father’s assertion of parental custody rights under English law was uncontested at

trial. The mother and father have a joint parental responsibility for their minor children,


children, and to at least “make sure you return my kids.” E£.g., Pet. Ex. 18. At the same time, he
threatened to cancel the credit card he had given her if she did not come home. Jd. She did not
respond. Three days later, he cancelled the credit card because, as he later told his father-in-law,
she threatened him with not returning to the United Kingdom with their children. Resp. Ex. 7.

On August 9, 2011, the mother abruptly left her sister-in-law’s Denver home with the
children. She did not inform the father or her sister-in-law where she was taking the children.
The father’s reaction to his wife’s disappearance with the children was acute rage, evidenced by
his abusive and threatening emails to both the mother and his father-in-law, who lives in Nigeria.
E.g., Pet. Exs. 1-6. It is evident from the emails that the father believed his father-in-law was
financially and emotionally supporting the mother’s desertion of the marriage and abduction of
their children. Pet. Exs. 7, 13. The father-in-law is an obvious advocate for his daughter. At
trial, the father admitted that he “hacked” into his father-in-law’s email account, deleting some
communications with the mother.

At trial, the father admitted he sent the threatening emails. He explained he was
outraged and depressed by the unexpected loss of his family and especially by his wife’s refusal
to communicate with him. The court finds that the father’s emails were inexcusably demeaning
and threatening. Albeit, aggravated circumstances were involved: the sudden loss of his children
and his wife’s refusal to even inform him where their children were located. Given this situation,
the father’s bad behavior in sending emails to the mother and his father-in-law do not support a
reasonable inference the father has a proclivity for violent or abusive behavior.

The father has not seen his daughter since the mother left England with her in May 2011.

He has never had an opportunity to see his son. The mother terminated all contact with the father


Findings of Fact and Conclusions of Law

The mother and father are husband and wife. Both are Nigerian nationals. They were
married in Nigeria in 2008, but their marital home was in Bristol, England, where the father
practiced medicine with the National Health Service and the mother worked for a victims’ rights
organization.

Before the birth of their first child on August 31, 2009, the father arranged for the mother
to fly from England to Denver, Colorado, where their daughter was born. The mother and infant
stayed with the father’s sister. On October 22, 2009, the mother returned to the family home in
England with their daughter in accordance with the couple’s plans. The agreed purpose for the
trip was to provide the child with the benefits of United States citizenship.

Family life resumed in England. In time, a second child was expected. The couple
agreed to follow the same plan for the birth to take place in Denver in order to secure United
States citizenship for the new baby. The father purchased round trip tickets, and again the
father’s sister was to host the wife and their children. The mother traveled from England to
Denver on May 9, 2011, accompanied by their daughter. The couple’s second child, a son, was
born on June 25, 2011.

The father expected his wife and children to return within several months of the baby’s
birth. There were cordial communications between the parents immediately after the baby’s
birth. The father repeatedly inquired as to when his family would return home. The couple’s
relationship turned sour on July 27, 2011, when the mother informed the father she was in no
hurry to return to England with the children. The father responded with a series of emails,

evidencing his anger and frustration. The early emails implored the mother to return with the


Pet. Ex. 19.? The mother’s present legal residency is far from settled.

The father petitions this court for an order returning his children to the United Kingdom
pursuant to The Convention on the Civil Aspects of International Child Abduction (“ Hague
Convention”), as implemented by the International Child Abduction Remedies Act (“ICARA”),
42 U.S.C. § 11601 ef seg. The United States and the United Kingdom are signatories to the
Hague Convention. The father claims that the mother has illegally retained and concealed their
children in the United States, in contravention of his parental rights under English law. See Pet.
Ex. 17 (under English law, the parents have a joint parental responsibility for minor children,
including the right to custody).

On December 27, 2011, this court granted the father’s request for a rule to show cause
ordering the mother to appear before the court with the children. The mother complied with the
order and appeared before the court with counsel and the children on January 23, 2012. She
complied with the court’s orders to surrender the children’s United States passports to the clerk
of the court and not to remove the children from this jurisdiction pending resolution of this
dispute.

A three-day bench trial was held and the case was taken under advisement. The Hague
Convention mandates the court to promptly decide whether to order the return of the children to
the United Kingdom. Hague Convention, arts. 7, 11. This decision on the merits incorporates

the court’s findings of fact and conclusions of law, as required by Fed. R. Civ. P. 52.

> This was apparently a preliminary rejection; the notice also stated: This is not a denial
of your asylum application. Jd. (emphasis in original). A removal hearing is set on April 4,
2013. Pet. Ex. 20. The notice states the mother is a native and citizen of Nigeria who has
remained in the United States “without authorization.” Jd. The court infers that the mother is
subject to deportation to Nigeria.


preponderance of the evidence does not support the argument that the father either consented or
acquiesced to the mother’s wrongful retention of the children in the United States.

Abandonment. The Hague Convention does not recognize abandonment as an
affirmative defense to child abduction. Moreover, the record does not factually support a
conclusion that the father ever abandoned his children. Quite to the contrary, the record suggests
that the mother abandoned her husband, home and legal residence in England. But that issue is
for an English court to decide.

Lack of jurisdiction. The mother advanced a position that this court lacks jurisdiction
because the parties are Nigerian and have only temporary residence permits in the United
Kingdom. This groundless defense was not pursued at trial. The children are wrongfully
retained in this judicial district. The court’s jurisdiction for actions arising under the Hague
Convention is set forth by ICARA at 42 U.S.C. §11603(a).

Conclusion

The petition is granted for the return to the United Kingdom of the parties’ children,
identified as “O.U.” born in 2009 and “N.U.” born in 2011. Counsel for the parties shall meet
within seven days of receipt of this order and confer about reasonable conditions and timing for
the effectuation of this decision. By May 18, 2012, petitioner Chizoba Christopher Uzoh shall
submit a proposed order effectuating this ruling. Respondent Chidinma Akachi Uzho shall file
objections to the petitioner’s proposed order or additional suggestions by May 28, 2012. A
hearing is set on June 5, 2012 at 9:30 a.m. for entry of a final order implementing this decision.

The parties shall be prepared for prompt compliance with this decision, as required by the

Hague Convention. The court shall release the children’s passports in accordance with the

13