The case relating to a Hague Convention application for child custody, which saw a Zimbabwean model being imprisoned of her husband’s alleged hand, has seen Priscilla Chigariro winning her child back.
In the Allen Gessen vs Priscilla Chigariro, case, Gessen had applied for child custody in Zimbabwe saying this is because the mother is in jail.
The case has three different application parts
In March, Gessen was interviewed by ZimEye over allegations of imprisoning his child’s mother.
In the latest development, the High Court had ruled that the United States cannot determine the parental rights of a minor child in the case involving the estranged partners.
The application was brought in terms of the Child Abduction Act as read with Article 15 of The Hague Convention on the Civil Aspects of International Child Abduction, which is the first schedule to the Child Abduction Act (The Hague Convention).
Chigariro brought the child to Zimbabwe from Russia in November last year without the consent of his partner, prompting Gassen to approach the High Court.
He sought a declaratory order that the removal of the minor child from Russia and its retention in Zimbabwe was unlawful and wanted her to be sent to the US for determination of the parties respective parental rights.
The child was born in Russia through surrogacy arrangement, as the mother could not carry pregnancy to the term because of medical health issues.
After hearing submissions from both parties’ counsel, Justice Ester Muremba dismissed the application by Gassen, finding that at the time the child was removed from Russia, she had no habitual residence there and the parties never intended to have their child stay in Russia.
In this regard, she ruled that Gassen claim that Chigariro breached his custody and access rights to the minor was untenable.
Justice Muremba said the child could not be sent to the US when it was not the child’s habitual residence before her removal to Zimbabwe.
Though Gassen wanted the US to decide the parental rights of the parties over the child on the basis of the Hague Convention, Justice Muremba disagreed saying the convention would have been applicable if the child had been wrongfully removed from the US.
“That the USA was the intended child’s habitual residence by the parties as parents of the child does not entitle the bringing of an application under the Hague Convention,” she said.
“In order for applicant to enforce what he says the parties had agreed upon that the child be raised in the USA, the applicant ought to have used a different cause of action instead of The Hague Convention.”
The convention is designed to protect children from harm in cases of wrongful removal or retention by securing their prompt return to the State with which they had the strongest connection.
An order granted under the convention is a return order, which is designed to restore the status quo that existed before the wrongful removal or retention of a child.
In this case, the child’s habitual residence immediately prior to the abduction would provide the most appropriate forum for a determination of parental rights.
Justice Muremba said even if she had made a finding that Russia was the child’s habitual residence at the time that she was removed from there to Zimbabwe, all she could grant was a declaratory order that her removal was wrongful.
She would not be inclined to allow the consequential relief that the child be sent to the US for determination of the parental rights.
“Such an order would not be consistent with the purpose of the Convention, which is to restore the status quo,” said Justice Muremba.
In his application, Gassen argued that the parties, who are on separation, had agreed to have their children raised in the US, where their son has already settled in the American system.
He argued that contrary to the parties’ agreement, Chigariro had wrongfully kept their daughter in Zimbabwe and registered the child in the country using fraudulent documents.
On the other hand, Chigariro averred that the Russian court declared her to be the mother of the minor child.
She argued that since the child was born out of wedlock, she had the full parental rights, which could only be interfered with by Gassen obtaining a court order.
Chigariro denied ever entering an agreement with Gassen to relocate to the US and the claims of fraud levelled against her. -Herald/Additional reporting